Judges’ Dissents for Death Row Inmates Are Rising
Judges’ Dissents for Death Row Inmates Are Rising : New York Times
It took just 80 words for a federal appeals court to deny Kevin Cooper’s most recent plea to avoid execution. But attached to that order was a forceful 101-page dissent by a judge, all but pleading to spare Mr. Cooper’s life.
“The State of California may be about to execute an innocent man,” it began.
The judge who wrote the dissent, William A. Fletcher of the United States Court of Appeals for the Ninth Circuit, in San Francisco, argued that the police and prosecutors had withheld and tampered with evidence in the case for decades; Judge Fletcher even accused the district court of having sabotaged the case.
Compared with the dry, mannerly prose found in many opinions, Judge Fletcher’s passion in Cooper v. Brown is startling. But these kinds of fervent, lonely dissents, urging that a prisoner’s life be spared, have noticeably increased in the last decade, compared with previous years, according to a review of death penalty opinions by The New York Times, as confirmed by experts in the field.
In dozens of capital cases in recent years, appeals court judges, some of whom have ruled in favor of the death penalty many times, have complained that Congress and the Supreme Court have raised daunting barriers for death row prisoners to appeal their convictions, and in many cases the judges have taken on their colleagues.
“There is an increasing frustration among federal judges throughout the system,” said Eric M. Freedman, a critic of the death penalty who teaches on the subject at Hofstra Law School.
Dissents are common in US cases, but even then, an impassioned, forcefully argued dissent that spans 100 pages is indeed exceptional. Judge Fletcher’s stirring dissent in Cooper v Brown is eloquently argued and deserves to be read. It starts with a stark sentence: “The State of California may be about to execute an innocent man.” (page 2) and then goes on to present a series of judicial failures and police negligence that has led to this unfortunate event. It is not simply a last ditch desperate attempt by a man on death row, but a forceful indictment of a justice system that has gone horribly awry.
Commenting on how the district court had utterly failed to uphold justice, Judge Fletcher had this to say [at page 5]:
There is no way to say this politely. The district court failed to provide Cooper a fair hearing and flouted our direction to perform the two tests. As will be described in greater detail below, the district court impeded and obstructed Cooper’s attorneys at every turn as they sought to develop the record. The court imposed unreasonable conditions on the testing the en banc court
directed; refused discovery that should have been available as a matter of course; limited testimony that should not have been limited; and found facts unreasonably, based on a truncated and distorted record.
It is a rare for appellate courts to issue such a stinging rebuke upon the incompetence of a lower court. In his concluding paragraphs, Judge Fletcher doesn’t merely state his dissent, he even goes as far as to suggest innocence of the accused:
Kevin Cooper has now been on death row for nearly half his life. In my opinion, he is probably innocent of the crimes for which the State of California is about to execute him. If he is innocent, the real killers have escaped. They may kill again. They may already have done so. We owe it to the victims of this horrible crime, to Kevin Cooper, and to ourselves to get this one right. We should have taken this case en banc and ordered the district judge to give Cooper the fair hearing he has never had.
Fletcher J. is not the sole dissenter in this case. Joining in his dissent were Justices Wardlaw, Peregeson, Reinhardt, Thomas, Berzon, Fisher, Kozinski and Graber.
In Justice Reinhardt’s dissent, he opines that:
I concur in Judge Fletcher’s thorough and highly persuasive dissent, as well as in Judge Wardlaw’s pithy summary of the judicial failures that infect this case. I would add, however, that the failures are not solely those of the district court. Our own handling of the matter, some of which has been made public and some of which has not, leaves much to be desired, and is a cause of considerable regret. There is no purpose, however, to looking backward at this point. What matters is that we have an obligation to afford Kevin Cooper a full and fair judicial hearing, and that once again we fail. By denying en banc review, we add to the prior systemic judicial malfunctions, and this time, we do so under a cloak of secrecy.
How can it possibly be safe to institute the sentence when so many judges have expressed reservations about the accused’s guilt? Whilst the American Death Penalty often takes a very long time with accused typically lodging multiple appeals, its strength is its willingness to give the accused the opportunity to challenge its conviction. Once upon a time i used to favor the death penalty but with time i have increasingly moved towards an abolitionist position. While not quite a true blue abolitionist, i think that the Cooper case is one clear situation where the accused can and should be given the benefit of doubt. The power to execute is too grave a sentence to be applied without absolute certainly of a person’s guilt.
