death penalty pt. 2 - Clive Stafford Smith - "empty legal formalism"

Here's a good explanation of the Kafkaesque legal situation Kenny Richey finds himself in (see habeas corpus & the death penalty), written by his lawyer Clive Stafford Smith, a prominent human rights advocate who also currently represents some Guantanamo inmates in addition to years of tireless work fighting the death penalty in the southern states. Yesterday's Guardian published his take on the Richey case. The British papers have taken much more interest in his remand hearing than has the US press, and regularly express outrage at the US' death penalty legal apparatus.

Cruel but all too usual punishment

If Kenny Richey's death row appeal in Ohio fails, he could be executed on evidence that even his prosecutor admits is fatally flawed.

January 24, 2007

"Even though this new evidence may establish Mr Richey's innocence, the Ohio and United States constitution nonetheless allow him to be executed because the prosecution did not know the scientific testimony offered at the trial was false and unreliable." - Kenny Richey's prosecutor, Dan Gershutz

A far as weeks on death row go, this is a particularly busy one for Scotsman Kenny Richey. Today, a court in Ohio heard arguments in his appeal; tomorrow is Robbie Burns' birthday; and on Saturday, Kenny will have spent 20 years on death row. Two years ago, the same court actually overturned Kenny's conviction but the prosecution used legal technicalities to put him back on death row. He was 22 when Ohio decreed that he should die. He has spent almost half of his life waiting for execution.

For years, defence lawyers in capital cases were accused of manipulating technicalities to avert the execution of the palpably guilty. Now, the Ohio prosecutors use technicalities to manoeuvre the execution of the patently innocent. According to Dan Gershutz, whether Kenny is innocent - and he is - should not be relevant to whether he should die for the crime.

This might seem an incredible assertion by the man who is employed by the state in a criminal proceeding. One might think that any justice system should be designed to sort the wheat of innocence from the chaff of guilt. The execution of the wrong person should be the nightmare of any legal process - as it was in Britain when the abolition of hanging came hard on the heels of some terrible mistakes.

Yet American courts are cavalier about their execution errors. Incredibly, the US Supreme Court had sided with Kenny's prosecutor. The court held in the case of Herrera v Collins that, without more, "claims of actual innocence based on newly discovered evidence have never been held to state a ground for federal habeas relief." Translated into English, this means that as long as the trial seemed superficially fair - the lawyers were awake, the judge unbiased - the fact that it reached a spectacularly erroneous result is simply not an issue.
. . .

Tony Café has over 20 years experience as a fire scene forensic examiner, conducting over 1,500 fire scene examinations. He did scientific testing on the evidence that convicted Kenny. "If Kenny Richey were executed on the basis of this scientific evidence, then these chromatograms will become historical documents, examined by scientists all over the world to show just how wrong forensic evidence can be."

Other new evidence proves Kenny did not start the fire. Although the prosecution does not challenge the power of this evidence, still they insist on their legal right to execute him on the basis of a procedural technicality: that the prosecutor who presented evidence regarding the fire did not know it was false when he presented it. Empty legal formalism has Kenny in its deadly grasp. Innocent people should not be in prison, let alone awaiting execution.

It seems unlikely that today's appeal will save Kenny's life, although we must hold out hope. If he loses, Kenny's best chance of avoiding execution lies with being granted clemency by Ohio's new governor, Ted Strickland. Failing this, Kenny could have an execution date by early 2008.

Kenny, a proud Scot, will tomorrow celebrate Burns night in his cell, where he is locked up for 23 hours of each day. Perhaps Robert Burns inadvertently summed up the US's attitude towards innocence when he wrote, "Man's inhumanity to man makes countless thousands mourn."

"He got off on a technicality!" is a common complaint when a federal court overturns a conviction, or sets aside a death sentence. To amplify one of Stafford Smith's points, "technicalities" are practically the only thing that the federal courts can examine in habeas corpus: claims that the laws, Constitution or treaties of the United States have been violated. The importance of 'due process' to ensure human and civil rights is all too readily obscured when it is allowed to be framed as a mere technicality. Neither the Constitution nor legislative law explicitly prohibit the taking of an innocent life. Something is deeply wrong when the law's formal self-consistency trumps the taking of an innocent life. Such is life in the Land of the Free . . .

The other day I facetiously asked if any lawmakers would call for the repeal of AEDPA. More seriously, either the Supreme Court or Congress could decide that innocence is a basis for habeas corpus, but they have not done so. In Herrera v. Collins, a majority of the Supreme Court assumed, without deciding, that the Eighth Amendment's prohibition against "cruel and unusual punishment" would prohibit the execution of someone who could make a "truly persuasive demonstration of 'actual innocence.'" Such a demonstration "would necessarily be extraordinarily high." But never having seen a case that rises to that level, the Supreme Court has never actually held that the Constitution does prohibit execution of the innocent and it is uncertain whether the Court, as presently seated, would make that finding—thus the significance of Roberts' confirmation hearing tapdance. Even if they find it was prohibited, there would still be no possibility of relief for those sentenced in non-capital cases, even those sentenced to life without the possibility of parole.

Congress could enact statutes or amend the habeas corpus statute to provide a remedy for the innocent. Given Congress' trend since 1996 (AEDPA) to limit, rather than expand habeas rights, it will take a serious groundswell of public outcry for any such change to happen.