Here's a red-hot news flash. Sirhan Sirhan is guilty of the murder of Senator and presidential candidate Robert F. Kennedy.
In 1996, Congress clamped a one-year statute of limitations on petitions for writs of habeas corpus when used as collateral attacks on criminal judgments. In 2013, the Supreme Court held in McQuiggin v. Perkins, 133 S. Ct. 1924, 1928 that actual innocence is, in effect, an exception. (I have no quarrel with that holding as a matter of policy and did not file a brief in that case to oppose making the exception, but as a matter of statutory interpretation I don't think the opinion holds water.) But look who crawls out of the woodwork claiming innocence. Later in 2013, the federal magistrate judge issued a report and recommendation rejecting Sirhan's claim. It begins,
In 1996, Congress clamped a one-year statute of limitations on petitions for writs of habeas corpus when used as collateral attacks on criminal judgments. In 2013, the Supreme Court held in McQuiggin v. Perkins, 133 S. Ct. 1924, 1928 that actual innocence is, in effect, an exception. (I have no quarrel with that holding as a matter of policy and did not file a brief in that case to oppose making the exception, but as a matter of statutory interpretation I don't think the opinion holds water.) But look who crawls out of the woodwork claiming innocence. Later in 2013, the federal magistrate judge issued a report and recommendation rejecting Sirhan's claim. It begins,
This case may be the final chapter in an American tragedy. On June 5, 1968, moments after declaring victory in the California Democratic primary, Senator Robert F. Kennedy walked through the kitchen pantry of the Ambassador Hotel, where petitioner was waiting. As Senator Kennedy stopped to shake hands with hotel employees, petitioner walked toward him, extending his arm. Instead of shaking Senator Kennedy's hand, petitioner shot him. Petitioner continued to fire his gun even as bystanders wrestled him onto a table. Senator Kennedy died of his wounds.
Petitioner was charged with assassinating Senator Kennedy. The evidence of petitioner's guilt was overwhelming. Not only did numerous witnesses see petitioner shoot Senator Kennedy, but petitioner - who had written "RFK Must Die" and "Robert F. Kennedy must be assassinated" repeatedly in his diary - confessed to shooting Senator Kennedy "with malice aforethought." Petitioner was convicted of first degree murder and five counts of assault with a deadly weapon. He received a death sentence.
In this petition for a writ of habeas corpus, petitioner challenges his conviction for the assassination of Senator Kennedy. This petition was filed in 2000 - more than three decades after petitioner was convicted.2 Not surprisingly, respondent moved to dismiss the petition on the ground that it is barred by the statute of
limitation. Petitioner opposes the motion, arguing, among other things, that he is entitled to an exception to the statute of limitation because he is actually innocent. For the following reasons, respondent's motion should be granted, and the petition should be dismissed as untimely.
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2. The petition alleges that (1) the prosecution withheld exculpatory evidence, destroyed evidence, and presented false evidence; (2) the evidence is insufficient to support petitioner's conviction; and (3) petitioner's trial counsel provided ineffective assistance. [See Petition at 1-5, 9-181].
Sixty-five pages later, the magistrate judge concluded that Sirhan does not meet the standard. There is something to be said for laying it all out.
On Monday the district judge accepted the recommendation and denied Sirhan's petition. She also denied a certificate of appealability, meaning she doesn't think the case is even reasonably debatable.
Why wasn't Sirhan executed? In February 1972, the California Supreme Court "interpreted" the California Constitution to prohibit capital punishment despite the inconvenient truth that the constitutional convention had expressly considered the precise question and decided it the other way. It was arguably the most blatant case of the judicial activism in American history. A few months later, the U.S. Supreme Court threw out all existing, discretionary capital sentencing statutes, which would have included California's, on the same argument it had rejected the year before in a California case, merely relabeled under a different provision of the Constitution.
All current death penalty laws have circumstances to distinguish potentially capital murders from others. In California, political assassination is one of the "special circumstances." See Cal. Penal Code ยง190.2(a)(13). I don't know of it ever being used.
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