SUICIDE BY COURT.
Schriro V. Landrigan, U.S. Supreme Court, May 14, 2007. Justice Thomas delivered the Opinion of the Court Joined by Roberts C.J., Scalia, Kennedy and Alito JJ. Stevens, J., Filed a dissent in which Souter, Ginsburg, and Breyer, JJ., Joined.
JUSTICE CLARENCE THOMAS
Jeffrey Landrigan was convicted of felony-murder in an Arizona state court. At the penalty phase of his trial he refused to allow his counsel to present mitigating circumstances in the form of testimony by his birth mother and his ex-wife. Further his counsel failed to have psychological testing done for the penalty phase of the trial. Landrigan was belligerent when asked by the court if he wished to have mitigating circumstances brought to its attention in the form of testimony by his birth mother and his ex-wife
He told the Judge, “Not as far as I am concerned.” He further blocked his counsel’s proffer of evidence that his birth mother had used drugs and alcohol when she was pregnant with him and that he had held a legitimate job.
He told the judge, “I think you want to give me the death penalty. Just bring it right on. I am ready for it.”
The trial judge found two statutory aggravating circumstances: first that Landrigan murdered in the expectation of pecuniary gain (nothing was taken from the apartment where the murder took place however it was inferred since Landrigan searched the apartment he was looking for something to steal. Thus the felony murder rule was invoked), further that Landrigan had committed two violent crimes previously. In addition the judge found two mitigating factors, that Landrgan’s family loved him and the absence of premeditation. Then the judge invoked the death penalty.
On appeal the Arizona Supreme Court upheld Landrigan’s sentence and conviction unanimously. An Arizona post conviction hearing by the same trial judge five years later determined that Landrgan could not demonstrate that he had been prejudiced by any error his counsel may have made.
In an habeas corpus petition the Federal District Court found that Landrigan was not prejudiced by any error his counsel may have made and that because he could not make even colorable allegations of ineffectiveness of counsel the District Court denied him a factual hearing on that issue.
The Ninth Circuit Court of Appeals, en banc, reversed saying that trial counsel did little to prepare for the sentencing aspect of the case, that there was a wealth of mitigating circumstances and that Landrigan’s last minute decision not to let his birth mother and ex-wife testify did not excuse his counsel failure to conduct an adequate investigation prior to sentencing.
The Fact That Landrigan Had Organic Brain Damage Was Not known At The Time Of Sentenceing
Justice Thomas does not mention in his opinion that Landrigan’s psychologist failed to conduct adequate tests that would have indicated that Landrigan had organic brain damage at the time of his crimes and sentencing and that this was mitigating evidence unknown to the court. Indeed Justice Thomas fails to point out that no psychiatric testimony was presented in his behalf at his sentencing hearing at all. These facts were brought out by Justice Stevens in his dissent.
The dissent does note that Landrigan was seen by a psychologist in preparation for sentencing but no neuro-psychological testing was completed. Perhaps Landrigan didn’t cooperate, but the psychologist was not called to say this and if he didn’t cooperate his conduct could have been analyzed as irrational, not normal or the product of brain damage caused by his birth mother’s drinking and drug use during pregnancy. Later after sentencing he did undergo neuro-psychological testing and this revealed organic brain damage.
Thus Landrigan was mentally impaired at the time of his trial and sentencing and his counsel failed to have the customary psychological tests to determine his mental abilities at the time of his sentencing. This was one of the significant reasons why the Ninth Circuit granted Landrigan a factual hearing on whether he received adequate representation at his trial.
Justice Thomas omits this crucial fact in his opinion and denies Landrigan a factual hearing on the issue of effectiveness of counsel and lets the death sentence stand.
Justice Stevens based his dissent in great part on this fact and the fact that not even Landrigan knew of his brain impairment at the time he made his last minute waiver of mitigating evidence. According to Justice Stevens, Justice Thomas’ opinion was based on his parsimonious appraisal of a capital defendants constitutional right to have the sentencing decision reflect all meaningful consideration of all relevant mitigating evidence.
Justice Thomas allowed Landrigan, a brain impaired defendant, to commit suicide by court.
One has to ask why Justice Thomas and those that were in the majority ignored that there was evidence unknown to the sentencing court that could have been produced by diligent counsel that Landrigan was brain impaired at the time of all his crimes and also at the time of his alleged waiver in court.
It seems that justice demands that he be allowed a factual hearing in the district court as to the issue of whether he was denied competent counsel and entitled to a new sentencing hearing. Did the majority put policy considerations before factual realities? Justice Thomas mentions that this case raises no constitutional issues but he does point out that The Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) does not change the District Court’s discretion to grant a habeas corpus evidentiary hearing. However it did limit that discretion to state court decisions that were contrary or involved an unreasonable application of established Federal law. He also points out that the Federal District Courts don’t have the time to hear factual habeas corpus hearings. Justice Stevens points out that even before the AEDPA District Courts held evidentiary hearings in only 1.17% of habeas corpus petitions. So court work load and congestion was not a viable reason to deny Landrigan a hearing.
Landrigan Is On Death Row Because His Constitutional Rights Were Not Protected By The Majority.
Justice Stevens points out a constitutional right to have effective counsel present all meaningful mitigatating evidence at sentencing has been denied here.
Justice Thomas has denied Landrigan a fundamental constitutional right to effective counsel for the purpose of expediting the imposition of the death penalty a policy decision made long ago when Rehnquist was Chief Justice. However before one follows a policy it should be supported by the facts in the case at hand.
The Court Grants Summary Judgment On Inadequate Evidence
The Court decided Scott v. Harris involving a police vehicle chase ending when the police officer, Scott, rammed the fleeing vehicle, driven by Harris, at high speed.
Victor Harris, a nineteen year old with no prior record, was speeding on a four lane divided highway at 73 mph in a 55 mph zone. The police activated their lights and signaled him to stop instead he fled. The chase continued onto a two lane highway near Harris’ home. Multiple police cars were involved. The chase at some points exceeded one hundred miles per hour with Harris passing cars on the left in the center median and over a double yellow line.
Timothy Scott was a young officer who joined in the final stages of the pursuit and he radioed for permission to execute a Precision Intervention Technique (PIT) a law enforcement approved maneuver to bump the left rear corner of the vehicle and cause it to spin out to a stop. After receiving authorization for the PIT maneuver Scott who thought it was too dangerous to execute because of the speeds of the vehicles involved decided to ram the Harris vehicle more directly. This was not a recommended maneuver to end a high speed chase and is not in the police manuals for the conduct of a chase. As a result of the ramming Harris lost control of his vehicle. Previously he had been in control of his vehicle slowing at turns, giving turn signals, passing only when it was clear to do so, and slowing down and waiting until it was clear to pass. As a result of the high speed ramming Harris went off the road and overturned with the result that he is now a quadriplegic.
The Federal District Court and the Federal Court Of Appeals both denied Scott’s motion for summary judgment based on the ground of qualified immunity. In other words that he used deadly force reasonably under the circumstances because Harris’s activity exposed other motorists, bystanders, the police and himself to great bodily injury in the chase.
Further The Facts Advanced By Scott By Themselves Indicate He Acted Unreasonably
Who Pays For Harris’ Likely twenty Year Medical Care? The Taxpayers: Local And Federal.
Scott V. Harris. The Supreme Court Paves The Way For A New Blood Bath.
Harris argued that he was always in control of his vehicle before he was rammed that he was not a threat to anyone and that his only crime was that of a speeder, an infraction in most jurisdictions or a misdemeanor at best. Therefore his Fourth Amendment constitutional right against unreasonable search and seizure was violated by the deadly force of the ramming. . The ramming took place at a time when the two lane road was cleared of other traffic and there were road blocks ahead and at adjoining side streets.
Justice Scalia wrote the decision for the majority and Justice Stevens wrote the sole dissent. Justices Ginsberg and Breyer wrote concurring opinions pointing out no constitutional question was involved just the determination that as a matter of law Scott’s conduct was reasonable.
Justice Scalia was impressed by the police video of the chase. The decision doesn’t give much technical description of the tape self. We are not told if the speed of the video was altered or if the tape had been edited. Indeed the decision does not mention if all the tape available was incorporated into the decision. Frequently those introducing a video or tape shoot many more minutes than is introduced. The tape made available to the Court was made part of the decision and it can be seen at the Supreme Courts website or on You Tube.
Justice Scalia in his opinion keeps referring to the danger to other motorists and bystanders and thus the reasonableness of the officers use of an orthodox, unapproved maneuver to ram the Harris car time when the road had been cleared ahead and their were road blocks ahead. At the time of the use of deadly force there was no compelling reason to do so because no one was in danger except perhaps Harris who up to this point had his car under control and was headed for a road block so the chase was about to come to and end. Justice Scalia doesn’t mention the use of spike strips to blow out the tires of the fleeing car as usually done in these types of chases. This method is much safer and saves lives and property and therefore and it would appear that the ramming was unreasonable if a safer method to bring the chase to an end was available.
The interesting aspect of this case is that Justice Scalia and those voting with him became the decider of fact despite the ruling of two lower courts who reviewed the same materials and stated that there was a question of whether the use of deadly force was reasonable and that it was a jury question.
Justice Scalia makes many assumptions to justify the use of deadly force that are subjective and not supported by the known facts. He doesn’t review other reasonable alternatives like a spike strip or discuss other measures the police have developed since the police lost their total immunity from liability in the Seventies because of the deaths and injuries caused by these pursuits to the public, the police and the person pursued. This case offers no testimony by experts on the subject of the proper method to conduct a chase nor is there any mention of the procedure to conduct a chase followed by Scott’s department. No testimony was introduced of the statistical history of the injuries and damage done by high speed pursuits and the conditions under which they occur. Also no expert testimony is offered as to the need for a high speed chase of a motorist who refuses to stop for an infraction when his license plate is known as in this case.
Justice Scalia says he was scared by the police video and on that basis grants the summary judgment in favor Scott. Thus the Court was the decider of the fact that Scott acted reasonably based on the police video and the assumptions and inferences Justice Scalia makes without benefit of expert testimony on police procedure and conduct in chases.
If it is true that when Scott Rammed Harris it was late in the chase and the road ahead has cleared and blocked as Scott states in his moving papers then there was no reason for him to use deadly force. No one was at risk except Harris and either the blockade would stop him or a spike strip would have stopped his vehicle. Therefore there as no reason to use deadly force and it was unreasonable. The summary judgment was not supported by the moving papers or video. Justice Scalia didn’t have to consider Harris’s allegations which he dismissed as unfounded because they conflicted with the video tape to find the use of deadly force was unreasonable.
This seems to be an abandonment of due process by basing a decision on a limited non expert viewing of a very poor video tape and ignoring the fact that there was no need to use deadly force because no one was at risk but Harris or at least a jury could reasonably come to that conclusion.
The police lost their total immunity in Seventies because the great number of deaths and injuries caused needlessly by these chases the participation in which seem to excite the police as the video seems have excited Justice Scalia in reaching the conclusions he has in this case. Further in the Seventies there was a public outcry in the media about the needless injuries and destruction caused by police chases. CBS’ Sixty Minutes, for one, aired eyewitness accounts of people who had been severely injured or whose loved ones were killed by a chase conducted in an unreasonable manner. That is when many state courts took total police immunity away and made police departments liable for damages unless they acted as reasonably prudent law enforcement agencies with published manuals and training on when to chase and how to do so safely.
Now a minor traffic violation can be raised the level of an incident where the use of deadly force is warranted because the traffic violator does not stop. Thus the police are acting reasonably when they chase creating greater danger and use deadly force on a teenager guilty of an initial infraction?
The police developed many chase techniques which are safer after they found they could be liable in damages for an improperly conducted high speed chase. Thus many deaths and injuries have been avoided. Justice Scalia does not rely on an expert familiar with these techniques.
This decision encourages a cowboy mentality in the conduct of these chases which will only increase the amount of deaths, injuries and destruction. Instead of protecting life and property as should be the focus of the Court this decision does the opposite.
In this case Harris’ medical care for his twenty year life expectancy will be paid by the County with help from the Federal Medicare. This will amount to around fifteen million dollars in todays dollars. Dollars that that could have been spent on other public needs in the County like police services.
Many people feel Harris’ got what he deserved but if the matter was handled by the police without serious injury Harris probably would have become a taxpaying productive member of society instead of a drain on County and Federal resources
Justice Scalia and the majority rushed to a decision affecting every chase in the United States with too little input from chase experts and no review of the statistical history of chases over the last forty years. Also there appears to be strong evidence in the moving papers that Scott acted unreasonably.
Read anecdotal evidence of the more than 2500 innocent bystanders, many of them children, killed by needless police pursuits in recent years go to