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A Judge's Lost E-Mail and a Death Sentence

Suit goes to the heart of a battle on Supreme Court over expediting appeals in death cases.

Somehow, a judge on the US Ninth Circuit Court of Appeals missed the deadline, and the life of convicted murderer Thomas Thompson hung in the balance.

Judge X (as he is known in legal briefs) thinks he lost an e-mail message that reminded him of the date. Or maybe a clerk misfiled it. Either way, Judge X felt Mr. Thompson got a bad trial and, a month late, asked the Ninth Circuit to review his case.

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Last July, the court agreed to a rehearing. And it said a death-row inmate shouldn't be denied an appeal because of a computer "delete" key.

But California balked. Violating an internal court deadline could "open the floodgates" to death-row petitions, it argued.

Now the case is before the US Supreme Court. While it will set no legal landmarks, Calderon v. Thompson may offer a window on the tone and temper of the Rehnquist court as it wages an internal war over society's most solemn punishment.

Will the nine justices continue the court's 15-year trend to uphold laws that speed the death penalty? Or will a court with two Clinton nominees signal a softening?

"The unsettled emotions and jurisprudence around the death penalty since the 1980s are captured in Calderon," says former Supreme Court clerk Edward Lazarus, author of "Closed Chambers," an account of life inside the court. "You've got the question of procedure versus the question of, 'Is this a just penalty?' "

In 25 years, the US justice system has moved from the Warren court's emphasis on procedural safeguards (appeals for ineffective counsel, jury tampering, or withholding evidence) to the approach of the Rehnquist court, which created procedural hurdles to the lengthy appeals process. The result: speedier executions.

Between 1968 and 1981 there were four executions in the US; since then, 452 people, mostly in Southern states, have been put to death.

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Since the mid-1980s, a series of bitterly contested 5-to-4 high-court rulings, spearheaded by Chief Justice William Rehnquist and justices like Sandra Day O'Connor and Antonin Scalia, has made it more difficult for death-row inmates to appeal their cases. The 1989 Teague decision, for example, changed the rules of habeas corpus, the term of art for an appeal. It stated that even if the law of the land changed, prisoners whose sentences would have been altered could not make a "retroactive" claim in court to change their status.

(Last week's execution of a Paraguayan man in Virginia illustrated another procedural hurdle. The Supreme Court in a 6-to-3 vote said the man, convicted of murder, could not raise a claim in federal court that he had not made in a Virginia state court - in this case the claim that under a treaty he should have been informed of his right to seek help from a Paraguayan embassy official who could have told the man how to get a life sentence.)

"We've gone toward higher hurdles," says Columbia University law professor Vivian Berger. "All the major procedural decisions have been against death-row inmates."

IN general, the high court still splits 5-to-4 on death-penalty cases. But today's divisions, unlike earlier ones, tend not to be over whether death is a "cruel and unusual" punishment or whether it exceeds current standards of public decency. Rather, the split is over how to ensure "due process" in death cases.

For example, in December the four minority members, Justices David Souter, Ruth Bader Ginsburg, John Paul Stevens, and Stephen Breyer, took the unusual step of informing the State of Texas that its prosecutors are required to tell juries that a life sentence in Texas means 40 years without a chance of parole. The court members felt it was deceptive for Texas juries to assume "life" meant the inmate would be back on the street in 10 years.

In the past 25 years, 74 death-row inmates were later proved innocent of the crimes for which they were convicted and were removed from death row, according to the Death Penalty Center in Washington.

Legal experts and some former clerks say the most frustrating experience at the high court is late-night reviews of death-row petitions, efforts to stay an execution. The system is imperfect, Mr. Lazarus argues in his controversial new book. Clerks review petitions for the justices and regularly discover flaws that they are often powerless to raise as legal points, because their review of the petition is not designed to correct those flaws.

The most prevalent complaint - and a central issue for the judge in the Calderon case now before the court - is bad lawyering. Julius Genachowski, a former clerk for Justice Souter, agrees: "One of the worst experiences being a clerk is when it is 2 a.m. and you finally get through the habeas record and you realize the process was broken from the start and there's nothing you can do - that the flaws began with a bad lawyer, and just got worse."

In Calderon, a complex case of murder and rape involving friends and lovers, Judge X takes exception to Thompson's lawyer. The Ninth Circuit opinion notes that the lawyer failed to cross-examine key witnesses, did not establish testimony from his own witness showing that sex may have been consensual (ruling out the death penalty), and took at face value the status of two prosecution witnesses who turned out to be informants with long histories of lying and convictions.

Further, the prosecutor in Calderon used two different theories of the crime to convict two different men, both on death row. If one theory is true, the Ninth Circuit pointed out, the other cannot be.

The question in Calderon of procedure became a white-hot argument between some of the preeminent federal judges in the country. The 100-page Ninth Circuit opinion stated, "We can think of no error more prejudicial than one that is the precipitating cause of an erroneous death sentence." Yet the colorful Ninth Circuit conservative Alex Kozinski, in a blistering dissent, argued there are other safeguards for Thompson's appeal, even if the Ninth Circuit erred.

The equally colorful liberal Stephen Reinhardt fired back that, rather than examine "a strong possibility of innocence," Judge Kozinski's dissent appeared to state "that justice is irrelevant in this nation and that all that matters in our system of law is whether a single piece of paper was misplaced ... or some recondite internal General Order was complied with...."

For eight years, between 1968 and 1976, capital punishment was illegal in the US. A 50,000-word Supreme Court decision banning the death penalty, known as the Furman ruling, was never solid, however. Furman, the first major decision of the Burger court, marked the first time in 150 years all nine justices wrote separate opinions.

Yet from the overturning of Furman to now, according to former clerks and the papers of Justice Thurgood Marshall, disagreement over the death penalty has been an untold, but increasingly divisive, story on the high court.

Since 1982, Chief Justice Rehnquist, an advocate of states' rights, has worked to block prisoners' efforts to appeal their state court verdicts in federal court. The chief justice also supports capital punishment, having cut his teeth as a Supreme Court clerk in 1952 who argued for the execution of Ethel and Julius Rosenberg, the couple that sold plans for atomic weapons to the Soviets.

Justices William Brennan and Marshall, by contrast, took absolute stands against the death penalty and co-authored dissents describing the court as "ghoulish" in its rulings favoring executions.

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