Sunday, 15 April 2007

An inmate's fate often hinges on luck of the draw

April 15, 2007

The politics of life and death

An inmate's fate often hinges on luck of the draw

BY DAN HORN, Cincinnati Enquirer

Paul Gregory House pinned his hopes for survival on the U.S. 6th Circuit
Court of Appeals in Cincinnati five years ago when he challenged his death
sentence for rape and murder.

He won.

Two years later, House's case returned to the 6th Circuit for what amounted
to a new hearing on the same issues. The only change was the addition of
four conservative judges to the court.

He lost.

Same evidence. Same arguments. Different outcome.

House learned the hard way that a federal death-penalty appeal can be a game
of chance.

If the judges assigned to a case were appointed by Democratic presidents,
odds are good they will overturn a death sentence because of new evidence or
mistakes made during the trial. If the judges were appointed by Republicans,
the chances are slim.

That's especially true at the 6th Circuit, the powerful and deeply divided
court that decides death penalty appeals from Ohio, Kentucky and Tennessee.

An Enquirer analysis of the court's death-penalty decisions since 2000 shows
that 6th Circuit judges consistently voted along partisan lines, just as
they did in House's case:

Judges appointed by Republican presidents voted to deny inmate appeals 85
percent of the time.

Judges appointed by Democrats voted to grant at least some portion of those
appeals 75 percent of the time.

Republican appointees dissented from majority opinions 25 times, always
arguing against the inmate. Democratic appointees dissented 29 times, all
but once arguing for the inmate.

"That is very stark," said Richard Dieter, executive director of the Death
Penalty Information Center in Washington, D.C., a nonprofit group that has
been critical of capital punishment. "It makes blind justice look like part
of the political system."

The voting records are significant because 6th Circuit judges do most of
their work as members of randomly selected three-judge panels. Sixteen
judges are eligible today to sit on those panels - 14 active judges and two
semi-retired senior judges.

Nine of those judges are Republican appointees; seven are Democratic

That means life-and-death decisions often hinge on the luck of the draw: A
panel with a liberal majority gives the inmate a far greater chance of
avoiding execution than one with a conservative majority.

"It's a roll of the dice," said Nathaniel Jones, a retired 6th Circuit judge
appointed by President Carter. "When I look at a lineup of a panel in this
kind of case, you can almost go to the bank on what the result is going to

While it's a given that liberal and conservative judges often view the death
penalty differently, some lawyers say the split exposed by House's case is
now so dramatic it raises fundamental questions about the fairness of the

Death-penalty opponents say it's another example of the arbitrary
application of capital punishment.

Supporters say it shows how a handful of judges can toss out reasonable
sentences and jury verdicts.

"It would be a wonderful utopia if all judges ruled the same way based on
the same set of facts," said Hamilton County Prosecutor Joe Deters. "But
they don't."


The result, some say, is a system that rewards inmates who are lucky in
their panel selection and punishes those who are not.

The panel decisions are important because, unlike House, most inmates do not
get a full-court review and even fewer make it to the Supreme Court.
Usually, the panel gets the last word.

That's what happened last year when two Ohio inmates sought to delay their
executions so they could join an appeal challenging lethal injection as
cruel and unusual punishment. Jerome Henderson won his case in a 2-1 vote,
but Jeffrey Lundgren went before a different panel and lost 2-1.

Lundgren was executed.

"It looks very much like a lottery," said Arthur Hellman, a University of
Pittsburgh law professor who has studied federal appeals courts. "Literally,
if someone lives or dies depends on the panel they get."

Few know that better than House, a Tennessee inmate who claims DNA evidence
clears him of a 1985 rape and murder.

House lost in a 2-1 vote when a panel considered his case, but he was
granted a review by the full 6th Circuit in 2002. House won that vote 6-5 -
the court had fewer members then - but lost 8-7 two years later when the
case returned for another hearing.

The final vote pitted Republican appointees against Democratic appointees.

The majority rejected House's claim of "actual innocence," even though DNA
tests showed that semen found on the victim's clothing came from her
husband, not House.

"The case against House remains strong," Judge Alan Norris, a Reagan
appointee, wrote for the majority.

The dissenters were just as adamant.

"The new evidence so completely turns the case around that ... House should
be immediately released," Judge Gilbert Merritt, a Carter appointee, wrote
in his dissent.

The court's conflicting decisions and the DNA evidence in the case prompted
the U.S. Supreme Court to intervene - a rarity in capital cases.

The justices ruled in House's favor, and he now is awaiting a new trial.


The Enquirer analysis found that the differences among the 21 judges who
cast votes since 2000 are significant and, in some cases, extreme.

Appointees of President George H. W. Bush posted the most lopsided track
record, voting 50-4 against granting inmate appeals. President George W.
Bush's appointees voted 34-5 against granting appeals.

By contrast, President Carter's appointees voted 31-4 in favor of inmate

Clinton and Reagan appointees were more moderate. Clinton's voted 75-32 in
favor, while Reagan's voted 39-13 against.

Several lawyers and court watchers say the stark differences are the product
of a judicial nominating process that puts the focus on hot-button issues,
such as the death penalty and abortion. They say judges who are not reliably
liberal or conservative on those issues have a tough time securing a

"The most important factor is the president who appoints the federal
judges," Deters said. "That's why, when there is a Supreme Court nominee,
there is blood in the streets of Washington."

Ten of the 16 judges who currently hear the 6th Circuit's death penalty
appeals vote the same way at least 80 percent of the time.

At one end of the spectrum are conservatives such as Alice Batchelder,
Eugene Siler, Deborah Cook, Jeffrey Sutton, John Rogers and Danny Boggs.
Together, they voted 92-9 against inmate appeals.

On the other side are liberals such as Gilbert Merritt, Eric Clay, Karen
Nelson Moore and Boyce Martin. Their combined votes totaled 65-9 in favor of
inmate appeals.

The only judges who did not vote one way or the other 60 percent of the time
or more are Ronald Lee Gilman and Martha Craig Daughtrey. The two Clinton
appointees voted for inmate appeals about half the time.

"Our circuit is so divided politically,

" said Jennifer Kinsley, a Cincinnati
lawyer who has argued before the court in several death penalty cases.
"People tend to stick to their side of the fence."

Because the stakes are so high in capital cases, the sharp differences and
close panel votes sometimes lead to tension on the court. Judges have traded
verbal jabs in their published opinions and have, occasionally, accused
colleagues of manipulating rules to give their side an advantage.

Boggs, appointed by President Reagan, once famously complained that the
court's liberals would delay an execution "based on a hot dog menu." Liberal
judges have complained that conservatives sometimes act as "a cabal."

"People have different opinions about what's important," said Martin, a
Carter appointee who has spoken out against capital punishment. "One of the
major issues that divide our court is the death penalty."


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

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."


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."


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

"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

"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

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

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.

"I don't think anything can be done about it," Kinsley said. "You have to
hope for fairness in the end."


Source : Cincinnati Enquirer

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