Andrew Cohen

By Jeremy Leaming

Special interests are ratcheting up their efforts to influence the make-up of state courts, which handle the bulk of the country’s legal actions. These special interests, in large part, are riled over certain rulings of state courts in Iowa, Florida and a string of others, and willing to spend boatloads of money to change those courts. 

Recently this blog noted the 2010 effort by Christian rightists to unseat Iowa Supreme Court justices for their involvement in a 2009 opinion that invalidated a law barring same-sex marriage. (In Varnum v. Brien, the Iowa higher court said the law violated the state constitution’s equal protection clause.) The effort was led by groups, such as the National Organization for Marriage, the American Family Association and other religious groups bent on demonizing the LGBT community, in part by opposing equality efforts. That effort was successful in removing three of the Iowa State Supreme Court justices, and some of those same groups are gunning for another justice involved in the Varnum majority – Justice David Wiggins. The New York Times blasted the effort to oust Wiggins in a so-called retention vote on Election Day as a “battle over the future of a fair and independent judiciary.” The Times’ editorial went on to state that retention votes were meant to remove judges from the bench because of corruption or incompetence, not because of unpopular rulings.

In a panel discussion organized by Justice at Stake for this year’s Lavender Law conference, several of the panelists noted that state judges who have issued rulings in favor of marriage equality have often been the target of efforts to yank them from the bench. Lambda Legal’s Eric Lesh said courts nationwide “face real threats from well-funded, special interest groups that seek to politicize our judiciary and undermine the integrity of our justice system.”

It’s not just state court opinions advancing equality that are triggering threats to state courts.

by Jeremy Leaming

With an increasing number of states dispensing with or reconsidering capital punishment, the Columbia Human Rights Law Review (HRLR) has released an exhaustive issue, which should push more state lawmakers to join the discussion. The HRLR issue provides compelling and highly troubling documentation of the likely wrongful 1989 Texas execution of Carlos DeLuna.

As Andrew Cohen writes for the Atlantic the HRLR’s issue, “an astonishing blend of narrative journalism, legal research, and gumshoe detective work,” should be read, especially by Justice Antonin Scalia, who in a 2006 concurrence staunchly defended the integrity of capital punishment cases, saying they are “given especially close scrutiny at every level ….”

Since being reinstituted in the United States, Texas has executed more inmates than all other states, except for California and Florida, where the death row populations are higher. In the last five years, however, five states have chosen to abolish capital punishment, with Connecticut the most recent. Californians in November will consider a ballot measure to end the death penalty.

HRLR’s issue called Los Tocayos Carlos, provides a stunning account of a criminal justice system gone terribly awry, with prosecutors, witnesses, judges all faltering in ways that tragically bungled a capital punishment case. While these officials and actors ignored evidence to the contrary, the likely perpetrator, Carlos Hernandez, continued a life of violent crime after DeLuna was convicted and sitting on death row.

In a press release about the report, Columbia Law School Professor James Liebman, and lead author of the issue, said, “Carlos DeLuna’s execution passed with little notice. No one cared enough about the defendant or the victim [Wanda Lopez stabbed to death working at a convenience mart in Corpus Christi] to make sure they caught the right guy. Everything that could go wrong in a death penalty case did go wrong for DeLuna. Sadly, DeLuna’s story is not unique. The very same factors that sent DeLuna to his death – faulty eyewitness testimony, shoddy legal representation, prosecutorial misfeasance – continue to put innocent people at risk of execution today.”