- The Washington Times - Tuesday, July 2, 2002

A New York trial judge yesterday declared the federal death penalty unconstitutional because of the prospect that innocent people will be executed.
U.S. District Judge Jed Rakoff's ruling certain to be appealed is limited to one federal trial that remains "firmly scheduled" to begin Sept. 3 in his own courtroom.
But yesterday's extraordinary order, based on disputed research, certainly will fuel the debate over capital punishment if not produce a U.S. Supreme Court decision.
"The best available evidence indicates that, on the one hand, innocent people are sentenced to death with materially greater frequency than was previously supposed, and that, on the other hand, convincing proof of their innocence often does not emerge until long after their convictions," said Judge Rakoff, a former prosecutor who fears future discoveries could prove innocence as DNA has done.
"It is therefore fully foreseeable that in enforcing the death penalty a meaningful number of innocent people will be executed who otherwise would eventually be able to prove their innocence," the judge wrote.
Judge Rakoff's ruling applies only to the 1994 federal death-penalty law and not to states, but any appellate support for the ruling position eventually would affect all capital cases.
U.S. Attorney James B. Comey responded cautiously, but the ruling immediately came under review in Washington.
"As we set forth in our submissions to the court in this matter, the Federal Death Penalty Act is constitutional. In light of Judge Rakoff's decision, we are considering our appellate options," said Mr. Comey, who heads the Manhattan federal prosecutor's office.
"The determination of how to punish criminal activity within the limits of the Constitution is a matter entrusted to the democratically elected legislature, not to the federal judiciary," said Justice Department spokeswoman Barbara Comstock.
The new order lifts for the moment the prospect of a death sentence for Alan Quinones or Diego Rodriguez if their trial is held before an appeal can be decided. The Justice Department likely would seek to delay the trial while it appeals to the 2nd U.S. Circuit Court of Appeals.
The indictment accuses the two men of hogtying, torturing and killing police informant Edwin Santiago on June 27, 1999, then burning his body to protect their Bronx heroin and cocaine ring. Eight other gang members pleaded guilty.
In his opinion, Judge Rakoff indicated he has no intention of postponing the trial. He ruled now in part to prevent exclusion of jurors who are strongly opposed to the death penalty and, he said, are less likely to convict.
Judge Rakoff was appointed to the federal bench in 1995 by President Clinton. Like Mr. Clinton, Judge Rakoff took postgraduate studies at Oxford University. The judge returned to attend Harvard Law School and clerk for a 3rd Circuit judge. He was a federal prosecutor from 1973 to 1980, then had partnerships at two large law firms before ascending to the bench.
Government lawyers sought in vain to change the judge's mind without sending the issue into federal appeals courts, but he rejected claims that included that the Constitution's framers approved the death penalty by setting rules for its administration.
"To assume the existence of the death penalty is not the same as endorsing it," Judge Rakoff responded.
Prosecutors pointed out that none of the 31 capital convictions under current federal law has been overturned and that "the very availability of DNA testing decreases, rather than increases, the likelihood of erroneous convictions."
The judge, however, said that "this completely misses the point."
"What DNA testing has proved, beyond cavil, is the remarkable degree of fallibility in the basic fact-finding processes on which we rely in criminal cases," he said.
The prosecutors told Judge Rakoff the June 2000 report by Columbia University law professor James Liebman, on which the judge relied heavily, is significantly flawed. They portrayed its author as a biased defense lawyer and death-penalty opponent.
Mr. Liebman said his study is the most thorough ever of death-penalty appeals and shows that 68 percent of capital appeals result in reversal of either the conviction or sentence. That statistic includes multiple findings on the same cases and does not account for reinstated convictions or prisoners who are resentenced.
Judge Rakoff dismissed the federal prosecutors' objections, calling their characterization of the study so fatuous that it "only serves to highlight the poverty of the government's position."

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