Employees from the Stone County (Missouri) jail transported Penny Whitson and four men in the same van to the state Department of Corrections. The van consisted of three section. In the first section were two employees of the jail, one of whom drove the van. In the first caged section behind the driver were three men. In the back caged section was one man, Richard Leach, and Whitson.

The van was dark and noisy. The officers were playing loud music. Whitson alleged that Leach raped her. She did not immediately complain but she complained when the van stopped at a rest stop and when they got to the prison. A rape test at the prison showed mobile sperm.

She sued the deputies in the van for failure to protect her. She also alleged that the jail and supervising officers failed to properly train and supervise the officers.

The District Court granted the defendants motion for summary judgment but the Eighth Circuit Court of Appeals reversed the trial court decision finding that triable facts exist. On a motion for summary judgment the question is whether as a matter of law one party wins and that there are no facts which need to be decided by a jury.

The Eighth Amendment’s prohibition of cruel and unusual punishment places a duty of prison authorities to protect prisoners from injury caused by other prisoners.

In order to prevail in a civil rights suits for damages resulting from injury caused by another inmate a two part test must be proved. First, objectively the inmate must prove that “the deprivation of rights was sufficiently serious; i.e., whether the inmate “is
incarcerated under conditions posing a substantial risk of serious harm. . . The second requirement is subjective and requires that the inmate prove that the prison official had a sufficiently culpable state of mind.”

The defendants wrongly claim that since the officers did not have specific information that Leach, the alleged rapist, was a danger to Whitson that summary judgment was appropriate. But as the Court points out that a substantial risk of injury can exist without the officers knowing specific information about Leach’s dangerousness. For example other officers may have received complaints or jail regulations may require particular steps be followed when transporting male and female inmates together. None of these issues were raised on summary judgment and therefore triable facts remain to be determined at trial.

The Supreme Court, yesterday, in Wilkins v. Gaddy reversed a Fourth Circuit Court of Appeal decision upholding a District Court denial of a habeas claim against a prison guard because the injury was only de minimus. The Supreme Court ruled, citing Hudson v. McMillian that while the amount of the injury might indicate the nature of the force used, it is the latter that determines whether the force was excessive, not the amount of the injury.

In a pro per complaint James L. Wilkins alleged that he was assaulted by an officer. Willkins alledged that Gaddy punched, kicked, kneed and choked him. Furthermore he alleged that Gaddy threw him into the concere floor. As a result of Gaddy’s actions Wilkins suffered ” multiple physical injuries including a bruised heel, lower back pain, increased blood pressure, as well as migraine headaches and dizziness” and “psychological trauma and mental anguish including depression, panic attacks and nightmares of the assault.” But he did not allege that his injuries required hospitalization or treatment. Therefore the District Court and the Fourth Circuit found the injuries to be de minimus and dismissed the complaint.. In reality, Wilking receieved medical treatment for the injuries.

In any case the Supreme Court, citing Hudson, ruled that the issue is not whether the injuries are de minimus or not but rather the nature of theforce used is excessive and reversed the lower court’s denial of the claim. It remanded for further consideration.

Last week Texas executed Bobby Wayne Woods for the rape and murder of his girlfriend’s eleven year old daughter, Sarah Patterson.. He also abducted Sarah’s brother Cody and left him for dead in a cemetery. But Cody survived and testified at Woods’ trial.

In 2002 the Supreme Court ruled in Atkins v. Virginia that execution of the mentally retarded violated the Eighth Amendment’s ban on cruel and unusual punishment. The American Psychiatric Association defines a mildly retarded individual as one who has an intelligence level significantly below average, has a significant limitations in adaptive functioning in at least two basic area, and the onset of the problem accrued prior to the age of 18. Generally a person is considered to be mildly retarded if the IQ level is between 55 and 70. But the court did not set a hard line at an IQ of 70. It left the exact definition of retardation to be decided by the states. The Supreme Court held that to execute the retarded violates the “evolving standards of decency,” and therefore is cruel and unusual punishment.

Bobby Wayne Woods dropped out of school in seventh grades. He has been described as barely literate. His IQ has been tested many times, the first while he was in grade school. The results have varied considerably. The last two tests occurred while he was in prison and were commissioned by his defense team. They found him to have an IQ of 68 and 70 which considering the other factors indicate that he is mildly retarded under the Atkins criteria. However, earlier tests showed him to have a higher IQ. The highest reading being 80, well below average but not retarded. His attorneys argued that the earlier results should be disregarded due to the use of less modern techniques. Texas’ attorney general argued to the contrary the more recent results were done by his defense team and therefore must be suspicious. The Texas Courts and the United States Supreme Court which refuse to grant an emergency stay Thursday sided sided with the State of Texas.

The Obama administration continues to make plans for indefinite detention for many of the detainees at Guantanamo.

Indefinite detention violates many of the basic beliefs of our founders expressed in the Constitution. Article I, Section 9 of the Constitution states, “The privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it.” The Fifth Amendment guarantees “due process of law.” It starts out saying, “No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger;” The Sixth Amendment guarantees “the accused shall enjoy the right to a speedy and public trial, by an impartial jury. It also requires that the accused have the right of confrontation and the use the state for compulsory process to obtain favorable witnesses. The Eighth Amendment forbids excessive bail.

Furthermore the United States has signed international treaties guaranteeing alleged terrorist the right to a speedy trial. The International Covenant on Civil and Political Rights guarantees to all the right to a speedy and public trial.

In 1992 Michael Bies was convicted of the aggravated murder, kidnapping, and attempted rape of a ten-year-old boy in an Ohio court. During the penalty phase it was brought up as a mitigating factor that Bies had a mild to borderline case of mental retardation. But the jury found that aggravating circumstance, particularly his tendency towards violence outweighed the mitigating circumstance and recommended the death penalty which the judge imposed. On appeal to the Court of Appeals and the Ohio Supreme Court the death penalty was upheld. Bies then filed a petition asking to be spared the death penalty due to his retardation. The appeal was denied by both the Ohio Court of Appeals and the state Supreme Court.

Shortly after Bies filed a writ of habeas corpus in Federal Court the Supreme Court decided Atkins v. Virginia. In Atkins the court decided that the Eighth Amendment prohibited the execution of the death penalty on a retarded person. But it did not decide, or provide guidance on, who was too retarded to kill.

Bies then filed an action in the Ohio trial courts to prevent the execution of the death penalty. He filed a motion for summary judgment. It was denied and the trial court ordered a complete hearing. Bies appealed the decision to the Ohio Supreme Court, without success.

He then went into the Federal Court to get an order mandating that the hearing in state court be prevented on double jeopardy grounds. He argued that since his retardation was proved during the sentencing phase of his trial holding another hearing on the issue would violate his Eighth Amendment right not to be placed in double jeopardy. The District Court and the Sixth Circuit Court of Appeal agreed with him. The State of Ohio appealed to the Supreme Court and in Bobby, Warden v. Bies the Supreme Court reversed the decision of the Sixth Circuit, finding that the Ohio court’s proposed hearing on Bies retardation did not violate the Eighth Amendment and it complied with Atkins.

Bies’ theory was that since his mental retardation was a mitigating factor at trial, to decide it again would place him in double jeopardy. Such a theory is called issue preclusion since it prevents the same issue from being litigated twice. The Supreme Court disagreed. First, according to Justice Ginsburg’s unanimous decision, Bies was not placed in double jeopardy since the State of Ohio was not trying to increase his sentence it was merely trying to impose the sentence previously ordered. Second, mental retardation for the purpose of mitigation and mental retardation for the purpose of Atkins are two discrete issues and a finding in one does not mandate the same finding in the other. Finally, the Supreme Court ruled that issue preclusion is only available to a prevailing party who wants to maintain his/her decision. In the case of Bies he did not prevail at sentencing and therefore cannot now claim issue preclusion. In fact, at sentencing where his retardation was considered a mitigating factor it was outweighed by aggravating factors. So he does not have an issue which he won and for which he is afraid the State will obtain a reversal. In fact even if it had not been considered a mitigating factor at trial he could have gotten the same sentence.

Furthermore, the Supreme Court was clearly uncomfortable with the lower Federal Courts intervening in the Atkins process before the state court made a final decision. So we can probably expect the matter to return to the Federal Courts after a decision is made by Ohio courts and appealed to the State Supreme Court.

Supreme Court Justice David Souter is likely to retire at the end of the current session next month.

Over his nineteen years on the Court he has evolved from being a conservative vote on criminal justice issues to being a moderate vote on such issues. In particular as a moral leader of the Court he has been a strong voice for fair trials under the Sixth and Eighth Amendments.

He was appointed by George H. W. Bush with the hope that he would join the conservative wing of the court. The hope was not totally unrealistic. As Joseph D. Grano, Distinguished Professor of Law at Wayne State University has pointed out his record on New Hampshire state courts was generally fairly conservative and he rarely voted in favor of criminal defendants.

While never an ideologue and always a pragmatist over the years his votes have evolved to the point where he often votes with the more moderate wing of the Court of criminal justice issues. This is brought out in a comprehensive law review article by Scott P. Johnson, a political scientist at Frostburg State University in the Pierce Law Review. Between Souter’s appointment to the bench in 1991 and 1997 he voted against criminal defendants in the majority of the Fourth, Fifth, and Sixth Amendment cases and in 45 per cent of the Eight Amendment cases. But after 1997 he voted with defendants in over 60 per cent of the Fourth Amendment cases and over 70 per cent of the Fifth, Sixth, and Eighth Amendment cases.

But in any case he is not an ideologue voting either for or against criminal defendants. He is a strong believer in precedent and his votes and he puts considerable time into research and writing his decisions. His decisions are well reasoned and he is rarely open to much criticism from either the left or the right. His voice of reason will be missed on the court.