A Judge's Lost E-Mail and a Death Sentence Suit Goes to the Heart of a Battle on Supreme Court over Expediting Appeals in Death Cases

Article excerpt

Somehow, a judge on the US Ninth Circuit Court of Appeals missed the deadline, and the life of convicted murderer Thomas Thompson hung in the balance.

Judge X (as he is known in legal briefs) thinks he lost an e-mail message that reminded him of the date. Or maybe a clerk misfiled it. Either way, Judge X felt Mr. Thompson got a bad trial and, a month late, asked the Ninth Circuit to review his case.

Last July, the court agreed to a rehearing. And it said a death-row inmate shouldn't be denied an appeal because of a computer "delete" key. But California balked. Violating an internal court deadline could "open the floodgates" to death-row petitions, it argued. Now the case is before the US Supreme Court. While it will set no legal landmarks, Calderon v. Thompson may offer a window on the tone and temper of the Rehnquist court as it wages an internal war over society's most solemn punishment. Will the nine justices continue the court's 15-year trend to uphold laws that speed the death penalty? Or will a court with two Clinton nominees signal a softening? "The unsettled emotions and jurisprudence around the death penalty since the 1980s are captured in Calderon," says former Supreme Court clerk Edward Lazarus, author of "Closed Chambers," an account of life inside the court. "You've got the question of procedure versus the question of, 'Is this a just penalty?' " In 25 years, the US justice system has moved from the Warren court's emphasis on procedural safeguards (appeals for ineffective counsel, jury tampering, or withholding evidence) to the approach of the Rehnquist court, which created procedural hurdles to the lengthy appeals process. The result: speedier executions. Between 1968 and 1981 there were four executions in the US; since then, 452 people, mostly in Southern states, have been put to death. Since the mid-1980s, a series of bitterly contested 5-to-4 high-court rulings, spearheaded by Chief Justice William Rehnquist and justices like Sandra Day O'Connor and Antonin Scalia, has made it more difficult for death-row inmates to appeal their cases. The 1989 Teague decision, for example, changed the rules of habeas corpus, the term of art for an appeal. It stated that even if the law of the land changed, prisoners whose sentences would have been altered could not make a "retroactive" claim in court to change their status. (Last week's execution of a Paraguayan man in Virginia illustrated another procedural hurdle. The Supreme Court in a 6-to-3 vote said the man, convicted of murder, could not raise a claim in federal court that he had not made in a Virginia state court - in this case the claim that under a treaty he should have been informed of his right to seek help from a Paraguayan embassy official who could have told the man how to get a life sentence.) "We've gone toward higher hurdles," says Columbia University law professor Vivian Berger. "All the major procedural decisions have been against death-row inmates." IN general, the high court still splits 5-to-4 on death-penalty cases. But today's divisions, unlike earlier ones, tend not to be over whether death is a "cruel and unusual" punishment or whether it exceeds current standards of public decency. Rather, the split is over how to ensure "due process" in death cases. For example, in December the four minority members, Justices David Souter, Ruth Bader Ginsburg, John Paul Stevens, and Stephen Breyer, took the unusual step of informing the State of Texas that its prosecutors are required to tell juries that a life sentence in Texas means 40 years without a chance of parole. The court members felt it was deceptive for Texas juries to assume "life" meant the inmate would be back on the street in 10 years. In the past 25 years, 74 death-row inmates were later proved innocent of the crimes for which they were convicted and were removed from death row, according to the Death Penalty Center in Washington. …