Fault Lines
14 October 2017

An Especially Brutal Murder

Jan. 13, 2016 (Mimesis Law) — He always maintained he was innocent, framed in fact. The real killer, he said, was a prisoner in Ohio who confessed – and sometime later committed suicide.

But Oscar Ray Bolin was on death row. He was sentenced to die for the brutal murder (they’re all brutal, but still) of 26-year-old Teri Lynn Matthews in 1986. And for the killings (also brutal) of 17-year-old Stephanie Collins. and 25-year-old Natalie Holley. After appeals and retrials, he was convicted of a lesser form of homicide in the Holley case. He was again sentenced to die for killing Matthews and Collins.

And, as I said, he maintained he didn’t do it. Tamara Lush, reporting for AP, wrote that he talked to a reporter for a Fox affiliate. Bolin said he was innocent.

“I didn’t know ’em, never seen ’em, never met ’em,” he said of the three victims.

Bolin told the TV station that evidence used to convict him was both tampered with and planted.

Which, if you dig into it, isn’t altogether implausible, though the juries and the courts didn’t buy it. So maybe.

But that’s not actually my story.

* * *

In 1998, Cynthia Harrison’s body was found in the freezer of a restaurant where she worked. She’d been bound and gagged.   She’d been stabbed more than 60 times.  It was, need I say, a brutal murder.  It was also a robbery.  The restaurant’s safe was hanging open.  Hundreds of dollars were missing.

The trial took four days. Timothy Lee Hurst, who worked alongside Harrison at the restaurant, was sentenced to be killed.  In 2009, the state high court sent him back for a new sentencing.  He was, again, sentenced to die.  This time the state court affirmed the sentence.

That’s not my story, either.

* * *

In 1994, a Wells Fargo armored van was hijacked. Hundreds of thousands of dollars in cash and checks were stolen.  The driver, John Magoch, was killed, shot once in the head.  Brutal, as they say.

Timothy Ring was tried for the killing.  He was sentenced to die.

Nope. Not my story.

* * *

In 2002, the Supreme Court declared that Arizona’s death penalty law was unconstitutional.  Writing for the Court, Justice Ginsburg began by explaining how Arizona’s capital sentencing scheme works.

In Arizona, following a jury adjudication of a defendant’s guilt of first-degree murder, the trial judge, sitting alone, determines the presence or absence of the aggravating factors required by Arizona law for imposition of the death penalty.

That scheme, she said, violates the Sixth Amendment right to a jury determination of every fact that increases a penalty beyond its otherwise statutory maximum.

The case was Timothy Ring’s, and he’s now serving a life sentence in the warm embrace of the Arizona Department of Corrections.

Hang on. Still haven’t gotten to my story.

* * *

Yesterday, the Supreme Court declared that Florida’s death penalty law was unconstitutional.  Writing for the Court, Justice Sotomayor put it simply (I’m omitting a citation.)

We granted certiorari to resolve whether Florida’s capital sentencing scheme violates the Sixth Amendment in light of Ring. We hold that it does, and reverse.

Florida’s scheme was not identical to Arizona’s, but it was markedly similar in the relevant way.

We hold this sentencing scheme unconstitutional. The Sixth Amendment requires a jury, not a judge, to find each fact necessary to impose a sentence of death. A jury’s mere recommendation is not enough.

The case was Timothy Lee Hurst’s. While nothing in the law is certain until it happens, it appears that Mr. Hurst will now have a life sentence.

Almost at my story, but this isn’t it.

* * *

Thursday of last week, Oscar Ray Bolin was executed. He was pronounced dead at 10:16 p.m.  The killing, scheduled for 6, was delayed while the Supreme Court decided whether to grant two applications for stay and for certiorari Bolin had filed.  Without explanation, and in identical terse orders, the Court turned them both down.

The application for stay of execution of sentence of death presented to Justice Thomas and by him referred to the Court is denied. The petition for a writ of certiorari is denied.

There’s nothing particularly unusual in that. Nearly every execution is preceded by one or more orders that read pretty much the same way.

But you see —

And this is my story, Oscar Ray Bolin was on death row in Florida. Was executed in Florida.  Because the Supreme Court twice denied stays last Thursday.  When the Justices knew, had to have known, that in five days they were going to announce the decision in Hurst. The decision declaring that the law under which Bolin was sentenced, the law under which he was to be killed, that law was unconstitutional.

Oh, I can put on my lawyer hat and explain it.

Hurst brought his case to the Court on direct appeal. Ring did that, too.  Bolin, on the other hand, had long since exhausted his direct appeal.  He was asking for a stay in appeals from denials of habeas corpus petitions.  But back in 1989, in Teague v. Lane, the Supreme Court said that with two very limited exceptions, habeas could not be used to find or benefit from a new rule.

So Bolin, who was looking for habeas relief, was screwed. And then killed.  Because he was sentenced to die under a law the Justices fucking knew was unconstitutional.

As a lawyer, I understand the nuance. I get that the rule of Teague is about finality, which trumps fairness.[1]  I don’t like it, but I get it.  That’s as a lawyer.

But I’m also a human. And those men and women in their black robes and detachment let a man be killed after determining that his sentence – like the sentence of every other person on death row in Florida – was unconstitutional.

Because doing something about it would have violated a fucking procedural rule THEY MADE UP.

[1] Scalia, who joined the Hurst opinion, is particularly concerned about the risk of  fairness in our capital system.  See “Unfair & Unconscionable: The Capital Jurisprudence of Antonin Scalia.

6 Comments on this post.

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  • Eva
    13 January 2016 at 1:47 pm - Reply

    I probably will get swat for asking this question but has there been attempts of questioning such a prosedural rule (Teague) addressed to SCOTUS?

    How about some window of not allowing executions at the very least go while anything is being reviewed by SCOTUS that may impact those proceedings? I know that flies in the face of the “finality” and “habeas” (from what you have indicated?) but what about exceptions during SCOTUS arguments that may directly affect the constitutionality of a lower court decision?

    • Jeff Gamso
      13 January 2016 at 2:07 pm - Reply

      SCOTUS has shown exactly no interest in making habeas more readily available. So yes, there have been efforts. And no, they’ve gone nowhere.

      As for the general rule, again, no.

      It takes 5 votes to grant a stay, 4 to agree to hear a case. It was once the (unofficial) rule that when 4 voted to hear a case with death on the immediate horizon, a fifth would join to grant a stay for the sake of something like decency and fairness. There, has in the last 5 or 6 years, been at least one case (but maybe as many as 2 or 3) where the fifth vote for a stay didn’t materialize.

      It’s hard to imagine that they’d now craft a practice that would have granted someone like Bolin a stay – especially when the larger rules would seem not to allow him relief.

      Did I mention that the system sucks?

      • Eva
        14 January 2016 at 1:23 pm - Reply

        I’m conflicted….

        Grateful that you showed me how the sausage is made yet at the same time kind of horrified.

        I feel like I just peeked in pandora’s box and not that I even intend to despite everything there is no way to shut the lid.

  • Robert Beckman
    14 January 2016 at 12:05 pm - Reply

    This should sound like an idiotic question, but doesn’t the Teague rule mean that even if a stay had been granted, Florida could have gone ahead with the execution anyway, since “ha was could not be used to … Benefit from a new rule?”

    This is what the construction yields, but the rule against absurd results suggests that there must be a savings clause that even if you don’t get to fish for constitutional violations (Teague), you do get to benefit if someone else catches one.

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    19 January 2016 at 7:47 am - Reply

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