Posted on 02/02/2006 1:54:21 AM PST by Bullitt
"A stay of execution should first be sought from the court of appeals, and this Court generally places considerable weight on the decision reached by the courts of appeals in these circumstances. " BAREFOOT v. ESTELLE, 463 U.S. 880 (1983)
http://caselaw.lp.findlaw.com/cgi-bin/getcase.pl?navby=case&court=us&vol=463&invol=880#895
U.S. Supreme Court
KEMP v. SMITH , 463 U.S. 1321 (1983)
463 U.S. 1321
Ralph M. KEMP, Superintendent, Columbia Diagnostic and Classification Center
v.
John Eldon SMITH.
A-133.
Aug. 24, 1983.
Justice POWELL, Circuit Justice.
Respondent Smith, a convicted murderer, is scheduled to be executed by the state of Georgia at 8:00 a.m. tomorrow, Thursday August 25.
At about 5:25 p.m. on August 23, the Court of Appeals for the Eleventh Circuit-reversing the district court-granted a stay of execution. Its brief opinion stated that substantial issues were raised in this habeas corpus proceeding that justified review of their merits. Judge Hill dissented. At about 10:00 a.m. today, the Attorney General of Georgia filed an application with me as Circuit Justice requesting that I dissolve and vacate this stay. A response to this application was received this afternoon in my chambers at about 3:00 p.m.
This is the fourth time that this capital case has required action by this Court: once on direct appeal, once on state habeas corpus, once on federal habeas corpus, and now in Smith's second federal habeas proceeding . Apart from rehearings, this case has been reviewed sixteen times by state and federal courts since Smith's conviction in 1975. In these circumstances, and for the reasons stated by Judge Hill in his dissenting opinion below, it is not clear to me that the Court of Appeals is correct in thinking that substantial issues may remain for further consideration.
But in the present posture of the case, the question before me as Circuit Justice is whether the Court of Appeals has [463 U.S. 1321 , 1322] abused its discretion in granting a temporary stay pending a hearing on the merits. I am not able so to conclude. It is apparent from the papers presented that the Court of Appeals heard arguments at some length on yesterday afternoon. Moreover, and quite properly, that court has provided for an expeditious hearing on the merits.
Accordingly, the application of the state of Georgia to vacate the stay ordered by the Court of Appeals is denied.
http://caselaw.lp.findlaw.com/cgi-bin/getcase.pl?navby=case&court=us&vol=463&invol=1321
thanks for posting that.
I don't fault him for wanting to know more, but the core of my argument is that the big intellect and decision-making power we were assured he would bring to the court failed him and us. He stated in his hearings that he supported the rule of law. Well, in whatever state this murderer is in, they have a law outlawing murder and they have another law authorizing lethal injection as the means of executing convicted murderers. Murderer was tried, convicted and sentenced to die for his crime in accordance with the laws of that state. So, we start out with Alito proclaiming in his hearings that he supports the rule of law and promptly turning his back on it. Where is the justice in this decision for the victim?
But, I'll give him a pass on that. The court is going to re-hear the whole lethal injection nonsense later on anyway, so we might be able to ignore that, except . . . . . . . . . . . . a very BIG except. The law in the US works from legal precedent and, until the lethal injection argument is heard and decided, the precedent has been established by Alito's vote that, essentially says, lethal injection IS an Unconstitutional, cruel and unusual punishment. Now we have a new legal precedent that has been established by none other than the Supreme Court of the United States. This isn't the loony ninth circuit court of appeals that we love to hate, here, this is THE highest court in the land that we conservatives have diligently worked to gain control over since Bush was first elected.
If Justice Alito is such a believer in the rule of law AND if he felt that he was ill-prepared to rule on the merits of the case, his big intellect should have told him to recuse himself. That's fair. I wouldn't jump on his case if he had done that. Instead, for whatever reason, on his very first vote on the Supreme Court, he turns around and spits in conservatives' eyes (the same conservatives who worked very hard to get him to the SCOTUS).
Meanwhile, the murderer's victim is still dead and awaiting the day he gets justice. There's no question that the guy murdered his victim, there's only a question of whether or not gently putting him "to sleep" as a means of sending him to his eternal, celestial dirt nap is cruel and unusual punishment.
If the whole thing weren't so disgusting, his victim would be laughing in his grave. In the meantime, until we have a ruling from the SCOTUS on the lethal injection issue, this bag of filth is still sucking air, as will other murderers condemned to die by lethal injection. For my money, I'd just as soon they bring back hanging or ole sparky. Murderers deserve to suffer every bit as much as their victims.
Abortion again drives the direction of decisions related to killer....I mean victims rights. The term victim is getting gray here.
Thanks again liberals for your PC perversion.
ROFLMAO!! He didn't spit on any conservatives eyes. He spit in the general direction of the liberals, who have utter contempt for the Constitution and what's written in it.
Besides, the media has been misreporting this whole case from the outset.
You misread, or I mis-stated. Are you an attorney, or have understanding of the law? Any appeal to the USSC is not about a person, it is about "THE LAW". It is based on legal "theory". Judge Alito did not set anybody free. He looked at the facts and law before him, and most-likely made his decision based upon his understanding, thereof. He has a long record which shows that to be his way of doing things.
When a suit is filed, or a warrant drawn, it sets things into motion. If not thrown out for lack of basis, they proceed to trail, where judges and juries hear the FACTS. Those facts are then clarified to fit a particular statute or law, so as to define guilt,innocence, or responsibility. It is up to a judge, or jury, to fit the evidence (facts) to the law, and decide. A jury decision is more
After the trial, the attorneys review the record, and try to find things which may give rise to an appeal. Appeals do not always set people free, they just allow the arguments to be heard, and most often send the case back for retrial, or redefinition.
I am in court, now, prosecuting a civil case in Federal Court. I am not a lawyer, and have no formal legal training. But, I have been in the books constantly for almost two years, trying to learn how to properly present my set of facts to the law, as a pro se plaintiff.
Thankfully, Federal Courts allow "pro se" (self-represented) folk a little more latitude than attorneys. I hope the other side decides to settle (and it looks close), because I am not sure whether I wish to go before the Supremes...
see my #129. I guess you are pro- Judicial activism, huh? Do you want him to make law?
If, as some have suggested, he isn't learned of the case now, he will be when this case comes back to him from the 8th Circuit.
This knee-jerk attitude of some on FR is unwarranted and just plain goofy.
...and the question before the case is whether the STATE law stands in the face of the rights granted to every United States citizen, by our founding fathers. that is the question, not murder. Chill... and learn!
Yes I am a lawyer. As best I can tell, Alito, Roberts, and the Clinton appointees voted to expend taxpayer $$$ to keep murderous punks alive to consider the "legal theory" that execution by lethal injection violates the Eighth Amendment. Bush is 0-2, based on what I have seen so far, although more votes will be required to reach a definitive conclusion, of course.
If FreeRepublic were inhabited by genuine conservatives, they would be burning down the White House (figuratively, with letters, calls and protests) to make sure we get a real conservative next time. Then we would still be down 4-5, but all hope would not be lost of restoring the Constitution.
So, you are a lawyer, and an expert. As such, you should do a better job for your jury. All I see on your posts are rants, and posturing.
Please enlighten us where he disagreed, or mis-interpreted, with the law. I am not a lawyer (as previously stated) and don't have such a view. You have not given any evidence to convince me, your juror, that they have done the ills you claim.
Which part of the Constitution do you think they overlooked?
Learn what? Your opinion. It is clear that you haven't any facts! This does not change any definitions. It REMANDS the case for clarification.
It's the LAW!
REMAND - When an appellate court sends an appealed case back to the trial court for further action, the case is said to be remanded. This usually happens if the trial judge has made an error which requires a new trial or hearing. For example, assume that a trial court refuses to allow a party to introduce certain evidence (believing it to be inadmissible under the hearsay rule). If the appellate court decides that the evidence should have been admitted and that the exclusion of the evidence was prejudicial to the party offering it, the appellate court would likely remand the case for new trial and order the evidence introduced.
To send back or recommit. When a prisoner is brought before a judge on a habeas corpus for the purpose of obtaining his liberty, the judge hears the case and either discharges him or not; when there is cause for his detention, he remands him.
When an appellate court sends a case back to the same court out of which it came for the purpose of having some action on it there. -courtesy Lectlaw (the "Lectric Law Library")
The common sense part. I regard claims that death by lethal injection is cruel and unusual punishment under the Eighth Amendment as utterly frivolous. As I understand it, and I could be wrong, the Eighth Circuit stayed the execution to consider this frivolous claim.
The State of Missouri sought then sought relief from the Supreme Court, arguing, in substance, why are you interfering with our sovereign processes to let these evil murderers litigate a frivolous claim. Alito and Roberts both denied relief to the State of Missouri. This is not an action that I think any genuinely conservative judge (of which there are only 2-3 on the Supreme Court) would take.
When you see the truth, and you see that most other people are blind to it, it tends to make you rant. But the facts are the facts, at least as reported so far.
The common sense part. I regard claims that death by lethal injection is cruel and unusual punishment under the Eighth Amendment as utterly frivolous. As I understand it, and I could be wrong, the Eighth Circuit stayed the execution to consider this frivolous claim... -IC2
I agree that common SENSE would allow us to get rid of every thug, immediately. We should pull speeders over and shoot them. People would quickly stop speeding. It is the justice meted out in the old west. However, we are not dealing with 'common sense", nor the old west. Our system of "justice" has been slowed by overburdened calendars, and increasing populations.
You are claiming to be a lawyer, so give us the LEGAL cites for your "opinion". The convicted man's lawyer evidently made some good points. You have made NONE!
I suggest you haven't any. If you were truly an attorney, you would not be stating your frivolous claims. You would be laughed out of Court...
This court rejects them, too.
OK, so why do you think the Constitution prohibits a state from executing by lethal injection? What's the argument? That death sentences are "unusual" because the Commies have gummed up the courts with dozens of appeals in every case? I remain mystified as to any non-frivolous basis fo for the Constitutional claim.
Please state your LEGAL arguments. You said you are a lawyer, so prove it. I think you are full of it...
BTW, I have never stated I agreed nor disagreed with the decision. I have not looked at it. I have been too busy getting a complaint ready to file, and work on interrogatories for two others, in the US District Court, Martinsburg, WV.
I'm not a lawyer, but play one in that court!
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