- The Washington Times - Friday, April 26, 2002

A U.S. District Court judge who says innocent people are convicted of murder gave the Justice Department "one last opportunity" yesterday to persuade him not to declare the federal death penalty unconstitutional.

Judge Jed S. Rakoff, a 1995 Clinton appointee, said he took that drastic step because he believes innocent prisoners were executed and more face death without a full opportunity to prove their innocence, if only by technology not yet discovered.

That violates the Fifth Amendment right to "due process," he said, since some will die before completion of a process the judge seemed to say must be endless.

Advances in science and criminology can help "only if such persons are still alive to be released," Judge Rakoff said.

He gave government lawyers until May 15 to reply in an order based largely on a much-criticized Columbia University study that found a 68 percent "prejudicial error" rate in capital trials, and review of Web site reports of prisoner releases.

The judge said he would block the prospect of a death sentence at the impending capital-murder trial of Alan Quinones and Diego Rodriguez on charges they killed police confidential informant Eddie Santiago in June 1999 to protect a Bronx heroin and cocaine ring. Eight co-defendants pleaded guilty.

The order offered the government the unusual option of accepting Judge Rakoff's ruling by Wednesday and beginning an appeal then, or filing a reply by May 15 to change his mind.

Federal prosecutors were reviewing the 11-page ruling and had no comment, said U.S. Attorney's Office spokesman Marvin Smilon.

Two civilian federal prisoners were executed by injection at the Terre Haute, Ind., federal penitentiary last year Timothy McVeigh and Juan Garza and 24 are on death row now. Judge Rakoff's action, if upheld on appeal, would have the effect of also blocking executions in states where the NAACP Legal Defense Fund says 3,687 inmates wait on death row.

Kevin McNally, the Frankfort, Ky., defense lawyer who raised an issue so novel that both sides agree it never has been tested, said Judge Rakoff believes "it's inevitable that the innocent will be executed and they have."

"Even members of the Supreme Court are talking out loud about the number of innocents on death row so maybe it's time to take another look at this disastrous problem," Mr. McNally said yesterday.

Richard Dieter, who heads the Death Penalty Information Center, said "something needs to be done about an issue rumbling out there among the public, the courts and in the legislatures."

At a hearing March 15 Judge Rakoff told lawyers he was hesitant to grant Mr. McNally's request because of its "novelty."

Yesterday Judge Rakoff said emergence of DNA analysis in the last decade presages still unknown criminology advance. He said DNA analysis vindicated 12 "actually innocent" men from death row and 20 others have been released in cases not involving DNA.

"The inference is unmistakable that numerous innocent people have been executed whose innocence might otherwise have been similarly established, whether by newly-developed scientific techniques, newly-discovered evidence, or simply renewed attention to their cases," the judge said.

DNA analysis was used in the Santiago case solely to identify the victim.

Judge Rakoff dismissed as obsolete the Supreme Court's 1993 Herrera decision, a 5-4 ruling that declared remote the likelihood an innocent person would be executed.

Justices Sandra Day O'Connor and Anthony M. Kennedy supported execution in that case because mistakes seemed unlikely, but their concurring opinion declared "the execution of a legally and factually innocent person would be a constitutionally intolerable event."

Judge Rakoff said things have changed since the justices voiced optimism.

"That assumption no longer seems tenable," he wrote. "Evidence has emerged that innocent people mostly of color are convicted of capital crimes they never committed, their convictions affirmed, and their collateral remedies denied, with a frequency far greater than previously supposed."

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