Over the past week, the death penalty has received considerable media coverage here and across the nation.
First came news that the Georgia Public Defender Standards Council had asked Fulton County to repay the State of Georgia for fees and expenses that were incurred in defending Brian Nichols, the escaped prisoner who went on a murderous rampage in downtown Atlanta, killing a judge, among other public officials. This comes on the heels of a recent, somewhat critical report in the AJC of the growing cost of Nichol’s legal defense, which I wrote about here. At the same time, according to the AJC, the State has crafted plans to cut the budget for funding public defenders in Georgia, which could result in furloughs of a month or more.
Over at the Times is a story on the growing number of judges who are writing dissents that are critical of the death penalty and the manner in which it is being imposed. Here is an excerpt from that article:
In dozens of capital cases in recent years, appeals court judges, some of whom have ruled in favor of the death penalty many times, have complained that Congress and the Supreme Court have raised daunting barriers for death row prisoners to appeal their convictions, and in many cases the judges have taken on their colleagues.
“There is an increasing frustration among federal judges throughout the system,” said Eric M. Freedman, a critic of the death penalty who teaches on the subject at Hofstra Law School.
Mr. Freedman predicted that the level of dissatisfaction would increase. “Judges are likely to have less and less patience for being hogtied by legalistic mumbo-jumbo,” he said, “which prevents them from reaching fair results.”
The law that generates much of the judges’ ire is the Antiterrorism and Effective Death Penalty Act of 1996. Since its passage, the act has been cited in a half-dozen to two dozen dissents a year, often in language forceful enough to rival Judge Fletcher’s. The law, championed by legislators who believed prisoners were abusing the federal appeals process, restricts federal court review of state court decisions in death penalty cases and puts strong limits on the ability of condemned prisoners to file habeas corpus petitions to get their cases reconsidered.
The full story is available here.
And today comes news that the Supreme Court has essentially given a reprieve to Troy Davis, who is on death row in Georgia after having been convicted of killing an off-duty police officer. In an unsigned one-paragraph order, the Supreme Court sent Davis’ case back to the trial court and instructed it to conduct a factual hearing to determine “whether evidence that could not have been obtained at the time of trial clearly establishes [Davis’] innocence.” The order was met with a dissent by Justice Scalia (joined by Justice Thomas), in which he says, among other things, that the trial court was being sent on a “fool’s errand.” Justice Stevens, joined by Justices Breyer and Ginsburg, countered with their own take on the law, stating that “[t]he substantial risk of putting an innocent man to death clearly provides an adequate justification for holding an evidentiary hearing.”
Liptak of The Times has the story here, the AJC, here, and SCOTUS blog, here.
Finally, yesterday saw the start of the trial of Sharon Keller, the Texas judge who is accused of having intentionally denied a death row inmate access to the courts. For those of you who are unfamiliar with the case, here are the basic facts, as per the Times:
On Sept. 25, 2007, Judge Keller put in a 10-hour workday and went home around 4 p.m. to meet a repairman. That morning the United States Supreme Court had effectively suspended lethal injection as a manner of execution by accepting a challenge to its constitutionality in a Kentucky case.
Largely on the basis of the justices’ action, lawyers for a Texas death row inmate were putting together an appeal to stave off execution. An assigned duty judge was waiting at the courthouse for any last-minute appeal on the inmate’s behalf.
Around 4:45 p.m., the general counsel of Judge Keller’s court called her to relate a request to file paperwork after 5 p.m., the usual closing time for the court clerk’s office. Judge Keller replied that the clerk’s office closed at 5 p.m. A few hours later, the inmate was executed.
The full story is here. Grits for Breakfast provides coverage of the Keller case, links, and some interesting commentary here.
My thoughts on these stories and the general death penalty brouhaha is as follows:
(1) Like most of the hot button issues, those in power who are in a position to effect change (politicians, judges, lawyers, journalists), even those who are opposed to capital punishment, are not likely to take action. Why? Because it’s another issue that can be, and has been, used to divide the masses, generate controversy, etc., which, in turn, means these individuals get to maintain their positions of power.
(2) The notion that judges must and do slavishly follow and apply the law is a false one. The corollary being that there is a moral component to the law. Is there any other reason why we consistently refer to the Supreme Court as having a liberal and a conservative wing? Anyone who tells you differently is being disingenuous at best and manipulative at worst.
(3) Criminal defendants and their attorneys are shafted on a regularly basis by everyone and anyone who cannot fathom the reason why people commit crimes in the first place. Hint: it’s rarely if ever because that person is predisposed to committing criminal acts.
– AW
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