Paul Clement (pictured), former Solicitor General under President George W. Bush, along with a group of former Justice Department prosecutors and civil rights officials, is asking the U.S. Supreme Court for time to argue on behalf of a former death row inmate in a case addressing prosecutorial misconduct. Lawyers for John Thompson claimed that the New Orleans district attorney's office systematically withheld important evidence that would have exonerated Thompson of an armed robbery and murder. Thompson was eventually acquitted and freed after 18 years in prison, mostly on death row in Louisiana. In October, the Supreme Court will consider whether cities can be held liable for a single violation of Brady v. Maryland (1963), the decision that requires prosecutors to disclose exculpatory evidence to criminal defendants. J. Gordon Cooney Jr, Thompson’s lawyer, said he welcomes the help from Clement and the group of Justice Department officials. According to Cooney, the range of officials, both Republican and Democratic, “reflects that this is not an issue that divides neatly along lines you would think of in a stereotypical way,” and that the group “understands that there needs to be accountab[ility] for conduct that nearly cost a man his life.”
The U.S. Supreme Court has declined to hear the appeal of Bruce Webster, an inmate on the federal death row with evidence that he is intellectually disabed. In 2002, the Supreme Court ruled in Atkins v. Virginia that the execution of a person with intellectual disabilities (mental retardation) would be unconstitutional. Webster's evidence indicates that three federal doctors determined he had an intellectual disability when he applied for disability benefits in 1993, a year before he committed the murder that resulted in his death sentence. However, a 1996 law prohibits federal courts from considering new evidence discovered late in the appeals process unless it would prove the defendant’s innocence. In April, the U.S. Court of Appeals for the Fifth Circuit ruled that Webster had exhausted his appeals and his recent evidence of intellectual disability could not be considered, even though it would bar his execution if allowed in. Judge Jacques Wiener, writing for the court, expressed dismay at the restraint of the law, stating, “We today have no choice but to condone just such an unconstitutional punishment.” (A comparable situation would be the belated discovery that an inmate was a juvenile at the time of his crime--another bar to execution, but perhaps producing a different result.)
An op-ed by Bob Herbert of the New York Times highlights issues raised by former Supreme Court Justice John Paul Stevens that changed his mind on the death penalty in the U.S. Herbert cites information collected by the Death Penalty Information Center and points to shoddy defense and state misconduct in the deliberate withholding of evidence as prominent abuses in the system. “Executions have been upheld in cases in which defense lawyers slept through crucial proceedings. Alcoholic, drug-addicted and incompetent lawyers — as well as lawyers who had been suspended or otherwise disciplined for misconduct — have been assigned to indigent defendants.” According to Herbert, “The egregious problems identified by Justice Stevens (and other prominent Americans who have changed their minds in recent years about capital punishment) have always been the case. The awful evidence has always been right there for all to see, but mostly it has been ignored. The death penalty in the United States has never been anything but an abomination — a grotesque, uncivilized, overwhelmingly racist affront to the very idea of justice.” Read full op-ed below.
In a recent interview on NPR, newly-retired Supreme Court Justice John Paul Stevens said he particularly regretted one vote during his 35 years on the high court--his 1976 vote to uphold the death penalty in Gregg v. Georgia. Stevens remarked, "I thought at the time . . . that if the universe of defendants eligible for the death penalty is sufficiently narrow so that you can be confident that the defendant really merits that severe punishment, that the death penalty was appropriate." But, over the years, he added, "the Court constantly expanded the cases eligible for the death penalty, so that the underlying premise for my vote has disappeared, in a sense." Justice Stevens also said that the court has made death penalty procedures more sympathetic to prosecutors: “I really think that the death penalty today is vastly different from the death penalty that we thought we were authorizing.”
On August 24, U.S. District Court Judge William T. Moore Jr. rejected Troy Davis’s petition to overturn his conviction for killing a police officer in 1989 in Georgia. Judge Moore chose a high standard of proof that Davis would have to meet to establish his innocence claim: Davis needed to prove by "clear and convincing evidence that no reasonable juror would have convicted him in light of the new evidence." Judge Moore did conclude that it would be unconstitutional to execute "those who can make a truly persuasive demonstration of innocence." This holding has only been assumed for the sake of argument by the U.S. Supreme Court. He also acknowledged that "the State's case may not be ironclad." Davis, who has spent nearly two decades on death row, has attracted support from many human rights groups because a number of key prosecution witnesses recanted their trial testimony, and other witnesses have come forward implicating another suspect. Last year, the Supreme Court issued an historical ruling allowing Davis to present evidence that had been uncovered since his trial. It is possible that Judge Moore's ruling will now return to the Supreme Court for further review. Read Judge Moore's ruling: