HOLY EX PARTE, BATMAN! There were a lot of nifty twists to this week's The Good Wife -- adding Barry Scheck to the show's odd collection of real-life cameos, the New Yorker story on Cameron Todd Willingham's execution, Lord John Marbury, excited utterances, single-candidate debates (seriously, where's Smokey and Lorrell?), Zach meets Kalinda -- and yet ...
Look: I'm sure we've got readers more familiar with Seventh Circuit clerk behavior than I am, but even from my less-trained perspective this episode struck me as just batshit insane in terms of what they asked us to accept as legitimate. Not just the clerk's nudging on the addendum brief, but a habeas appeal being heard by one judge ... who calls one side's attorney on the phone to ask substantive questions about the case? Really? Oh, and if Lord John Marbury, Arson Expert signed a new affidavit, how the hell did they get it notarized at O'Hare?
Finally, I just didn't feel like the death row scenes carried an appropriate level of gravity -- or maybe we've been spoiled by Dead Man Walking. I just never believed execution was a serious risk at any point. B-minus episode.
Agree on all plausibility counts except the ability to find a notary at O'Hare. I'm guessing that somewhere among all the business centers in the airline clubs, there's a notary or ten.
ReplyDeleteI was very pleased that the show referenced the New Yorker story, which is incredible and I remember vividly. And anything with Robin Colcord/Lord John is fine by me.
The show has me completely hooked, so I'm happy to suspend my wicked disbelief.
Agreed completely on the New Yorker story. Just one of the many reasons I supported Nohair over Goodhair and Bighair in the TX-GOV race.
ReplyDeleteFWIW, one of my colleagues (he's in Atlanta; I don't know him) was a member of the Innocence Project's Arson Review Committee which determined that <span>“each and every one” of the indicators of arson had been “scientifically proven to be invalid.”
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I had never read that New Yorker article or heard of the Willingham case. Thanks for linking to it - it was fascinating, and horrifying.
ReplyDeleteI can't believe I'm attempting to set the record straight on this but I don't think the judge on the phone was the only one deciding the habeas appeal, just the sympathetic vote they needed to turn.
ReplyDeleteI'm a litigator, and actually worked for several years on a death penalty case (my client was executed in May of this year). So frustrating. First, unless they are totally incompetent they would have developed this argument years ago, not the day of the execution. And if they hadn't, they would have read the New Yorker article themselves when it came out, or heard about soon afterwards. Second, one of the incredibly frustrating things about habeas litigation is that arguments about actual innocence or almost impossible to make. You have to point to legal error, not just that the jury got the verdict wrong. So here, they would have to argue that the evidence shouldn't have been admitted or that his lawyer was ineffective for not countering it. Also, the argument is probably waived. You have to raise it at trial or on direct appeal (or show cause why you didn't and prejudice resulting from that failure); and then you have to raise it in your state habeas petition; and then you have to raise it in your federal habeas petition. You can't just raise new arguments on the day of the execution.
ReplyDeleteAnd, sure, this is a just a tv show. But one of the frustrating things about legal shows is that in order to amp up the drama, they create the impression that it's really easy for people to get off on technicalities, when in fact the exact opposite is true. Look at Cameron Todd Willingham! And I think that this colors people's perception of the actual, real-life criminal justice system in a way that is really harmful to people's rights.
Also, BTW, in federal court, you can file an unnotarized declaration instead of an affidavit.