Sen. Patrick Leahy had an interesting colloquy with John Roberts in today’s Senate hearing. Leahy asked Roberts about his views about capital appeals brought by convicted inmates which involve hitherto unknown proofs of innocence. The Rehnquist court has gradually reduced the leeway of such inmates and closed various avenues of appeal which had previously been available to them. Roberts raised the standard conservative rationale for such restrictions saying:
Do you allow particular claimants to raise different claims, fourth or fifth or sixth time to say at the last minute that somebody who just died was actually the person who committed the murder and let’s have a new trial? Or do you take into account the proceedings that have already gone on?
The attitude is: “Come on, this guy’s case has been up for review x-number of times before and each time a court has reviewed the record and denied the appeal. How many times are we going to allow him to juice the process?”
Leahy quotes the following brief the nominee wrote for the Solicitor General in a capital case:
Does the Constitution require the prisoner have the right to seek judicial review of a claim of newly discovered evidence instead of being required to seek relief in the clemency process? In our view, the Constitution does not guarantee the prisoner such a right.
The senator rightly called this approach “mechanical.” I’d go farther and call it cold, cruel and inhuman especially considering that a potentially innocent human life is at stake. Further, Leahy repeated this powerful question a number of times for Roberts and he essentially ducked it: “Does the Constitution permit the execution of a person who is innocent?” After the first Roberts’ duck, Leahy repeated: “To the death row inmate who can prove he is innocent, do they have no constitutional right to do so in a court of law before they are executed?”
Roberts replied to Leahy’s question above saying:
Well, ‘prove his innocence,’ the issue arises before you get to the question of proof. And the question is: Do you allow someone who has raised several claims over the years to suddenly say at the last minute that somebody who just died was the person who committed the murder? And does that mean you start the trial all over again simply on the basis of that last-minute claim or do you require more of a showing at that stage? That’s what Herrera was about. Now I don’t think, of course, that anybody who is innocent should suffer as a result of a false conviction. If they have been falsely convicted and they are innocent, they shouldn’t be in prison, let alone executed. But the issue…
While Roberts correctly pointed out that Leahy’s question presumes the inmate has incontrovertible proof of innocence, the former noted that the inmate merely claims innocence in such a case but cannot prove it until a court agrees with him. So that leaves us in the middle of nowhere in terms of understanding his approach to the question.
The question remains: once a death row inmate has exhausted his appeals and his attorneys uncover convincing new evidence (say DNA or a corroborating witness) that would exonerate him or her would Roberts stand upon the Rehnquist court’s precedent that justice has already been properly done in the case and no further review is required? Or would he be the “practical, common sense” judge he claims to be and allow the prisoner another chance to conclusively prove his innocence?
I found Roberts performance on this question to be totally unsatisfying.
As an aside, since several conservative Catholic bishops (I’ve written about Charles Chaput and John Myers in this blog) have publicly announced that they refuse Communion to politicians who support a woman’s Right to Choose, I wonder what these same bishops would say when and if (we can always hope, can’t we?) John Roberts votes to affirm his first death penalty appeal as Chief Justice. Will they refuse this good conservative Catholic boy Communion as well since he’ll be violating Catholic moral teaching? I suspect not.
Senator Leahy’s “blog” contains audio and video versions of his questioning of Judge Roberts.
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