Tuesday, 25 August 2009

Sharon Keller, Troy Davis, and the Duty of a Death Case Judge

That's the title of Steve Sheppard's FindLaw commentary, posted today. Sheppard is the Judge Enfield Professor of Law at the University of Arkansas School of Law. He's also the author of I Do Solemnly Swear: The Moral Obligations of Legal Officials. LINK

No obligation of a judge is more awful than to rule on who should live and who should die at the hands of the state. No process more defines the American legal system: We put our worst criminals to death, but we do so while protecting rights under the law. Though the jury's sentence is the fulcrum of every decision, no person may die without a legislative decree that their conduct deserves death, and without judicial approval of the conviction and the sentence.
Many judges grow weary and callous from the endless claims of America's three thousand death-row inmates, of whom a dozen are yet scheduled to die in 2009. In 1996, Congress, angry with the slow pace and high costs of execution, passed the Antiterrorism and Effective Death Penalty Act ("AEDPA"), creating new technical rules to speed the guilty on their way.
Yet the law, the judges, and especially the people in whose name all this is done, can never allow a single case to escape the most perfect scrutiny possible, or the law jeopardizes its deepest claims to authority and trust. We—officials and citizens—have a duty to ensure that the protections of the laws are secure, and that we execute only the person guilty of the crime accused. Otherwise we violate the American commitment to freedom, truth, and the rule of law.
Two cases last week illuminated the dangers of callousness, of technical limits to scrutiny, and of speed in itself. At the same time, their stories offer hope that the judicial duty of scrutiny and the commitment to truth and freedom persist in U.S. law.
The technical rules of law are not an end in themselves, but a means of assuring fairness between the parties and the substantive fairness of the law. Judges who rely on such rules to avoid the merits, and legislators who demand they do so, betray the judicial obligation to ensure justice.
In a death case, this obligation is put into high relief. The law ought not to allow a person to die because a brief is half an hour late, or because evidence is found after a first habeas petition is denied. Every juror who relied on the wrong evidence, every judge who signs an order, every citizen who obeys this system must have confidence that the person who dies deserves to die. There is no solace in killing the innocent by fair techniques.
Innocence in a death case must prevail over all technicalities. That Judge Keller must answer for her technical foul is right, even if she is not punished for it. That Davis will finally have his hearing is essential, even if the evidence is found insufficient.
What the technical problems in both cases suggest, though, is more significant. Justice Scalia is right: We have never read the Due Process of Law to guarantee that someone demonstrably innocent shall not be put to death. Yet that, at its heart, is what the law must demand.


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