Strict construction?

April 18, 1991

This week the new, improved Supreme Court ruled 6-3 to adopt a policy which the current chief justice had failed to persuade Congress to make, thus clearly and deliberately going against the will of Congress.

The case involved a Georgia man who filed his latest appeal after it was learned that documents been withheld at his trial showing that a key witness had been planted by authorities to gain evidence. The court could have upheld the conviction by saying that the evidence still was freely given and therefore valid. But it chose instead to put strict new limits on the right of state prisoners to appeal to federal courts.

Now, the defendant gets one appeal. Even if the prosecution withholds evidence beyond this point, the defense cannot bring it up later unless it also can prove that the evidence would have affected the verdict or sentence. That makes new appeals all but impossible. As Justice Thurgood Marshall said in dissent, the court's analysis "encourages state officials to conceal evidence."

It is true that getting a case through the legal process takes an inordinate amount of time these days, an average of eight years from death sentence to execution. And it is true that repetitive appeals may be filed trying to alter a sentence. But it also is true that actual guilt may still be in question, that lives are involved in some of these cases and that 40 percent of all death sentences are overturned because of a finding of constitutional error.

A few weeks ago the court said that coerced confessions were OK as long as it -- the Supreme Court, not a jury -- decided there was enough other evidence to convict.

The court seems to be giving law enforcement authorities new freedom to void basic legal safeguards as long as the end justifies the means. This sends a shiver up the spine.

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