August 15
OHIO:
High court should delay execution
When a U.S. District Court judge says an Ohio death row inmate, just weeks
from execution, has raised issues that "deserve careful and thoughtful
attention," state prosecutors should take notice.
When the judge suggests that prosecutors "join in a request directly to
the Supreme Court of Ohio to lift its execution order, thereby giving me
the time I need before the scheduled date of execution," they should take
action.
That means bending over backwards to accommodate the court - even if
Attorney General Jim Petro is convinced of the defendant's guilt and of
the justness of the punishment.
Because the death penalty is different.
Prosecutors' first duty, even before winning a case, is to make sure every
reasonable procedure to remove doubt and ensure fairness has been
followed.
Attorney General Petro has taken a different tack in the case of John
Spirko, who was convicted of the 1982 abduction and brutal murder of Betty
Jane Mottinger of Elgin.
Mr. Spirko's execution is set for Sept. 20.
U.S. District Judge James Carr of Toledo has been asked to reopen the
federal case that reviewed the Spirko conviction. In 2000, Judge Carr
ruled in favor of prosecutors, and his decision was upheld on appeal. Now
he's weighing a request to set aside his earlier ruling on the grounds
that the state purposely had withheld evidence that helps prove the
defendant's innocence - a serious charge.
The judge said the request is not "a bad faith or frivolous contention" or
a "last moment effort to keep the hand off the switch." He said he needs
time to consider the evidence, but believes he doesn't have the power - at
least at this stage of the case - to delay the execution. Thus, the judge
suggested that the state join a request to the Ohio Supreme Court, which
sets execution dates, that it delay the execution until he can complete
his review.
Mr. Petro's office told the Supreme Court this week that it objects to any
delay. That shouldn't deter the Ohio justices from extending a basic
courtesy to a sitting judge who wants to make sure every reasonable
defense is explored before a man is put to death.
The Ohio court has almost unlimited discretion to decide when an execution
goes forward. Nothing in law requires that Mr. Spirko be put to death on
Sept. 20, or prevents the execution from being delayed for 6 to 8 weeks.
Judge Carr's statements alone provide the court with abundant reasons to
order a postponement - the fundamentally fair and decent thing to do.
(source: Editorial, Dayton Daily News)
USA:
Address to the American Bar Association----Thurgood Marshall Awards Dinner
Honoring Abner Mikva John Paul Stevens Associate Justice Supreme Court of
the United StatesHyatt Regency Hotel, Chicago, Illinois----August 6, 2005
The opportunity to present the Association's Thurgood Marshall award to
Abner Mikva is especially gratifying because it gives me an opportunity to
reminisce about friendships that Maryan and I especially cherish. They
include, not only Thurgood and Abner, but also our special regard for
Cissy Marshall and Zoe Mikva, both of whom would easily qualify for an ABA
"Wonderful Person" award.
Because I first saw Thurgood in action before I even met Abner, I shall
begin with a brief comment on my memories of him as an advocate and a
colleague.
On Thursday, January 8, 1948, Thurgood appeared in the Supreme Court to
argue that the Oklahoma Law School's refusal to admit Ada Sipuel, a female
applicant, to its Freshman Class violated the Equal Protection Clause of
the 14th Amendment. I was then serving as a law clerk to Wiley Rutledge,
and witnessed the proceeding from one of the cane chairs on the South side
of the courtroom.
Thurgood was respectful, forceful and persuasive - so persuasive that on
the following Monday - only four days after the argument - the Court
unanimously ruled in Sipuel's favor. Many years later I learned that she
was not only an excellent student, but was welcomed by her classmates who
did not agree with the exclusionary policy that the State had
unsuccessfully tried to defend.
My source is one of those classmates with whom I now play golf on a
regular basis.
While his victory in Brown v. the Board of Education of Topeka, Kansas may
well be primarily responsible for the recognition of Thurgood Marshall as
a national hero, I am persuaded that his years of dedicated advocacy in
countless trial court proceedings in hostile surroundings provide even
stronger evidence of his heroic contribution to the cause of civil rights
and equal justice than his success as an appellate advocate. His vast
experience as a trial lawyer gives especial credence to opinions that he
later delivered as a member of the Supreme Court. For example, his career
informed his view that peremptory challenges are an unacceptable source of
arbitrariness - a view recently endorsed by Justice Breyer in his
thoughtful concurrence in Miller-El v. Dretke - and his consistently
expressed view that capital punishment should never be administered in a
civilized society.
Thurgood's rejection of the death penalty rested on principles that would
be controlling even if error never infected the criminal process. Since
his retirement, with the benefit of DNA evidence, we have learned that a
substantial number of death sentences have been imposed erroneously. That
evidence is profoundly significant - not only because of its relevance to
the debate about the wisdom of continuing to administer capital
punishment, but also because it indicates that there must be serious flaws
in our administration of criminal justice. Many thoughtful people have
quickly concluded that inadequate legal representation explains those
errors. It is true, as many have pointed out and as our cases reveal, that
a significant number of defendants in capital cases have not been provided
with fully competent legal representation at trial. That, however, is by
no means the only defect in the system. Indeed, some of the best lawyers
in the country have spent countless uncompensated hours in capital
litigation, not only in post-conviction and appellate work, but also at
the trial level. The profession can be justly proud of their work. My
review of many trial records during recent years has, however, persuaded
me that there are other features of death penalty litigation that create
special risks of unfairness.
In many of these cases the outrageously brutal facts cry out for
retribution.
In close cases it must be extremely difficult for jurors to resolve doubts
in favor of permitting a possible perpetrator of a heinous crime to go
free. Gruesome facts pose a danger that emotion will play a larger role in
the decisional process than dispassionate analysis.
2 aspects of the process of selecting juries in capital cases are
troublesome. In case after case many days are spent conducting voir dire
examinations in which prosecutors engage in prolonged questioning to
determine whether the venire person has moral or religious scruples that
would impair her ability to impose the death penalty. Preoccupation with
that issue creates an atmosphere in which jurors are likely to assume that
their primary task is to determine the penalty for a presumptively guilty
defendant. More significantly, because the prosecutor can challenge jurors
with qualms about the death penalty, the process creates a risk that a
fair cross-section of the community will not be represented on the jury.
2 aspects of the sentencing process tip the scales in favor of death. The
fact that most of the judges who preside and often make the final
life-or-death decision must stand for re-election creates a subtle bias in
favor of death.
Moreover, the admissibility of victim impact evidence that sheds
absolutely no light on either the issue of guilt or innocence, or the
moral culpability of the defendant, serves no purpose other than to
encourage jurors to decide in favor of death rather than life on the basis
of their emotions rather than their reason. It was this issue that
Thurgood addressed in his dissent in Payne v. Tennessee on the last day of
his service on the Court.
Thurgood's entire career provides us with compelling evidence concerning
the values of diversity. These values are also reflected in Abner Mikva's
background and career. His grandparents and parents came to America from a
small village on the Polish-Ukranian border. While his grandfather was
deeply religious, his father was convinced that religion was the "opiate
of the masses". Since one of Abner's daughters is now a rabbi, it is
obvious that tolerance in matters of faith is a family characteristic.
Abner's own remarkable achievements are evidence of his diverse talents.
In academia, he has been a success both as a student - having been elected
to Phi Beta Kappa and to the Order of the Coif, having served as
editor-in-chief of the University of Chicago Law Review and as a law clerk
to a Supreme Court Justice - and as a teacher - having taught at such
esteemed institutions as New York University, Georgetown, Pennsylvania,
Northwestern, Illinois, and the University of Chicago. In private
practice, he served on the Board of Managers of the Chicago Bar
Association and was a partner of Arthur Goldberg, a former Supreme Court
Justice. Most notable, however, is Abner's commitment to public service as
exemplified by his unusual accomplishment of earning public acclaim not
only when he served in the Illinois General Assembly, but in all 3
branches of the Federal Government.
Most recently, Abner made his contribution to the Executive Branch while
serving as counsel to President Clinton. Because the work performed in
that capacity is largely privileged, I simply assume that it reflected the
same high level of excellence that had characterized Abner's earlier
career.
I can, however, speak with a bit more insight about Abner's career as a
circuit judge and as the Chief Judge of the Court of Appeals for the
District of Columbia. In this capacity, Abner's accomplishments, both
professionally and personally, were just as inspiring. During his tenure,
Abner wrote more than his share of important opinions but one was of
particular import to me this Term when our Court was asked to resolve a
long standing conflict among the circuits over the question whether the
Federal Insecticide and Rodenticide Act had preempted most state court
tort litigation involving the sale of defective pesticides. On the one
hand was Abner's lonely opinion for the DC Circuit holding that Congress
surely had not intended its regulation of these dangerous substances to
displace a vast area of settled state law; on the other hand, most of the
federal courts passing on the question had come out the other way,
attaching no significance to the absence of any evidence in the extensive
legislative history that Congress intended such an important and unlikely
change in the law. The ability to borrow both Abner's reasoning and some
of his language simplified my task in writing the opinion that endorsed
the DC Circuit's construction of the statute.
But Abner's intellectual rigor was not all that distinguished him as a
jurist. Justice Ginsburg, a former colleague of Abner's on the Court of
Appeals, has provided me with an example of how Abner, as the Chief Judge
of the Court, treated unpopular litigants. At a time when the Federal
Courts of Appeals were reducing opportunities for oral argument, Abner
adhered to the position that if a litigant - even one appearing pro se -
wanted her day in court, she should have it. One such litigant complained
that high ranking federal officials had commandeered outer space demons
who were attacking her person. To secure her survival, she wore a helmet,
protective goggles and several layers of clothing.
Not unreasonably, 2 members of the panel considered her appeal a candidate
for dismissal without oral argument, presumably because the relief she
sought could only be granted by an authority higher than any federal
judge. When Abner concluded that her request to be heard should be
honored, his two colleagues insisted on the presence of a nurse, fearing
that she might suffer an attack (either from unworldly assailants or from
heat stroke) while presenting her argument. The nurse attended but her
services were not needed. The well-wrapped woman received a sympathetic
hearing in her first face-to-face encounter with the judges who ruled on
her complaint. Her demons did not vanish, but she derived obvious
satisfaction from the court's willingness to listen to her.
Unfortunately, his kind demeanor was no help to Abner when he first
entered the legislative branch at the beginning of his career. In fact,
his career as a legislator had a rather inauspicious beginning. One
evening in 1948 he walked into the office of the Democratic War
Committeeman and told him that he wanted to do volunteer work for Adlai
Stevenson and Paul Douglas. The Committeeman took the cigar out of his
mouth, glared at Abner and asked: "Who sent you?" When Ab said, "Nobody
sent me", he put the cigar back in his mouth and said: "We don't want
nobody that nobody sent."
Needless to say, Abner's later successful career in the legislative arena
was the product of his own talents rather than the support of any
political machine. Despite the unpopularity of civil rights and
environmental issues with substantial segments of his constituency, Abner
was forthright and consistent in maintaining positions that he believed
correct. When he was first elected to Congress from a District that
included the University of Chicago, he was not the Party's favorite
Democrat. As a result of the gerrymandering that followed the 1970 census,
his district was reconfigured in a way that guaranteed his defeat. Abner's
response was to move to Evanston, a wealthy and primarily Republican
suburb, and to run for Congress from that District. In close elections he
was unsuccessful in 1972, but won in 1974, 1976 and 1978.
When gerrymandering tactics are successful, instead of having the voters
choose their representatives, the legislators choose their constituents.
In my judgment the ever-increasing use of such tactics has had an
insidious effect on the quality of the legislative process, making primary
elections more important than general elections, favoring extremists over
moderates in both parties, and generally making confrontation seem more
acceptable than compromise. I remain convinced that the Supreme Court was
not faithful to the principles that produced the decisions in Baker v.
Carr and Reynolds v. Sims when it perversely concluded that political
gerrymandering, unlike racial gerrymandering, is nonjusticiable. In the
long run, however, the most effective response to gerrymandering must be
provided by voters, and by candidates like Abner Mikva.
In closing, I want to congratulate Abner on his designation as the
recipient of the Thurgood Marshall award and to endorse the sentiments
expressed by the Speaker of the House of Representatives at the hearing on
his confirmation as a circuit judge. Abner "is able to disagree without
being disagreeable. He understands that reasonable people can differ
without thinking less of each other. Never does he hold a grudge." Would
that we had more public servants with his ability, temperament and
character!
Thank you.
