- The Washington Times - Tuesday, April 30, 2002

It was magnificent anti-death penalty oratory, but it assuredly was not judging. That characterizes the decision last Thursday of Judge Jed S. Rakoff of the U.S. District Court of the Southern District of New York holding unconstitutional the 1994 Federal Death Penalty Act in all its moods and tenses. With the silvery rhetoric of anti-evolutionist Williams Jennings Bryan and the blazing fervor of Scotch preacher John Knox, Judge Rakoff sermonized that the risk of executing the innocent sinned against constitutional due process. But his reasoning in United States vs. Alan Quinones et al. smacked more of the demagogue than of the jurist.

Judge Rakoff marshaled statistics from state convictions showing 12 exonerations of death row inmates from DNA testing in recent years and 20 corresponding exonerations from non-DNA exculpatory evidence. He thus bewailed that "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."

But Judge Rakoff was addressing the federal death penalty law, not its state cousins. No federal defendants sentenced to death for capital crimes have been exonerated. The discrepancy with state cases is unsurprising. The federal public defender system for representation of indigents is like the Stradivarius among violins. Its various counterparts among the states are notoriously off key. Incompetency of counsel is common. Emblematic was an attorney in Texas guilty of napping during trail. Ineptitude or sloth by defense counsel have figured prominently in state exonerations, but they do not endanger the reliability of federal convictions for capital crimes in trials where defense counsel is typically first-rate. Why should the federal death penalty law tumble because state prosecutions occasionally blunder?

Further, Judge Rakoff struck down capital punishment in all circumstances, even when guilt is incontestable. Countless millions watched Jack Ruby assassinate Lee Harvey Oswald on television. Sirhan Sirhan murdered Robert F. Kennedy amidst multitudes. Judicial notice could have been taken of Benedict Arnold's treason if he had been apprehended from King George III's army or navy.

Zacarias Moussaoui might confess his guilt to complicity in the September 11 abominations during his forthcoming trial in the United States District Court for the Eastern District of Virginia. He has already avowed in open court that he prayed to Allah for "the destruction of the United States of America" and for the "destruction of the Jewish people and state." In other capital cases, DNA evidence may incontrovertibly demonstrate guilt.

That Judge Rakoff hijacked his judicial power to fulminate against the death penalty seems undeniable. The jurisdiction of federal judges under Article III of the Constitution is confined to "cases" or "controversies."

In the prosecution before the district court, the United States was seeking the death penalty against two defendants, Alan Quinones and Diego Rodriguez, allegedly implicated in narcotics trafficking and murder. Judge Rakoff was thus constitutionally bound to consider only whether their trials under federal law created unconscionable risks of factually erroneous convictions and death sentences.

But he said nothing about the strength of the government's incriminating evidence. Indeed, nothing could be said because the trial will not begin until Sept. 2. The government may adduce overwhelming DNA, fingerprint, shoe print, voice print, handwriting, eyewitness and circumstantial evidence. Both defendants might also have confessed their guilt many times. The jury might unanimously convict after truncated deliberations.

In sum, if the constitutional violation, according to Judge Rakoff, is an intolerable risk of executing the innocent, that calculation cannot be made before trial; it must await presentations by both the prosecution and defense. The judge, however, pronounced in the impetuous spirit of the Queen of Hearts in "Alice in Wonderland": Invalidate the federal death penalty law first, examine the dispositive evidence afterwards.

In his peroration, Judge Rakoff conceded a fraction of possible fallibility. He explained that "prudence dictates that in a matter of such importance, the court should give the government which only now has the benefits of the court's views on this issue one last opportunity to be heard before a final determination is reached."

In light of the judge's high-voltage polemic, anyone who believes he might change his mind would think that Martin Luther would have retracted his 95 theses against the sale of indulgences if only the pope had been offered rebuttal time.

Judge Rakoff's anti-death penalty caper is exceptionally worrisome.

The trouble is not his misapplication of the death-penalty precedents of the U.S. Supreme Court. Any judge acting in good faith may stumble.

But Judge Rakoff, who sports keen mental faculties, seems knowingly to have transformed his judicial office into a bully pulpit, reminiscent of Southern judges who maneuvered to circumvent the desegregation mandate of Brown vs. Board of Education (1954). Isn't a judge who marries the political office to the judicial unfaithful to his constitutional oath?

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