Up in Smoke? Scalia Disputes Law Prof's Pollution Analogy in Capital Appeal
The co-director of Stanford Law School’s Supreme Court litigation clinic used a smoke analogy to make a point Wednesday about a death row inmate’s right to appeal after a second sentencing, but the issue was more cloudy for Justice Antonin Scalia.
Stanford’s Jeffrey Fisher argued that a death penalty appeal filed on behalf of an inmate twice sentenced to death for the 1979 murder of an Alabama sheriff shouldn’t be barred as a successive habeas petition, according to the New York Times and the Birmingham News.
Fisher told the U.S. Supreme Court that inmate Billy Joe Magwood’s resentencing in 1986 is a brand new judgment that opens the door to all challenges, including his argument that the sheriff’s murder was not a capital crime under Alabama law. The issue wasn’t raised until 1997.
The Times says Fisher tried this analogy: “Imagine that smoke goes over and pollutes somebody’s property every first day of January every year,” he said. “Somebody brings a lawsuit about that saying it violates certain laws, and they lose. If the next year smoke goes over the property again, you can bring a lawsuit for the identical thing.”
Scalia disagreed, using the analogy to point out that there was one underlying crime, according to the Times. “Not the identical thing,” he said. “The last one was for the smoke that went last year. The next one is for the smoke that went this year.”
Alabama’s solicitor general Corey Maze made an additional point that apparently referred to Magwood’s successful attempt to get a new sentencing hearing. “The difference is in this case,” Maze said, “he asked us to blow the smoke at him a second time.”
