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the dow blog

the new street corner, where nearly everyone can talk, and hardly anyone listens

how i lost one dollar to kate black (thanks to the court of criminal appeals)June 11

danielle simpson was executed in november 2009. in our judgment (here, "our" refers either to tds or, more narrowly, to kate and me) simpson suffered from severe mental illness. he had instructed his federally-appointed counsel, wes volberding, that he wanted to waive his appeals.

the federal district court held a competency hearing to determine whether simpson should be allowed to waive, but (again in our judgment) the hearing did not have the procedural protections it should have. for one thing, there was no one arguing that simpson was incompetent. wes believed simpson was competent to waive. where the appointed lawyer believes that, the best practice is for the federal court to appoint special counsel solely for the purpose of contesting competence. that procedure is what the federal court in connecticut, for example, followed when michael ross sought to waive his appeals.

when the issue went to the fifth circuit, the court of appeals affirmed the district court's finding of competency without even bothering to read the transcript. (how we determined this is a long story, but there is no doubt it is true: a federal court of appeals permitted a death row inmate to waive his appeals without reading the transcript of the competency determination. if it weren't texas and the fifth circuit, i would be stunned.)

from our review of simpson's medical records -- which, incidentally, the shrink who deemed simpson competent had not review

who should succeed justice stevens?April 21

There’s too much talk about what potential replacements for Justice Stevens believe. It is more important to consider what a potential Justice will do. And when it comes to action, the President would be well-advised to nominate someone who is the exact opposite of Justice Stevens.

In 1972, the Supreme Court struck down the death penalty. Four years later, just six months after Justice Stevens joined the Court, it was reinstated. Justice Stevens did not merely cast a vote. Rather, along with Justices Powell and Stewart, he crafted the decisive opinions that forged the fundamental principles of modern death penalty law.

Joining Justice Stevens in voting to bring the death penalty back was Justice Harry Blackmun. Yet two decades later, having permitted more than three hundred executions to proceed with his imprimatur, Justice Blackmun finally acknowledged that the death penalty regime is so deeply broken that it cannot be made fair. The system favors the rich over the poor; it values white skin more highly than nonwhite; it is far too frequently vitiated by police, prosecutorial, and even judicial improprieties. Justice Blackmun concluded that the only lawful and morally acceptable course is to oppose the deat

ten legal changes: number 10April 12

it's a parlor game to ask constitutional law professors what they would most like to change about the constitution. eliminating the electoral college usually gets the most votes.

the problem with fantasy football, however, is that it is, well, a fantasy. it overlooks the daunting real-life difficulty of amending the constitution.

it occurred to me that what might be more interesting than proposing quixotic constitutional improvements is to imagine changes that (at least arguably) do not require a constitutional amendment. so, for the next several months, that's my project.

here is proposal number 1: eliminate life tenure for federal judges.

now on the one hand, i adore justice stevens and wish he had stuck around for another term. on the other hand, he was appointed by president ford. even if ford had been elected, he would have still be elected more than thirty years ago. there is something deeply unsettling about having judges wield influence for so long.

yet the legal impediment to correcting this problem (if it is a problem) is that

my two predictions relating to the new super colliderMarch 31

now that the new super collider is operational, i have two predictions:

1 -- the higgs boson will be confirmed by new year's day 2012.

2 -- the miniature black holes created in the collider will not consume the earth, or even any parts of frances or switzerland, or even any scientists or technicians working nearby.

some of the posts on richard dawkins' website are pretty funny.

what year is it?March 23

i will say this: a hundred and fifty years ago, the lawsuit filed by a bunch of states today challenging the health care legislation would not have been absurd. today is a different matter. and i say that notwithstanding bush v. gore.

those with a high tolerance for pain and embarrassment should not hesitate to read the complaint, which the florida attorney general is apparently proud of.

there is almost no chance this challenge will reach the supreme court. but if it does, the federal government will prevail by a vote of 8-to-1.