August 1
USA:
On a Big Issue, Little Is Known
Activists on both the left and right have focused intently on every shred
of possible evidence that Supreme Court nominee John G. Roberts Jr. would
vote to overrule the court's 1973 Roe v. Wade decision that recognized a
constitutional right to abortion.
But there has been far less attention to an equally contentious issue that
takes up far more of the justices' time each term than abortion: capital
punishment. Every death sentence in the country comes before the court not
once but twice or more: first on direct appeals, the vast majority of
which are brushed aside, and then on habeas corpus challenges claiming
constitutional violations at trial or sentencing.
And the substitution of Roberts for Justice Sandra Day O'Connor could make
a difference on the death penalty.
O'Connor, who helped draft Arizona's death penalty law as a state senator,
was no death penalty abolitionist. In her early years on the Supreme
Court, she played a key role in curtailing constitutional appeals by death
row inmates.
Recently, however, O'Connor seemed to grow more skeptical of the states'
administration of capital punishment. In speeches, she expressed concerns
that innocent defendants may have been sentenced to death, and she
questioned the quality of defense counsel available to those facing
capital charges.
These views were reflected in her votes on the court. Though O'Connor had
refused to declare capital punishment for the moderately mentally retarded
unconstitutional in 1989, she joined a six-justice majority of the court
in reaching that result in 2002. In the court's last term, she joined the
four most liberal justices in a 5 to 4 ruling that required defense
lawyers to dig more aggressively for information that might persuade a
jury to choose life imprisonment instead of the death penalty at the
sentencing phase of a capital case.
But the available information on Roberts's views about capital punishment
is sketchy at best.
In 1980-1981, he served as a law clerk for then-Justice William H.
Rehnquist, who strongly advocates removing barriers to rapid capital
sentencing -- but in that role Roberts was an aide, not a decision-maker.
During his career in the administrations of Ronald Reagan and George H.W.
Bush, he had little to do with criminal justice issues.
As a lawyer in Washington, Roberts played a brief supporting role in one
case his law firm handled for free on behalf of a death row inmate in
Florida.
He has faced no capital punishment-related cases in his 2 years as a judge
on the U.S. Court of Appeals for the D.C. Circuit.
Perhaps Roberts's most comprehensive statement on the death penalty came
in response to questions from Sen. Russell Feingold (D-Wis.) at his 2003
confirmation hearing for the seat he now holds on the D.C. Circuit.
Feingold asked Roberts whether he was "concerned that poor defendants may
not receive adequate legal representation, especially at the trial level
of a capital case." Roberts said he did not know much about the situation,
but that "it certainly can't be the case that in all cases they receive
adequate representation." He added: "I have long been of the view that
whether you're in favor of the death penalty or opposed to it the system
would work a lot better to the extent that defendants have adequate
representation from the beginning." Roberts said prolonged appeals based
on claims of inadequate representation were a major reason "these cases
drag out so long."
Then Feingold asked: "Do you think that the current system is fair or do
you agree with an ever-increasing number of Americans that it risks
executing the innocent?" Roberts did not answer directly at first, noting
that "one thing that is unfair" is that "it's not certain, it's not
definite, and there doesn't seem to be any reasonable time limitation."
The long delays undermine any deterrent effect the death penalty might
have, he said.
Feingold pressed Roberts about "the fact that 100 people have been
exonerated, who were already sentenced to death."
Roberts replied that "obviously the 1st reaction is that the system worked
in exonerating them."
Then Feingold asked whether Roberts thought "we've gotten all the ones
that are innocent on death row." When "you're talking about capital
punishment, it is the ultimate sanction, and sort of getting it right in
most cases isn't good enough. I agree with that," Roberts said.
If he is confirmed, Roberts may get a chance to wrestle with these issues
in his first term. The issue of innocence will be before the court this
fall in House v. Bell , No. 04-8990. The case involves a death row inmate
in Tennessee who has DNA evidence showing that semen found on a woman whom
he was convicted of raping and murdering did not come from him.
By a vote of 8 to 7, the Cincinnati-based U.S. Court of Appeals for the
6th Circuit ruled that, under the standards set in a 1995 Supreme Court
ruling, this evidence was not sufficient to overturn state court rulings
upholding the conviction and sentence.
Thus, the case calls on the court to revisit the 1995 ruling in light of
new and better DNA science -- and recent history with DNA-based
exonerations of inmates on death row in Illinois.
"Whether a prospective justice believes the states can be trusted with all
of this or whether he thinks we need another layer of federal review is
going to be an important aspect," said Richard C. Dieter, executive
director of the Death Penalty Information Center, which opposes capital
punishment.
(source: Washington Post)
NEW YORK:
CUOMO AND THE RULE OF LAW
In a rare joint public appearance, former Gov. Mario Cuomo and his son,
state attorney general candidate Andrew Cuomo, endorsed Manhattan District
Attorney Robert Morgenthau for re-election last week - specifically citing
the DA's repeated refusal to seek the death penalty.
"Mario Cuomo fought every year to keep the Legislature from overturning
the veto on the death penalty," said Andrew Cuomo on the steps of City
Hall.
"Bob Morgenthau, despite all sorts of public pressure, never once sought
the death penalty. Bob Morgenthau stood against the political tide to do
justice in the truest sense of the word."
Morgenthau, in turn, hailed the former governor's well-known opposition to
capital punishment, "even though he knew it had serious political
consequences for him."
Now, these are fascinating statements - for a number of reasons.
This page has repeatedly taken issue with Morgenthau's handling of capital
punishment before the Court of Appeals last year effectively annulled the
law: Though scores of cases met the stringent criteria for seeking the
death penalty, the Manhattan DA refused to do so. Clearly, this refusal to
enforce the law was based on his strong moral opposition to the death
penalty.
Thus, absent the self-congratulatory rhetoric, what the Cuomos were saying
is that they support Morgenthau because he refused to enforce a duly
enacted law - entirely for personal reasons.
This is not an attractive quality in a district attorney; the sentiment is
even less admirable in a fellow seeking to become New York's chief elected
legal officer.
Talk about irony: Congressional Democrats have been raking President
Bush's federal judicial nominees over the coals, questioning whether
conservative jurists are capable of enforcing laws with which they morally
disagree.
Is Andrew Cuomo - whom we have generally admired over the years -
suggesting that, like Bob Morgenthau, he would pick and choose which laws
to enforce? It sure seems that way.
If Cuomo plans to turn the AG's office into a place where personal
ideology trumps the law, maybe he'd do everyone a favor by remaining in
private practice.
(source: Editorial, New York Post)
