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
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
(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
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