A number of federal judges have recently written strong dissents in capital cases because they were concerned that restrictions on appeals could lead to tragic mistakes. Judge William Fletcher of the U.S. Court of Appeals for the Ninth Circuit, for example, began his dissent in the case of Kevin Cooper with the words, “The State of California may be about to execute an innocent man.” According to a study by the New York Times, such concerns have risen recently. “In dozens of capital cases in recent years, appeals court judges, some of whom have ruled in favor of the death penalty many times, have complained that Congress and the Supreme Court have raised daunting barriers for death row prisoners to appeal their convictions, and in many cases the judges have taken on their colleagues,” John Schwartz wrote in the August 14 edition of the paper. One of the key impediments to reaching the merits of many claims is the Anti-Terrorism and Effective Death Penalty Act of 1996.

Another example of such concern was Judge Rosemary Barkett’s dissent in the case of Troy Davis, who has a strong claim of innocence. Judge Barkett of the United States Court of Appeals for the 11th Circuit complained of the law’s “thicket of procedural brambles.” She noted that seven of the nine witnesses in the murder trial of Troy Davis, a death row inmate in Georgia, had recanted their testimony. Elisabeth Semel, director of the Death Penalty Clinic at Berkeley, said she believes many jurists have been changed by the number of exonerations in capital cases: “I think it’s been shattering to judges who had a fair amount of confidence in the system,” she said.

(J. Schwartz, “Judges’ Dissents for Death Row Inmates Are Rising,” N.Y. Times, Aug. 14, 2009). See Arbitrariness and Innocence.