Federal Courts' Power in Death Penalty Cases Is Reviewed

More people are beginning to realize that Virginia is different from other jurisdictions of the world. Not only will Virginia participate in the international kidnapping of a child, as in the case of the 8-year-old daughter of Ismail Sloan, but Virginia will send an innocent man to his death in the electric chair just to vindicate the authority of the state, knowing that the man is innocent.

In case after case, Virginia judges have engaged in criminal acts, acts which would put a judge in any other state in prison for many years if he did them anywhere but in Virginia. In the notorious Marv Albert case in Virginia, the judge would not allow the jury to hear testimony that the only complaining witness had offered to pay a bribe of $50,000 to another witness to lie on the witness stand. This $50,000 was going to come from a book deal she had made, provided that Albert was convicted. In the O'Dell case, the Commonwealth would not allow a DNA test because, the prosecutor argued, the DNA test would show that O'Dell was innocent. O'Dell was executed without the DNA test ever being done.

In case after case like that, innocent men have died in Virginia. However, yesterday this matter came for argument before the United States Supreme Court. The case there involved Terry Williams who was convicted of killing a man in order to steal three dollars. In Virginia, the death penalty cannot be imposed except under special circumstances or if an additional crime is involved, in this case robbery. (If you just kill a man in Virginia because you do not like the look on his face, you cannot be given the death penalty.) Terry Williams was represented by a lawyer whose license was later suspended for mental disability and who essentially failed to put on a case and presented no mitigating evidence.

Because of these extreme facts, the state judge who had presided over Williams's trial granted him a state writ of habeas corpus in 1995, on the ground that the lawyer's performance was constitutionally deficient. It was the first time in the modern history of the death penalty in Virginia that a state judge had ever granted such relief.

However, the Virginia Supreme Court, which is still headed by the most notorious white-supremacist judge, the judge who ruled that persons of different races were not allowed to marry each other (that decision was later overturned by the United States Supreme Court) reversed the decision of the trial court judge and ordered Williams to die in the electric chair.

After that, a Federal District Court in Alexandria, Virginia granted a writ of habeas corpus, effectively canceling the execution of Williams, but then the Fourth Circuit Court of Appeals reinstated the death penalty, ruling that the federal courts in other than the most extreme and unusual circumstances lack jurisdiction to overturn a sentence imposed by a state court.

Williams will have a tough time winning in the United States Supreme Court. That court has consistently limited and virtually nullified the constitutional right of habeas corpus. The Constitution of the United States provides that the states shall pass no law restricting the right of habeas corpus. However, under Rehnquist, both the state and the federal courts have passed numerous laws and rules so severely restricting the right of habeas corpus that it has virtually ceased to exist.

Virginia yesterday was represented in the United States Supreme Court by Robert Q. Harris, the same attorney who appeared in the Sam Sloan case and effectively argued that the Commonwealth of Virginia had the right to kidnap Sloan's daughter in Abu Dhabi.

Here is the AP report on this case:

October 5, 1999

Federal Courts' Power in Death Penalty Cases Is Reviewed

WASHINGTON -- With Justice Ruth Bader Ginsburg in her accustomed seat, the Supreme Court opened its new term on Monday by hearing arguments in a Virginia death penalty case that could define the authority of Federal judges to overturn erroneous convictions and sentences issued by the state courts. The Justices heard an appeal by a Virginia death-row inmate who is challenging a Federal appeals court's interpretation of a law Congress passed in 1996 to limit the jurisdiction of the Federal courts to grant writs of habeas corpus.

The Supreme Court has already examined several aspects of the law, the Anti-Terrorism and Effective Death Penalty Act. But it has yet to define the law's crucial phrases, which, depending on the outcome of this case, will either restrict the Federal courts' jurisdiction or, as a practical matter, all but eliminate it.

As the courtroom filled Monday morning, before the Justices appeared on the bench, Justice Ginsburg's husband, Martin, and their two children, Jane and James, took seats in the visitors' section, a sure indication that the Justice, 17 days after surgery for colon cancer, would soon be taking her own seat. Six days after leaving the hospital, Justice Ginsburg was her usual well-prepared self, asking pointed and precise questions of both lawyers. The small tumor that was removed on Sept. 17 had not spread, and her doctors have given the 66-year-old Justice an excellent prognosis.

Justice Byron R. White, the only living retired Justice, whom Justice Ginsburg succeeded in 1993, was also in the courtroom audience on Monday morning.

The law that Congress passed in 1996 barred Federal courts from reviewing state court judgments unless the state proceeding "resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law as determined by the Supreme Court of the United States."

At issue in the case Monday were two sets of words from those limiting phrases: what it means to be "contrary to" clearly established Federal law and what makes a state court's ruling "an unreasonable application" of that law.

In the view of the United States Court of Appeals for the Fourth Circuit, in Richmond, a state court ruling is not "contrary to" Federal law, and hence is not eligible for Federal court review, unless it is in "square conflict" with a Supreme Court precedent in an all but identical case -- an unlikely circumstance in a legal system in which lower courts are bound by Supreme Court precedent. An "unreasonable application" of Federal law, the Fourth Circuit ruled, is limited to one that "reasonable jurists would all agree is unreasonable."

"But reasonable jurists always disagree," Justice Ginsburg told Robert Q. Harris, an assistant attorney general from Virginia who was defending the Fourth Circuit's interpretation. "If I understand your argument," Justice Ginsburg said to Harris at another point, "you'd never have a case a petitioner could win."

The basic issue in the case, Williams v. Taylor, 98-8384, is whether the 1996 law stripped Federal courts of jurisdiction to review state court decisions that, while wrong, are nonetheless "reasonable."

Harris said that, correctly interpreted, the law permitted a Federal court to intervene if the state court actually refused to apply the correct precedent. But once a state court did invoke the relevant precedent, he said, the way it used that precedent could be reviewed only for "reasonableness."

Justice Anthony M. Kennedy, a member of the Court's conservative majority on habeas corpus questions, whose vote could well determine the outcome of this case, reacted with evident concern.

"This is a very different approach for Congress to impose on this Court, is it not?" Justice Kennedy asked. While the Court's own precedents established that "independent review is necessary if we're to retain control" and oversee the orderly development of Federal law, Justice Kennedy said, "in effect Congress has said that once we announce a principle, we cannot refine it, apply it, or explain it, but that's not the way law works."

The assumption behind the new law, Harris said, was that "the state courts are just as good" as the Federal courts, and thus deserved deference from the Federal courts. A contrary interpretation, he said, "would have this Court conclude that after extensive debate, Congress has done nothing at all" to change habeas corpus law.

The defendant in this case, Terry Williams, was convicted in 1985 of murdering a man and stealing his wallet, which contained three dollars. At issue is not the finding of guilt, but rather a jury's imposition of the death penalty after a sentencing hearing at which the lawyer, whose license was later suspended for mental disability, essentially failed to put on a case and presented no mitigating evidence.

The state judge who had presided over Williams's trial granted him a state writ of habeas corpus in 1995, ordering a new sentencing proceeding on the ground that the lawyer's performance was constitutionally deficient. It was the first time in the modern history of the death penalty in Virginia that a state judge had granted such relief.

The Virginia Supreme Court overturned the trial court's decision. Williams then sought and obtained a Federal writ of habeas corpus from the Federal District Court in Alexandria, in a decision that the Fourth Circuit then overturned. The appeals court said that Williams could not show that his lawyer was deficient unless he could demonstrate that with better representation, all 12 jurors would have voted against the death penalty.

Part of Williams's argument before the Supreme Court is that because under Virginia law a single juror's vote against the death penalty results in a sentence of life in prison, the Fourth Circuit was wrong to require proof that all jurors would have voted differently.

The Justices granted Williams a stay of execution last April. Before the Court on Monday, he was represented by John J. Gibbons, a retired chief judge of the United States Court of Appeals for the Third Circuit who now practices law in Newark. Judge Gibbons told the Justices that if the 1996 law was as restrictive as the Fourth Circuit's interpretation, it violated the constitutional separation of powers. "You shouldn't attribute to Congress an intent to tell you how to decide questions of constitutional law," he said.

Numerous groups filed friend-of-the-court briefs, including the American Bar Association, which filed on Williams's behalf, and 35 states, which filed a brief supporting Virginia. Among these, the absence of the Clinton Administration was notable. When President Clinton signed the 1996 law, he said his understanding was that it would not "limit the authority of the Federal courts to bring their own independent judgment to bear," because such a limitation "would be subject to serious constitutional challenge." Judge Gibbons made reference to the President's view today, but because the Administration chose not to take a position, the impact on the Court appeared minimal.

Here are links:

Contact address - please send e-mail to the following address: Sloan@ishipress.com