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The Supreme Court reaches out and touches someone -- fatally

Mr. Dooley said: . . . ''Th' supreme coort follows th' iliction returns.'' Also, it would appear, Ma Bell's TV commercials. On Aug. 10, during the summer recess, by an evening telephone conference call, the Supreme Court vacated a stay of execution granted by a lower court, touched a condemned man, Frank J. Coppola, and dispatched him to the electric chair later that evening. The telephone still has the edge on Federal Express.

It is my view that the manner in which the Supreme Court disposed of the Coppola case is contrary to the court's best traditions and harmful to its role and image as a deliberative body immune from extraneous considerations. Whatever one's view about the constitutionality of the death penalty, due process of law encompasses an adequate hearing.

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Chief Justice Burger was empowered by law to pass on the motion to vacate on his own. Instead, he elected to refer the motion to the full court. Since the court was on vacation, normally disposition of the motion would be deferred until the court reconvened in regular session in October, leaving the stay in effect until then.

Chief Justice Burger, however, chose not to follow this common practice. He hastily arranged a telephone conference call to the available members of the court to discuss Virginia's motion and decide it.

Justice Sandra Day O'Connor could not be reached, being outside of the United States. Of the seven associate justices in the country, only three were in Washington and at their homes. The other four were out of town. The seven associate justices were alerted shortly after 7:25 p.m. Eastern Standard Time by court officials to expect a telephone conference call, arranged by the Chief Justice for 9 p.m. They were not advised, however, of the subject of the call. Moreover, in the cases both of the associate justices in Washington and of those out of town, the 10-page motion to vacate the stay and other relevant documents pertaining to the case were obviously not at hand.

Without awaiting the response from lawyers opposing the execution, the telephone conference call took place about 9 p.m. on Aug. 10, as arranged. A telephone vote was taken. Five justices, including the Chief Justice, voted to grant the motion to vacate the stay of execution; three justices voted to deny. At 10:25 p.m., a one-page order drafted by the Chief Justice was filed with the Clerk of the Court in which five justices (Burger, White, Blackman, Powell, and Rehnquist) vacated the stay, without stating any reasons. The court's summary order stated that Justices William J. Brennan and Thurgood Marshall would have left the stay in effect and Justice John Paul Stevens was of the view that the court should not pass on the motion before hearing from the lawyers seeking to prevent the execution.

The court's order was filed only three minutes after the lawyers opposing the execution filed their response. Obviously, this response was not available to any of the members of the court, including the Chief Justice.

The Virginia authorities were then notified over the telephone by officials of the Supreme Court less than an hour before the time fixed for the execution that Virginia was free to proceed, and Frank Coppola was electrocuted on schedule at 11:25 p.m.

Mr. Coppola was incarcerated in a death cell in the Virginia Penitentiary and had been for several years during the legal maneuvering challenging his sentence. Since he was safely confined, the question arises as to why the customary procedure should not have been followed and the state's motion to vacate the stay of execution referred to the full court when it reconvened for its next term in October. Had this traditional practice been followed, all of the members of the court would have been present and provided with the motion papers and response before deciding the case. Why the haste and the recourse to the telephone? The court's one-page order does not explain.

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There may be exigent circumstances necessitating disposition of a case by a telephone conference call when the court is not in session and the members widely scattered. But no such circumstances are set forth in the court's order sending Coppola to the electric chair, nor do any come to mind.

The procedure followed in the Coppola case is, in a sense, reminiscent of that employed by the court in the notorious case involving the Rosenbergs. In that case, Chief Justice Vinson, at the request of the Attorney General, convened the court in special session on June 18, 1953, after adjournment of the court's regular session and the commencement of its summer recess, to consider the government's application to vacate a stay of execution granted by Justice Douglas on June 17.

As a result of the action of the Supreme Court vacating Justice Douglas's stay, the Rosenbergs were executed at about 11 p.m. on June 19.

There has been much justified criticism of the undue haste in this disposition of the Rosenberg case, on the ground that there was no necessity to reconvene the court in special session during vacation. The Rosenbergs, like Coppola, were in death cells and their case could likewise have been determined when the court reconvened in October. But, at least in the Rosenbergs' case the full court convened in person, not by telephone, heard extensive oral arguments, held two lengthy conferences, and, before sanctioning the execution, handed down opinions, both in majority and dissent, giving reasons for the respective points of view.

I have read the record of the Rosenbergs' case and I am convinced of their guilt. But, the undue haste with which the court acted to send them to the electric chair not only was violative of the deliberative justice expected of the court, but has served to reinforce the views of those who, wrongfully in my view, believe in their innocence. The court's image as an independent body, immune from the passions of the moment, was impaired by the procedure followed in the Rosenbergs' case.

The same, I fear, is true, in a greater degree, with the procedure followed in Coppola's case.

By contrast, a week after Coppola's execution, two Supreme Court justices declined to act with unseemly haste in a similar motion by the state of Texas to vacate a stay of execution in a capital case, Texas v. Charles W. Bass.

Justice White, acting on his own, denied Texas's motion to vacate the stay of execution granted by a lower court. The state renewed its motion before Justice Rehnquist. He referred the matter to the full court which is to be determined when the court reconvenes in regular session in October.

It has been suggested that the difference is that Coppola, rather than prolong the agony, after several appeals proved unavailing, decided that he would rather be executed than prosecute other appeals. He consequently withdrew authorization to his lawyers to proceed further. Doing so raised the legal question of their standing.

But standing is an esoteric legal subject, on which the Supreme Court has spoken with an uncertain trumpet. At the very least the proper resolution of the difficult standing question would appear to require briefing and oral argument. Also, since this was a death case and condemned persons have been known to change their minds about their announced willingness to die, renouncing further appeals, perhaps independent verification of such intentions would be the counsel of wisdom.

If, unlike Bass, Coppola really had a death wish, perhaps it was nurtured by his long confinement, due largely to the fact that the Supreme Court itself had virtually imposed a moratorium on executions for more than a decade, and more importantly, had significantly altered its views about capital punishment in a number of cases. This left Coppola and other condemned persons in death cells for prolonged periods with their fate subject to pulling and hauling by the court.

More than a thousand condemned prisoners are in death cells throughout the country and have been so confined, as I have said, for varying and lengthy periods of time.Coppola was in a death cell for four years; others for much longer periods. These circumstances may have affected Coppola's mental condition which is a relevant legal factor in determining standing.

Further, the request by a condemned prisoner to be executed and to waive whatever legal rights he has is tantamount to the expression of a desire to attempt to commit suicide which is a crime under the laws of virtually every state.

Finally, in the Coppola case, while he had been denied certiorari by the Supreme Court twice in seeking reversal of his conviction and sentence, the proceeding which led to a stay of execution was a habeas corpus action in the US District Court in Virginia.

The present court has somewhat limited collateral review in federal habeas corpus proceedings where state courts have reviewed cases on a direct appeal. Nevertheless, recourse to habeas corpus actions in the federal courts, as a safeguard to protect a defendant's rights to consider constitutional issues which have not been adequately considered in state courts, is still preserved. And this notwithstanding that the Supreme Court on direct review from a state's highest court has denied certiorari.

The importance of preserving basic habeas corpus jurisdiction collaterally to review what happens in state courts was pointed out by Justice Powell in a recent decision in these words, ''habeas corpus . . . should provide the added assurance for a free society that no innocent (person) suffers an unconstitutional loss of liberty.''

A distinguished US district judge said to me recently that he and his judicial colleagues interpret the Supreme Court's action in the Coppola case as a signal to ''get faster executions.''

If justice delayed is justice denied, justice dispensed, in undue haste by telephone, and without access to the adversary position papers, is justice also denied.

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