A New New Low: They Couldn't Possibly Believe That a Wrongfully Convicted Capital Defendant Should Be Denied a Federal-Court Review of Evidence? Well

By Berlow, Alan | The American Prospect, November 2005 | Go to article overview

A New New Low: They Couldn't Possibly Believe That a Wrongfully Convicted Capital Defendant Should Be Denied a Federal-Court Review of Evidence? Well


Berlow, Alan, The American Prospect


IF REPUBLICANS ON THE SENATE JUDICIARY Committee get their way, the United States may soon have a law that could permit state-sanctioned murder.

Sound improbable? Naturally the bill's chief sponsor, John Kyl of Arizona, doesn't say his measure would do that. He's given the bill a genial moniker--the Streamlined Procedures Act--and insists that all he's really trying to do is limit "endless death-penalty delays," put an end to "frivolous" appeals, and let the states get on with the business of executing people. But the fundamental question raised by this radical attack on one of the pillars of our criminal-justice system is this: If someone is charged with capital murder and faces a possible death sentence, and the state progressively deprives him of the means to defend himself, at what point does the judicial process become little more than a legal lynching?

Kyl's bill--and a companion House measure authored by California Republican Dan Lungren--should be seen as the apotheosis of that process. Both would effectively obliterate federal habeas corpus review, making it all but impossible for a defendant to challenge the constitutionality of a state-court conviction in federal court. The bills would prohibit a defendant from going into court with evidence that emerged after state-court proceedings concluded, such as evidence deliberately withheld by police or prosecutors, thereby providing incentives for state authorities to violate the law. The bills would also make it more difficult to get post-conviction DNA testing and would bar federal courts from reviewing claims rejected by state courts on procedural grounds. Most importantly, these bills would greatly increase the likelihood that innocent people will be imprisoned or put to death. Judiciary Chairman Arlen Specter, the Republican from Pennsylvania, is backing a substitute bill that is almost as bad, an astonishing reversal for a man who helped lead the fight to thwart Kyl's 1995 attempt to drive a stake through the heart of federal habeas. (Judiciary Committee sources insist that Specter has caved on habeas in exchange for Kyl's support for a measure designed to compensate workers suffering from asbestos-related ailments and put an end to litigation over asbestos claims.)

The underlying premise of the Streamlined Procedures Act is that state courts can invariably be relied on to protect the rights of the accused. Both the Judicial Conference, which speaks for the nation's circuit-court judges, and the Conference of State Chief Justices, whose members should presumably be rejoicing over the demise of any review, disagree. Both have come out in opposition. So have 60 prosecutors and the American Conservative Union, which noted its "profound distrust in the government's ability to 'get it right'" in the arena of criminal justice, warning that when it gets it wrong, innocent people may be wrongly incarcerated or even executed while the guilty go free to wreak further havoc.

The evidence of just how often state trial courts are wrong on the law and the Constitution is overwhelming. Columbia University Law School professor James Liebman analyzed 23 years of serewups in capital murder cases and showed that in nearly seven of every 10 (68 percent), courts found serious, reversible errors. His study, released in 2000, found that state appellate courts threw out nearly half of all convictions (47 percent), while the federal courts went on to detect "serious error" in fully 40 percent of the cases where state courts discerned nothing wrong. In Kyl's home state, the federal courts overturned 60 percent of the cases cleared by Arizona's appellate courts; in Specter's Pennsylvania, they reversed 40 percent.

One dramatic case was that of Nicholas Yarris, whose appeals on a murder, kidnapping, and rape conviction were barred by Pennsylvania courts because Yarris' lawyer missed a filing deadline. When a federal court concluded that the lower courts were wrong, Yarris was given time to have tests done on highly degraded biological material from the crime that proved his innocence. …

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