Thursday, June 14, 2007

New Faces for the 4th U.S. Circuit Court of Appeals & Capital Punishment

With three vacancies in the 4th U.S. Circuit Court of Appeals, Virginia Sens. John Warner (R) and Jim Webb (D) submitted five names to President George Bush: G. Steven Agee, Donald W. Lemons, Glen E. Conrad, Thomas E. Albro and John G. Douglass.

The most interesting nominee from the standpoint of capital punishment is law professor John G. Douglass who directs a program in trial advocacy at the University of Richmond, a Baptist-supported university. He is certified by the Supreme Court of Virginia as a mediator and was editor of Law Review.

In a most intriguing article titled, "Confronting Death: Sixth Amendment Rights at Capital Sentencing," Douglass argues in the Columbia Law Review that courts should eliminate the penalty phase of capital trials. Prosecutors have too much power based on their "tactical choice...[of] death-elibility factfinding," he writes, that trumps the Sixth Amendment in bifurcated trials.
"The Framers knew nothing of a 'guilt' phase and a 'penalty' phase. They crafted the Sixth Amendment not only to protect the innocent from punishment, but also to protect the guilty from undeserved death."
The Virginia Bar Association and the Virginia Association of Defense Attorneys endorses his candidacy.

Virginia Supreme Court Justice Donald W. Lemons leads the list of candidates with top recommendations from Virginia's five statewide bar groups. Lemons ruled in the capital murder case of William Wilton Morrisette III. In the minority, Lemons deemed that legal defense error in not objecting to faulty jury instructions was not critical to a death sentence verdict. However, in a 4-3 decision, a majority of the Court ordered a new penalty hearing.

State Supreme Court Justice G. Steven Agee, a staunch supporter of stare decisis, was endorsed by the Virginia Bar Association, the Virginia Association of Defense Attorneys and the Virginia Trial Lawyers Association. He was also rated "qualified" by the Virginia State Bar. This past Friday, Agee wrote the majority opinion in the capital case of Ricky Javon Gray.

Gray had been convicted and sentenced to die on two-counts of capital murder for killing two victims under the age of 14 by someone 21 or older. Defense argued that capital offense charges were unconstitutional based on equal protection under the law since the charges strictly varied with defendant's age of over 21.

The Court disagreed. Agee wrote that a rational scrutiny of law based on age exists, pointing to "other Virginia laws make age distinctions between adults in similar situations."

U.S. District Judge Glen E. Conrad was first appointed to the bench by Sen. John Warner and former Sen. George Allen for the Western District of Virginia in 2003. Conrad refused to enforce a Department of Labor order asking that the chief financial officer of Cardinal Bancshares be reinstated under the “whistleblower” provision of the Sarbanes-Oxley Act.

Thomas E. Albro, a high-profile trial attorney from Charlottesville, represented author John Grisham in the past.

The VSB rated Albro and Conrad "highly qualified" and VBA, VWAA, VADA and VTLA endorsed their candidacies.

There are three vacancies in the Court and two other judges have indicated they plan to take senior status. The most recent vacancy emerged when Judge J. Michael Luttig resigned last year after Samuel Alito was appointed to the U.S. Supreme Court.

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