Justice Marshall Would Have Dissented

TIM BAKER

February 01, 1993|By TIM BAKER

If there be such things as ghosts, then Justice Thurgood Marshall's angry spirit must have stalked the Supreme Court's marble corridors last week. He died on Sunday. The next morning, in an ironic twist of timing, the Court announced yet another ruling which will expedite the death penalty in America.

Justice Marshall would have hurled a thundering dissent at the decision. He abhorred the death penalty as an abomination -- immoral in principle, discriminatory in practice, unconstitutional in law. Before his retirement in 1991, he had battled against it for 24 years on the Supreme Court.

Last Monday's ruling would have garnered his undisguised contempt. Chief Justice William Rehnquist's majority opinion refused to accept what Justice Marshall would certainly have considered a self- evident constitutional principle -- a state is not allowed to execute an innocent person.

Here's what happened. In 1982, Leonel Torres Herrera was convicted of murder and sentenced to death in a Texas court. His appeals and habeas corpus petitions took 10 years. Then last February he sought a stay of execution in federal court on the basis of newly discovered witnesses who claimed he was innocent.

The federal judge granted the stay to give Herrera time to present his witnesses to the state courts. But a Texas rule denies a defendant a new trial on the basis of newly discovered evidence, no matter how convincing, unless he offers it within 30 days after sentencing. Under that rule, Herrera's new evidence came 10 years too late.

This may sound like a vicious limitation. But 42 states impose time limits which would have prevented Herrera from presenting his new evidence in court. Instead, all of these states require a defendant in Herrera's position to seek a pardon from the governor. Historically, executive clemency has served as the final ''fail-safe'' procedure in the Anglo-American criminal justice system.

Since Herrera could apply for clemency, the Supreme Court's majority opinion dismissed his argument that the Constitution prohibited his execution unless the Texas courts first considered his new evidence. The chief justice, however, balked at acknowledging the validity of Herrera's underlying legal claim that the Constitution prohibits the execution of a fairly convicted defendant who can later prove he was actually innocent.

Justice Marshall would have dissented. Why this crabbed refusal to proclaim what must be a fundamental American principle? Because, the chief justice, made clear, then every prison inmate in the country would claim his innocence and ask the federal judiciary to relitigate his guilt. The claims would swamp the federal courts.

No, Justice Marshall would have insisted. Not every prisoner. Inmates like Herrera are different. The death penalty is different. Death is irrevocable.

Nothing infuriated Justice Marshall more than the conservative majority's determination to cut back procedural obstacles in death penalty cases. The unseemly rush to execution had triggered some of his most acerbic barbs.

Why, Chief Justice Rehnquist once demanded during oral argument, should taxpayers have to pay the cost of keeping a killer in prison for years while he pursues endless appeals and petitions? Justice Marshall scowled: "If cost matters so much, why not just shoot the defendant right after he's arrested?"

It is sometimes said, as the columnist James J. Kilpatrick wrote on this page last week, that Thurgood Marshall was a great lawyer, the greatest legal advocate in this century, but that he will not be remembered as a great Supreme Court justice.

It's true that he authored few, if any, of the landmark decisions of his era. As the years went by, he seldom had the opportunity because increasingly he disagreed with the court's decisions. But even when he voted with the majority, he rarely wrote the court's opinion in important cases. He had neither the patience nor the inclination to tailor his language or compromise his views to accommodate other justices.

Dissents came more naturally to him, as it did to some of his famous predecessors: The first John Marshall Harlan, Louis D. Brandeis, Oliver Wendell Holmes. They wrote their great dissents, as Holmes put it, to appeal to the ''brooding spirit'' of the law.

Justice Marshall certainly brooded. But his dissents appeal to the law's questing spirit, its angry sense of outrage at injustice to the poor, the oppressed, the rejected.

Herrera is a good example. He is not a sympathetic figure. He was convicted of killing two policemen. The case against him was strong. His new evidence seems to have holes in it. He is almost certainly guilty.

But before the state executes the man, Justice Marshall would have demanded that someone listen to the new witnesses. And he would have insisted that our Constitution should not permit the execution of an innocent man no matter how much time has gone by.

May that angry spirit haunt the halls of justice until the end of time.

Tim Baker's column appears on alternate Mondays.

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