Convicted Murderer Sues the State For Taking Too Long to Execute Him

A recent decision from the U.S. District Court for the Central District of California found California’s implementation of the death penalty to be unconstitutional. In that case, Judge Cormac J. Carney vacated the death sentence of Ernest Dewayne Jones, who was convicted of first degree murder and rape.

Were this a routine death penalty appeal where the death sentence was vacated because of mental retardation, age of minority, or actual innocence, it probably would not have merited additional attention. What makes Jones v. Wong a remarkable Man Bites Dog case is the counter-intuitive reasoning offered by the judge: the death penalty process in California is unconstitutional because the state is taking too long to execute prisoners on death row.

Specifically, the judge found that the administration of the death penalty in California violated the Eighth Amendment’s prohibition against cruel and unusual punishment. The judge asserted that the death penalty, when administered, would be arbitrary because only a select few who have been sentenced to death will actually be executed due to the long appeal process. Additionally, the death penalty serves no penological purpose because the lengthy delay in imposing the sentence limits the retributive and deterrence effects.

The judge further accused California of running a dysfunctional death penalty system on account of the “inordinate and unpredictable period of delay” preceding executions with the time between sentencing and execution taking 25 years, which is twice the national average. The judge stated that the current death penalty process which leads to “life in prison, with a remote possibility of death” is not one that “a rational jury or legislature could ever impose,” and attributed the delay to inadequate funding and the automatic appeal of death sentences to the state supreme court.

While some death penalty opponents cheered this decision, their initial enthusiasm may be misplaced. This judge is not an opponent of the death penalty along the lines of Justice Blackmun who famously pledged to no longer tinker with the machinery of death. Instead, the judge appears to be forcing the California legislature to address the death penalty issue: either fix the system or surrender the pretense in its entirety.

Death penalty opponents are counting on the state to finally abandon the death penalty an unaffordable exercise of retribution. That is certainly one possibility. However, the legislature could also adopt the recommendations of the California Commission on the Fair Administration of Justice and reform the administration of the death penalty in California. If that happens, petitioner may rue the appeal that forced the state into action. Maybe a life in prison with a remote chance of execution beats a certain execution free of unconstitutional delays.


Arkansas Supreme Court Opinions

The Arkansas Judiciary website offers Arkansas Supreme Court Published Opinions. This collection includes unofficial copies of published opinions starting from the Spring Term of 1837. I am fascinated by court opinions, not so much from a legal perspective but a historical perspective.

In Daniel v. Guy, 19 Ark. 121 (1857), the plaintiffs sued the defendant for trespass for false imprisonment. At issue was whether the plaintiffs were free or the slaves of defendant William Daniel.

For context, the Arkansas Supreme Court decided Daniel v. Guy just four years before Confederate forces fired on Fort Sumter and sparked the American Civil War. So, this opinion pre-dates the Civil War and the Emancipation Proclamation.

The court proceeds to discuss the various legal presumptions in effect including the presumption of freedom for persons that appear to belong to the white race. Other important signals include whether the persons was previously held as a slave. In terms of expert witnesses, the court provided this summary:

Dr. Newton—Had read Physiology. There are five races—the negro is the lowest in intellect. Some physiologists are of the opinion that in the head of the mulatto, there is some negro hair, and some white hair, and that the negro hair never runs out. It would not run out before it passed the second generation. It may in the third generation have waves. The color, hair, feet, nose, and form of the skull and bones furnish means of distinguishing negro blood or descent. The hair never becomes straight until after the third descent from the negro, from neither the father or mother’s side. The flat nose also remains observable for several descents.

In 2171, I wonder what decisions by our present-day state and federal courts will appear as antiquated as this one.

Daniel v. Guy, 19 Ark. 121 (1857).

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California Penal Code Section 626.8

JLS is middle school in the Palo Alto Unified School District. The school is located adjacent to Mitchell Park. The JLS Athletic Fields is an open, unfenced field located between the school fence and the park, with a pathway marking the border.

I spotted the JLS Athletic Fields sign, which cited California Penal Code Section 626.8. I wasn’t sure whether the penal code section was in reference to the use of the field during school hours, or the requirement to register at the school office.


The sign states:

Welcome to the JLS Athletic Fields

JLS has exclusive use of these fields during school hours, 7:30 AM – 3:30 PM. During these hours all visitors must register at the school office. Any person who violates these rules will be cited under C.P.C. Section 626.8

The penal code section prohibits persons from coming upon school ground (which should cover the athletic fields) without lawful business and “whose presence or acts interfere with the peaceful conduct of activities of the school or disrupt the school or its pupils or school activities.”

So, playing soccer on the athletic fields during school hours can get you cited for a misdemeanor, which is punishable by a fine up to $500 and imprisonment in county jail up to six months, or both. However, that’s only if you remain after being asked to leave by the principal, member of the security or a police officer. Sounds completely reasonable.

However, California Penal Code Section 626.8 does include an odd provision. Paragraph (a)(4), which was added by Assembly Bill 123, penalizes a person who “[w]illfully or knowingly creates a disruption with the intent to threaten the immediate physical safety of any pupil in preschool, kindergarten, or any of grades 1 to 8, inclusive, arriving at, attending, or leaving from school.”

We’re not talking about someone who physically harms a pupil, but a person who creates a disruption with the intent to threaten the immediate physical safety of a pupil. Furthermore, this prohibition only protects pupils in preschool and K-8.

The Mercury News reported that this provision was added because an anti-abotion group was displaying large photographs of aborted fetuses outside a California middle school. Yes, such behavior may cause a disruption, but how exactly does it threaten the immediate physical safety of a pupil? Doesn’t seem to fit at all.


President’s Day


While the third Monday in February is popularly referred to as Presidents’ Day, 5 U.S. Code § 6103 officially recognizes this date as Washington’s Birthday.

Lincoln’s Birthday is recognized on a state-by-state basis. And, you can pretty much guess which states do not observe a day memorializing the 16th president.

South Carolina observes George Washington’s Birthday / President’s Day.

Mississippi observes George Washington’s Birthday.

Florida does not any state holidays in February.

Alabama observes George Washington and Thomas Jeffersons’ Birthday.

Georgia observes George Washington’s Birthday.

Louisiana does not observe any state holidays in February.

Texas observes Presidents’ Day in honor of Washington’s Birthday.


An Interesting Use of the Word Award

In Respublica versus Chapman, 1 Dall. 53 (1781), the Chief Justice asked the defendant “why execution should not be awarded against him.” Never occurred to me that an award could be a bad thing.

Aside from the curious use of the word “award,” I really found this case to be quite interesting. Chapman was tried for high treason during the American Revolutionary War in the Commonwealth of Pennsylvania. The case was heard by the Supreme Court of Pennsylvania during the April Term of 1781. In terms of historical perspective, Cornwallis would not surrender at Yorktown for another six months.

In Chapman’s defense, he claimed that he was a subject of the King of Great Britain, and therefore owed no allegiance to the Commonwealth. Hence, he could not have committed high treason. The court actually engaged in quite an extensive inquiry into whether the defendant owed a duty of allegiance to the Commonwealth. I really respect a court that can be principled in a case involving treason during a war, without resorting to victor’s justice.

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Respublica versus Abraham Carlisle

Respublica v. Carlisle, 1 U.S. 35 (1778) was a high treason case decided in the midst of the American Revolution by the Court of Oyer and Terminer at Philadelphia.

The indictment accused the defendant of “not having the fear of God before his eyes, but being moved and seduced by the instigation of the Devil… to subvert, and to raise again and restore the government and tyranny of the king of Great-Britain.”

Such colorful language. For being a loyalist, “the Defendant, a short time afterwards, was accordingly executed.”


Respublica v. Malin

1 Dallas includes a case entitled Respublica versus Malin, which was heard by a Court of Oyer and Terminer. The case is not one you would have encountered in law school.

In studying the American Revolution, we don’t hear much about traitors, except for the infamous Benedict Arnold. However, Respublica v. Malin provides some insight into the times where the Defendant mistook a corps of American troops for British and went over to them. At issue was whether the Defendant’s words constituted high treason. Interesting not from a legal perspective, but a historical one.


Reports of Cases Ruled and Adjudged in the Courts of Pennsylvania Before and Since the Revolution

I obtained a copy of Reports of Cases Ruled and Adjudged in the Courts of Pennsylvania Before and Since the Revolution by A. J. Dallas, Esquire. Cited as 1 Dall., the volume provides cases from the Supreme Court of Pennsylvania and other courts. For a 220+ year old book, the text is pretty clean for the most part, and I’ve been adding images to older cases, such as Price v. Watkins, and cleaning some of the original transcription.

The difficulty is when I come across a word that I do not recognize. It could be because the word is no longer in use. Or, it could be because of the long s problem, which should be familiar to anyone who has seen a copy of the Bill of Rights: “Congrefs shall make no law respecting an establishment of religion or prohibiting the free exercise thereof; or abridging the freedom of the prefs, or the right of the people peaceably to afsemble, and to petition the Government for a redrefs of grievances.”

Not too difficult to figure out that Congrefs is Congress, prefs is press, afsemble is assemble, etc. Now, in the sixth line of Price v. Watkins, I came across a word that appeared to be Mefiuage. Interestingly, I searched for mefiuage in Google and saw a result from, which just reported “no dictionary results.” The other results were scans from old texts. I got the same results searching for Mefluage.

However, in looking at some other texts, the term clearly appears as Meffuage, which is really (because of the long s) Messuage. That does make sense since Messuage is an archaic term for a dwelling house.


Pay Parking Sign Citing CVC 21113(a)

21113(a) CVC


California Vehicle Code § 21113(a) states that “[n]o person shall drive any vehicle or animal, nor shall any person stop, park, or leave standing any vehicle or animal, whether attended or unattended, upon the driveways, paths, parking facilities, or the grounds of…any educational institution exempted, in whole or in part, from taxation,…except with the permission of, and upon and subject to any condition or regulation which may be imposed by the…educational institution….”

So, if you ride your donkey to school and leave him tied to the parking meter during class, I think you have to leave a payment at the machine.


Are Collateral Damages Acceptable in the Administration of the Death Penalty?

This November, California voters will face a literal life-or-death decision. Proposition 34, titled “Death Penalty. Initiative Statute,” proposes to repeal the death penalty and replace it with life imprisonment without the possibility of parole.

At first glance, the initiative may appear as a referendum on whether our society should have the right to kill those who commit particularly heinous crimes. Some believe that certain criminals deserve the death penalty. And, few will disagree. A Gallup poll shows that around 60% of Americans support the death penalty for a murder conviction with the predominant justification being “an eye for an eye.”

However, the issue is more nuanced. While the death penalty does satiate our primal desire for retribution, we must decide whether we are willing to accept a degree of collateral damage in this pursuit of justice. Consider the dissent from In re Troy Anthony Davis, 557 U.S. ___ (2009), in which Justice Scalia stated:

This Court has never held that the Constitution forbids the execution of a convicted defendant who has had a full and fair trial but is later able to convince a habeas court that he is “actually” innocent. Quite to the contrary, we have repeatedly left that question unresolved, while expressing considerable doubt that any claim based on alleged “actual innocence” is constitutionally cognizable.

In just over a month, when we mail in our absentee ballots or vote at our local polling places, we can embrace or reject Justice Scalia’s vision. If a defendant is convicted and sentenced to death after a fair trial, should we still error on the side of caution and surrender capital punishment as a safeguard? We will have the opportunity to decide whether the benefit of punishing the guilty by way of the death penalty outweighs the cost of killing an innocent. For some, the potential chance of killing an innocent person may be a line that cannot be crossed. They may demand that the criminal justice system be perfect.

However, we can also view the death penalty within the context of our every day lives. For the past three decades, traffic accidents have claimed 30,000-40,000 victims each year in the United States. Certainly, a lot more innocent people die in traffic accidents than from wrongful executions, but we don’t halt traffic until we have an accident-free system in place. According to the Center for Justice & Democracy, the number of deaths from medical accidents each year range from 65,000 to 200,000. Again, we do not suspend the entire health care system until the practice of medicine is free of accidental deaths.

A lot of people die in accidents. It is for each of us to determine how we want justice administered in our system. Are the wrongfully convicted just collateral damage? Are mistakes just a fact of life? Are wrongful executions so far and few between that in the grand scheme of life, there are bigger priorities to tackle?