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Judge Says High Court Unfairly Limits Appeals

Speech: U.S. justices have erected 'technical barriers' in death penalty cases, appellate jurist says in stinging criticism.


In an unusually combative speech, a Los Angeles federal judge Tuesday rebuked the U.S. Supreme Court for constricting human rights--particularly in limiting what he termed legitimate appeals in death penalty cases.

In contrast with the high court under the late Chief Justice Earl Warren, the court under Chief Justice William H. Rehnquist will be remembered for "erecting technical barriers that foreclose relief to persons with meritorious constitutional claims," Circuit Judge Stephen Reinhardt said in New York.

In his speech, the 67-year-old Reinhardt, probably the most outspokenly liberal judge on the federal appellate bench, revealed previously secret details about the 9th Circuit's inner workings.

The speech focused on the court's handling of the case of Thomas Thompson, who was executed at San Quentin in July for the 1981 rape and stabbing murder of a Laguna Beach woman.

Reinhardt quoted a previously unpublished July 1997 internal memo from Circuit Judge Jerome Farris, a conservative, urging his colleagues to give further review to Thompson's case. Farris' appeal came after he read a friend-of-the-court brief by seven former prosecutors, including the Sacramento attorney who wrote the state's death penalty law, saying that Thompson had been convicted after prosecutorial misconduct.

As quoted by Reinhardt, Farris' "eloquent plea" included the following passage:

"Civilization survives because from time to time some of the strong step forward and say 'enough.' Those who care cannot correct all of the wrongs nor do they owe an apology for those wrongs they cannot impact. However, in my view, they must step forward when the question of appropriate action is presented. In such moments, inaction or indifference--not failure--is the deadly sin."

Less than a month later, the 9th Circuit, by a 7-4 vote, reversed an earlier ruling by a three-judge panel of the court and blocked Thompson's execution just hours before he was to be put to death. The majority said it was acting to prevent "a manifest injustice." The four dissenting 9th Circuit judges contended that their colleagues had exceeded their authority to recall a decision that the court had issued earlier--a view that ultimately prevailed.

The Supreme Court initially upheld the stay, but later overturned it, saying that the appeals court had not followed proper procedure. In a 5-4 decision, written by Justice Anthony Kennedy, the high court said that the 9th Circuit should not even have conducted what is known as an "en banc" hearing of 11 judges that led to the stay because it had waited too long to act after the original decision by the three-judge panel.

In his speech, Reinhardt acknowledged that he and another 9th Circuit judge had been negligent in not promptly asking the en banc hearing to review the original ruling.

However, Reinhardt said that after the mistake was discovered and the original three-judge panel was asked to pull its opinion back, it declined to do so. "Never before had a panel precluded review of its decision to end someone's life because their colleagues had made inadvertent errors in the timing of an en banc call."

Reinhardt characterized the case as "the epitome of the Supreme Court's death penalty jurisprudence." The judge blasted the high court for elevating procedural rules over important values.

He stressed that in overturning the 9th Circuit decision, the high court had not even considered the merits of Thompson's claim--validated by the 9th Circuit in its ruling--that he had been denied the effective assistance of counsel.

Moreover, Reinhardt declared that the Supreme Court "went so far as to extend, implicitly, the rule holding defendants liable for procedural errors made by their lawyers to procedural errors made by their judges--a bizarre concept indeed."

Thompson was the fifth person executed in California since the state resumed executions in 1992. Reinhardt noted that Thompson was the only one of the five who was executed while still maintaining his innocence.

In the address, Reinhardt also criticized President Clinton and Congress for enshrining "the philosophy and . . . jurisprudence of the Rehnquist court" in enacting the Anti-Terrorism and Effective Death Penalty Act in the wake of the 1995 Oklahoma City bombing. That statute placed significant restrictions on the ability of federal courts to review issues previously raised by death row inmates.

"The two branches of government each sought to appear tougher than the other in the war against terrorists, although no one bothered to explain how limiting the historic right of all state prisoners to habeas [corpus] relief would help the federal government in the latest of its periodic 'wars,' " Reinhardt said.

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