On March 31, 2016, the State of Georgia executed my client, Joshua Bishop. Until the time of his execution, several successive legal teams challenged his conviction and sentence through the usual channels: direct appeal, state habeas corpus proceedings, and federal habeas corpus proceedings. The last hearing on the merits of his case was before a panel of the United States Court of Appeals for the Eleventh Circuit, which accepts appeals from death penalty cases out of Georgia, Florida, and Alabama. In a lengthy opinion describing the many mitigating circumstances present in Mr. Bishop’s case, the Eleventh Circuit denied relief. This is not uncommon. What stood out, however, in the preparation of his petition for certiorari in the United States Supreme Court, was certain terminology in the opinion that seemed to indicate it had re-weighed evidence offered in aggravation and mitigation of his death sentence. This was disconcerting, since Georgia is a “non-weighing” state. This error formed the basis for Mr. Bishop’s final legal challenge—which was ultimately unsuccessful, but which attracted national interest. This Article describes the heart of that challenge and ex-plains why the appropriate legal tests matter in such cases: life is at stake.
Sarah Gerwig-Moore, Remedial Reading: Evaluating Federal Courts' Application of the Prejudice Standard in Capital Sentences from "Weighing" and "Non-Weighing" States, 20 U. Pa. J. Const. L. Online (2018).