As in many recent cases applying limits on relief contained in the Anti-Terrorism and Effective Death Penalty Act\u2019s text (AEDPA, 28 U.S.C. \u00a72254(d)(1)), Wednesday\u2019s argument in White v. Woodall involved mind-numbing hairsplitting. On the state\u2019s side, Susan Lenz, an attorney in the office of Kentucky\u2019s attorney general, sought to explain why Woodall\u2019s entitlement to a \u201cno-adverse-inference\u201d instruction at the punishment phase of his capital trial was not \u201cclearly established\u201d at the time the Kentucky courts rejected his constitutional claim. Yes, the Supreme Court had held that the Fifth Amendment entitles a defendant to a no-adverse-inference instruction at trial (Carter v. Kentucky). Yes, the Court had announced that the right against self-incrimination applies in punishment as well as trial proceedings (Estelle v. Smith). And, yes, the Court had reversed a sentence where a trial court had actually made an adverse inference regarding a contested fact based on a defendant\u2019s silence at sentencing (Mitchell v. United States). But here, Lenz argued, the defendant sought a no-adverse-inference instruction when he had conceded all of the facts concerning his death eligibility. Because the state had already satisfied its burden of proof, the defendant\u2019s silence would not be used to make the state\u2019s case.<\/span><\/p><\/blockquote>\nKentucky is arguing that a refusal to testify can be used as affirmative evidence of lack of remorse, and hence used to sentence him to death.<\/p>\n
Delightful.<\/p>\n
Here’s hoping that the Supreme Court makes the right decision, but I doubt it.<\/p>\n","protected":false},"excerpt":{"rendered":"
One of the foundations of our civil rights is that you have the right not to testify against yourself, and that asserting this right cannot be used against you. In other words, not testifying cannot be used against you, whether in the trial or in the sentencing, except it appears in the punishment phase of …<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[981,972],"tags":[],"class_list":["post-186589","post","type-post","status-publish","format-standard","hentry","category-civil-war","category-justice"],"_links":{"self":[{"href":"https:\/\/www.panix.com\/~msaroff\/40years\/wp-json\/wp\/v2\/posts\/186589"}],"collection":[{"href":"https:\/\/www.panix.com\/~msaroff\/40years\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/www.panix.com\/~msaroff\/40years\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/www.panix.com\/~msaroff\/40years\/wp-json\/wp\/v2\/users\/1"}],"replies":[{"embeddable":true,"href":"https:\/\/www.panix.com\/~msaroff\/40years\/wp-json\/wp\/v2\/comments?post=186589"}],"version-history":[{"count":0,"href":"https:\/\/www.panix.com\/~msaroff\/40years\/wp-json\/wp\/v2\/posts\/186589\/revisions"}],"wp:attachment":[{"href":"https:\/\/www.panix.com\/~msaroff\/40years\/wp-json\/wp\/v2\/media?parent=186589"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/www.panix.com\/~msaroff\/40years\/wp-json\/wp\/v2\/categories?post=186589"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/www.panix.com\/~msaroff\/40years\/wp-json\/wp\/v2\/tags?post=186589"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}