Life and death and Samuel Alito

GOODWIN LIU is a law professor at UC Berkeley's Boalt Hall.

ALTHOUGH abortion rights have dominated the debate over the nomination of Judge Samuel A. Alito Jr. to the Supreme Court, there is another issue implicating the "culture of life" that has garnered fewer headlines: capital punishment. The impending executions of three men in California, including the lethal injection of reformed ex-gang leader Stanley Tookie Williams scheduled for Dec. 13, are a sober reminder of the irrevocable stakes in this area of law.

Capital cases make up a substantial portion of the Supreme Court's docket each year. From 2000 to 2005, the court decided only three cases involving abortion but more than three dozen cases involving the death penalty. In this area, the Supreme Court often serves not only in its typical role of deciding unsettled questions of broadly applicable law but also as a court of last resort to correct errors and prevent injustice in individual cases.

Capital proceedings are often fraught with error. In recent years, the Supreme Court -- with the assent of Justice Sandra Day O'Connor, whom Alito would replace -- has invalidated several convictions and death sentences because of misleading jury instructions, poor lawyering, racial discrimination in jury selection and prosecutorial misconduct.

So what do we know about Alito's views on this issue? During his 15-year career on the U.S. 3rd Circuit Court of Appeals, Alito participated in 10 capital cases. Five were decided unanimously by three-judge panels and involved fairly straightforward issues. The other five provoked strong differences of opinion between Alito and his colleagues.

In every one of the five contested cases, Alito voted against the inmate and issued an opinion. Individually and especially as a whole, these opinions show a troubling tendency to tolerate serious errors in capital proceedings. Whatever one may think of the death penalty, Alito's record should give pause to all Americans committed to basic fairness and due process of law.

Perhaps most telling is a 1997 case involving two men, Clifford Smith and Roland Alston, who robbed a Pennsylvania pharmacy. During the robbery, one of them shot and killed a pharmacist. Smith was charged with capital murder. But instead of showing that he was the shooter, the state alleged that the two men were accomplices, making each liable for the acts of the other under Pennsylvania law.

To convict Smith of murder on this theory, the state had to prove that he intended the killing to occur. But the trial court's instructions to the jury failed to make this clear, suggesting instead that Smith could be found guilty of murder even if he intended only the robbery and never intended the killing. The jury convicted Smith of murder and sentenced him to death.

In the 3rd Circuit, two members of a three-judge panel -- both former prosecutors appointed by President Reagan -- agreed that the faulty jury instructions denied Smith a fair trial. They concluded that there was "a reasonable likelihood that the jury convicted Smith of first-degree murder without finding beyond a reasonable doubt that he intended that [the victim] be killed."

Alito dissented, calling his colleagues' opinion "shocking" and "far-fetched." He conceded that the instructions were "ambiguous" and "inadvisable." But he nevertheless found them adequate to convict Smith of a capital offense because, he argued, the trial court had properly stated the intent requirement in an earlier part of the instructions. Alito further argued that the court should not have heard Smith's claim at all because Smith's lawyers did not object to the jury instructions at trial or in prior appeals. What is disturbing is that the state itself never made this argument; Alito raised it on his own, violating basic principles of fairness and judicial restraint.

In 1995, Alito again excused defective jury instructions in two cases brought by death row inmates William Flamer and Billie Bailey. Under Delaware law, a capital sentencing jury is supposed to weigh any aggravating circumstances of the crime against any mitigating circumstances in deciding whether to recommend death. Although a Delaware statute lists certain aggravating factors that make a defendant eligible for death, the jury is not required to focus on those listed factors in making its final decision. In fact, jurors may ignore those factors, if they choose to, and consider others.

But the trial court in both cases directed the jury to specify on a written questionnaire which of the statutorily listed factors it relied on in choosing death. This in itself was wrong because it encouraged the jury to pay greater attention to the listed factors than Delaware law required. Making matters worse, the jury in each case indicated that one of the listed factors supporting its decision was that "[t]he murder was outrageously or wantonly vile, horrible or inhuman." This factor was subsequently invalidated by the Delaware Supreme Court for being unconstitutionally vague, thus calling into question Flamer's and Bailey's death sentences before their appeals reached Alito's court.

Alito, writing for a majority, "strongly disapprove[d]" of the questionnaire, calling it "potentially misleading" and a source of "unnecessary confusion." Still, he upheld the death sentences, finding no risk that the questionnaire had caused the juries to give inordinate weight to the invalid aggravating factor.

By contrast, four dissenting judges explained that the questionnaire wrongly focused the jury's attention on the aggravating factors listed in the statute and that the invalid factor "may well have ... tipped the scale in favor of death."

In 2001, Alito sided with the state against a black man, James Riley, convicted of capital murder by an all-white jury in Kent County, Del., whose population is 20% black. Before trial, the prosecutor had struck all three prospective black jurors from the jury pool. Riley challenged this action as racially discriminatory. His evidence included the fact that the prosecution had struck every prospective black juror in the three other capital murder trials in Kent County within the prior year.

Alito refused to infer racial discrimination from this pattern, offering the following analogy: "Although only about 10% of the population is left-handed, left-handers have won five of the last six presidential elections.... But does it follow that the voters cast their ballots based on whether a candidate was right- or left-handed?" A majority of the full court disagreed with Alito, criticizing his logic for "minimiz[ing] the history of discrimination against prospective black jurors and black defendants."

Earlier this year, the Supreme Court granted relief to another black man convicted and sentenced to death by a jury drawn from a panel where the state had struck 10 of 11 qualified black jurors. In an opinion joined by Justice O'Connor, the court said -- contrary to Alito's reasoning in the Riley case -- that the exclusion of such a large percentage of black jurors cannot be viewed as "happenstance."

Finally, in 2004, Alito ruled against a capital defendant, Ronald Rompilla, who claimed he was denied adequate counsel at his sentencing hearing because his lawyers did not present critical evidence about his background that might have led the jury to spare his life.

Although his lawyers consulted family members and mental health experts, they failed to examine school, medical and court records containing stark evidence of his troubled childhood and limited mental capacity. The records showed that Rompilla's parents were severe alcoholics, that his father often beat him and kept him locked in an excrement-filled dog pen, that his IQ was in the mentally retarded range and that he suffered from organic brain damage probably caused by fetal alcohol syndrome.

In a 2-1 panel decision, Alito held that, despite the neglected evidence, the performance of Rompilla's lawyers was reasonable. In June of this year, the Supreme Court invalidated Rompilla's death sentence, finding Alito's position "objectively unreasonable" under settled law. O'Connor cast the swing vote.

Although O'Connor's approach to capital punishment has been solidly conservative, she has at times supplied a crucial vote in contentious cases in favor of greater care and fairness in the application of the death penalty. Yet it is precisely in the most contentious cases that Alito has shown an unbroken pattern of excusing errors in capital proceedings and eroding norms of basic fairness.

At a time when America's commitment to due process of law is being closely scrutinized at home and abroad, Alito's record on capital punishment raises serious concerns. It deserves careful attention from the Senate and the American people as a measure of his capacity to interpret the law in pursuit of impartial, humane and equal justice.

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