Yesterday, there were several important newsworthy parts to the Mississippi Supreme Court’s 5-4 opinion in Doss v. State, and the news was largely missed by Mississippi newspapers. Both the Clarion Ledger and the Sun Herald went with a wire story that did not talk about the most unusual part of Justice Diaz’s opinion.
To cut to the chase, somewhat, the case is about whether Doss’s lawyer was incompetent for failure to investigate his case, and whether, because Doss is (or may be) retarded, he cannot be executed because of the constitutional prohibition against executing the retarded.
That’s what the case goes off on, but it’s not the most newsworthy part.
The most newsworthy part is that, in Diaz’s dissent, he clearly and unequivocally announces that he would vote to hold the death penalty unconstitutional. Diaz also writes that Doss’s retardation should bar a death penalty. His opinion is joined in full by Graves, and in part by Dickinson. Although Dickinson doesn’t say what part he joins, I’ve got to assume it’s the part about retardation. But even so, there is Graves’s vote on the entire opinion, joining in to say the death penalty has failed.
Also newsworthy is the way the rest of the case was decided. The majority of 5 (Justice Lamar, joined by Carlson, Smith, Randolph, and Easley) votes down both the ineffectiveness and retardation claim. Four justices (Waller, joined by Diaz, Graves, and Dickinson) vote that Doss’s lawyer was incompetent. Three justices (Diaz, with Graves and Dickinson) vote that retardation would bar an execution.
The court is about to change a lot. Two votes in the majority are changing (Easley to Chandler, Smith to Kitchens). I think that’s a shift-to-the-good in the result. One vote in the dissent is going, and it’s not a good shift.
I think the case bears discussion and am going to post twice more about it, once about the ineffectiveness issue, and once about Diaz’s remarkable dissent.
Although I haven’t read the opinion, your post brings up a constant problem with the opinions of our Supreme Court in recent years. Its members are constantly dissenting without separate written opinion and concurring in part without saying which part. It entirely defeats the purpose.
one of the Justices mentioned is much closer than your speculation to vote against the death penalty from personal conversation….
I’m not terribly surprised, jdog, but all I know is what I read in the slip opinions.
commentor, I’ve criticized the “dissent without opinion” or “concurs in the result only” thing. All of the judges on the court came to it when it was already epidemic, although most of them surely read cases as it was arising and had the frustration of wondering what exactly the judges were saying. I toyed with writing a law journal article about it to try to point out the problem to discourage it. Someone should.
Somewhere in the books there has to be a case where, given dissents and concurs-in-the-result-only you could say that the opinion means nothing as precedent. I’ve not hit a point in brief-writing where that came up, but I feel sure it’s out there.
NMC, regarding the concurrence in part which didn’t state witch part, I’d guess that, unless that justice later clears it up, future generations would have to treat it as concurring with all parts.
Any guess about what part was joined is just that, a guess. Could it mean “I don’t really trust this writer”? Or “I haven’t read this carefully enough to be sure enough to join it”? Or “there’s some dicta in there that should be cut”? “I join part 1 (or issue one) but not part 2″ is fine and clear, but we often don’t get that.
My assumption about Justice Dickinson was just that, but it worked this way: Justice Diaz’s opinion was a 2-issue opinion. The retardation issue is pretty straightforward, and the death penalty issue is radical and a break with the past, so I’m assuming a partial join would be the straightforward issue. That’s nothing at all but an intelligent (or at least arguable) guess.