The U.S. Supreme Court today declined to review, again, the capital sentence of Missouri murderer Carman Deck, whose long-overdue execution is scheduled for tomorrow.
Deck and an accomplice planned to burglarize the home of an elderly couple, James and Zelma Long. They knocked on the door and pretended to need directions. After the Longs admitted them into their home, Deck pulled a gun and demanded their valuables. Even though they complied with his demands, he shot and killed both of them.
Deck had to be sentenced three times. The first sentencing was marred by an error of his own attorney, failing to object to the fact that a portion of the jury instructions was missing. The second sentencing was conducted in accordance with all the rules in effect at the time, which severely limited the shackling of defendants in the guilt phase of the trial. The rationale of that precedent was that shackling impaired the presumption of innocence, making it obviously inapplicable to the penalty trial. The U.S. Supreme Court took his case up and extended its precedent into the penalty phase, moving the goalposts after the trial.
The third sentence was reviewed and affirmed by the state courts on both direct appeal and collateral review. Deck then ran to the federal courts and attacked his sentence on a ground never mentioned to the state courts: that the repeated sentencings had denied him his constitutional rights because evidence he wanted to introduce in mitigation of punishment was no longer available.
There is a general rule that a defendant cannot raise in federal court a claim that he did not raise in the state courts at the time provided for raising it there. One might call it the “speak now or forever hold your peace rule,” but it is usually called the procedural default rule. There is an exception for the actually innocent, but Deck is stone cold guilty.
Deck tried to fit through another loophole in this rule created by the Supreme Court, saying that his state-court lawyer was ineffective in not raising it. The U.S. Court of Appeals held, correctly in my view, that a lawyer is not ineffective for not raising a novel claim that is unsupported by precedent. See this post on the decision, with much more detail. CJLF’s amicus brief on behalf of the Long family is here.
The Supreme Court turned down Deck’s request to review the Eighth Circuit decision last October. See this post.
Deck then returned to the state courts, which turned him down again. The present petition is Deck’s request to the Supreme Court to review the state courts’ denial of his second collateral review petition there.
I am told that the governor has also denied clemency. Long overdue justice may finally be achieved tomorrow.
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