Judge Ready to Rule Death Penalty Unconstitutional; Gives Justice until May 15 to Change His Mind, Cites 'Innocent People' executed.(NATION)
Byline: Frank J. Murray, THE WASHINGTON TIMES
A U.S. District Court judge who says innocent people are convicted of murder gave the Justice Department "one last opportunity" yesterday to persuade him not to declare the federal death penalty unconstitutional.
Judge Jed S. Rakoff, a 1995 Clinton appointee, said he took that drastic step because he believes innocent prisoners were executed and more face death without a full opportunity to prove their innocence, if only by technology not yet discovered.
That violates the Fifth Amendment right to "due process," he said, since some will die before completion of a process the judge seemed to say must be endless.
Advances in science and criminology can help "only if such persons are still alive to be released," Judge Rakoff said.
He gave government lawyers until May 15 to reply in an order based largely on a much-criticized Columbia University study that found a 68 percent "prejudicial error" rate in capital trials, and review of Web site reports of prisoner releases.
The judge said he would block the prospect of a death sentence at the impending capital-murder trial of Alan Quinones and Diego Rodriguez on charges they killed police confidential informant Eddie Santiago in June 1999 to protect a Bronx heroin and cocaine ring. Eight co-defendants pleaded guilty.
The order offered the government the unusual option of accepting Judge Rakoff's ruling by Wednesday and beginning an appeal then, or filing a reply by May 15 to change his mind.
Federal prosecutors were reviewing the 11-page ruling and had no comment, said U.S. Attorney's Office spokesman Marvin Smilon.
Two civilian federal prisoners were executed by injection at the Terre Haute, Ind., federal penitentiary last year - Timothy McVeigh and Juan Garza - and 24 are on death row now. Judge Rakoff's action, if upheld on appeal, would have the effect of also blocking executions in states where the NAACP Legal Defense Fund says 3,687 inmates wait on death row.
Kevin McNally, the Frankfort, Ky., defense lawyer who raised an issue so novel that both sides agree it never has been tested, said Judge Rakoff believes "it's inevitable that the innocent will be executed and they have. …