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Court Weighs Timing Of Death Row Appeal

Publication Date: 
March 25, 2010
The New York Times
Adam Liptak

Professor Jeffrey Fisher is quoted in the New York Times on Billy Joe Magwood's death penalty appeal before the U.S. Supreme Court. Adam Liptak filed this story:

As is his custom, Justice John Paul Stevens did not ask a question on Wednesday until the lawyer before him had almost finished his argument. When Justice Stevens did speak up, it was in a seeming effort to guide his colleagues on the Supreme Court toward what he considered to be the central argument advanced by the death row inmate in the case.

“Let me just ask,” Justice Stevens said, “is this the case in which the claim is he’s ineligible for the death penalty?”

Corey L. Maze, Alabama’s solicitor general, said that was so.


But Jeffrey L. Fisher, a lawyer for Mr. Magwood, said his client was challenging his 1986 resentencing for the first time.

“You can’t waive something by failing to raise it in a different case,” he said. “This is an entirely different case.”

Mr. Fisher tried an 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.”


The two were talking past each other. Mr. Fisher was suggesting that the new sentencing restarted the litigation clock, while Justice Scalia meant that the same underlying crime and surrounding circumstances were present both times.


Justice Stephen G. Breyer, who initially appeared attracted to the simplicity of the rule proposed by Mr. Fisher — that a new sentencing opened the door to all claims concerning it — had by the end of the argument formulated an alternative that would not help the inmate in the case, Magwood v. Patterson, No. 09-158.