Appellate Law

CA1: First Circuit resurrects death notice when government doesn?t follow rules

By S. COTUS

US v. Lopez-Matias, No. 07-1662. The government filed a notice that it wanted to kill someone. The District Court struck the notice saying that the government didn?t abide by its own rules regarding presentation of mitigating evidence, nor did it abide by local rules (requiring the filing of a certificate). 

The First begins by saying that to determine its jurisdiction, it is adequate to analogize between a dismissal and a death notice, even though it is ?imprecise.? 

Reading this decision is more painful than writing about it.  Read on.

The First says that there didn?t appear to be any prejudice. Of course, the First seems to always take the exact opposite view when a civil plaintiff doesn?t follow local rules. But hey, this is only someone?s life at stake.

The First says that the US Attorneys Manual Doesn?t create any rights, so any procedures to present mitigating evidence are unenforceable, so all the later questions about whether the government was so into killing the guy that they didn?t give his lawyer a real chance to present mitigating evidence don?t matter. But, they later backtrack and say that some ?systemic? violations of the manual might matter.  

The First closes with some flowery language about how when the government wants to kill someone ?threat of an execution does not transform criminal procedure into a tightrope, on which any misstep forfeits the government's right to seek the statutorily authorized punishment of its choosing.? Then the First says that it is ?mindful? of the effects that striking (or not striking) a death notice has on plea negotiations, but then acts like it isn?t ?mindful.?

I realize the First is bending here, but does it really need to refer to the government as having ?rights.? That is so high school. The government doesn?t have ?rights.? 

Full post as published by Appellate Law and Practice on April 10, 2008 (boomark / email).