16 Const. Comment. 477 (1999)
Issue 3

handle is hein.journals/ccum16 and id is 485 raw text is: But CE...

IN RE J.S.
David McGowan*
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 out-
side 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 de-
manded 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 apart-
ment.) 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.
* Associate Professor of Law, University of Minnesota.

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