High court ponders intent of death row appeal curb Hearing on new law to limit courts' power bogs down in details


WASHINGTON -- The Supreme Court held a rare special session yesterday to consider Congress' effort to speed up the nation's death penalty machinery by curbing multiple federal appeals by inmates, but the justices seemed to bog down in the details of what Congress did.

A one-hour hearing centered on the constitutionality of a new law that seeks to shut the court out of the process of reviewing the multiple appeals.

But when three lawyers had finished trying to solve the puzzle of the new law's meaning, the justices seemed not much closer to understanding what Congress had accomplished, whether it had power to fence the court out of the process, and what it all might mean constitutionally.

The court's evident uncertainty was in sharp contrast to the clarity of a ruling it issued in another death penalty case earlier in the day. Without dissent, the court upheld the constitutionality of the death penalty as now used in military courts when a member of the service commits murder.

At issue was a 1984 executive order by President Ronald Reagan detailing when a service member convicted in military court for murder could be given the death penalty.

In a history-laden opinion written by Justice Anthony M. Kennedy, the court ruled that Congress had given the president the authority to write those details, and that the president had validly exercised power given by Congress.

Its ruling upheld the death sentence imposed by a military court on a former Army private, Dwight J. Loving, after he was found guilty of two murders, one attempted murder, and robbery of 7-Eleven stores and three cab drivers in a rampage in Texas eight years ago.

After announcing that ruling, the justices held the special hearing they had agreed to conduct after all other cases this term had been heard. The session was scheduled to provide a fast answer to a Georgia inmate's challenge to the new law dealing with federal criminal appeals in general.

Congress, in an election-year anti-crime effort, this spring finished a 15-year search for ways to stop state inmates convicted of murder and other crimes from pursuing multiple appeals in federal court.

Under the new law, likely to have its most visible effect on state inmates awaiting execution for murder, a prisoner essentially would get one trip through federal courts to make legal challenges. A second, or later, trip would most often be cut off in a federal appeals court. The new law would close the Supreme Court to those inmates at that point.

The limit on the court's review powers was a key part of the new law's intent to end the years of delay in executing murderers.

Among the prisoners across the country potentially affected by the law's new curbs on appeals is Flint Gregory Hunt, a Maryland death row inmate whose life was temporarily spared by the state Court of Appeals last week. His chances of pursuing his challenges beyond the Court of Appeals if he loses there may have been ended by the new federal law -- if that law withstands challenge by the Georgia inmate, Ellis Wayne Felker.

Felker is the first inmate in the nation to have a repeat appeal blocked by the new law. His claims that he was convicted of murder unconstitutionally barely came up during the hearing.

Speaking for Felker, Henry P. Monaghan, a Columbia University law professor, complained that lawyers in the case had been hampered by the fast-track schedule the court had adopted. He even acknowledged that he had misunderstood one of the constitutional questions the court had posed in agreeing to hear the case.

The justices watched, apparently in some confusion, as an assistant attorney general for Georgia, Susan V. Boleyn, repeatedly shifted positions.

And U.S. Solicitor General Drew S. Days III, making his last appearance before the court before returning to Yale University to teach law, conceded that he could not tell what the new law's effect would be on the court's handling of death row cases.

The justices' questions, and their unusually subdued manner, left little doubt that the new law had some baffling aspects. The justices' own staff assigned to death penalty cases has made no secret of its puzzlement over what the law portends.

At one extreme, the law might be interpreted to mean that, for the first time in nearly 200 years, the court would not be open to a death-row inmate making a last-resort plea to stay alive. At the other extreme, the court might install itself as the only federal court to hear thousands of death-row appeals -- a prospect that could bog it down in paper.

Pub Date: 6/04/96

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