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Brookings Panel on DP


The Brookings Institute hosted a lively panel discussion on the death penalty today featuring California Congressman Dan Lungren, CJLF Legal Director Kent Scheidegger, Ruth Friedman, Director of the Federal Capital Habeas Project and Virginia Sloan, President of the Constitution Project. Click on the link to C-Span and select all recent programs (bottom of page) and you'll see the archived broadcast of this program.

UPDATE: The printed transcript is now available here.


So as to enhance public confidence in the death penalty and expedite the federal court review process, it may be an idea to encourage states to afford a capitally convicted defendant with a full blown evidentiary post-conviction hearing. In a state court "airing of grievances" (akin to a Costanza family festivus celebration), a remarkably high percentage of gripes would be proven to be ridiculous, and the vanishingly small percentage of valid claims could be addressed and resolved by those nearest to the matter. South Carolina employs such a system. A capitally convicted defendant will get a second "day in court." A state level post-conviction team steps in to handle the matter, thereby relieving the trial prosecutors from having to put up with claims that the guy they just convicted got railroaded by cheatin' prosecutors, lazy defense attorneys, etc., etc. This South Carolina system has reduced the number of federal habeas evidentiary hearings to zero.

I agree and have sponsored legislation to do that in California. It was promptly killed by the anti side, who are not interested in making the system work.

Regarding South Carolina's success, bear in mind that they are in the Fourth Circuit. Equal results cannot be expected in circuits divisible by 3.

What I never have understood is that the anti-side seems to be willfully ignorant of the fact that tying the system up in knots simply guarantees that the wheat from the chaff when it comes to innocence issues will not be separated for a much longer time. One wonders how long people like Krone, Bloodworth or some of the other true "exonerees" if so many resources were not wasted on overly technical issues not relating at all to guilt or innocence.

Kevin Cooper is a perfect example. One would think that, given the thousands of people on the row here in the US, the resources on that case would be better spent on more worthy candidates. Of course, when one strenuously argues that Cooper is factually innocent, it shows a frivolity and a dilettante quality that is difficult to overstate.

Unfortunately, in our circuits divisible by 3, frivolity often strikes a chord. Hopefully, Bush's two nominees for the Sixth will increase the adult supervision at that court. And it will be interesting to see how Milan Smith and Sandra Ikuta impact the Ninth Circuit's criminal and habeas "jurisprudence".

Federalist complains about resources being wasted "on overly technical issues not relating at all to guilt or innocence."

It is a tempting argument to make, especially since so many people complain about the length of death penalty appeals. But the argument has a pitfall: it is these "overly technical issues" which occasionally lead to the discovery that an innocent person has been sent to death row.

Keep in mind: Of all of the death row exonorees, only 13 or 14 have, like Bloodsworth, been cleared due to DNA evidence. Oftentimes, other legal arguments, including overly technical arguments, lead to the discovery of innocence.

An example is the case of Juan Melendez, a Florida death row exonoree. While I am not privy to all of the legal issues that made up Melendez's appeals, one issue is whether the prosecution fully complied with the discovery process. As a result of this issue being litigated back and forth, it eventually was discovered that prosecutors had hidden another man's tape-recorded confession of the crime for which Melendez was convicted and death-sentenced. You can read more about Melendez's case here:


Here is the Florida Commission summary of the Melendez case. I agree that the issues here are related to actual guilt and are not "technicalities" as that term is generally used. The issues in this case related to the disclosure and admission of evidence in the guilt phase of the trial.

The quintessential technicality is the Fourth Amendment exclusionary rule, which detracts from rather than facilitates the search for truth. For that we have the rule of Stone v. Powell, 428 U.S. 465 (1976) that an issue fully and fairly reviewed in state court need not be considered again in federal court. In my view, we should extend the Stone rule to cover the entire penalty phase of capital cases.

Which of the legally available punishments we should give a murderer is an important question which should be made and reviewed carefully, but it is not of the same order as whether the defendant is a murderer or an innocent man, and it does not warrant the multilayered review we presently give it. Whether a defendant sentenced to life in prison was fairly tried should receive more attention than whether a clearly guilty murderer was sentenced to death in accordance with the Supreme Court's Byzantine code of procedure, but it doesn't.

To paraphrase an overly used phrase--It's better that 10 murderers get executed than one innocent be convicted of murder.

Mr. Elliot, do you agree?


I'd quite rather avoid either scenario.

Seriously, though, I do believe that the public would be well-served if individuals took it upon themselves to learn more about the death penalty. That's why I was pleased to watch the Brookings Institute debate on the death penalty.

Sadly, I can count on one hand the number of people I have met who are thoroughly knowledgeable about this issue, aside from those immersed in the work (either as pro-death penalty folks or anti-death penalty folks).

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