SCOTUS – Another Near Miss (Updated.)

Irish v. Cain.  The ScotusBlog page for the case is here.

Somebody at the SCOTUS is interested in this false testimony/fabricated evidence/due process issue.  You know, the issue we discuss around here a lot because, well, we know more about it than just about anyone in the country?

You can read the briefs, but I wouldn’t bother.  Nixon Peabody represents the death row guy (pro bono credit, doncha know) but they didn’t get a real good handle on the Mooney-Pyle-Napue-Brady thing, which is fine because it probably wouldn’t have helped their case any.

The significant thing is not really the case or the quality of the briefs (which isn’t very good) but that it got a lot of attention from someone at the SCOTUS anyway, having been rescheduled and then relisted three times.  Could be only one Justice is interested.  Could be more than one.  That can’t be known at this point.

Might even be Thomas.

Also noteworthy is that it got all this attention when it’s not in the posture the SCOTUS normally takes seriously; that is, the Petitioner was the disfavored litigant (death row inmate v. government) and had uniformly lost on the way up.  SCOTUS is very, very unlikely to take a hard look at a case like that.

So, for at least one Justice up there, interest in this issue is very, very high.  They’re just looking for the right case.

Update:  Meanwhile, this is interesting.

We reviewed Bower v. Texas almost two months ago, largely to criticize the Petitioners for not having a good enough handle on the issue they really want to stress.  Nevertheless, however poorly presented, the issue is in there (they cite Napue).  And it’s getting a serious look, even though like the Irish v. Cain case we just reviewed here, it’s not the usual posture the SCOTUS likes to see; that is, the Petitioner is the poor schmuck and he’s lost everything all the way up.

To review again briefly, we know it’s getting a serious look because it’s been “relisted” several times, and as of this writing the SCOTUS supposedly conferenced it on January 23rd and there’s been no further word.

Again, there’s someone at the SCOTUS who is really honing in on this issue and we have to think whoever it is has been reading over here because we’re basically the only place the issue otherwise gets any play, for some reason or reasons that remain obscure to us.

Off the cuff take:  Personally, we don’t like Bower for this because the Petitioner didn’t brief the issue very well, and because it’s a death penalty case, which clouds everything.  We prefer the issue to be better briefed and without the emotional baggage of the death penalty hanging over everyone’s head.

Nevertheless, if the SCOTUS takes this one up we will contact the Petitioner’s attorneys and lend what assistance we can.  The important thing is that this due process mess gets straightened out correctly, not how that happens or who does it.


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One response to “SCOTUS – Another Near Miss (Updated.)

  1. [*] Speaking for myself alone among the dissenters I find capital punishment repulsive, unproven to be an effective deterrent (of which the James case itself is illustrative), unworthy of a civilized society (except perhaps for deserters in time of war) because of the occasion of mistakes and changes in social values as to what are mitigating circumstances, and the brutalizing of all those who participate directly or indirectly in its infliction.

    So stated in NY People (respondent) v Davis (and James) – (appellants)


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