Update (November 14, 2014): Since my earlier post on Bruce Carneil Webster’s case, below (the death penalty case in which Dorsey & Whitney lawyers are fighting for Webster, a mentally retarded man on death row), Webster lost the appeal before a panel of three judges on the U.S. Court of Appeals.
So Dorsey lawyers undertook the extraordinary challenge of seeking “en banc” review by all of the judges on the U.S. Court of Appeals for the Seventh Circuit of their earlier loss before the three-judge panel. “[E]n banc hearing or rehearing is not favored and ordinarily will not be ordered unless… the proceeding involves a question of exceptional importance.” In fact, the Seventh Circuit’s own Practitioner’s Handbook says that, “It is more likely to have a petition for writ of certiorari granted by the Supreme Court than to have a request for en banc consideration granted.”
Putting Mr. Webster to death may be barred by U.S. law. This would appear to be a question of exceptional importance, not just to Mr. Webster, but also to his lawyers, to the entire U.S. Court of Appeals for the Seventh Circuit and for you and me, as well.
Congratulations and best of luck to the Dorsey team in their on-going efforts. Oral argument is scheduled before the all of the active judges on the Seventh Circuit Court of Appeals on January 7, 2015.
Original post (July 30, 2014): Steve Wells went before the U.S. Court of Appeals for the Seventh Circuit this past week in fighting for Bruce Webster, who appears to have been mentally retarded when he committed the crime for which he was convicted. Nevertheless, he sits on death row. This is not supposed to happen in the United States of America. (See, also, “A sentence of death shall not be carried out upon a person who is mentally retarded.” 18 U.S.C. 3596(c)).
But Webster’s lawyers had made the argument that Webster was mentally retarded and the jury rejected that argument.
Then, after Webster’s appeal rights were exhausted, newly discovered evidence came to light: independent diagnoses by government physicians of mental retardation before Webster allegedly committed the crime for which he was sentenced. (The diagnosis was in the context of a social security claim.)
Can Webster get into court again? How many appeals is he entitled to have?
1996 amendments to federal habeas legislation was passed to prevent those convicted of crimes from “thwarting justice and avoiding just punishment by filing frivolous appeals for years on end,” but critics argue that “the inability to make multiple appeals increases the risk of an innocent person being killed.”
On which side of the line are Mr. Webster’s circumstances?