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The Lackey Claim, Again

The Supreme Court's three orders denying a stay to Utah double-murderer Ronnie Lee Gardner are here, here, and here. In the middle one, Justices Stevens and Breyer dissent with reference to their dissent in Johnson v. Bredesen, to the effect that a death sentence can be set aside merely because it has taken so long to resolve the appeals.

However, in this case, unlike Johnson, there is no claim of actual innocence. The only injustice here is that Gardner was allowed to postpone his day of reckoning for as long as he did. Justice Stevens himself bears a heavy share of the blame, as the law of capital punishment is more convoluted than it needs to be, with more litigatable issues than it needs to have, largely because of his "swing vote" in the formative years of the late 1970s and early 1980s.

Put to one side those cases with an actual, substantial "got the wrong guy" claim. For all others, we should get the job done in five years from sentence to execution, max. That is plenty of time if everyone involved puts their efforts toward the goal.


How long were Gardner's federal appeals? Certainly, even if one were to accept a Lackey claim, the federal delays cannot be attributed to the state.

I litigated criminal cases in federal court for about 20 years. The notion that it could take more than five years to resolve everything that needs resolving is not merely mistaken but preposterous.

The basic thing you need to find out in a criminal case is whether there has been a fair and accurate determination of guilt. I don't recall a single case I handled in which that could not be done in a year.

As is so often the case in life, what is needed is not a more elaborate system. What's needed is the collective will to make the system we have work expeditiously.

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