Supreme Court Limits Death Row Appeals

The Supreme Court closed the door Tuesday on Death Row inmates and other prisoners who want to challenge their convictions a second time through habeas corpus petitions in the federal courts.

Only in an “extraordinary instance” in which an inmate can furnish evidence that he is indeed innocent of the crime will federal judges consider such a second challenge, the justices said Tuesday on a 6-3 vote.

The decision is a major victory for prosecutors and victims rights groups. In the past decade, they have contended that condemned killers and their lawyers have abused the system by repeatedly filing new appeals in federal courts.

Last year, Chief Justice William H. Rehnquist joined in, accusing defense lawyers and liberal judges of making a “mockery” of the legal system by endlessly litigating capital cases.

In California, the issue was illustrated by the case of San Diego murderer Robert Alton Harris. After numerous state appeals and four separate appeals to the Supreme Court, lawyers for Harris were able to forestall his execution by filing a new appeal in the federal courts. His case currently is being reconsidered by a federal appeals court in San Francisco.

Last year, Rehnquist urged Congress to rewrite the law to give Death Row inmates a one-time chance to challenge any aspect of their convictions and sentences in state courts through a habeas corpus appeal in the federal courts. If that challenge were rejected after its review, no further appeals would be permitted. State officials then could carry out the execution.

Though Congress failed to enact the Rehnquist proposal last year, the Supreme Court accomplished much the same result Tuesday.

Defense lawyers reacted with dismay, accusing the Rehnquist Court of sacrificing fairness and justice for expediency. They predicted that the ruling would hasten execution dates for hundreds of condemned murderers.

“This is a naked exercise in conservative judicial activism,” said University of North Carolina law professor Jack Boger, who represented Warren McCleskey, a Georgia Death Row inmate, before the high court.

He said that the justices overlooked the fact that state prosecutors “lied” by denying that they had worked closely in 1978 with a jailhouse informant who later testified against McCleskey. Four years ago, Boger discovered documents showing that the state officials had in fact worked with the informant. As a result, he filed a new habeas corpus petition in a federal court contending that this new evidence showed McCleskey’s rights had been violated.

But rather than decide that issue, the U.S. 11th Circuit Court of Appeals in Atlanta, and now the Supreme Court, ruled that it was too late for McCleskey to raise the issue.

“They are now saying it is our fault for having believed the state,” Boger said.

Georgia Atty. Gen. Michael Bowers countered that McCleskey has had 13 years worth of appeals in the state and federal courts.

“I think this decision will have a significant impact. The court is saying you get one bite of the apple,” Bowers said. “I predict this will speed up executions.”

In 1978, McCleskey was convicted of killing a police officer during a furniture store robbery. After his conviction was upheld in 1980 by the Georgia courts and the Supreme Court, his lawyers filed the first of his habeas corpus petitions in federal court.

As of late January, 2,412 prisoners were on Death Rows nationwide. Since 1973, 143 persons had been executed.

Both prosecution and defense lawyers say that the federal courts have played a key role in forestalling executions. Defense attorneys credit federal judges for insisting on fairness. Prosecutors complain that these judges have caused needless delay and expense.

The writ of habeas corpus has an ancient history in English law. When the king threw prisoners into the dungeon, judges could use the writ of habeas corpus--literally, “to have the body”--to bring the prisoner before the court for a trial.

But in the United States, at least since 1963, petitions of habeas corpus have provided a second-chance system for inmates who are tried and convicted in a state court and then have the appeals turned down in a federal court. Officially, these convictions are “final.” Nonetheless, prisoners may petition a federal judge to reopen their cases, claiming that their constitutional rights have been violated.

Tuesday’s ruling marks the third time in three years that the high court has put new limits on habeas corpus appeals. In 1989, the court said that inmates may not take advantage of new rulings to reopen their cases. Last year, the court made clear that it will not let inmates apply any ruling retroactively to their arrest, trial or sentence.

The new decision in the case (McCleskey vs. Zant, 89-7024), says that prisoners who fail to raise an issue in their first habeas corpus petition will not be given a second chance, unless it would result in “a fundamental miscarriage of justice.” In a 38-page opinion, Justice Anthony M. Kennedy spelled out the new standards.

In dissent, Justice Thurgood Marshall said that the ruling “departs drastically” from precedent and is an “unjustifiable assault on the Great Writ.” He was joined by Justices Harry A. Blackmun and John Paul Stevens.

In California, Assistant Atty. Gen. Harley D. Mayfield said that Tuesday’s ruling would be cited to strengthen the state’s contention that Harris’ latest federal appeal was made too late.

Harris’ attorneys intend to present evidence of a secret government informant who violated his rights. The lawyers said that they did not raise the claim earlier because they discovered it just last year, 11 years after Harris’ trial. Prosecutors maintain that a reasonable investigation years ago would have led to the informant and that defense lawyers should not be able to proceed now with their allegations.

Mayfield said that the ruling apparently would have no immediate effect on other condemned California killers because, unlike Harris, their cases are still on first appeals in the federal courts.

Staff writers Philip Hager in San Francisco and Alan Abrahamson in San Diego contributed to this story.