By retiring 6th Circuit Court of Appeals Judge Boyce Martin, in Nichols v. Heidle, decided last week:
In this, my last death penalty case as a judge on the Sixth Circuit, I must concur in affirming the judgment of the district court. Despite my concurrence, I continue to condemn the use of the death penalty as an arbitrary, biased, and broken criminal justice tool. The facts of this case make it one of the more tragic and disturbing cases that I have heard in years. While Nichols’ actions are despicable, I cannot ignore the fact that his actions were committed in the late 1980s and that he was convicted in 1990. Nichols’ execution was supposed to take place in 1994. I have been on this bench since 1979, and for twenty-three of my thirty-four years as a judge on this Court this case has been moving through our justice system, consuming countless judicial hours, money, legal resources, and providing no closure for the families of the victims. Retired Supreme Court Justice John Paul Stevens has called for a dispassionate and impartial comparison of the enormous cost that death penalty litigation imposes on society with the benefits it produces. The time, money, and energy spent trying to secure the death of this defendant would have been better spent improving this country’s mental-health and educational institutions, which may help prevent crimes such as the ones we are presented with today.
A post at Volokh Conspiracy on Boyce's concurrence kicks off a lively comment thread, starting with "Simple solution (I would like to know what folks think)--change the burden of proof to "beyond all doubt" in the sentencing phase. If the jury cannot agree to convict him by that quantum of evidence, he gets LWOP or some other option."