But Cf ... in Re J.S

By McGowan, David | Constitutional Commentary, Winter 1999 | Go to article overview

But Cf ... in Re J.S


McGowan, David, Constitutional Commentary


This is a case about Constitutionalism. We distinguish once again the rights actually granted by the Constitution from those that exist only in the mind of a litigant.

Appellant J.S. was convicted and sentenced to death for the felony murder of one Blair. Blair was killed on June 25, 1994 in San Luis Obispo, California. The State's able presentation at trial showed that J.S. and Blair were acquaintances. J.S. had in the past claimed that Blair owed him money; J.S. believed Blair was dodging him to avoid paying the debt. The State established that Blair was a heavy smoker who usually bought tobacco at a 7-11 convenience store across the street from his apartment. Blair's habit explains J.S.'s strategy of lying in wait for Blair outside the 7-11.

Blair went to the 7-11 at about 2:00 a.m. on June 25. As he approached, J.S. leapt out from behind a dumpster and demanded that Blair pay up. Blair denied the debt and denounced J.S. for his ill-mannered behavior. J.S. punched Blair and ripped a book from his hands. Blair then ran across the street toward his apartment, with J.S. following behind. As Blair crossed the street he was hit by a car and later died. (The State believes Blair was running home to get a rifle later found in his apartment.) J.S. was arrested a week later at his corrugated tin dwelling (on which taxes rightfully owed to the State had not been paid). J.S. testified at trial that he had been on a two-week drunk around the time of Blair's death and did not remember where he was on June 25. J.S. thought he might have been in Portland, Oregon.

J.S. appealed his conviction through the courts the State provided for this purpose but won nothing. He petitioned the federal district court for a writ of habeas corpus, which was denied, the denial being affirmed on appeal to the Ninth Circuit. This Court denied a petition for a writ of certiorari to the Ninth Circuit.

In each proceeding J.S. argued that he did not kill Blair and would have been acquitted at trial had his attorney not been a drunken fool. The State countered that it had generously offered J.S. a perfectly sound attorney whom J.S. had refused. (The State assures us that the attorney it offered was not a drunken fool.) Though expressing commendable sympathy for the spot J.S. claims to have got himself into, the State quite reasonably asks what more it could have done. J.S.'s refusal must have been frustrating to the State, which in its brief reminds us of the indignity familiar to anyone who has been forced to offer assistance or a courtesy to another a second time, a first offer having been spurned. The State rightly questions whether it should have had to endure the risk of embarrassment that further offers of assistance to J.S. would have presented. The State concludes, quite sensibly we think, that having declined the State's sincere effort to assist in his defense J.S. should not be heard to argue that the attorney he freely chose to hire was a drunken fool.

J.S. now comes before the federal courts again, claiming still that he did not kill Blair and insisting that he therefore has a constitutional right not to be executed. J.S. has new lawyers, who have new ideas and wish this Court to examine new facts they claim to have dug up. J.S. presents the following: (i) three declarations from workers in a bar in Portland, Oregon stating that J.S. was drinking in their bar on June 25, 1994 and had been drunk there the previous, three days running; (ii) a credit card slip from the bar dated June 24, 1994 and signed by J.S.; (iii) a declaration from a handwriting expert stating that the signature on the slip belongs to J.S.; (iv) a declaration from an employee of VISA USA, Inc., stating that the transaction reflected on the slip was processed on June 24, 1994 at 11:58 p.m., Pacific Standard Time; and (v) a declaration (and related documents) from a police officer for the City of Portland stating that he arrested J.

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