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How the Supreme Court handles death cases

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Supreme Court of the United States decisions to allow inmates to be put to death or to grant a rare reprieve often come at the last minute, and sometimes after the appointed hour of execution has come and gone.

That was the case Tuesday night in Georgia, where Marcus Wellons was pronounced dead just before midnight, nearly five hours after he was scheduled to be executed.

But there is less mystery to the high court process than one might think:

The "death clerk"

The justices and their clerks know well in advance when executions are scheduled and where. A court official informally known as the death clerk sends around a weekly update and is in frequent contact with lawyers for inmates and the states as the date of execution nears.

As lawyers for condemned inmates press the case for delay in state and lower federal courts, the Supreme Court receives information about developments and, eventually, copies of those decisions.

Late filings

Very often those lawyers bring those arguments or similar ones the highest court in the country in a final attempt to save their clients' lives. On Tuesday, for instance, lawyers for Wellons and the state of Georgia were filing legal papers at the Supreme Court well into the evening.

The justices' rejection of Wellons' various appeals was issued roughly an hour after the last filing was submitted. And Wellons was executed just over an hour later.

Fateful decisions

When an emergency appeal reaches the Supreme Court, it is directed to the justice who oversees the state in which the execution is scheduled. But death penalty appeals almost always are referred to the entire court.

The justices typically do not meet in person to discuss these cases, but confer by phone, and sometimes through their law clerks, according to the court's guide to emergency applications.

It takes five justices, a majority of the court, to issue a stay. The overwhelming bulk of last-minute appeals are denied, and often without comment.

Occasionally, one or more justices will dissent from the decision to let the execution take place. Even more rarely, a justice will explain why.

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  1. So that none are misinformed by my posting wihtout a non de plume here, please allow me to state that I am NOT an Indiana licensed attorney, although I am an Indiana resident approved to practice law and represent clients in Indiana's fed court of Nth Dist and before the 7th circuit. I remain licensed in KS, since 1996, no discipline. This must be clarified since the IN court records will reveal that I did sit for and pass the Indiana bar last February. Yet be not confused by the fact that I was so allowed to be tested .... I am not, to be clear in the service of my duty to be absolutely candid about this, I AM NOT a member of the Indiana bar, and might never be so licensed given my unrepented from errors of thought documented in this opinion, at fn2, which likely supports Mr Smith's initial post in this thread: http://caselaw.findlaw.com/us-7th-circuit/1592921.html

  2. When I served the State of Kansas as Deputy AG over Consumer Protection & Antitrust for four years, supervising 20 special agents and assistant attorneys general (back before the IBLE denied me the right to practice law in Indiana for not having the right stuff and pretty much crushed my legal career) we had a saying around the office: Resist the lure of the ring!!! It was a take off on Tolkiem, the idea that absolute power (I signed investigative subpoenas as a judge would in many other contexts, no need to show probable cause)could corrupt absolutely. We feared that we would overreach constitutional limits if not reminded, over and over, to be mindful to not do so. Our approach in so challenging one another was Madisonian, as the following quotes from the Father of our Constitution reveal: The essence of Government is power; and power, lodged as it must be in human hands, will ever be liable to abuse. We are right to take alarm at the first experiment upon our liberties. I believe there are more instances of the abridgement of freedom of the people by gradual and silent encroachments by those in power than by violent and sudden usurpations. Liberty may be endangered by the abuse of liberty, but also by the abuse of power. All men having power ought to be mistrusted. -- James Madison, Federalist Papers and other sources: http://www.constitution.org/jm/jm_quotes.htm RESIST THE LURE OF THE RING ALL YE WITH POLITICAL OR JUDICIAL POWER!

  3. My dear Mr Smith, I respect your opinions and much enjoy your posts here. We do differ on our view of the benefits and viability of the American Experiment in Ordered Liberty. While I do agree that it could be better, and that your points in criticism are well taken, Utopia does indeed mean nowhere. I think Madison, Jefferson, Adams and company got it about as good as it gets in a fallen post-Enlightenment social order. That said, a constitution only protects the citizens if it is followed. We currently have a bevy of public officials and judicial agents who believe that their subjectivism, their personal ideology, their elitist fears and concerns and cause celebs trump the constitutions of our forefathers. This is most troubling. More to follow in the next post on that subject.

  4. Yep I am not Bryan Brown. Bryan you appear to be a bigger believer in the Constitution than I am. Were I still a big believer then I might be using my real name like you. Personally, I am no longer a fan of secularism. I favor the confessional state. In religious mattes, it seems to me that social diversity is chaos and conflict, while uniformity is order and peace.... secularism has been imposed by America on other nations now by force and that has not exactly worked out very well.... I think the American historical experiment with disestablishmentarianism is withering on the vine before our eyes..... Since I do not know if that is OK for an officially licensed lawyer to say, I keep the nom de plume.

  5. I am compelled to announce that I am not posting under any Smith monikers here. That said, the post below does have a certain ring to it that sounds familiar to me: http://www.catholicnewworld.com/cnwonline/2014/0907/cardinal.aspx

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