Sunday - April 15, 2007

U.S. 6th Circuit Court of Appeals:  Death Penalty Ruling Depends on Presidential Appointment

The Cincinnati Enquirer, in today's Sunday edition, looks at the correlation between Presidential appointment and death penalty rulings that come from the U.S. 6th Circuit Court of Appeals, based here in Cincinnati.  What they found shouldn't surprise anyone.  Liberal judges tend to favor the defendant while conservative judges tend to uphold lower court rulings.

In many ways, the judges are no different than the rest of a society divided by the culture wars.

"It is, at the end of the day, a political issue and a social issue," said Richard Chesley, an attorney who has argued before the court. "They can't separate their own pathos, their own political views.

"While justice is supposed to be blind, it's not."

Unlike the rest of society, however, judges must make their decisions within the framework of the law. They can't simply say, "I favor or oppose the death penalty, so I'm voting this way."

Within that framework, there is plenty of room for subjectivity.

Liberal judges tend to give more weight to problems such as poor work by defense lawyers, misconduct by prosecutors and errors by judges. They also are more likely to conclude those problems are prejudicial, or serious enough to invalidate a death sentence.

Conservatives focus more on procedural issues, such as whether the appeal is properly filed. They also are more deferential to the original jury verdict and sentence, even when mistakes are made during the trial.

"People think that the business of deciding constitutional cases is somehow governed by absolute rules, where you lay the Constitution down beside the case and you see the answer," said Merritt.

"Nothing in life works that way," he said. "It's more like having a complicated medical problem and you go get several opinions."

In a 2005 case, for example, judges Boggs and Cook rejected an appeal because the claims were either without merit or were "procedurally defaulted."

Martin, who dissented, declared that those same claims were so serious they raised fundamental questions about the fairness of the death penalty.

"Only one conclusion is possible," Martin wrote. "The death penalty in this country is arbitrary, biased, and so fundamentally flawed at its very core that it is beyond repair."

'THIS IS A FARCE'

That kind of split decision fuels the debate over the role the appeals court should play in capital cases.

The inmates' lawyers say the court is right to closely review capital convictions and, when necessary, to throw out sentences.

"If we're going to take somebody's life away, they are entitled to the full due process the Constitution allows them," said Mark VanderLaan, a Cincinnati lawyer who has argued capital cases in the 6th Circuit. "These cases are deserving of additional scrutiny."

Prosecutors, however, say it's unfair to the victims' families and to society for the 6th Circuit to overturn as many sentences as it does. About 40 percent of all cases reviewed by The Enquirer - 35 out of 85 - ended with a decision at least partially favorable to the inmate.

"I'm getting tired of having to explain to victims' loved ones the reasons behind some of these moronic decisions," Deters said. "They look to the judicial system to bring justice to them, and this is a farce."

Usually, the inmates who win remain in prison for years or decades, but there are exceptions.

Mark Piepmeier, an assistant prosecutor in Hamilton County, was stunned two years ago when he encountered Derrick Jamison walking down Central Parkway.

He had helped send Jamison to death row almost 20 years earlier, but the 6th Circuit ruled he didn't get a fair trial.

"He wasn't threatening. He just said, 'Hey, Mark, how you doing?' " said Piepmeier, who told Jamison to keep his distance. "I think he truly thought, 'Let's let bygones be bygones.' "

Even when the inmates are executed, the appeals process can be difficult for victims' families.

Sharon Tewksbury endured an ugly court fight before seeing John Byrd executed in 2002 for stabbing to death her husband, Monte, in 1983.

A panel voted 2-1 against Byrd in 2000, but Judge Jones dissented and then voted with several other judges to delay the execution. The case led to public feuding among judges - inspiring Boggs' "hot dog menu" comments - and still riles those on both sides.

"It was a circus," Tewksbury said. "They are sworn to uphold the laws and leave behind their personal agendas, and often that does not happen."

NO VIABLE ALTERNATIVE

Few 6th Circuit judges would discuss the court. Those who did say they think their colleagues are serious about giving both sides a fair shake.

They just have different views on the law and, in particular, the death penalty.

"Judges are a reflection of the culture," said Merritt, a Carter appointee. "I personally like every one of them, but they are different people."

Conservatives and liberals agree on that point, but many worry about fairness when similar cases end differently because of the makeup of the panel.

"When you have the courts ... making such divergent rulings on similar facts and circumstances, it really throws off-kilter the administration of justice," said Tom Fitton, president of the conservative group Judicial Watch.

Judges and lawyers see no viable alternative to the random selection of panels, which they say at least gives each side a chance to get sympathetic judges.

They say the panel system protects liberals and conservatives because it prevents a court majority from imposing its will in every case. The panels ensure both sides will have a voice.

As House learned in his three trips to the 6th Circuit, no system can guarantee consistency in the court's decisions.

That's up to the judges.

In the print edition of this article, the Enquirer, looking at cases from 2000 and on, listed the judges by president and how they voted. Trackposted to Blue Star Chronicles, The Amboy Times, Faultline USA, Walls of the City, and Pursuing Holiness, thanks to Linkfest Haven Deluxe.

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