by Matt Barr

Fries with that

The dishonest, inflammatory peg on which early criticism of Judge Roberts was hung, see for example this post and its links, won't die as easily as NARAL TV spots. A piece by Elaine Cassel in Findlaw's (Half)Writ today:

Judge Roberts's Ruling in a Criminal Case Suggests Little Concern for Fairness

As a D.C. Circuit judge, Roberts had few occasions to decide criminal cases. But one was a remarkable for its outrageous results.

Washington D.C. police made local headlines when they arrested a twelve-year-old African-American girl, Ansche Hedgepeth, in a D.C. subway station. Her crime? She'd put a single French fry into her mouth - violating a ban on eating on the Metro. For this, she was handcuffed, taken to the station in the back of a squad car, and ultimately convicted.

In Hedgepeth v. Washington Metropolitan Area Transit Authority, Roberts saw no constitutional violation - even though, anomalously, adults who committed the same offense, under the law, merely received a citation. Nor did he see any constitutional violation in the gross disproportion between what Ansche had done, and how she was treated by the police.

So beyond the fact that Roberts doesn't seem to be a big believer in the Gross Disproportion or Adults and Children Get the Same Punishment clauses of the Constitution, what does this foretell? Why, that Roberts is apt to be pro-death penalty!

[I]n a February 1983 memo written while he worked in the Reagan White House, Roberts depicted Supreme Court death penalty appeals as, put bluntly, an annoyance and waste of time. He pointed out that the Supreme Court could significantly reduce its caseload "by abdicating the role of fourth or fifth guesser in death penalty cases."

Roberts was correct that by the time a state death penalty case gets to the Court it may have been evaluated three or four times. The trial court has made legal rulings in the case. So, probably, has a state appellate court. Then, in a last ditch effort, a defense team may have filed a habeas corpus petition in federal court.

But unlike all these courts, only the Supreme Court can decide to overrule prior Supreme Court precedent - as it did in Roper and Atkins....

So Roberts is not right that the Supreme Court is merely fourth- or fifth-guessing determinations made by the prior courts. It is making one entirely original determination, on which no other court has yet ruled: Should prior Supreme Court death penalty precedent be modified under the particular set of facts before it?

Ms. Cassel is hiding the ball, and we've heard this many times before in the last month or so, too: Only the Supreme Court can overrule Supreme Court precedent, so just you be careful who you confirm, and don't think that someone toeing the line at the Circuit level won't bite you later! The problem is that Roberts isn't wrong, and most death penalty litigation, the vast majority, that reaches the Supreme Court requires it to fourth- or fifth-guess, not reconsider its precedents. Cassel acts as though there's an Atkins every year or so. There's not. (It only seems that way lately.)

Most capital cases that make their way up the federal courts ask the reviewing courts to distinguish their particular facts from unfavorable Supreme Court precedent, or apply favorable rules to their facts. Roper, who got the Court to hold that executing a person who was 17 when he committed his heinous murder isn't allowed, and Atkins, who got the Court to say he wouldn't have to die if his IQ was low enough (he lost, by the way, and is scheduled to die again), struck constitutional gold. (Available on two CDs for $19.95 from K-Tel!)

It's not the case that most petitioners have to ask lower courts to reverse Supreme Court precedent so they can hurry up and say "we can't" so the Supreme Court can get a look. They ask the courts to reverse their sentences in light of existing precedent. And 99 percent of those who are successful are successful in that way, not by getting the U.S. Supreme Court to reverse itself. If it were otherwise, there would have been about two death sentences reversed in the last ten years, not, say, 42 percent of all death sentences, the impressive number reversed on federal review from 1973-95.

Ms. Cassel brings it home in a most amusing way:

The Supreme Court Needs to Further Refine Its Mandates

... The Court sometimes needs to revisit cases in order to give further direction as to how states carry out its rulings. To see why, it's helpful to look more closely at the case of Daryl Atkins - and what happened when it was sent back to Virginia.

Surely that ruling meant that Atkins received more justice in his second "sentencing phase" trial, back in Virginia state court?

Not exactly. On August 5, a Virginia jury delivered its finding in the resentencing of Atkins. It found, once again, that he was not mentally retarded, and thus could and should be executed.

And that's "not exactly" just because... I'm gathering, because Atkins shouldn't be sentenced to die under any circumstances? That's a moral argument, not an argument for justice, which Atkins appears to have received, even if Cassel didn't like the outcome. Get a load of this:

Two possible reasons exist for this finding: the first, discussed above, that jurors are primed for the death penalty. The second has to do with the proof required to prove mental retardation.

There's not a third? Say, that he's not mentally retarded? You don't say.

Perhaps the Supreme Court needs to revisit Atkins's case, or another capital case involving a mentally retarded defendant,

Until they get him off?

and scrutinize the methods by which states make findings of mental retardation. Maybe the criteria being used are unfair to defendants like Atkins who may be retarded but cannot prove it under existing standards.

Maybe he's not retarded! In any event, it's useful to be reminded that we're not dealing with abstractions, here, we're dealing with this:

After spending the day drinking alcohol and smoking marijuana, petitioner Daryl Renard Atkins and a partner in crime drove to a convenience store, intending to rob a customer. Their victim was Eric Nesbitt, an airman from Langley Air Force Base, whom they abducted, drove to a nearby automated teller machine, and forced to withdraw $200. They then drove him to a deserted area, ignoring his pleas to leave him unharmed. According to the co-conspirator, whose testimony the jury evidently credited, Atkins ordered Nesbitt out of the vehicle and, after he had taken only a few steps, shot him one, two, three, four, five, six, seven, eight times in the thorax, chest, abdomen, arms, and legs.

Are the facts in the above paragraph sufficient to condemn Atkins to death? No, Atkins was entitled to have the case against him brought in open court before a jury of his peers, with a full and fair opportunity to confront the witnesses and evidence against him, and proved beyond a reasonable doubt before any punishment was proscribed. The Court directed Virginia to consider his intelligence level in mitigation of his sentence and if found to be mentally retarded, to spare his life; this hearing happened. But that's sort of the point: Juries and judges are the most qualified to determine these things, not me, and certainly not Elaine Cassel, as much as she may believe that if a jury didn't spare Atkins given a second chance there must be something critically wrong with the Constitution of the United States.

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