EVEN WHEN IT WAS CLEAR THAT THE EVIDENCE LEADING TO A MURDER CONVICTION WAS RIDDLED WITH HOLES, SOME JUDGES STILL WANTED THE ACCUSED TO BE EXECUTED

Because "proper procedures" had been followed!

More than ten years ago, two defendants were charged with a brutal rape and murder. They were convicted at separate trials, albeit based on what the Court described as radically different and inconsistent theories and evidence. The defendant in this case, Thomas Thompson, was scheduled to be executed on August 5, 1997. Two days prior to that date, a deeply divided en banc court intervened by taking the unusual step of recalling its earlier mandate not to rehear the case. The majority then vacated the execution order on a number of grounds, and reinstated the very writ of habeas corpus that it had earlier vacated.....

To understand what happened, it is necessary to review just some of the evidence that all of the judges appeared to accept without reservation. A State coroner testified that there was no "anatomical" evidence of any rape, but that sperm and semen analysis "might" provide such evidence. Defense counsel never cross-examined the coroner to clarify those statements. (Id., at 1052). The victim was covered with bruises, but subsequent testimony by an independent pathology expert brought out that, had he been called to testify, he would have testified that the bruises were several weeks old. The lawyer never called the pathology expert to testify; and the Court concluded that the lawyer's "failure to investigate, develop, and present evidence rebutting the State's forensic evidence fell below a reasonable standard of professional responsibility."

The most dramatic and damaging State's evidence against the defendant came from two jailhouse informants who swore that Thompson had admitted raping and murdering the victim. While the trial attorney made a pass at attacking the credibility of those two informants, he failed to make much of a dent. At subsequent evidentiary hearings in this case, it was unequivocally established that one of the informants had an extensive history as an informant; he "frequently claimed that fellow inmates confessed their crimes to him"; he "frequently received favors in exchange for cooperating with the police"; and there were statements in the files of law enforcement officials that he was "an unreliable informant, a con man, and a heroin addict." (Id., at 1054). The second informant "parroted almost verbatim inaccurate news reports"; he had served as an informant since the age of fourteen; two police agencies for whom he worked "considered him unreliable"; and his parents considered him a "pathological liar." (Id.).

The Ninth Circuit concluded that the lawyer's "failure to investigate and impeach" those witnesses severely prejudiced Thompson; and that had he done a professional job, he "could have destroyed" their credibility. (Id.). Sadly, there was much more. In the words of the Court: "The prosecutor manipulated evidence and witnesses, argued inconsistent motives, and at [the co-defendant's] trial essentially ridiculed the theory he had used to obtain a conviction and death sentence at Thompson's trial." (Id., at 1057). Combined, all of that led the Court to conclude that it was reasonably probable that "the jury convicted Thompson of a rape he did not commit and then erroneously sentenced him to die for a capital offense." (Id., at 1050).

When a majority of the judges finally realized that a horrible miscarriage of justice was about to occur, the Ninth Circuit took the admittedly extraordinary step of recalling its earlier mandate not to hear the case en banc; and it vacated the death penalty - just two short days before the execution. Five judges dissented from the decision to recall the earlier mandate - not because they felt that what had happened to Thompson was fair - but because they concluded that "A properly constituted panel of this court has heard and decided Thompson's appeal. The time to review that decision en banc has come and gone." (Id., at 1045). In addition, some of those judges concluded that there were no "exceptional circumstances" that warranted any further intervention in this case. And one of those judges, Judge Kozinski, made the extraordinary comment that if the court had erred in its earlier reviews of the case "for whatever reason, the error can be corrected in a future case where the problem again manifests itself. Since any problem worthy of en banc consideration will perforce appear again and again, missing an en banc call in a single case does not terminate forever the opportunity of judges troubled by the error to raise the issue." (Id., at 1060).

Judge Reinhardt was appalled. He lashed out at Judge Kozinski's conclusion, which he called "bizarre and horrifying in its implications." He continued: "We cannot correct the error of an unconstitutional execution in the next case. Surely no responsible judge could believe otherwise. . . . Reading Judge Kozinski's strange dissent, one would think that justice is irrelevant in this nation and that all that matters is whether . . . some recondite internal General Order was complied with to the last detail. That is surely not the type of legal system in which most of us believe. That is surely not the type of nation that we represent ourselves to be when we offer ourselves as a model of fairness and decency, democracy and civilization, throughout the world." (Id., at 1060-61).

From here


(And don't forget your ration of Wicked Thoughts for today)