Judges’ Dissents for Death Row Inmates Are Rising

It took just 80 words for a federal appeals court to deny Kevin Cooper’s most recent plea to avoid execution. But attached to that order was a forceful 101-page dissent by a judge, all but pleading to spare Mr. Cooper’s life.

“The State of California may be about to execute an innocent man,” it began.

The judge who wrote the dissent, William A. Fletcher of the United States Court of Appeals for the Ninth Circuit, in San Francisco, argued that the police and prosecutors had withheld and tampered with evidence in the case for decades; Judge Fletcher even accused the district court of having sabotaged the case.

Compared with the dry, mannerly prose found in many opinions, Judge Fletcher’s passion in Cooper v. Brown is startling. But these kinds of fervent, lonely dissents, urging that a prisoner’s life be spared, have noticeably increased in the last decade, compared with previous years, according to a review of death penalty opinions by The New York Times, as confirmed by experts in the field.

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.

In April, Judge Rosemary Barkett of the United States Court of Appeals for the 11th Circuit, in Atlanta, complained of the law’s “thicket of procedural brambles.” Dissenting from a decision by her colleagues, Judge Barkett noted that seven of the nine witnesses in the murder trial of Troy Davis, a death row inmate in Georgia, had recanted their testimony. To execute Mr. Davis without fully considering that evidence would be “unconscionable and unconstitutional,” wrote Judge Barkett, who has voted in more than 200 other cases to uphold the death penalty.

Judge Stephen Reinhardt of the Ninth Circuit, a critic of capital punishment, took on the constitutionality of the 1996 death penalty act itself in a dissent in the case of Andrew C. Crater, who had been convicted of taking part in a robbery and shooting spree that killed a Sacramento musician, James Pantages. Judge Reinhardt, appointed by President Jimmy Carter, wrote in 2007 that the act made “a mockery of the careful boundaries between Congress and the courts that our Constitution’s framers believed so essential to the prevention of tyranny.”

The dissents rarely have any practical effect in changing the outcome of the cases they address. But Howard J. Bashman, an appellate lawyer in Philadelphia, said such dissents were often directed toward audiences to come: the next appeals court, lawmakers and academics.

“You have to think that these judges do have some valid reason for putting all this effort into the exercise than just feeling better about it after they’re done,” Mr. Bashman said.

Judge Barkett, whom President Bill Clinton appointed, declined to discuss individual cases but agreed that a dissent tried to persuade many audiences — the first, in her case, being the other judges of her court, who circulate dissents among themselves as they are coming to a decision.

Judge Barkett said she did not see her opinions as “emotive,” adding that dissents were about policy, not feelings. But the feeling that motivates her to write them, she said, is “mostly frustration that I cannot make people see what I see.”

Judge Fletcher’s frustration was on display in the case of Mr. Cooper, who he concluded was “probably innocent” of the 1983 murders of Douglas and Peggy Ryen, their 10-year-old daughter Jessica and an 11-year-old houseguest, Christopher Hughes, who were hacked to death in the Ryens’ home.

Judge Fletcher argued that the evidence had been tainted by bumbling and misconduct and suggested that blood linking Mr. Cooper to the crime had been planted by overzealous investigators. And while the Ninth Circuit in 2004 ordered new DNA tests, Judge Fletcher wrote that the lower court had set conditions rendering the results useless. “There is no way to say this politely,” he wrote. “The district court failed to provide Cooper a fair hearing and flouted our direction to perform the two tests.”

Judge Fletcher, who declined to be interviewed, was appointed by Mr. Clinton.

Jesse H. Choper, a law professor at the University of California, Berkeley, said the judge was hardly a fierce opponent of capital punishment. “I don’t see him as someone who is unexceptionally opposed,” Mr. Choper said.

In the Cooper case, Chief Judge Alex Kozinski, appointed by President Ronald Reagan, was among 11 of the circuit’s 27 judges who joined dissents.

Elisabeth A. Semel, director of the Death Penalty Clinic at Berkeley, which trains lawyers to defend people facing the death penalty, said many jurists had been shaken by the rise of exonerations due to DNA evidence. “I think it’s been shattering to judges who had a fair amount of confidence in the system,” she said.

The next step in the Cooper case is a long-shot appeal to the Supreme Court, which Mr. Cooper’s lead lawyer, Norman C. Hile, said was likely to be filed this year.

Kent Scheidegger, the legal director of the Criminal Justice Legal Foundation, a group in Sacramento that favors the death penalty, said substantial claims of innocence in such appeals remained rare.

In Mr. Cooper’s case, Mr. Scheidegger said, the defendant has been given ample opportunity to exonerate himself. “It is high time to bring this case to a close,” Mr. Scheidegger said.

Judge Fletcher argued otherwise. “If he is innocent, the real killers have escaped,” he wrote. “They may kill again. They may already have done so.

“We owe it to the victims of this horrible crime, to Kevin Cooper, and to ourselves, to get this one right.”

SOURCE: The New York Times
Published: August 13, 2009
Kitty Bennett contributed research.
Original Article can be found at http://www.nytimes.com/2009/08/14/us/14dissent.html



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