Today, the US Supreme Court is considering a question of
whether the constitution is violated if the chief judge on the highest court of the state refuses to disqualify himself in a death penalty appeal where he was the chief prosecutor who authorized the defendant’s death sentence, obtained the death sentence though his office’s misconduct, and campaigned for the judgeship by showing how many people he put on death row, including the defendant.
Interestingly, amici included many judges, including the late Judge Judith Kaye, who argued that the judge should have recused himself, and a group of professional responsibility law school professors on the same side.
Prof. Bennett Gershman analyzes the issues and implications of Williams v. Pennsylvania in his latest HuffPost article titled A Perfect Storm: Judicial Prosecutorial Misconduct, and a Death Sentence and outlines the various issues involved in this case. The ultimate question is not only whether the judge should have disqualified himself when deciding the defendant’s death penalty appeal but also whether, if he didn’t, his bias on the panel decision was nothing more than a harmless error. As Prof. Gershman concludes that
…without Justice Scalia, a 4-4 split on the Supreme Court is possible. And if that is the result, then under the Supreme Court’s rules the decision of the Pennsylvania supreme Court would be affirmed – and Terrence Williams will be executed.
As reported in the New York Times, two men were recently exonerated through proceedings in the North Carolina Innocence Inquiry Commission based on DNA evidence that demonstrated the real criminal was another original suspect who had committed a similar crime. The two men each had served thirty years in prison, one on death row.
North Carolina of course is the only state in the United States with an independent commission established to examine the innocence claims of wrongly convicted individuals. England and Wales and Scotland have long had these commissions – the Criminal Cases Review Commissions. Although they obviously have critics, these commissions have functioned effectively – miraculously from a US perspective – in independently investigating (with subpoena power) and then referring cases to the court of appeal for review.
We should re-think our opposition to establishing independent commissions that can impartially and thoroughly investigate claims of wrongful conviction. Finality is an important value, yes, and we commit a tremendous amount of resources to the pre-conviction resolution of criminal charges. But it’s important to realize that the North Carolina courts and presumably the federal courts, did nothing to correct the manifestly erroneous convictions in this case. Were it not for the Commission, the convictions would stand. Can the correction of these so manifestly erroneous North Carolina convictions rationally be seen as threatening to our finality values?
Aside from the overriding importance of freeing the wrongly convicted, the public’s perception of the justice and reliability of our criminal process is deteriorating. One of the best and probably most cost-effective way to restore it is to establish direct review innocence commissions in our states.
- Kenneth Rose, I Just Freed an Innocent Man from Death Row. And I’m Still Furious., The Washington Post (Sept. 4, 2014).
- Jonathan M. Katz, From Death Row to Unfamiliar World, New York Times, Sept. 4, 2014, at A17.
- Editorial Board, The Innocent on Death Row, New York Times (Sept. 3, 2014).
- Jonathan M. Katz, North Carolina Men Are Released After Convictions Are Overturned, New York Times (Sept. 3, 2014).
- Jonathan M. Katz & Erik Eckholm, DNA Evidence Clears Two Men in 1983 Murder, New York Times (Sept. 2, 2014).
- North Carolina Launches ‘Innocence Board’, NPR Law (Aug. 5, 2006).
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