Justices appear troubled by inmates' legal access

March 30, 1994|By Lyle Denniston | Lyle Denniston,Washington Bureau of The Sun

WASHINGTON -- The Supreme Court came face to face yesterday with a hard reality about the death penalty system in use in America, and most of the justices who spoke up seemed troubled about what they were seeing.

That reality is that rulings by the court itself have created a legal system for capital punishment so complex that only a well-trained lawyer could understand it. Yet many death-row inmates face execution with no lawyer at the end to help them challenge that process.

Justices who together would make up more than a majority reacted with seeming disbelief as a lawyer for the state of Texas said that inmates should have no right to a delay of execution if their only reason is to get a lawyer to help make a final legal plea.

A one-hour hearing on a Texas inmate's appeal turned into a seminar on the long delays in the highly technical capital-punishment process and on death-row inmates' access to lawyers.

Texas' assistant attorney general, Margaret P. Griffey, argued that a death-row inmate who has no lawyer must offer the federal judge a document that makes a good case for overturning the conviction or sentence. She said it was a mistake to assume that inmates could not do an adequate job themselves of fashioning such a document.

But, Ms. Griffey went on, the judge is entitled to throw out the inmate's case if that initial document is legally weak. The judge, she said, would then have no duty to give the inmate a delay to get a lawyer.

Justice David H. Souter told the attorney that that would make "a farce" of a law Congress passed indicating that every state death-row inmate should have access to a lawyer. That law, he said, would have been "a dead letter" if the court interpreted it as Texas was suggesting.

Justice Ruth Bader Ginsburg, the newest member of the court, whose views on the death penalty have not yet emerged clearly, told Ms. Griffey that there was no room left for a lawyer in the approach Texas was urging the court to take.

If the death-row inmate "is to get a foot in the door" of the federal court, Justice Ginsburg remarked, "he must do it on his own." She expressed doubt that Congress meant to insist upon a strong legal challenge prepared by the inmate alone as the price of getting a lawyer before an execution could occur.

Justice Anthony M. Kennedy also expressed uncertainty about making the inmate's chance of staying alive long enough to get a lawyer depend on the inmate's ability to create "the critical document" that would save or scuttle his case.

Justice Sandra Day O'Connor also joined in, suggesting that normally a lawyer's help, plus that of investigators, might be needed to prepare the inmate's final challenge.

Those four justices tend to cast the "swing" votes on major legal controversies. One justice, Harry A. Blackmun, now refuses to support any death sentence, so his vote is always available to an inmate challenging execution.

The justices' comments came at a hearing in the case of Frank B. McFarland of Arlington, Texas, sentenced to die for murdering a woman he met at a bar in 1988. After his case had gone through state courts, a group that tries to provide lawyers for death-row inmates had trouble getting him a volunteer lawyer. It asked a federal judge to delay McFarland's execution until he could get a lawyer, but the judge refused.

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