Sue Hartigan <[EMAIL PROTECTED]> writes:
9th Circuit accused of 'grave abuse' of powers
WASHINGTON -- Showing growing impatience with death
penalty delays,
the Supreme Court sharply rebuked the Western federal
appeals court
yesterday for blocking an execution in California two
days before the killer
was scheduled to die.
The justices, split 5-4, found the lower court judges
guilty of "grave abuse of
discretion." They denied all relief for Thomas M.
Thompson, who was
convicted of raping and murdering a Laguna Beach woman
nearly 17 years
ago, and freed the state to press for a new execution
date.
In the process, the nation's highest court delivered a
stinging lecture to the
nation's largest federal appeals tribunal, the San
Francisco-based 9th U.S.
Circuit Court of Appeals.
Justice Anthony M. Kennedy, a former 9th Circuit
judge, scolded the judges
for rejecting Thompson's plea, then reversing
themselves 53 days later and
calling a halt to Thompson's execution after almost 13
years of appeals.
The decision was a victory not only for California,
but also for the attorneys
general of 20 other states, who told the court in a
legal brief that if the appeals
court's "procedural legerdemain" were allowed,
"nothing would ever be final."
It was not the first time the nation's highest court
and the 9th Circuit have
drawn a line in the sand over a death penalty appeal.
Six years ago, in an exhausting high drama that was
followed around the
world, the two courts waged coast-to-coast legal
warfare before San Diego
double-murderer Robert Alton Harris was executed. It
was California's first
execution in 25 years.
Over 12 hours, the 9th Circuit issued four stays of
execution, one of them as
Harris was strapped into the gas chamber at San
Quentin state prison.
Each stay was lifted by the Supreme Court, which
finally sent down an
unprecedented order, forbidding any more stays by the
9th Circuit. Harris,
who had been convicted of killing two Mira Mesa
teen-agers in 1978, was
declared dead at 6:21 a.m. April 21, 1992.
In yesterday's decision, Kennedy said the 9th Circuit
held up the
announcement of its turnabout in Thompson's case and
"lay in wait" while the
Supreme Court denied his petition, the state scheduled
an execution for Aug.
5, 1997, and Gov. Pete Wilson reviewed the case and
denied clemency.
"Then, only two days before Thompson was scheduled to
be executed, the
court came forward to recall the judgment on which the
state, not to mention
this court, had placed heavy reliance," Kennedy said.
The full 9th Circuit halted Thompson's execution so it
could review his claim of
inadequate legal help, which it had previously
rejected. It blamed the switch on
inattention by one judge and miscommunication between
another judge's law
clerks.
Replied Kennedy: "It would be the rarest of cases
where the negligence of two
judges in expressing their views is sufficient grounds
to frustrate the interests of
a state of some 32 million persons in enforcing a
final judgment in its favor."
He said federal courts must respect the interest of
the states in "the finality of
convictions" once appeals in state courts are
exhausted.
"Only with an assurance of real finality can the state
execute its moral judgment
in a case," Kennedy wrote. "Only with real finality
can the victims of crime
move forward knowing the moral judgment will be
carried out."
In recent years, both Congress and the Supreme Court
have severely limited
the discretion of federal courts to grant relief to
state prisoners.
At the same time, the pace of executions is
accelerating. Last year, 74
murderers were executed in the United States, half of
them in Texas. It was
the highest number of executions in a single year
since the Supreme Court
reinstated the death penalty in 1976.
California has executed four murderers since 1992.
Currently, 505 inmates are
on the state's death row; 27 of them are from San
Diego County.
In Thompson's case, none of the Supreme Court justices
questioned the
authority of a federal appeals court to retract an
earlier order denying a state
prisoner's petition.
But Kennedy said such action should be taken only "to
avoid a miscarriage of
justice."
And after examining the evidence, Kennedy said there
was no miscarriage of
justice in the conviction and death sentence of
Thompson for the 1981 rape
and murder of Ginger Fleischli in Laguna Beach.
He said Thompson's testimony was riddled with lies.
Gregory Long, a lawyer for Thompson, said he was
"extremely disappointed"
but would try to persuade the 9th Circuit in a second
appeal that Thompson,
44, was not guilty of rape and thus not subject to the
death penalty under state
law.
He said he would offer the testimony of David Leitch,
who was convicted of
second-degree murder in Fleischli's slaying, that
Fleischli consented to sex with
Thompson before she was stabbed five times in the
head.
The Supreme Court split along conservative-liberal
lines in Thompson's case.
Kennedy was joined by four other conservatives: Chief
Justice William H.
Rehnquist, Sandra Day O'Connor, Antonin Scalia and
Clarence Thomas.
The more liberal justices -- David H. Souter, joined
by John Paul Stevens,
Ruth Bader Ginsburg and Stephen Breyer -- dissented.
Souter said the court
majority improperly toughened the standard of review.
Souter said the court had fashioned "a new and
erroneous standard . . . for the
sake of solving a systemic problem that does not
exist."
He said the 9th Circuit's action was awkward and
poorly timed, but a
reasonable means of avoiding error in a life-or-death
case.
For the 9th Circuit judges, many of whom are regarded
as liberal, it was
another day of rejection at the Supreme Court. Last
year the 9th Circuit was
upheld in only two of 29 cases. So far this year, the
9th Circuit has been
reversed in seven of nine cases.
The 9th Circuit, which has 28 authorized judgeships,
handles federal appeals
from Alaska, Arizona, California, Guam, Hawaii, Idaho,
Montana, Nevada,
Northern Mariana Islands, Oregon and Washington.
--
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