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Not only the innocent but the guilty have rights


IT'S TOO BAD that Mumia Abu-Jamal has become an international poster boy for the ills of America's system of criminal justice. Because for all the injustices that may have marred his case, he could be guilty of murder.

So, many won't care that his case is a reminder of the need for a legal mechanism to insure that the government follows the law. That mechanism, habeas corpus, is falling victim to the tangled politics of the death penalty in America.

New-trial bid denied

The Constitution protects not only the innocent but the guilty from being jailed illegally. But the increase in violent crime has turned many Americans against that idea. They want the Constitution's guarantees of a fair trial and a lawyer who knows how to do her job -- but only for innocent people.

And Abu-Jamal, the one-time Black Panther and radio journalist who was convicted and condemned to die for the gun-slaying of a police officer, seems far from innocent. His bid for a new trial was denied last week, when a state judge was not persuaded by Abu-Jamal that shoddy police work, missing witnesses, a biased judge and a bad lawyer had denied him a fair trial. But in 54 other cases, prisoners were released from death row because habeas-corpus hearings showed that they are or may well be innocent.

Now, Congress is poised to change the rules on habeas corpus. While Republicans have sold their efforts as "limiting death row appeals," history suggests that if these changes become law, some innocent people will die.

Worse: while a splashy media blitz has made a celebrity of Abu-Jamal, a somnolent press is sleeping through this legal revolution -- possibly, in part, because habeas corpus is so little understood.

The term "habeas corpus" is Latin for "You have the body." Its roots run deep in English common law. The writ, or order requires authorities to produce a prisoner to determine whether he has been wrongfully detained because of government misconduct or error. The remedy: a new trial, or freedom. The founding fathers deemed it so basic to the notion of individual liberty that they wrote it into the Constitution.

Even so, federal courts had only a limited role in reviewing criminal convictions in state courts until a Supreme Court decision in 1953 gave them the power. That's the rub, for conservatives. Why should federal courts go over the same ground that has been plowed by state courts?

One answer: State judges, who most often are elected, and who sometimes are former prosecutors themselves, are not immune to the local political pressures surrounding touchy cases. This was the driving idea behind a federal judiciary: These judges would be appointed and given life tenure to immunize them from such pressures.

It is telling that federal courts have found reversible constitutional error in 40 percent of the death-penalty cases reviewed under habeas corpus since 1976 -- after state courts found no such error. Some of the reversed cases have since been overturned by higher courts. But the message is plain: Federal courts play a critical role as the protector of federal constitutional rights.

Conservatives blame frivolous appeals for the nine-year time span it usually takes between death sentence and execution in this country. Certainly there are frivolous appeals, but that 40 percent figure suggests that hardly all of them are bogus.

Presidential flip-flops

For years, conservatives have been trying unsuccessfully to curb the habeas power of the federal courts. Until this year, though, they didn't have a majority -- or a president whose flip-flops on the issue could churn them to victory.

While the House quickly agreed to radically limit habeas as part of its 1995 crime bill, the Senate was a tougher sell. But in the political wake of the Oklahoma City bombing, President Clinton came out with a call for bringing "swift justice" to those responsible by limiting their legal appeals. That handed Senate Republicans an excuse for hitching habeas corpus to the unstoppable anti-terrorism bill. Later, Mr. Clinton backtracked, arguing that habeas had nothing to do with fighting terrorism. Then he switched again after Republicans held a press conference with families of bombing victims. The Senate vote on the anti-terrorism bill was 91-8.

Lost in the hullabaloo was the fact that Oklahoma City has nothing to do with habeas, which applies to state prisoners seeking federal-court review. The Oklahoma City case will be tried in federal court.

While the curbs on habeas have little to do with Oklahoma City, they have much to do with people like Ricardo Guerra and Earl Berryman, whose convictions are so riddled with abuse or incompetence that they are meaningless. These men got hearings in federal courts after their claims of injustice were rejected by the highest courts of their states. They likely wouldn't have won a hearing under the rewritten habeas corpus that is close to becoming law.

A prosecutor's misconduct

In 1982, police officer James Harris was gunned down during a routine traffic stop of two men in a Hispanic neighborhood of Houston. Within an hour, police killed one of the men, Roberto Carrasco Flores in a shoot-out, and found the murder weapon and the dead officer's .357 Colt Python tucked in his waistband. But they charged the other man, an illegal Mexican immigrant, with the murder. A jury convicted Ricardo Guerra and sentenced him to death.

Last year, after Texas courts denied Guerra a hearing, a federal judge ordered that Guerra be freed or retried. He found that prosecutors had threatened witnesses, had failed to disclose evidence that showed Guerra's innocence, and had knowingly used false evidence in their closing argument to the jury. "Outrageous," wrote U.S. District Judge Kenneth Hoyt, a Reagan appointee.

Lloyd Schlup was convicted in 1985 of helping kill a fellow inmate in a crowded cell block at the Missouri State Penitentiary. But the jury didn't hear from the 20 prisoners, including friends of the dead inmate, who said that they saw the stabbing, and that Schlup wasn't one of the killers. And they didn't see a surveillance videotape that showed Schlup standing in prison cafeteria -- 350 feet and three flights of stairs from the site of the stabbing -- for 65 seconds before guards ran out to respond to the crime. Schlup's fifth lawyer was the first to gather that evidence, years later.

This year, the Supreme Court sent the case back to the lower courts for a hearing, and made it easier for inmates like Schlup to win a hearing to prove their innocence.

Earl Berryman had never been in trouble with the law when he was charged with kidnapping, raping and robbing a white woman who identified her assailants as "three black males." Irvington, N.H., police showed her a book of mug shots grouped in alphabetical order. She looked at about 100 photos in the "A" sleeve, and didn't identify anyone. She looked at the "B" sleeve, pointed to three men she said were the rapists -- including Berryman -- and stopped looking. Her identification of Berryman was all the evidence the jury heard about him.

By the time a federal judge ordered that he be freed or retried because errors by his lawyer were "fatal to a fair trial," Berryman had been in prison for 10 years.

"Death is different"

Cutting back on habeas won't do what its proponents hope, end the long delays between sentencing and execution for the more than 3,000 people on death row. Delay is written into the procedures surrounding capital punishment, in recognition that, as Justice Brennan unforgettably said: "Death is different." A capital case can go to the U.S. Supreme Court at least three times, and to federal district and appellate courts twice -- after it has made the rounds of the state courts.

The assault on habeas reflects this country's Janus-faced approach to the death penalty. The nation's lawmakers and judges have struggled to construct an elaborate legal edifice that will achieve fairness and rationality -- civilization -- onto a practice that most civilized nations have abandoned. Meanwhile, impatience mounts with the balky machinery that doles out death in a violent world.

Where will all this lead? In these times, don't place your bets on justice.

Libby Lewis is a journalist and a visiting scholar at Yale Law School.

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