TERRY KINNEY
Associated Press
CINCINNATI - A veteran federal appeals judge has turned up the volume in his opposition to the death penalty, drawing increasing attention with his unusually blunt and outspoken opinions.
Former Chief Judge Boyce Martin, a Jimmy Carter appointee on one of the most sharply divided appeals courts, is building a reputation for his stand, such as with a dissent that Capital Defense Weekly described as blistering.
Some experts believe the U.S. Supreme Court is watching what's happening in the 6th U.S. Circuit Court of Appeals and other circuits before it takes another look at the death penalty or, at least, the use of lethal injection, which is increasingly being challenged in lawsuits. Martin, a liberal voice in a court with a Republican-appointed majority, has frustrated some colleagues and family members of murder victims, while adding to arguments by anti-death penalty groups such as the Death Penalty Information Center.
The center has pointed to a 2005 dissent in which Martin noted that he had been an appeals court judge for more than 25 years and that "only one conclusion is possible ... The death penalty in this country is arbitrary, biased and so fundamentally flawed at its very core that it is beyond repair."
The federal judicial system includes 13 appeals court circuits, each the last step before the Supreme Court. The 6th Circuit hears appeals from Ohio, Michigan, Kentucky and Tennessee, with requests for stays of execution or other death appeals going to a randomly drawn three-judge panel.
Martin, the longest serving judge in the 6th Circuit, sees an impact in the debate.
"We are the most cautious of all the circuits, even the (San Francisco-based) 9th Circuit, in applying the death penalty," Martin said in an interview. "They are much more deferential to state law than we are. I am very proud that we have progressed in the fashion we have."
Four other judges signed onto a 2006 dissent in which Martin pledged to uphold every stay that came his way, "until the Supreme Court sorts this out."
He said capital punishment is being carried out under a "dysfunctional patchwork of stays and executions."
"There are some circuits that have reputations of being conservative or liberal," said Richard Dieter, executive director of the Death Penalty Information Center. "The 6th Circuit seems to be very dependent on what set of judges you get. There are sharp differences."
Chief Judge Danny Boggs, a Reagan appointee, has put into writing his frustration with Martin's stand.
Upset by delays the court granted to one convicted murderer in 2001, when Martin was chief judge, Boggs wrote that "a majority of the active members of this court would grant a stay based on a hot dog menu."
And in a July opinion, Boggs suggested that bad lawyering - often cited by Martin as a reason to toss a death sentence - appeared to be more effective than a brilliant defense in getting a convicted murderer's life spared.
"Thus, if counsel provides fully effective assistance and the jury simply does not buy the defense, then the defendant is likely to be executed," Boggs wrote. "However, if counsel provides ineffective assistance, then the prisoner is likely to be spared, certainly for many years, and frequently forever."
Last June, the U.S. Supreme Court made it easier for death row inmates to contest the way lethal injections are administered, possibly adding years to appeals. It allowed inmates to make special federal claims, after all other appeals are exhausted, to allege that the chemicals used in executions cause pain amounting to unconstitutional cruel and unusual punishment.
Florida, California and Maryland have suspended executions until that question is resolved.
The 6th Circuit has not addressed lethal injection directly but has considered procedural questions involving it. The split in the court has frustrated at least one federal district judge.
"But in light of conflicting, unexplained decisions, the court simply cannot say what the law is in this circuit on the issues involved, and multiple panels of the appellate court have declined opportunities to explain the state of the law," U.S. District Court Judge Gregory Frost wrote. "The end result is a morass of deadly ambiguity."
Martin was appointed to the 6th Circuit in 1979, giving him the longest tenure of the 14 active judges. Over the years, he has come to believe that most people convicted of murder are poor, often minorities and "usually uncounseled, unadvised, unaware of what's going on," he said.
Tom Fitton, president of the conservative group Judicial Watch, said Martin is known as "a reliable vote for delaying the death penalty" on a court with deep divisions.
"Compared with other circuit courts, it seems there are many judges who have gone out of their way to find a way to delay death sentences," Fitton said. "Depending on the panel you get, you could get widely varying penalties."
At age 71, with an appointment for life and no plans to retire, Martin says he has become more willing to express his views, candidly.
"My oath requires me to apply the law as interpreted by the Supreme Court of the United States," he wrote in a 2005 opinion. "I will continue to do as I am told until the Supreme Court concludes that the death penalty cannot be administered in a constitutional manner or our legislatures abolish the penalty.
"But lest there be any doubt, the idea that the death penalty is fairly and rationally imposed in this country is a farce."
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