Rainbow’s Point

nobody commented of course, and the paper has undergone revision.

the interesting development, though, is that i found the author working at a law firm in new york, and he agreed to take a look at my criticism of his paper and give me his thoughts.

what i’m sending him is substantially revised from what i posted here. i’ll re-post the paper when it’s finalized.

in my tuesday evening criminal justice class i’m required to find a “scholarly article” and comment upon it in a paper due at the end of the term in lieu of a final exam.

the paper i’ve written cites the article and gives a summary of its major points, and since it’s copyrighted i can’t reprint the article here. but if you have access to somewhere like westlaw or lexis you can find the article cited as 51 am. u.l. rev. 509 (2001). that is, volume 51 of the american university law review, page 509, published in 2001.

so here’s the paper so far.

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ANALYSIS OF “GUILTY AND GAY: A RECIPE FOR EXECUTION IN AMERICAN COURTROOMS: SEXUAL ORIENTATION AS A TOOL FOR PROSECUTORIAL MISCONDUCT IN DEATH PENALTY CASES”

“Guilty and Gay: A Recipe for Execution in American Courtrooms: Sexual Orientation as a Tool for Prosecutorial Misconduct in Death Penalty Cases” (51 Am. U.L. Rev. 309, Michael B. Shortnancy) is a look at the possibility that criminal defendants are subject to courtroom bias on the basis of sexual orientation, and that this bias sometimes results in constitutionally suspect sentences of death for defendants convicted of capital crimes.

The article, written in 2001 and so not taking into account some relatively recent legal developments in laws surrounding homosexuality, argues that there is an under-studied bias against homosexuals in American courtrooms. It cites two studies, in California and Arizona, suggest that more than 50% of homosexual court users experienced “negative comments or action,” and that 20% of California court employees and more than 75% of Arizona court employees have heard “negative remarks” about gays and lesbians.

The article then goes on to cite specific cases where anti-gay bias seem to have motivated juries, at least in part, to choose execution, and suggests that these instances should amount to reversible prosecutorial misconduct. In the case of Wesley Neill, the prosecutor’s closing argument directly and deliberately highlighted the defendant’s homosexuality (Shortnancy at 339, “… I’d like to go through some things that to me depict the true person, what kind of person he is. He is a homosexual. … You’re deciding life or death on a person that’s a vowed [sic] homosexual … . But these are areas you consider whenever you determine the type of person you’re setting [sic] in judgement on … . The individual’s a homosexual.”).

To date, at least as far as my research has led me, the Supreme Court has not ruled directly on whether these kinds of hostile environments in courthouses might amount to a violation of the Constitution’s Due Process or Equal Protection Clauses. Even so, several Circuit Courts of Appeal have ruled on the admissibility and appropriateness of comments about a defendant’s homosexuality, and it seems that the Circuit Courts are applying a fundamental misreading of the case law.

In Neill v. Gibson (278 F.3d 1044), a case cited by Shortnancy, the 10th Circuit held on rehearing that, among other things, “(6) prosecution did not engage in misconduct, in penalty-phase arguments, by commenting on petitioner’s homosexuality in challenging proffered mitigating factor that petitioner acted under extreme emotional disturbance in committing offenses; and (7) although prosecution’s comments about petitioner’s homosexuality were improper, they did not rise to level of due process violation.”

The Court in Neill considered whether the prosecutor’s statements rendered the entire trial unfair, and found that because the state had overwhelming evidence of Neill’s guilt and that much of that evidence was uncontested at trial, the prosecutor’s comments didn’t render the entire trial unfair, even though the prosecutor’s remarks were, indeed, improper.

This kind of reasoning is bogus on its face. A closing rebuttal is the last thing a jury hears before retiring to deliberate, and is something the jury is most likely to remember as it deliberates. There is no way to know with certainty whether or not the prosecutor’s remarks would have swayed the jury toward imposing a death sentence when, presented with an identical heterosexual defendant and crime, they might have imposed a life sentence. If prosecutorial misconduct is present, especially in the penalty phase, common standards of decency and justice demand reversal of the sentence and at the very least remanding the case for a new sentencing hearing before a new jury, if not outright reduction of the sentence without a remand.

Since Shortnancy wrote his article in 2001, several cases have been decided in Texas and elsewhere that lend credence to the proposition that homosexuality is, or should be, a protected status in America’s courtrooms.

In Lawrence et al. v. Texas (539 U.S. 558, 2002) the United States Supreme Court held that Texas’s anti-homosexuality statute (V.T.C.A. Penal Code § 21.06) is unconstitutional, overruling the previous case on point, Bowers v. Hardwick (478 U.S. 186, 1986). Relying on a line of cases including Griswold v. Connecticut (381 U.S. 479, 1965, invalidating a state law prohibiting the use of drugs or devices of contraception), Eisenstadt v. Baird (405 U.S. 438, 1972, invalidating a law prohibiting the distribution of contraceptives to unmarried persons), Roe v. Wade (410 U.S. 113, 1973, the famous abortion decision), and Carey v. Population Services Int’l (431 U.S. 678, 97 S.Ct. 2101 1977, invalidating a law prohibiting the distribution of contraceptive devices to persons under 16 years of age), the Court found that the Texas statute unconstitutionally restricted consensual private behavior between adults, in violation of the Equal Protection Clause of the Constitution. And affirming a statement in Planned Parenthood of Southeastern Pa. v. Casey ( 505 U.S. 833, 1992), the Court repeated that “[the Court’s] obligation is to define the liberty of all, not to mandate our own moral code.” The Lawrence Court also cited Romer v. Evans (517 U.S. 620, 1996), in which the Court struck down a Colorado constitution provision that excluded homosexuals, lesbians, and bisexuals from the state’s anti-discrimination laws, also under the Equal Protection Clause.

In Goodridge v. Department of Public Health (798 N.E.2d 941, 2003, the “Massachusetts gay marriage” case), the Court wrote “that the core concept of common human dignity protected by the Fourteenth Amendment to the United States Constitution precludes government intrusion into the deeply personal realms of consensual adult expressions of intimacy and one’s choice of an intimate partner” (Goodridge, supra at 948). If that is correct, then by extension, the government, represented by the prosecutor, may not inject homosexuality into a criminal proceeding in such a way as to promote bias against the defendant, any more than a prosecutor may suggest that execution is the only appropriate punishment because the defendant is black.

There are some situations where investigation of a defendant’s homosexuality is necessary to the conduct of a criminal case. It can shed light on a defendant’s motive to commit murder if, for example a defendant was blackmailed under threat that his homosexuality would be revealed, and he committed the murder to end the threat. Even so, an appropriately careful judge, prosecutor, and defense attorney can insure that these kinds of issues don’t improperly taint a jury. For example, careful questioning during voir dire can expose and eliminate jurors predisposed to vote for death on the basis of homosexuality, and appropriate jury instructions that homosexuality is neither an aggravating nor mitigating factor can also help juries understand the factors they should and should not consider. This is especially important because death-eligible juries are already stacked in favor of the prosecution, because it is routine to exclude any juror who would not, as a matter of conscience, impose a death sentence at all. Studies cited by Shortnancy and others indicate that these juries are predisposed to issue death sentences regardless of other issues, and the Supreme Court has upheld the jury selection methods that produce these juries.

Shortnancy’s conclusion, that there exists a courthouse bias against homosexuality that results in inappropriate convictions and sentences, is in need of further study, but if he’s correct (and it wouldn’t surprise me if it did, especially in the “Bible Belt”), recent case law suggests that despite the recent anti-homosexual backlash in wake of the Goodridge decision, such bias must be impermissible, and evidences of this bias in judicial, prosecutorial, and defense counsel decisions will amount to reversible error.
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i haven’t finished, but there it is.

i can’t possibly imagine how my replacement wife can (usually) manage not one but two posts per day, when i’m lucky to get out two or maybe three posts per week. is it lack of attachment to the silly accomplishments of my kids (benjamin last night spent a good part of the evening coloring on the wall above the couch with a red crayon; samantha spend a good part of the evening last night crying; ian spent a good part of the evening last night starting at the television from the potty chair)? or is it just that my life is so fucking boring that i can’t find anything useful to write about?

i was all excited to get to school this morning and get my laptop open so i could hit the school registration system and check my grade from the english history course, only once i got to the page i saw the little calendar. grades won’t post until wednesday, so another two days of waiting. i still think i got a b, but no feedback from this instructor when we had an 8-person class discussion about how we’d all like feedback and he said yes sorta pisses me off. so much for the earl of palmer (as he calls himself).

the twins go in for their two-year checkup today. sue is meeting me at the doctors’ office because the appointment is at 1030, but my class doesn’t officially get out until 1000, so supposedly i’m rushing right out of there. in truth i expect i’ll get out sometime around 900 like we did last thursday, and i’ll beat her there. it happens. i don’t expect him to tell us much except that they’re speech-delayed (no surprise there; we have a family of can’t-talk-kids).

why is it that all the college chicks in this class are either really cute and really snooty, or look like they’ve been hit by a mack truck and won’t leave me alone? last thursday i thought the one sitting next to me was going to start fondling my thigh under the desk. you know the old joke: married, not dead.

somehow i feel like, after 11+ years sober, my life should be somewhat less fucked up than it is. does that feeling ever go away?

i managed to set up my laptop in the classroom, so the instructor is now up at the lecturn stuttering away about the uniform commercial code.

i’m revising my suicide estimate: i’m thinking monday.

there is an upside, though: it’s only a five week class. i’ll just put the dude on my “ick” list and avoid him.

so i survived the first day of business law 1.

impressions: the classroom is actually … modern. each student seat shares a little in-desk pop-up … thing … that, when lifted, reveals two 110 volt ac plugs (can you say electricity?) and two rj-45 plugs (can you say network?). this means that every student in the class can have a laptop on-desk and plugged in, accessing the net if necessary.

impressive.

the instructor, on the other hand, is not impressive. i think i’ll be wanting to hang myself by about the middle of next week. but apparently he’s also pretty easy on exams, so this will be another gut it and get through it things.

oh well.

onward.

so for my own records, i’m inputting the courses i still need to take for my degree plan. note one change: i’ve dropped one instance of “american judicial system” included by mistake, and replaced it with pols 4332 - us constitutional law: fundamental rights.

all the courses listed are required, except woms 2317, which is listed on my degree plan as an elective. the english history course i just finished could replace it, but i’m gonig to take the human sexuality course anyway, because i’m a perv who’s interested in that kinda stuff. my wife isn’t thrilled.

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ints 2301 - interdisciplinary perspectives
ints 4391 - interdisciplinary capstone

blaw 3311 - business law 1

ccjo 4422 - legal aspects of evidence
crcj 3338 - juvenile justice system
crcj 4301 - american judicial system
crcj 4310 - advanced legal and technical writing

hist 2314 - history of england ii
hist 3317 - american legal and constitutional history 1
hist 3318 - american legal and constitutional history 2
hist 3320 - us civil liberties

geog 3355 - environmental history of the united states

geol 2401 - weather and science
geol 2402 - geoscience and genesis
geol 2406 - natural resources
geol 2408 - geology of national parks and monuments

pols 3331 - contemporary issues in civil liberties
pols 3334 - women and us law
pols 4332 - us constitutional law: fundamental rights
pols 4351 - energy policy and administration

woms 2317 - basic concepts of human sexuality
woms 3327 - marital and sexual lifestyles
woms 3366 - sex, gender, and culture
woms 3380 - ethnic and gender in criminal justice
woms 4301 - art and gender

i managed to stuff a seven-page essay (typed, single-spaced) onto a single sheet of paper in a space 8 inches by 10 inches (the size of a double-sided 5×8 note card) by reducing it to 6 point type, using a variable-width font rather than a monospace font, reducing the space between lines, using abbreviations (h8 for Henry VIII, for example), reducing the standard indent for paragraphs from 1/3″ to 1/5″, and using two columns rather than making it all one column (reducing the amount of space wasted at the end of paragraphs).

in 40 minutes i get to copy the essay into the bluebook. the only question in my mind now is whether or not i can write that fast.

i still have the text in the pagemaker file, so when i get home i’ll post the essay (complete with abbreviations) and see if anybody care (ha!).

the prof has again been kind enough to give us the question prior to the final exam. this is a two-hour essay exam. for those of you who’ve been reading for a while, you’ll know that i got an 81 on the first essay exam, and an 88 on the multiple guess one.

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building the english nation & the rise of parliment

the title above captures the two major themes we have developed in our course.

using supporting historical detail, write an essay that both traces and explains, from the romans to the later stuarts, the rise of the english nation-state and monarchy; and the rise, growth, and triumph (in 1688) of parliment.

while your essay should develop major themes and ideas, be sure to also support your statements with appropriate specific facts/dates/names/ and events.
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how’s that for a fucking broad question? he’s giving us a 5×8 card with notes on it, however. i’m reusing my first essay as the basis for my second, and then we’ll cut and stuff onto a card. should be fun. i’ll post the results and see if anybody can make heads or tails of it. (nobody will respond i know.)