Greasing the Wheels on the Machinery of Death

By ADAM LIPTAK

Published: August 20, 2007

Death penalty cases can take a long time. Attorney General Alberto R. Gonzales wants to move things along.

Under an odd provision in last year’s reauthorization of the USA Patriot Act, the antiterrorism law, the attorney general is to take on a role that has for more than a decade belonged to the courts. After the Justice Department finishes writing the regulations, Mr. Gonzales will get the job of deciding whether states are providing condemned inmates with decent lawyers.

If the answer is yes, federal litigation in capital cases from those states — one of the main reasons for the lengthy appeals — will move to a fast track. Inmates will have to file habeas corpus challenges in six months rather than a year, and judges will be subject to strict deadlines. Appeals courts, for instance, will get 120 days to decide cases.

The trade-offs themselves are not new, and they are not necessarily a problem. If states can be encouraged to provide able defense lawyers to death row inmates in state proceedings, the federal courts may indeed have less to worry about.

But giving the power to decide when a fast track is warranted to an interested party like Mr. Gonzales is a curious way to run a justice system.

“A first-year law student could spot this conflict of interest a mile away,” said Elisabeth Semel, the director of the death penalty clinic at the University of California, Berkeley, and an opponent of the death penalty.

The move can only represent Congressional dissatisfaction with the decisions of the dozens of federal judges who have considered the adequacy of state systems to provide death row inmates with qualified defense teams over the last decade.

With one partial exception, they have found that the states are not yet where they should be. (The exception is Arizona, which a federal appeals court said had an adequate system on paper, at least as of 1998, though the court also ruled that the system had not been followed in the case before it.)

Opponents of the death penalty say Congress wants Mr. Gonzales to speak power to truth.

“After the courts had repeatedly found that the states were not providing competent defense representation in capital cases, Congress decided to solve the problem by the simple device of having the attorney general announce that it did not exist,” said Eric M. Freedman, a law professor at Hofstra who submitted testimony opposing a version of the new law for the American Bar Association in 2005.

“The attorney general can certify that the moon is made of green cheese, but that will neither make it so nor advance scientific knowledge,” Professor Freedman said. “The way to fix capital defense systems is not to deny that they need fixing, but rather to dedicate the needed resources to improving them.”

There is also some evidence that the law is a solution in search of a problem. In 1996, Congress imposed new time limits for filing capital cases and severely cut back on the kinds of issues the federal courts may consider. That law has had a significant impact, according to a study by Professor Freedman and David R. Dow, a law professor at the University of Houston, to be published next year by the Carolina Academic Press.

Before the 1996 law, death row inmates who filed habeas corpus petitions in federal court succeeded in overturning their convictions or death sentences about 40 percent of the time. According to the study, which looked at the years 2000 through 2006, that number has dropped to 12 percent. And it continues to fall.

“Federal courts now grant relief at a very small rate — far smaller than they would if they had the power to correct significant constitutional violations,” Professor Dow said, “but Congress has already deprived federal courts of their power to grant relief in most cases, even where the court believes that a significant error has occurred.”

These days, federal courts in the generally conservative Fourth Circuit, which covers Virginia and four other states, grant habeas petitions from death row inmates 2 percent of the time. In the more liberal Ninth Circuit, which covers California and eight other Western states, petitioners succeed 35 percent of the time.

The new law was pushed by legislators and prosecutors in Arizona and California, and it is an expression of their frustration with the Ninth Circuit. Elsewhere in the country, the machinery of death is humming along. In Virginia, for instance, people convicted of capital crimes are executed, on average, in seven years.

California, by contrast, seldom executes anyone. It has some 660 people on its death row and has executed 13 people since the United States Supreme Court reinstated capital punishment in 1976.

It is true that the capital justice system is not efficient. But efficiency cannot be the only goal. Accuracy must matter, too.

“The notion that the federal government wants to accelerate executions in the face of known mistakes, and wants to do so just as DNA is becoming available in more and more cases, is mind-boggling,” Professor Dow said. “It will increase the risk that some state executes a person we later find to be innocent.”

Online: Documents and an archive of Adam Liptak’s articles and columns: nytimes.com
/adamliptak.

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The Opinionator: A blog at the NY Times by Tobin Harshaw & Chris Suellentrop

July 31, 2007, 9:51 am

Department of Sidestepping

By Chris Suellentrop

Tags: Alberto Gonzales

Fredo, you’re my attorney general and I love you. But don’t ever potentially commit perjury while testifying before Congress again: Washington Post columnist Ruth Marcus finds herself in “an unaccustomed and unexpected position: defending Attorney General Alberto Gonzales.” Marcus thinks Gonzales chose his language carefully enough to avoid committing perjury when he misled Congress about the nature of the conversation that took place in John Ashcroft’s hospital room. But that’s about the only nice thing she has to say about him:

In his Senate testimony last week, Gonzales once again dissembled and misled. He was too clever by seven-eighths. He employed his signature brand of inartful dodging — linguistic evasion, poorly executed. The brutalizing he received from senators of both parties was abundantly deserved.

But I don’t think he actually lied about his March 2004 hospital encounter with then-Attorney General John Ashcroft.

Although “Congress deserves better than technically correct linguistic parsing,” Marcus writes, perjury is still “a crime that demands parsing.” She writes:

The Supreme Court could have been writing about Gonzales when it ruled that “the perjury statute is not to be loosely construed, nor the statute invoked simply because a wily witness succeeds in derailing the questioner — so long as the witness speaks the literal truth” — even if the answers “were not guileless but were shrewdly calculated to evade.”

Consequently, the calls by some Democrats for a special prosecutor to consider whether Gonzales committed perjury have more than a hint of maneuvering for political advantage. What else is to be gained by engaging in endless Clintonian debates about what the meaning of “program” is?

Rather, lawmakers need to concentrate on determining what the administration did — and under what claimed legal authority — that produced the hospital room showdown. They need to satisfy themselves that the administration has since been operating within the law; to see what changes might guard against a repetition of the early, apparently unlawful activities; and to determine where the foreign intelligence wiretapping statute might need fixes.

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Mr. Gonzales’s Never-Ending Story

Published: July 29, 2007

President Bush often insists he has to be the decider — ignoring Congress and the public when it comes to the tough matters on war, terrorism and torture, even deciding whether an ordinary man in Florida should be allowed to let his wife die with dignity. Apparently that burden does not apply to the functioning of one of the most vital government agencies, the Justice Department.

Americans have been waiting months for Mr. Bush to fire Attorney General Alberto Gonzales, who long ago proved that he was incompetent and more recently has proved that he can’t tell the truth. Mr. Bush refused to fire him after it was clear Mr. Gonzales lied about his role in the political purge of nine federal prosecutors. And he is still refusing to do so — even after testimony by the F.B.I. director, Robert Mueller, that suggests that Mr. Gonzales either lied to Congress about Mr. Bush’s warrantless wiretapping operation or at the very least twisted the truth so badly that it amounts to the same thing.

Mr. Gonzales has now told Congress twice that there was no dissent in the government about Mr. Bush’s decision to authorize the National Security Agency to spy on Americans’ international calls and e-mails without obtaining the legally required warrant. Mr. Mueller and James Comey, a former deputy attorney general, say that is not true. Not only was there disagreement, but they also say that they almost resigned over the dispute.

Both men say that in March 2004 — when Mr. Gonzales was still the White House counsel — the Justice Department refused to endorse a continuation of the wiretapping program because it was illegal. (Mr. Comey was running the department temporarily because Attorney General John Ashcroft had emergency surgery.) Unwilling to accept that conclusion, Vice President Dick Cheney sent Mr. Gonzales and another official to Mr. Ashcroft’s hospital room to get him to approve the wiretapping.

Mr. Comey and Mr. Mueller intercepted the White House team, and they say they watched as a groggy Mr. Ashcroft refused to sign off on the wiretapping and told the White House officials to leave. Mr. Comey said the White House later modified the eavesdropping program enough for the Justice Department to sign off.

Last week, Mr. Gonzales denied that account. He told the Senate Judiciary Committee the dispute was not about the wiretapping operation but was over “other intelligence activities.” He declined to say what those were.

Lawmakers who have been briefed on the administration’s activities said the dispute was about the one eavesdropping program that has been disclosed. So did Mr. Comey. And so did Mr. Mueller, most recently on Thursday in a House hearing. He said he had kept notes.

That was plain enough. It confirmed what most people long ago concluded: that Mr. Gonzales is more concerned about doing political-damage control for Mr. Bush — in this case insisting that there was never a Justice Department objection to a clearly illegal program — than in doing his duty. But the White House continued to defend him.

As far as we can tell, there are three possible explanations for Mr. Gonzales’s talk about a dispute over other — unspecified — intelligence activities. One, he lied to Congress. Two, he used a bureaucratic dodge to mislead lawmakers and the public: the spying program was modified after Mr. Ashcroft refused to endorse it, which made it “different” from the one Mr. Bush has acknowledged. The third is that there was more wiretapping than has been disclosed, perhaps even purely domestic wiretapping, and Mr. Gonzales is helping Mr. Bush cover it up.

Democratic lawmakers are asking for a special prosecutor to look into Mr. Gonzales’s words and deeds. Solicitor General Paul Clement has a last chance to show that the Justice Department is still minimally functional by fulfilling that request.

If that does not happen, Congress should impeach Mr. Gonzales.

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