Thursday, April 27, 2006
Back from DC
Just got back from DC where I went to watch Rebecca Woodman re-argue the Marsh case at the SCOTUS. She did a spectacular job--she really looked comfortable and was really effective answering questions. Chief Justice and Kennedy were pretty hostile to Rebecca, but Stevens, Souter, and Ginsburg were great, especially Souter. Scalia was predicatably hostile to her postition, but I always think he asks questions in a very professional way. Breyer was conversational. Thomas as usual didn't say anything, but unless he is more interested in the jurisidictional questions than the rest of the SCOTUS appears, he would usually side with Scalia in a death penalty case. So, it comes down to Alito, who was very professional in his questioning of both sides and asked questions that made it seem like he really understood Rebecca's argument regarding the equipoise issue. So, who knows. We should see a decision by the end of June.
P.S. Phill did a pretty good job again. Although when the questioning got a little more involved, he was a little evasive. The difference between him and Rebecca is apparent when you're sitting in the courtroom with them together--he is working the room (i.e. politician)-- Rebecca is focused on the court and her client (i.e. attorney-advocate).
[Update: on June 26, 2006, the SCOTUS ruled 5-4 in favor of the state. Here is the decision. Even though Thomas never asked a single question at either argument, he turned out to be the author, which made the result rather predictable. I was especially disappointed that the SCOTUS totally blew off the jurisdictional issue--I thought this was supposed to be a big states' rights court but they didn't even recognize that under Kansas law, the state may have been able to later appeal the KSC's constitutional ruling after remand for a new trial. See State v. Scherzer, 254 Kan. 926, 869 P.2d 729 (1994) (allowing state's appeal of finding that statute violates Eighth Amendment).]
[Further update: on August 1, 2006, a day after the SCOTUS mandate was received by the KSC, Rebecca filed a motion for further briefing and argument about the proper disposition in the KSC. In particular, Rebecca argued that the KSC should now decide the state constitutional issues, which are still valid even after the SCOTUS decision.]
[Further update: on October 18, 2006, the KSC issued a supplemental opinion affirming in part and reversing in part and remanded for a guilt-phase trial, as originally ordered. Here is the supplemental opinion. The KSC didn't get to any of the state constitutional issues, but just remanded.]