Thursday, January 11, 2007

Things I learned . . .

I just came back from the American Association of Law Schools Annual Meeting. In addition to many great sessions on law school related topics (i.e. law school rankings, academic freedom, strategies for publishing, etc.), there were several great substantive sessions. I thought I would relate a few that I thought might be interesting to readers of this site (all three of you!).

One session was on international human rights law and its potential use in cases in the United States. The panel was directed toward the use of many tools in many types of cases, not just criminal. But I think there could be useful nuggets in here for us. Sandra Babcock, now a law professor at Northwestern, was on the panel and I have heard her talk about Vienna Convention issues before (i.e. the right to consular notification for citizens from other countries upon arrest in the United States). In addition, she noted that they are currently doing work in the Interamerican Commission on Human Rights on juveniles who get LWOP. So, I guess the message for me was, am I even thinking about international law in my practice? If not, why not? I know there have been some recent SCOTUS cases that have made it somewhat more difficult to see a clear remedy, but even only if for persuasive authority these treaties could be useful. And maybe we could argue that even if not self-executing, Kansas statutes provide a remedy? In any case, I challenge you to at least read the International Covenant on Civil and Political Rights (accessible here) and think about it a little. Maybe your case can go to an international tribunal some day!

A second session involved mental health issues, especially in capital cases: a discussion of Clark v. Arizona, a 2006 SCOTUS case that the experts noted seriously muddied the law of evidence related to insanity/mens rea issues. This is not an area that I have looked at in depth, but my conclusion was that if you think you understand these issues, you're crazy (pun intended). I think the burden is pretty high on practitioners who have clients with mental health issues. Just because Kansas "abrogated" the insanity defense does not necessarily mean that evidence of insanity is inadmissible. And ironically, almost exactly while I was setting in this section, the SCOTUS granted cert on an issue (discussed briefly in the session) involving whether a state can execute an incompetent person (i.e. if a person doesn't understand why he/she is being executed, can the state execute?) See Panetti v. Quarterman, Docket No. 04-70045, cert granted Jan. 5, 2007 (here is the question presented).

Finally, I went to an interesting session on child testimony after Crawford. As I recently blogged about here, we just filed a cert petition on whether Maryland v. Craig (allowing denial of face-to-face confrontation if child would be traumatized) is still good law after Crawford. Most of the experts seemed to sort of assume that Maryland v. Craig would survive, but I never heard any reasoned basis for that conclusion. Maybe it just wasn't the topic for discussion. But I was more energized than ever!

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