The death penalty and the matter of factual innocence

“The truth is that many federal judges, and I would suppose many state judges as well, understand that the death penalty has and will continue to result in the innocent being put to death in some small percentage of the cases.” I wrote those words in a post yesterday and a thoughtful commentator responded that such a statement “merit[s] further exploration and discussion.” I agree, and endeavor to do so in this response.

Here goes:

  • Although I have written an opinion for the Eighth Circuit affirming the death penalty in a case involving an especially horrible murder of a child, see here, this post flows exclusively from my perspective as a federal trial judge.
  • I now have several death penalty cases pending before me. Nothing I write here comments upon the merits of those cases or death penalty cases that I may take on in the future. For example, I express no opinion on whether “actual innocence” is or should be something more than a bridge to overcome procedural default. To be clear, I have not made up my mind about anything having to do with a real case whether it is pending now or comes down the pike later.
  • As a purely personal matter, I am agnostic about the death penalty. I can see it both ways.
  • As a judge, I strongly believe the death penalty is a matter of policy to be determined by the people through their elected representatives and as such deserves special respect from federal trial judges like me. I agree with the statement, if not the tone, of Mr. Justice Holmes when he said that “If my fellow citizens want to go to Hell I will help them. It’s my job.” That is terribly flip, but the statement is not as cavalier as it sounds. As Thomas Hobbes asserted in the Leviathan (1651), life in the state of nature is “nasty, brutish and short.” Thus, to escape from this chaotic and predatory jungle, we ban together and form a social contract between ourselves–all 300 plus million of us. Our social contract has produced a good and decent society premised primarily upon representative democracy. It is therefore almost always the job of the judge to honor and enforce that contract even when it rubs us wrong. We must understand that our federal judiciary is an anti-democratic institution in a fiercely and fundamentally democratic society. From the limited powers granted to the judiciary in the Constitution, to the Jeffersonian concern about the institution itself, to the precedents of the Supreme Court dating back hundreds of years, it is apparent that our federal judiciary is intended as a weak, small and seldom used brake on the passions of the electorate. It is the great challenge of the federal judiciary to decide when, and how often, to apply that brake. Our people are not stupid and they are basically good-hearted–both on the right and the left. Moreover, the huge majority of them believe deeply in electoral democracy. They also know that no legal system can be perfect but in many places they have consistently voted to enact the death penalty, while accepting the many limitations placed on that device by the federal courts. If our citizens, knowing the system is not perfect and thus may likely result in the unintentional killing of the innocent, elect to employ the death penalty, then the “least dangerous branch” (adopting the formulation of Alexander Bickel, one of my favorite modern legal thinkers) has no just reason to do away with the death penalty simply because it does not function perfectly. As Voltaire said, the “perfect is the enemy of good.” If the People want “good” rather than “perfect” most of the time it is the job of the federal trial judge to provide it.
Image credit: Isaac Fuller, oil on canvas

Image credit: Portrait of Thomas Hobbes by Isaac Fuller, oil on canvas

  • It is important to distinguish between what may be a immoral and what may be unjust. They are not the same. Depending upon your religious beliefs, it may be immoral for a judge to accept that an innocent man may die in order to maintain a system that protects society at large by executing a great number of malevolent and guilty killers. But, is the judge’s acceptance of that flawed system just? The positive law theorists (like Hobbes and Holmes*) would say “yes, it is just”–so long the judge acts pursuant to the law. To them (and probably me) there is no justice without law. Legal positivists believe (a) Justice and injustice are dependent on positive law; (b) Law itself is independent of justice; (c) Justice consists in conformity to positive law; (d) Justice, apart from legality, is merely a subjective [individual] norm; (e) Justice is obligatory ultimately only because of legal and political sanctions; and (f) The virtue of justice is identical with obedience. Otto A. Bird, The Idea of Justice, at p. 43, Concepts of Western Thought Series, Institute for Philosophical Research (1967, Federick A. Plaeger Publisher). As Professor Bird explains:

The “basic norm” of a society determines what is just and unjust: “A man is just if his behavior conforms to the norms of a social order supposed to be just.” But every society believes that its order is just. Justice then is relative to a given society and to the kind of constitution it has. A democratic society has “democratic justice”; an oligarchic society, “oligarchic justice”; a communist society, “communist justice.”

Id. at p. 49 (Emphasis added by Kopf)

  • To sum up the two long paragraphs that precede this one, since ours is an aggressively democratic society, Holmes and Hobbes (and probably me) would argue that judges ought generally to fulfill the will of the electorate when it comes to the death penalty even if the unintentional sacrifice of a small number of innocents is the cost of maintaining a system that the people have intentionally selected despite their knowledge of the risk.
  • When I was a lawyer, I represented a murder serving a long prison term for repeatedly sticking a knife into the heart of another young man in a bar fight. Because of a sentencing error, I got his time cut in half which resulted in his immediate release. See here. I came to like, and, in many ways, respect this killer. Oddly, I also came to think of him as a basically good person. Later, he gave me a briefcase made in prison bearing the words “R.G. Kopf” and the scales of justice carved into the leather. It hangs on the coat rack in my office in prominent view. Each day as I enter the courtroom that lurid case reminds me that I am dealing with a human being seated in the defense chair. That realization is there also when I deal with death penalty cases. How could it be otherwise?
  • I adhere to no religion privately or otherwise. I accept no other person’s definition of morality. Since I have become a judge, I have never voted. I have given up my Nebraska law license. I cherish the independence given to me by Article III of the Constitution, and I avoid influences that might interfere psychologically or otherwise with that independence.
  • I have never had a death penalty case where I believed the defendant was factually innocent. Not one. The following summary I provided in one of those death penalty cases best characterizes my experience:

The Nebraska courts, and five (or more) zealous defense lawyers, have expended much sweat and treasure insuring that Lotter received a fair trial, a just sentence, a searching appeal and repeated postconviction examinations. A jury of twelve people found beyond a reasonable doubt that Lotter was guilty. A panel of three judges thoughtfully considered whether Lotter should receive the ultimate penalty, and they decided that he should. Seven thoroughly conscientious Justices of the Nebraska Supreme Court scrutinized the conviction and sentence in a direct appeal and they found nothing that justified relief. After that, trial judges and appellate judges patiently examined and denied Lotter’s numerous claims asserted in several postconviction actions brought during the ensuing decade.

Following careful consideration of the record developed in the Nebraska courts and despite the superb work of federal postconviction counsel, I find and conclude that Lotter is not entitled to relief. Legally speaking, if Nebraska carries out the sentence, there need be no “second thoughts.”

Lotter v. Houston, 771 F.Supp.2d 1074 (D. Neb. 2011) (this case involved the killing of Teena Brandon (Brandon Teena) and two others and these killings became the basis for the critically acclaimed movie “Boys Don’t Cry.”).

  • I have had one death penalty case when I was a magistrate judge where I recommended that the writ be granted for among other reasons because it was clear that the defendant unlawfully shot and killed a person but in a manner far more benign than characterized by the Nebraska Supreme Court. That decision was affirmed on appeal. Rust v. Hopkins, 984 F.2d 1486 (8th Cir. 1993). There was no question, however, that the petitioner was guilty of murder.
  • When I took my oath of office as a federal district judge in 1992, I knew that someday I might condemn an innocent man to die. I willing accepted that risk when I took that oath, and I willingly accept that risk now. I will have to live with my knowing choice if such a horror comes to pass. I will have no one to blame but myself. However, I am not unique. You would have to be a “suit on stilts” to become a federal trial judge in a district where the death penalty is practiced to believe that your experience or your state will be free from what happens every other place where citizens are put to death by the state. No, you know that you are signing onto the “machinery of death” and you further know that the machinery in some few cases unintentionally kills innocent people. What you hope is that you aren’t the one to preside over the “accident.”
  • Except as noted in the following three paragraphs, I do not know what I would do if I were confronted with a case where the petitioner was factually innocent of murder and I knew that the petitioner was factually innocent of murder but there was no federal legal remedy available to stop the execution. However, I do know this: I would move heaven and earth to stop the execution, but I would not play games with the law to do so.
  • Hypothetically, if I were confronted with a case where the petitioner was factually innocent of murder and I knew that he was factually innocent of murder and there was no federal legal remedy available to stop the execution, I would probably allow the execution to proceed if I was satisfied that there was precedent that compelled such a result. For example, should the Supreme Court hold that factual innocence is not cognizable as a “stand alone” federal claim, I would follow that precedent.
  • Hypothetically, if I were confronted with a case where the petitioner was factually innocent of murder and I knew that he was factually innocent of murder and there was no federal legal remedy available to stop the execution, I would probably allow the execution to proceed if I was satisfied that the petitioner could also resort to a fair and speedy pardon process prior to the execution.
  • Hypothetically, if I were confronted with a case where the petitioner was factually innocent of murder and I knew that he was factually innocent of murder and there was no federal legal remedy available to stop the execution, I would probably allow the execution to proceed if I was satisfied that the petitioner had “sat on his rights” thus contributing to the absence of a legal remedy to address his factual innocence.

I invite readers to comment on the foregoing. I do not expect nor necessarily desire gentle treatment.


*Holmes might more accurately be called a legal realist. There is a difference between legal positivists and legal realists, but I have always thought of them as “kissing cousins.” To avoid being even more pedantic than I have already been, I blend the two conceptually in this blog post. I no longer care about the academic rigor that used to be so important to me back when I hoped to wear tweed jackets the rest of my life. In any event, it is not necessary to explore those differences in this setting.

112 responses

  1. The phrase there are old pilots and there are bold pilots but there are no old bold pilots obviously does not apply to senior federal trial judges:)

  2. You just took an hour of my time that I vowed never to spend again. Now I need to go for a walk. That you still believe that the people should decide whether to have a death penalty or not, know what you know about voter registration and civics education frightens me. Alas, that is why I am no longer a judge. Jack Bauer would do what’s right. I did and would again. Think about this. Some idiot who you think knew his rights or had a lawyer who you only ask to provide a reasonably good defense, didn’t exercise his rights and you would kill him. Scary.

  3. Judge Kopf,

    My personal and political beliefs clearly do not align with yours. Your final two paragraphs especially make me shudder just reading them. Nonetheless, I appreciate your willingness to state them forthrightly and provide a strong intellectual defense of your actions, both past and hypothetical. The world would be a better place if more practicing members of the judicial community were willing to state their beliefs about all manner of crimes (from capital murder to white collar crime, sentences, and punishment.

  4. Judge
    the last two days of posts and comments had me thinking about guilt and innocence,life and death, and ratios i then remembered this article and thought i’d share it with you along with some of my favorite quotes from it

    1.Jeremy Bentham, founder of utilitarianism, warned against the warm fuzzy feeling that comes from large values of n:

    We must be on guard against those sentimental exaggerations which tend to give crime impunity, under the pretext of insuring the safety of innocence. Public applause has been, so to speak, set up to auction. At first it was said to be better to save several guilty men, than to condemn a single innocent man; others, to make the maxim more striking, fix the number ten; a third made this ten a hundred, and a fourth made it a thousand. All these candidates for the prize of humanity have been outstripped by I know not how many writers, who hold, that, in no case, ought an accused person to be condemned, unless evidence amount to mathematical or absolute certainty. According to this maxim, nobody ought to be punished, lest an innocent man be punished.

    2.In this model, the Blackstonian crime rate — the value of c corresponding to n = 10 — is 4,651.9. Setting c = 5,482.9, the national average, we find that the corresponding value of n is 1.0967 ‘ 10^11, or approximately 109,670,000,000 (109.67 billion guilty men acquitted for every one innocent man convicted). That’s a lot of presumption of innocence.

    3.Still others sidestep the issue, as in the case of former British prime minister John Major, who told a Tory party conference that it is better to put the guilty behind bars than to imprison the innocent in their homes.

    4. The story is told of a Chinese law professor, who was listening to a British lawyer explain that Britons were so enlightened, they believed it was better that ninety-nine guilty men go free than that one innocent man be executed. The Chinese professor thought for a second and asked, “Better for whom?” 238

    5.Nonetheless, all innocent readers who have never been convicted may now take a moment to thank Blackstone’s maxim for having inspired Western criminal law. All guilty readers who have been acquitted may do so too.


  5. I think you and Scalia are actually saying the same thing, being a judge is a rule governed activity. If the system of rules serves the common good and produces usually just and fair results, the occasional injustices produced by the rules are not correctable by a judge because of his commitment to the system of rules, and he is not morally deficient for following the rules. Execution of the innocent is simply an application of this general approach. Judges turned free to right injustice whatever the rules say are not judges. In habeas cases the role of the Federal Judges is constrained in scope if the cases are state cases by the system of federalism itself, and innocence is not within that scope. Democracy is not relevant to this issue since this approach would be equally applicable in an oligarchy or monarchy. Democracy becomes relevant at the level of judicial review, but on this question Bickel is not relevant. How much play the actual system of rules allows for issues like factual innocence is a different question. It maybe the system of rules is open enough to make room for Harry Blackmun throwing sand in the machine from time to time.

  6. “Our social contract has produced a good and decent society…”

    That’s emphatically untrue now as people have so stupidly, callously and cowardly accepted the slaughter of our nascent children in abortion, and for so long now. The initiation of legislated legalized abortion in CO in ’67 and later mandated nationally in ’72 in obvious social engrng by the sc – abortion effectively legalized thru the entire period a woman’s pregnancy, effectively for any reason whatever or effectively for no reason at all has obviously and utterly devitalized our society. Mother Teresa was right.

  7. The maxim about freeing the guilty to protect the innocent predates Blackstone and appears in a 17th century assize sermon by a CofE bishop named Sandserson, though he treats it as a known maxim. The bishop was less generous than the law professor. His figure was 10 to 1..

  8. Well, this should be another interesting day. Your comment, especially the conclusions expressed in your three hypotheticals, leaves me wanting to join Lorin Duckman on his walk. My initial reaction is to say — no, scream — that you’re a human being first and a judge second.

    Under the three scenarios that you described, it seems to me that a judge’s only option is to join the late Justice Blackmun in refusing to tinker with the machinery of death. How does the judge do that? Make the ruling in favor of the “factually innocent” petitioner and accept the inevitable consequences and criticism? Resign? And by the way, if you do rule to allow the execution to proceed, what is your Order going to say? “Gosh, I know this guy is innocent but ….?”

  9. Mark,

    Having read the remarkably good but provocative article that you and brother Osler wrote entitled A ‘Holocaust in Slow Motion?’ America’s Mass Incarceration and the Role of Discretion, your comment forces me to order you to recite the following poem one million times:

    “Oho!” said the pot to the kettle;
    “You are dirty and ugly and black!
    Sure no one would think you were metal,
    Except when you’re given a crack.”

    “Not so! not so!” kettle said to the pot;
    “‘Tis your own dirty image you see;
    For I am so clean – without blemish or blot –
    That your blackness is mirrored in me.”

    —Maxwell’s Elementary Grammar, 1904


  10. “I am bound by the precedent of the Supreme Court of the United States and am sworn to uphold the law. Therefore, the sentence shall be affirmed.” That’s how I would put it.

    I see criticism of this area from people outside of the capital field. I’ve been both inside and outside of it now, and it’s changed my view of the subject immensely. I won’t go into my views because I think this is so sensitive subject, and I am so inexperienced compared to other brilliant people on this website, that I don’t think I can contribute anything valuable.

    Instead, I want to point something else out. Under any system that applies force to its citizens, someone must trigger the application of force. The person who triggers the application of this force without our country is called a judge (although he shares the responsibility with others). Our ideal of this person is one who is uninfluenced by anything but what we want them to be influenced by. In this country, they should solely be influenced by the Constitution and the law. The Constitution and the law are derived from the consent of its constituents to be ruled by it. In order to create a situation where this is possible, our Constitution creates life tenure for Article 3 judges.

    Situations like these, where a judge must either affirm a death sentence or sentence someone to death, are precisely why we have this tenure. It is a sharply divisive topic that, in the wrong hands, would unduly influence a judge and cause him to sentence someone (or not sentence them) based on other factors than the law. This would become an application of force based upon emotions. It would be vengeance and revenge instead of justice. This is not what our country stands for.

    I am glad that RGK has taken the time and experience to seriously think this through. It shows a wisdom and an appreciation of the awesome responsibility judges have. It shows an understanding of how the system I laid out above works, and it shows an understanding of his role within it.

    The alternative is law based upon emotion. There is a time and a place for that, don’t get me wrong. But not in death penalty ,and not in habeas. It is too complex and delicate a process, and must be built to be sheltered from the stormy waters of public opinion. Otherwise men and women will be killed because the public dislikes them, instead of based on the law.

    We have a system in this country that attempts to balance the rights of the state against the rights of the individual. It is an uneasy balance, frought with constant fighting. Neither side will ever be satisfied, but I am satisfied that my rights are protected by both sides of the equation.

    And I believe that RGK has done all that he can be expected to do as a human being, which is carefully consider and come to a conclusion. He’s not a god, and should not be held to an impossible standard. I’d much rather have him than someone who believes that they should use all parts of the law to change the world according to their worldview. Such people tend to ignore the things they mess up along the way.

  11. What you write has the makings of an interesting law review article. But according to Judge Kopf’s hypotheticals, we are dealing with people who are “factually innocent.” In other words, they didn’t do whatever it is that the government wants to kill them for. Assume you’re the petitioner: will you really be “satisfied that [your] rights are protected” when you’re lying on the gurney waiting to die for something you didn’t do? If we leave humanity and emotion out of the equation, robots and computer algorithms would work fine.

  12. “Right is right, and wrong is wrong, and a body ain’t got no business doing wrong when he ain’t ignorant and knows better.”
    ― Mark Twain, The Adventures of Huckleberry Finn

    I would sacrifice the law to prevent an innocent person from execution.

    And as Huck says: “all right then, I’ll go to hell”

    A provocative post, however, to say the least.

  13. Your last two bullet points disturbed me:

    “Hypothetically, if I were confronted with a case where the petitioner was factually innocent of murder and I knew that he was factually innocent of murder and there was no federal legal remedy available to stop the execution, I would probably allow the execution to proceed if I was satisfied that the petitioner could also resort to a fair and speedy pardon process prior to the execution.”

    I am not familiar with the Nebraska clemency scheme, but certainly the federal clemency scheme is not up to this standard. It has no hallmarks of fairness. Clemency is at the plenary discretion of the President. There is no due process, no right to review, and no guarantee against arbitrary or capricious decisionmaking.

    “Hypothetically, if I were confronted with a case where the petitioner was factually innocent of murder and I knew that he was factually innocent of murder and there was no federal legal remedy available to stop the execution, I would probably allow the execution to proceed if I was satisfied that the petitioner had “sat on his rights” thus contributing to the absence of a legal remedy to address his factual innocence.”

    This is murder.

    We do not say that a murder is any less a murder because the victim contributed to a dangerous situation. We do not say that a murder is any less a murder because the victim baited or goaded his murderer. We do not say that a murder is any less a murder because the victim did not obey the law. A murder of a drug dealer is still a murder.

    To kill an innocent man because he did not follow proper legal procedure, even deliberately, is a murder. In the federal system, there are several crimes which Congress has said may result in death: none of them are encompassed in any way by sitting on one’s rights. It is not the democratic will of the people that a man innocent of one of those three crimes be killed, no matter what other wrong he committed. An innocent man who sat on his rights and contributed to his situation is still innocent of a crime punishable by death. To execute him is to murder him.

  14. I like this: “I accept no other person’s definition of morality.” To quote J. G. Hamann: “he who trusts the judgement of another more than his own ceases to be a man.” On the other hand, to say “I cherish the independence given to me by Article III of the Constitution, and I avoid influences that might interfere psychologically or otherwise with that independence,” has to be qualified, and I’m confident you meant it as such. No man is an island, and we have learned and continue to learn and should be open to learning from others.

    I’ve been thumbing through that Otto Bird book on Justice you recommended since I received it in the mail a few days ago from Amazon. I’m somewhat disappointed that in its dialectical survey of the history of though on this issue it doesn’t seem to consider a definition of Justice resembling what I take to be the best definition of Justice, expressed by Bastiat as follows: “As a friend of mine once remarked, this negative concept of law is so true that the statement, the purpose of the law is to cause justice to reign, is not a rigorously accurate statement. It ought to be stated that the purpose of the law is to prevent injustice from reigning. In fact, it is injustice, instead of justice, that has an existence of its own. Justice is achieved only when injustice is absent.”

    As a bonus, here’s Bastiat’s definition of law: “The law is the organization of the natural right of lawful defense. It is the substitution of a common force for individual forces. And this common force is to do only what the individual forces have a natural and lawful right to do: to protect persons, liberties, and properties; to maintain the right of each, and to cause justice to reign over us all.”

    Is this not sufficient to bring us out of Hobbes’ nasty, brutish and short state of nature?

    Perhaps the closest Bird comes to acknowledging Bastiat’s and my position is at the very beginning of the book where he says that the definition of Justice offered by Socrates himself in the Republic is “minding one’s own business both in external relations with others and in the internal ordering of the soul.” So Bastiat and I are in good company. But later Bird writes: “Admittedly, there are a few authors – Plato and Hegel being perhaps the most notorious in this respect – who seem to resist taking definite position on the very issues that serve to divide most others. . . . They are the dialectically difficult authors who resist classification and cannot be identified exclusively with any one group, except with great qualification.” The rest of Bird’s book is then taken up with a dialectical survey of what he takes to be the three principal theories of Justice, from which Socrates and Plato would however appear to be excluded: the Positive Law Theory, the Social Good Theory, and the Natural Law Theory.

    Admittedly I have not had occasion to study closely the law of capital punishment, but could we not say the following: The oath of a judge is to the Constitution itself, rather than to the various functionaries it authorizes or has authorized, is it not? (The whole notion of such an oath, to either an amendable text or to persons, is fraught with moral peril, but let’s leave that aside.) Would not the knowing execution of a factually innocent person constitute “cruel and unusual punishment”?

  15. John,

    I am just guessing but I would guess that you are a follower of the “natural law” theory. If that is so, on this issue we could never come close to agreement. All the best.


  16. Matt,
    Thanks for the compliment. Yes, I know that we are dealing with factually innocent people. I respectfully disagree that with your assumption that I’m a computer or that this is a viewpoint only a computer would come to.

    As the Petitioner, I will clearly not be satisfied because my rights have been destroyed. I will literally be dying for my country’s reasons, not because I did something wrong, but because the State messed up horribly, and we must now affirm that mess-up. I will scream, and I will fight for my life.

    This is as it should be. The individual is dying an innocent man. I fully recognize this, and I’m not going to look away from it. But I see a greater system than simply one case.

    The State maintains its power through application of force. There’s an element of Hobbe’s Leviathan in this, although I’m not saying that the State should have absolute power. For some, the only way the rule of law will be respected is through a consequence. This is why we have criminal laws. Death is the ultimate of these consequences.

    It’s is a different tool than life without parole, and honestly we know in our guts that life without parole is not as bad as the death penalty. (whether that’s actually true is for debate). We as a society feel a need to distinguish between murders and truly horrific crimes, and express our revulsion, outrage, and disgust with the actions. It also serves as a discipline tool.

    But, either way, we as a society use death as a deterrent. Let’s assume that this is our viewpoint for the rest of my reasoning. I’m not saying I agree with the death penalty, but if you assume that death is a punishment we use, than you must come to the conclusion that you will kill innocents.

    Next, we have to look at how to administer the death penalty. Here’s our “system:”

    1. Crime occurs.
    2. State-elected DA charges defendant with crime, seeks death.
    3. State-chosen jury sentences defendant to death.
    4. State-chosen Judge sentences defendant to death. (how they’re chosen depends on the state)
    5. Defendant appeals through direct appeal up through state system to Supreme Court of the US
    6. Defendant files collateral appeal up through state system to Supreme Court of US.
    7. Defendant files habeas action up through federal system to Supreme Court of US.
    8. Defendant files state habeas action up through state system to State Supreme Court (this can occur anytime)
    8. Last-minute miscellaneous federal appeals (seems fairly normal these days, including things like 8th amendment issues for death penalty and so on)
    9. Defendant is executed, body is transferred to family, and punishment is finished.

    As you’ve probably noticed, this is a two-tiered system. It involves both state and federal courts. As we have a two-tiered system, to make sure that the courts “get along”, they have to respect each other. That means not stepping all over each others judgments. Federal courts are not bullies, and presume that state courts are competent like they are.

    For Judge Kopf to step in and say it is unconstitutional risks destroying the fabric of cooperation between the two sets of courts. This can create a chaotic environment where duelling parties will rush to both courts and get the first judgment as soon as possible. If that one fails, they turn to the second court to overturn the first, which creates a system where the judgment is not truly “final” which creates needless litigation and expense, as well as a massive headache and bad blood.

    The consequence of this “respect” is that, bluntly, shitty judgments get affirmed. This means that innocent people may be convicted. This also means that we affirm those convictions. From the Plaintiff’s perspective, this is horrific. But from the judicial perspective, this is horrific, but necessary.

    I emphasize that I see the pain and suffering this causes. But I also see the necessity of it within our system. I am not a computer, but I am a thinking person who tries to come to the results necessary for our country to continue to be a place of freedom. This means sometimes bad things happen.

    I don’t like it, but that doesn’t force me to reject the entire system.

  17. Lorin,

    You are a courageous man, and you were a courageous judge. I am sorry that I brought you such discomfort. Truly, I am.

    All the best.


  18. Hypothetically, if your wife Joan were the petitioner who was factually innocent of murder and you knew that she was factually innocent of murder and there was no federal legal remedy available to stop the execution, would you concur with a judge’s ruling to allow the execution to proceed if the judge was satisfied that there was precedent that compelled such a result? For example, should the Supreme Court hold that factual innocence is not cognizable as a “stand alone” federal claim, would you agree that the judge in your wife’s case ought to follow that precedent?

    I’m an interested lay reader and I’m not trying to be clever. Your statement that I’ve paraphrased above is quite frightening and I’d honestly like to know how you’d answer in the reality that these poor sods end up in. Some things are more important than others.

  19. Hapless thee toad the one true Lord of the Flies,

    I am in your debt. I had never read V’s article. Sensational writing! Boy, do I wish I had his intellect and skill.

    I went looking for you. I think I found you:

    a hapless toad

    All the best.


  20. Steve UK,

    Neat trick. A similar one was pulled on a strange little guy from the east coast who ran for President. He answered the question. I won’t. Nice try.

    All the best.


  21. Peter H.,

    I do not have a response that you would find adequate. I expect you know that. But I do have a serious question. I ask it because from prior discussion I know you to be a serious person.

    Knowing my views, do you think I am qualified to sit as a Senior United States District Judge in a death penalty case? The answer is important, but the reasoning behind it will be of greater interest to me should you elect to answer.

    With great respect,


  22. apeppink,

    In the interest of full disclosure, I authored both of the Carhart opinions that declared state and federal prohibtions against partial-birth abortions to be unconstitutional. Both cased ended up in the Supreme Court. See here for the state case and see here for the federal case.

    All the best.


  23. Dear repenting lawyer,

    With one important exception, you may be right that I am saying the same (or at least a very similar) thing as Scalia.

    To the degree that Scalia claims his actions are “moral,” I have no idea whether that is true or not. But, I would never label him immoral or question his assertion that he acts in conformity with his moral principles. Frankly, I have no interest in his conception of morality.

    As for me, I make no claim that the reasoning in my post is “moral.” I do claim, however, that the reasoning is “just.” I continue to believe that those are two very different things.

    All the best.


  24. Judge,

    As always, I appreciate both your honesty in accepting the implications of your views and your candor in expressing them. My response is too complex and lengthy to provide here. I expect I’ll post something sometime tonight on my blog.

    In the meantime, just a couple of quick thoughts. It is the duty of the judge to follow the law and to go where it takes her. But when the law is at odds with greater law (say, god’s if you believe in her, or nature’s or moralilty from whatever source), then you have the problem of what to do.

    I was talking once with an appellate judge who, I knew, was opposed to the death penalty but who I also knew had voted to affirm death sentences. “How can you do that?” I asked. We talked about alternatives (ignoring the law, recusing himself from all capital cases, etc.) Ultimately, though, he offered this answer. “If I don’t stay on the cases and vote to affirm when I must, I can’t be there to overrule a death sentence when I can.”

    I’m a criminal defense lawyer. I represent, defend the accused. I’ve represented a couple of dozen men charged with capital offenses, sentenced to die, facing death. I’ve had capital clients from indictment through trial. I’ve had them on direct appeal. I’ve had them in habeas including at the last hours. I’ve never put anyone on death row, but I’ve failed to get some off. A number of men I’ve represented on appeal have been executed.

    I’m not a judge; I’ve never wanted to be a judge, would not willingly be one. But if I were, I don’t know what I’d do about capital cases before me when faced with purely legal issues. Ferdinand vonSchirach, a criminal defense lawyer in Germany and a brilliant writer, tells of his uncle, a judge who presided over jury trials in capital cases. “He told us stories from these cases that we could understand, even as children. They always began with him saying: ‘Most things are complicated, and guilt always presents a bit of a problem.'” So, also, began his suicide note.

    Innocence, too, presents a problem. More than a bit of one, I think.

    More on my blog later.



  25. No, I don’t think you are unqualified.

    Blackmun was right, we should not tinker with the machinery of death. This series of posts has made me reconsider whether I would have the moral fortitude to hold your job. I don’t know that I would be honestly able to handle the situations described. It might break me.

    I’m in no position to tell you what to do.

    Thinking about this has reduced my certitude about how courts ought to handle death penalty cases, but increased my certitude that they ought not to handle them at all.

  26. The hypotheticals do not address “innocent people [who] may be convicted,” they address a person who will be killed unless a judge — who knows the person is factually innocent — steps in and does something about it. I don’t think anyone here has questions about what happens when the legal system works, The more important issue — at least for the petitioner waiting on death row — is what happens when the system fails.

  27. Scalia’s comment on the death penalty and innocence is standard natural law thinking of the Thomistic variety. Reflects his high school and college education at preVatican II Jesuit schools. Aquinas is clear that even unjust laws are laws and should generally be obeyed unless it demands an immoral act and a judge’s decision in a habeas case to follow the rules is not immoral. So I am not sure what your problem with natural law is. It is more a guide to rule making and interpretation than some wild card version of the chancellor’s foot.

  28. To the contrary, Thomas Aquinas taught “Lex malla, lex nulla”: A bad law is no law at all. Google it.

  29. Peter H.,

    Thank you for answering my question. I wish to respond to your point about fortitude.

    Please understand, as I am sure you do, that one is able to write with a certitude about a subject matter without psychologically being certain. I have spent over five years with a PhD in clinical psychology and currently take medication to deal with both anxiety and depression. During my therapy sessions, I was blessed to have the assistance of a brilliant young woman who had counseled soldiers when she served in the army. Our discussions not infrequently dealt with my personal moral questions about judging that bothered me deeply. By the way, I think it ironic that she is now a second year law student.

    My point: Don’t fault yourself because you question your fortitude to serve as a judge. Indeed, the fact that you ask the question is proof positive to me that you would make a great judge. Incidentally, this is not a “belly rub.” I mean it.

    With great respect,


  30. Although I always read your blog in the morning when I am engaged in my bodily “duties”, this death penalty argument left me feeling like my deposit was less full of *%#$ than your thesis. I have had a few clients who were factually innocent of crimes that sent them to prison. They have told me of what it is like to sit for decades knowing they had done no wrong and suffer the indignities of incarceration. Not only did they suffer, do did their families.
    In a capital case it is an even greater indignity and horror with the iminent prospect of death looming over ones every waking moment.
    I believe that rather than quoting Hobbes or Holmes we shoyuld abolish the death penalty, as most civilized nations have done, and do away with the expense and hardship it brings to our already stretched resources.
    I appreciate your views on most issues but have to part ways with you on this one.

  31. Well said. I think it worth addressing the many meanings of the term “factually innocent”. The term could mean absolute factual innocence, in the sense that it is the wrong man (it usually is a man). The term could mean factual innocence as charged in the sense that this is the right man, he did do a culpable deed resulting in death but is factually innocent of aggravating factors justifying the ultimate penalty. Certainly, the distinction could be important when considering whether to allow an execution to proceed after exhaustion of all legal remedies. One might be more motivated to find creative precedent in the former than in the latter.

  32. Jeff,

    I am eager to see your views on your blog. Besides, I love your writing. Thanks, as always, for your engagement.

    All the best.


  33. Kurt,

    For the purposes of taxonomy only, when I wrote about factual innocence I meant it in your “wrong man” sense. To me, that is the only circumstance where those words apply. I do not believe that the words “factual innocence” have any application to the question of aggravating factors. I could pursue this in greater depth, but I prefer to keep the post and discussion focused on the “wrong man.” You, of course, are free to comment on anything you like, but, at least for now, I don’t have the energy or inclination to discuss the “aggravating factor” issue. Incidentally, I dealt with that issue indirectly when I wrote the Rust report and recommendation mentioned in the text.

    All the best.


  34. Richard,

    What a nice way of saying I am full of shit. Thanks for the smile.

    I take seriously, however, your point about the reality of what the criminal justice system, death penalty or not, does to human beings. For what it is worth, I try hard not to avert my eyes.

    All the best.


  35. RGK,

    That’s not a bad guess, since you know I’m a fan of Lysander Spooner, who was a great natural law theorist. But ultimately I know that the answer to the question “who is to judge the natural law” is me. Who then is the source of the “natural law”? Me. (Charles Manson said something similar in his interview with Geraldo Rivera.) But who am I? In answering this question I’m partial to Advaita Vedanta, in which relativism is escaped by flirting with solipsism.

    If possible, I’m even more nihilistic than you. (And make no mistake, the Positive Law theory of justice is thoroughly nihilistic, amounting in the final analysis to might makes right.) Even more than Spooner, I’m a disciple of Max Stirner. There is truth in de Sade. (Incidentally, one of the main characters in de Sade’s The 120 Days of Sodom was a judge who got off on sentencing men he knew to be innocent to death.) But quite paradoxically and paradoxically, at the end of Stirner’s great attack on Christianity, the State, Man, and other spooks and ideals, he found in the founder of Christianity the greatest exemplar of his own doctrine. Jesus, like Manson, was a law-maker. In my own capacity as a law-maker, I endeavor to follow the former rather than the latter.

  36. Agree with you. We are stuck with a jury system but it is too unreliable to deal a death verdict. And I can’t propose a better system. As Mark Twain ‘tweeted’:

    We have a criminal jury system which is superior to any in the world; and its efficiency is only marred by the difficulty of finding twelve men every day who don’t know anything and can’t read.
    – 4th of July speech 1873

    An ignorance so shining and conspicuous as yours–now I have it–go on a jury. That is your place.
    – New York Weekly, 7/14/1873 (letter originally written to Josh Billings, 3/1873)

    Our admirable jury system enabled the persecuted ex-officials to secure a jury of nine gentlemen from a neighboring asylum and three graduates from Sing Sing, and presently they walked forth with characters vindicated.
    – The Gilded Age

    The humorist who invented trial by jury played a colossal practical joke upon the world, but since we have the system we ought to try and respect it. A thing which is not thoroughly easy to do, when we reflect that by command of the law a criminal juror must be an intellectual vacuum, attached to a melting heart and perfectly macaronian bowels of compassion.
    -“Foster’s Case,” New York Tribune, 3/10/1873

  37. Do not need Google read Summa along with old. SJ manuals in both college and law school. As with most things in Aquinas tag lines seldom do justice to his depth.

  38. Dear John,

    I don’t know if you drink. I do, but, now, only very little. Nonetheless, I think it would be fun to get drunk together and swap mean and nasty quips about the theorists or theories each of us dislikes. Decades ago, I did that once with a friend. Years later, during the confirmation process, thinking that our drunken quip contest was hysterically funny, my friend ratted me out to the FBI. The agent thought the story was so strange that he decided to “forget” about it.

    Anyway, after the first drink, I would start with this: ” “Natural rights is simple nonsense: natural and imprescriptible rights, rhetorical nonsense, nonsense on stilts.” I would then remind you that the speaker of that diatribe was none other than Jeremy Bentham, who had himself mummified when he died. You can still see “him” in London.


    All the best.


  39. Dear Anonymous,

    You flatter me, but I don’t deserve it. Please don’t mistake being forthright with being bored. All the best.

    All the best.


  40. Matt,

    By the sounds of things, Lorin will have a lot of company.

    As for what my order would say, it depends of course on the circumstances. But, rest assured that if the petitioner was actually innocent my order would acknowledge that fact clearly and without equivocation.

    All the best.


    PS True story about Blackmun. I clerked for the judge who replaced Harry on the Eighth Circuit. While Harry later refused to tinker with the machinery of death, when he was on the Eighth Circuit, he enthusiastically tinkered with the grammar of other judges. The secretary to the Chief Judge was reputed to have screamed at Harry over the phone that she would not change an opinion by inserting semi-colons rather than colons in her judge’s opinion. She then slammed the phone down. The story was that Harry didn’t call her back.

  41. Aquinas actually deals with a version of our question, a case where a judge knows that a defendant before him is innocent but his knowledge is not based on admissible evidence, He requires the judge to act on the admissible and convict if that is what the admissible evidence requires. Not perhaps his most popular view, but Aquinas is very conscious of how are duties are shaped by our station or role in life.. Judge’s duty is to support the legal order not to become his own law.

  42. Thanks for the compliments. I currently don’t have near the legal chops for the job, so I’m not planning a career change anytime soon. They’re very rigorous, the judging exams. They’re noted for their rigor.

    Fortunately, given the current state of the law, your hypothetical would not come to pass. It would not be a twisting of the law to cite In re: Troy Anthony Davis 557 U. S. ____ (2009) as grounds that a US district court can grant habeas relief based on a standalone claim of actual innocence, particularly citing to Justice Stevens’ concurrence. If you would, as you say, move heaven and earth to free the man, I would expect that you would not accept that an innocent man must die unless the court above you said in no uncertain terms that he must.

  43. There is a lot to unpack in this post. So I posted about it at my blog. A couple of points that might be worth reiterating here. I am pretty skeptical that legislators or voters give any thought about the likelihood of an innocent person being executed. The focus is on what crimes (or what kind of criminal) deserves the ultimate punishment.

    The distinction between what is immoral and what is unjust is intriguing. You write that justice is subjective in the sense that a society determines what is what is just. But isn’t that also true of morality? I think I was taught that the root word for morality is the Latin word for custom. Doesn’t a society also determine what is moral? If both are constructs of society, then can’t morality be part of the consideration.

    Perhaps it is a failure of imagination on my part, but under what circumstances would your third hypothetical come to pass? Why would an innocent person sit on their right to prove themselves innocent? It seems like the only way that would happen is if one didn’t know about the right. But if one doesn’t know about the right, was one sitting on the right?

    In any event, thanks for the thought provoking post.

  44. I believe what got this all started was whether or not actual innocence trumps “all the process a defendant is due”. A system that exalts due process over actual innocence is a system that is immoral. It founders on confusion (or disagreement) over whether the “law” is a means designed by people to serve the best interests of people, or whether the “law” is some sort of quasi-religious end in of itself.

  45. Peter H.,

    As you know, the Davis case involved an original petition for writ of habeas corpus filed directly with the Supreme Court. While the matter was transferred to the federal district court to take evidence on “actual innocence,” there is no majority opinion declaring that such a stand alone claim exists if brought (a) in an original writ case or (b) more customarily, before a federal district court under the common practice. What you have is an order to take evidence, but no definitive ruling on the question of actual innocence. For a review of the case and arguments you might like, see Krystal M. Moore, Is Saving an Innocent Man a Fool’s Errand – The Limitations of the Antiterrorism and Effective Death Penalty Act on an Original Writ of Habeas Corpus Petition, 36 U. Dayton L. Rev. 197 (2010-2011). To access the law review article click here. At best you have three justices saying “yes,” and two “no,” with Justice Stevens now gone. Finally, and as you may know, Mr. Davis was executed.

    As I said before, I would move heaven and earth to avoid executing an innocent man, but, as I also said, I would not play games with the law. Thus, I would not over-read In re: Troy Anthony Davis as I think you have in order to reach a preferred result.

    All the best.


  46. Adam,

    Regarding your last question, lawyers sometimes hold back gathering potential evidence in these cases for tactical reasons particularly when they fear the evidence may or may not prove innocence. When all the other claims go down in smoke, that’s when you might see the evidence developed to support such a claim.

    I look forward to reading your blog. All the best.


  47. I understand the reality that you as judge do not make the law and are sworn to enforce it. I also believe that while you probably still do lose sleep over having to hand down such sentences, you are just doing your job.

    I believe the boat has simply sailed on the question of whether the death penalty is a just sentence. It gives me no comfort that the reality is that most convicted of capital murder are guilty of the crime with which they are charged. I am perplexed by the idea that people, especially people in the belly of the system, are agnostic about the issue.

    Whether one accepts the morality or reality of the death penalty, in order to accept or be agnostic about the death penalty, one must ignore that despite the fact that people try their best to do the right thing (prosecutors, trial judges, appellate court judges, etc.) make mistakes and the system is not perfect.

    I believe it is wrong to kill people who did not commit the crime with which they are charged. That the system gets it right 95% of the time does not make it right.

    It is still a problem for the people to deal with to be sure, but I do not believe that the average voter understands this reality.

  48. Dear Judge:

    If you teach somewhere, perhaps in Europe, on a summer session (Oxford or anywhere in continental Europe preferably), please do post it here. Your posts are always witty and thoughtful. Your posts will not always garner a consensus (of approval or disapproval), but they are always thoughtful and thorough.

    I wish more federal judges were as engaging with the public as you (and from some of the comments I can tell that its not easy feat).

    Whether you know it or not you do have a lot of European law students (and graduates) who read your post.

    Cheers from the other side of the Atlantic

    – Postgrad student in the PhD law world…

  49. Judge–

    Thank you for struggling with this issue. I don’t pretend to know the answers to how a district judge ought to deal with your hypotheticals, but I’m somehow comforted to know that one of the persons who might have to deal with them should they become reality knows that the issues are so hard. (And thanks for the quote from The Leviathan. All these years I thought Mr. Hobbes had said that life was “nasty, British and short.” Explains the rather cold reception I got when my wife and I were in the UK this past summer.)


  50. Bravo! Your essay was truly worth savoring. If we had a thousand Richard Kopfs on the federal bench, it would be in uncommonly safe hands.

    This point in particular struck me: “Our social contract has produced a good and decent society premised primarily upon representative democracy. It is therefore almost always the job of the judge to honor and enforce that contract even when it rubs us wrong.”

    If you don’t mind my asking, why the qualifier? If the duty of a judge is to apply “that contract” (the law) to the facts of each case, when is it ever appropriate to not honor that duty?

    Second, while the federal trial judge has no choice as to the cases assigned, the Supreme Court can control its docket and with it, can ration justice in an arbitrary manner. If the justices act with conscious indifference and an innocent man is needlessly put to death as a result, why is that not an act of “depraved indifference”?

  51. Judge:
    I am so overwhelmed by this topic that, for the first time, I am incapable of formulating a cogent response save for one: I pray that you, and all of the state and federal judges who may someday be placed in this position, have the courage to do what is right without losing your minds in the process.

  52. Art,

    Your question about the qualifier is brilliant. I mixed up terms. A judge will always enforce the social contract. A judge may not alway enforce a law that is the product of the social contract.

    Example. A judge would never enforce a statute obtained by bribery of a legislator because the social contract we are speaking about is a democratic social contract and that implies honesty in fact by legislators. Another example: Our social contract has produced a written constitution and by the terms of that document the requirements of the Constitution are superior to statutory law to the extent the statutory law is inconsistent with the Constitution. So, assume Congress adopted a statute that imposed term limits on Supreme Court Justices without a corresponding constitutional amendment. In that circumstance, the judge would not enforce the statute because that law was inconsistent with the Constitution–the superior law.

    So the sentence should be rewritten this way: “Our social contract has produced a good and decent society premised primarily upon representative democracy. It is therefore almost always the job of the judge to honor and enforce the law even when it rubs us wrong.”

    Regarding “depraved indifference,” that is a concept typically understood to apply to state criminal laws that punish the death of another due to extreme recklessness. Thus, I don’t see any direct application of that concept to the Supreme Court or our discussion. What am I missing?

    Thanks for your engagement. All the best.


  53. Anon.,

    Gosh, I am flattered. But, to show you how parochial I am, I have never set foot in Europe. Moreover, federal trial judges almost never get summer teaching gigs in Europe–at least not those from the sticks like me.

    The foregoing said, I am glad you find something worthwhile in my musings. Thank you for saying so.

    All the best.


  54. High Plains Lawyer,

    You write: “I am perplexed by the idea that people, especially people in the belly of the system, are agnostic about the issue.” Read the following introduction to one of my death penalty cases and you may understand my ambivalence about doing away with the death penalty:

    This is a death penalty habeas corpus case. It involves the most horrendous torture and sickening murder imaginable. There is not the slightest doubt about the petitioner’s guilt. If any man deserves to be put to death, that man is Michael Ryan.

    Michael Ryan (Ryan or the petitioner) was sentenced to death for torturing and then killing James Thimm. Ostensibly in the name of his God, and over a period of two days, Ryan and others at his direction tied and chained Thimm in a hog confinement shed; on several occasions sodomized Thimm with a shovel handle or a pick handle to the point that the man’s guts ruptured; whipped and beat Thimm; shot off some of the victim’s finger tips; partially skinned Thimm alive; and caused the man’s bones to be broken, once using a piece of lumber and a block of wood to complete the fracture of a leg with one blow. After that, Ryan stomped Thimm to death. Although a five-year-old child, Luke Stice, was also killed a month or so earlier as the events culminating in Thimm’s death boiled up, Ryan did not receive the death penalty for that crime.

    Ryan v. Clarke, 281 F.Supp.2d 1008 (D. Neb. 2003).

    All the best.


  55. This is not difficult. Moving heaven and earth to stop the execution of an innocent defendant means stopping the execution. Not stopping the execution of an innocent defendant who has sat on his rights or who has access to a fair and speedy pardon process is not moving heaven and earth.

  56. I have to preface everything following by the admission that my ignorance of law and philosophy is profound, so much so that it’s certain that I don’t know what I don’t know.

    Nonetheless I think that your (Kopf) attitude is at base revolting and sinful most esp in your more or less explicit admission that adherence to right behavior has no hold on you, that you won’t make every effort to do what’s right in every circumstance, as Duckman essentially points out above. E.g. your statement preceding that you got a murderer off on a technicality of some kind, utterly w/o regard to justice – which I assume is normal behavior in contemporary legal maneuvering.

    Your statement that, “…the federal judiciary is intended as a weak, small and seldom used brake on the passions of the electorate. It is the great challenge of the federal judiciary to decide when, and how often, to apply that brake.” (by the founders) seems true enough but is blatantly contradicted by the actions of the lib judicial majority fraction in mandating moral judgements for which they’ve no competence whatever – think the ongoing judicial social engineering efforts re abortion etc., the whole revolting ‘gay’ agenda and all the lying, dissembling and obfuscation going into in that effort, indeed in their whole pushing off onto society the whole evil and revolting lib agenda. More even than that their easily inferred gloating re their easy buffalo’ing the moron masses, so easily bending them to their will, is orders of orders of magnitude more revolting and egregious yet.

    That you have what amts ultimately to a cavalier attitude toward the killing of an innocent man, not trying, hard, to spare him (by means of a judicial jury nullification of some sort, or something, anything), presumably to maintain what I’d guess you’d view as legal stability, is beyond my understanding (the other side of this coin unfortunately being the corrupt and rotten judicial lib majority who would, who do, make every attempt to avoid justice for convicted evil men whose egregious behavior has been exhaustively demonstrated in court, getting them off just as much as they possibly can, when they should be severely punished (and be hopefully simultaneously rehabilitated, a very tall order).

    “Justice consists in conformity to positive law”, you say, when the truth is that justice consists in conformity to Natural Law.

    You characterless and cowardly legal types are tearing the society up and, unfortunately, you’re hardly alone.

    Thank you for your permission to treat you urgently.

  57. Judge
    you may have found me,but since I’m terrible with insults and even worse with compliments I’ll just leave it there.I would like to ask a question though.
    While I wait for the coffee to perk I got a chance to read the rest of the comments and was most interested in the discussion of the(contract) law and of sitting on ones rights(know and unknown).My question is. what do you think of Lawrence Durrell’s solution to the sticky wicket between him and his government?

    I understand you might not be able to comment on this matter but because it is about a different country I thought you might be able to. Anyway the coffee is done so I’m going to hop off to the knot, and I thank you again for replying. Oh loved the Blackmun story and the drinking/debate game story.People are worth more than gold. I leave you with one of my favorite of Mr. Toad’s quotes
    Poop, Poop! Oh, poetry of motion! Ohh, the bliss! Ohhh… poop, poop!

  58. On this point we all agree, there are some lives not worth saving. The question is, can we have a system that executes people, even if it executes the innocent, the mentally ill, etc. That is simply not a question I am comfortable leaving to an electorate that believes the guilty are convicted and the innocent set free.

    My point about those in the system (such as you and me) being agnostic is that we know that innocent people are convicted of crimes they did not commit. I understand a system dealing harshly with the likes of Michael Ryan, but those examples are easy and glaring.

    All the best to you as well.

  59. And I should add, I have immense respect for judges like you and others in this circuit that have handled these questions (whether agnostic on the issue or not) with great skill and care. Just thought I should add that.

  60. I’m still puzzled by the “almost.” In the context of Roper v. Simmons, the Missouri Supreme Court told SCOTUS to go to hell, and the Court said nothing. Justice O’Connor complained in a solo dissent:

    “As a preliminary matter, I take issue with the Court’s failure to reprove, or even to acknowledge, the Supreme Court of Missouri’s unabashed refusal to follow our controlling decision in Stanford. The lower court concluded that, despite Stanford’s clear holding and historical recency, our decision was no longer binding authority because it was premised on what the court deemed an obsolete assessment of contemporary values. Quite apart from the merits of the constitutional question, this was clear error.”

    Is this one of the “almosts,” or is Justice O’Connor correct? When is it appropriate for a lower court judge to tell SCOTUS to go to hell? (If you can’t answer, I’ll understand.)

    With respect to “depraved indifference,” the grant of the judicial power comes with a duty to decide cases. As Chief Justice Marshall wrote in Cohens, “We have no more right to decline the exercise of jurisdiction which is given, than to usurp that which is not given.” If it constitutes a constitutional grant of Court jurisdiction essential to the vindication of fundamental rights, not even Congress can lawfully take it away, for to do so would eviscerate the Bill of Rights.

    As you said yourself, the judge is “the trigger.” According to Marshall, a refusal to hear an appeal over which you have jurisdiction is not only a breach of duty, but “treason to the constitution.” Neglect of one’s clear duty resulting in the wrongful death of another would seem to meet the definition of “extreme recklessness,” especially if it is done “knowingly.” In the matter we are discussing, Scalia admitted that he understood the question, which would have been presented to the Court if the attorney was even marginally competent. If Scalia didn’t even read the question that is presented to the Court, that constitutes “extreme recklessness,” and therefore, “depraved indifference.” If he refused to decide it when he had a duty to decide, it qualifies, as well. There is no third option.

    Under that set of facts, would it not be entirely appropriate to use the word “depraved?”

  61. RGK,

    I tried my hand at being a drunk for several years, which in turn led to abuse of other substances. I’m fortunate not to have contracted some horrid disease, and like the President am fortunate not to be a felon. I drink much less and much less often these days, but would be totally down with getting drunk together. I’m afraid I might bore you, however, crying into my beer about the law review article that ruined my career before it started, and was the fount of my disillusionment. But perhaps as the author of the Carhart opinions you might be interested. Perhaps you’ve read it. I hear it’s on Westlaw. I’d probably also start crying about the innocent man I ineffectively represented in my very first jury trial, and who I failed to save from being railroaded by the system. I’d cry about the creative but correct collateral estoppel / issue preclusion argument I came up with in that case, which the court of appeals agreed with, only to see the “justices” on our state supreme court overturn the court of appeals decision and reinstate my innocent client’s conviction, without even having the common basic decency to explain — at all — why the court of appeals was wrong, and why they had gone so far out of their way to condemn an innocent man to 45 years in prison, and his young children to grow up without a father. “Honorable” my ass.

    Words, including the words that make up the law, are very slippery. (That’s why we have judges.) There is plenty of room to do justice within them. But over and over again, and I could cite chapter and verse from my own experience far beyond the two instances I’ve mentioned, I’ve seen the judicial discretion which the slipperiness of the law affords exercised not justly (i.e., with the presumption of innocence) but sadistically. There are good judges, but as Vincent Bugliosi wrote in And the Sea Will Tell, they are significantly in the minority.

  62. Like most old folks I can not resist telling war stories. Many years ago I was discussing my dismay over the Ladies Directory decision of the House of Lords with a famous English law don. The case held that the courts could use shared community morals to create new common law misdemeanors. The prof respond that if I knew the members of the House I would be frightened. I think this story is relevant but like most oldsters I just wanted to tell it.

  63. Judge,

    You didn’t pose or answer the most interesting hypothetical of all.

    Hypothetically, if you “were confronted with a case where the petitioner was factually innocent of murder and [you] knew that he was factually innocent of murder and there was no federal legal remedy available to stop the execution,” and actual innocence has not been recognized or rejected as a stand-alone claim by the Supreme Court, and you were not satisfied that there was a fair and speedy pardon process, and the petitioner had not sat on his rights, would you still allow the execution to proceed, and if not, how not, and if so, how so?

    Ultimately, if you were not satisfied with the fairness or availability of the petitioner’s remaining options, and the petitioner made no negligent contribution to the failure of the process, what would/could you do?

    Matt T.

  64. Anonymous,

    Regarding the situation you describe, I said I didn’t know what I would do in the paragraph preceding the three hypothetical situations. I still don’t know what I would do. Sorry.

    All the best.


  65. Hapless thee toad the one true Lord of the Flies,

    It seems to me that Mr. Durrell behaved like the English gentleman his country said he was not.

    All the best.


  66. With apologies, the relevant argument of Aquinas was that a judge would not sin – that is, in the case of sentence of death, not become a murderer himself – if he convicted an innocent man, so long as conditions (such as making every effort to avoid it) were undertaken.

    That is a long way from saying that convicting an innocent man is the right thing, or the just thing, to do. Indeed that can never be the case, and that is where our host is fundamentally and seriously confused.

  67. There are cases when precedents and the actions of other participants in the legal process compel a particular result. Before I went to law school, I had assumed that such cases were the norm.

    A couple of decades later, I’ve learned that in high stakes situations where there are competent lawyers on both sides of a dispute (as is usually the case in the federal courts in serious criminal cases and as is usually the case in most death penalty states outside the deep South), however, the image of a judge as an umpire with little discretion is rarely accurate, and is particularly unlikely in a death penalty case – something that is hard to comprehend until you read persuasive opinions of two different judges reaching opposite results in the same case enough times to force you to acknowledge this reality, or come away from a totally unexpected trial court ruling.

    Indeed, empirically, a particular judge’s judicial predisposition is a more accurate predictor appellate and collateral review outcomes in death penalty cases than in any other kind of litigation in the federal courts. It is one of the only circumstances where there is virtually no empirical evidence of “panel effects” that moderate judicial predispositions when other judges with different outlooks participate in the panels decision making process.

    So, the hard question is not, how would you rule in the rare death penalty case where precedents that are directly on point and the points argued by the attorneys in the case leave you no choice, but how strongly your judicial ideology and predispositions influence the myriad discretionary choices you face in the process. Indeed, even in an absolutely preordained death penalty case seemingly mundane and administrative choices like when to schedule hearings, or how far down the to do list writing an opinion on a habeas corpus motion should do in one’s daily routine, can materially affect what percentage of the rest of his natural life had he received a life in prison sentence instead, a convicted murder on death row will live.

    Unlike juries, who frequently render verdicts based upon jury instructions given to them without a firm understanding of the consequences that will flow from how they apply those instructions to the evidence that has been presented to them, judges are blessed (or cursed) with a very accurate understanding of the consequences of any decision great or small that they make in the course of their work. A judge in a democratic society who encounters a decision over which he has some discretion is expected to be something other than purely outcome driven and to have some sort of principled basis for making decisions. But, a democratic society doesn’t demand that a judge make decisions with willful disregard to the consequences either. A judge who evaluates testimony at a hearing in a case where the continued validity of a death penalty sentence is at stake the same way that he would to testimony in a day long hearing over who will be awarded a disputed $50 fruit dryer (as one of my colleagues who was a former judge did once), probably lacks the interpersonal sophistication and good moral judgment to carry out the duties of the job with any semblance of competence.

    Unlike Europe, which puts junior judges on the bench right out of law school and has one judge for every twenty or so lawyers with even moderately serious cases always handled by panels of judges even at the trial court level, in the U.S., we have a system dedicated to selecting people who are seasoned and respected lawyers with one or two prior legal careers handling messy real world problems successfully, with sharp wits and strong backbones, and usually above average political savvy as well, to preside over the work of hundreds of lawyers each. We choose people who can handle great power and responsibility and then structure the job so that they have it. The democratic institutions of a society that has created those kinds of judicial institutions isn’t one that hired such an elite group of jurists to blindly follow instructions that are usually clear; they created judicial institutions like ours so that they could delegate hard decisions to people who they trust to be wise, just as the non-democratic hereditary aristocrats who invented those institutions did before them.

    Given that context, while there may be rare cases where a judge must send an innocent man to the gallows because the law compels it, the ordinary course of affairs is that the judge has the power to, and is entrusted by the people to, perform his or her duties in a manner the reflects a natural justice which is often far easier to discern when you are in the moment and not just a hypothetical, rather than doing so without any regard for the consequences.

  68. At a loss as to how a known unjust act would not be sinful , But I.disagree with your reading of Thomas

  69. ohwilleke,

    I agree with you that it would be exceeding rare to face a case where a federal trial judge would be compelled to allow imposition of the death penalty where the judge and everyone else knows the man is innocent. For example, every lawyer I know who represents the State of Nebraska would consent to relief for such an innocent man. So, this exercise has a distinctly abstract and academic quality to it. If there is utility to the exercise, it comes from the fact that it forces a judge to clearly think through his or her proper role.

    All the best.


  70. I’ve just reread the portion of the Summa where Aquinas says, e.g., “if in any point [a human law] deflects from the law of nature, it is no longer a law but a perversion of law,” etc.

    That book that was linked to on the theological origins of reasonable doubt looks terribly interesting. I’m strongly tempted to buy it, thought it’s not cheap, and I’m a poor starving attorney, and already have a long list of things to read. I’m curious as to how the circumstances it appears to have in mind in the excerpts linked to came about. They seem to be a feature of the times, as they have to do with judges somehow having private knowledge of the case in front of them, and the actual guilt or innocence of the accused, which today would lead to recusal. Is this because such judges might also have been priests, and might have heard the sacramental confessions of the accusers or defendants in front of them? (Just one more reason I became an apostate from the Church.) Movies have been based on the lengths to which the Church treats the confidentiality of such confessions as sacred, come hell or high water.

    Interestingly, I came across the premise of the book – that the purpose of the requirement of proof beyond a “reasonable doubt” is not so much to protect the defendant as the soul and peace of the juror – in a book by Gerry Spence, and have used it myself in voir dire. It’s a good notion.

  71. A good deal of our vocabulary about proof comes from theology particularly the ideas of probability and preponderance of evidence, true even after the Reformation because of CofE borrowing from Catholic moral theology. Problem Aquinas deals with probably is a problem of small villages and everyone knowing everyone’s business. Its been years since I read cannon law from middle ages but my recollection is priests could not impose death penalty.

  72. Well, a mortal sin requires three things: grave matter; sufficient reflection; and full consent of the will. The issue here is the last one. If the judge believes he is constrained and cannot exercise his own will then he wouldn’t be guilty of sin even if the act was objectively unjust.

    Personally, I don’t think judges get a pass like that because they are not as constrained as they often conveniently believe themselves to be. On the other hand, it’s not an easy job making weighty decisions that are actually carried out. One problem Judge Kopf has, in my view, is that positivism is a facile rationalization for imagining oneself to be constrained. And it disproportionately seems to constrain a judge to side with the relatively more powerful.

  73. As to the third-to-last bullet point, why not resign your commission rather than permit an innocent man to be executed? Without taking a position either way, if you are convinced the man is innocent you don’t have to twist the law and you don’t have to be an instrument of the process either. You can resign and explain why.

  74. Good idea. Of course resignations for reasons of conscience are disfavored, I think because we are not supposed to have consciences allegedly superior to the authority that accepts or rejects the resignation. There’s no guarantee it will be allowed. I know whereof I speak since I tried it and my resignation was “rejected”.

  75. Thank you for posting this. I wish more judges would honestly engage issues in a public forum. Whether it increases the public’s trust in the judiciary, I’m not certain.

    It appears that you rest much of your confidence in the administration of capital punishment on the democratic function — if the people legislate it, then it is law.

    But what of the myriad processes that distort the democratic function?
    a) Citizens that oppose the death penalty are removed from jury service.
    b) Executions occur in the dark of night without public scrutiny (if I read the reports correctly Missouri medicates defendants off stage before they are executed on stage).
    c) The death penalty is so arbitrarily used that it is reserved for the poor, the disenfranchised. Which Senator’s son or daughter faces the death penalty?
    d) Statutes remain on the books in states for years, because they are never used. Why would a legislator in New Hampshire vote to abolish the death penalty when the state hasn’t executed someone for 70 years?
    e) The death penalty is disproportionately applied to African-Americans, or in cases with white victims.

    I could go on. I could talk about the Confederate Flag that hung outside the Caddo Parish Courthouse until November 2011, and all of the death sentences of African-American men imposed in that courthouse with majority white juries, even though African-Americans make up almost fifty-percent of the population. I could talk about the politics of electioneering in Alabama, and how judicial override occurs most frequently when judges run for re-election. Or how bad lawyering rather than culpability determines whether a defendant lives or dies.

    Ultimately, the more difficult question is not whether you stand silent for the execution of an innocent person; but whether you speak up to redress a system that fails to identify the worst of the worst.

    The Supreme Court, as I read it, has held that the death penalty must be limited in its application, and reserved for the most culpable of offenders who have committed the most culpable offenses. I wonder whether judges have the strength to hold a system unconstitutional that plainly fails to accomplish this.

  76. JMRJ only saw your second comment today, my point, though clumsy, was that if a portion of the sinful act is missing then the act does not merit the sin description. Would shame a number of RSM if I had forgotten the definition of mortal sin. I would treat this either as a double effect problem or an issue of cooperation with evil. Those who never struggled through the Baltimore Catechism will be bemused by us.

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  78. I agree it would be exceedingly rare as well, Judge. But I think you’re way overestimating the lawyers you think you know. My guess is that they would all punt to you and consent to nothing. They would figure it’s your job to make the decision, and as far as that goes they might be right.

  79. I don’t trust the government enough to allow them life and death decisions over me or my fellow citizens. That there remains a question that factual innocence may not be a bar to execution of any sentence, death or otherwise, is all the proof I need that there is not enough protection in the system to support allowing the death penalty. Plain and simple, the procedural due process protections in this country have been eroded too far to think that there isn’t an unacceptably high percentage of innocent prisoners in this country. We allow prosecutors to wheel and deal using the specter of significant felony penalties for petty and inconsequential mallum prohibitum crimes (felony used to mean something…) and we have removed any cost to prosecutors for getting it wrong.

    We have taken a system designed to let the guilty go free to prevent the innocent from being destroyed and bent it to beyond the breaking point in order to satiate the gods of must-do-something when society is faced with the economic realities of the multiple massive black markets created because these mainly victimless crimes drive demand underground. Factual innocence should matter and it can’t be left up to the political branches as they have been proven to be feckless, treating innocent life as a chess piece sacrificed at the alter of power to protect the more desirable classes in society. How many socialites have ended up on death row? It always seems like it is the dumb and outcast that end up there.

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  81. Tacoma Owner Clerk,

    If I resign, another judge would be required to take the case. I have passed the buck. I would be very reluctant to do that to one of my colleagues.

    All the best.


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  85. This discussion can’t help but bring to mind one of my favorite pieces of history, of which I am sure that you are aware. In the early 1930s, Judge James Edwin Horton presided over a trial of several young black boys in Decatur, Alabama, who were each charged with raping two white women. After witnessing a trial fraught with antisemitism, lies, and blatant appeals to racism, Judge Horton was shocked to receive the verdict slip from the jury finding all of the defendants guilty of rape and sentencing one of them, Haywood Patterson, to death. Instead of quietly acquiescing to his role as an umpire, Judge Horton declared a mistrial. More than that, though, knowing that the defendants could not get a fair trial, he postponed the new trial indefinitely.

    Years later, Judge Horton was interviewed by a journalist about the trial and asked why he made that decision, even though he knew it would mean an end to his judicial career. The judge responded with a phrase that he had learned from his mother: justitia fiat coelum ruat – let justice be done though the Heavens may fall.

    I suppose my questions may be transparently unfair, so please feel free to respond to them either partially or not at all, or use this as an opportunity to respond however you’d like. Do you believe that Judge Horton was in the wrong, or in violation of his judicial duty, in acting how he did? Is it your position that the sense of justice has no place in judicial determinations such as his? Although I note your comment regarding being unable to form an opinion on scenarios aside from your hypotheticals, I can’t help but ask – would you have allowed the verdict against the Scottsboro boys to proceed, out of respect for the process as it was then?

    I’ve considered Judge Horton to be one of my heroes ever since I read the Scottsboro boys. He sacrificed his career to do what was right, though I’m sure he had every excuse to avoid doing so. But perhaps heroes are only maintained when we don’t pester them with specific questions like we can on a blog.

    As always, I appreciate your candor on these topics, especially when they are as divisive as this.

  86. Owen,

    I believe your questions are perfectly fair and fairly easy. You write that the judge presided over a “trial fraught with antisemitism, lies, and blatant appeals to racism . . . .” In that circumstance, the law required a mistrial. If the judge postponed the retrial indefinitely because he believed he could not get an impartial panel as evidenced by what he had just seen, I think the judge was standing on firm legal ground. Now, to be clear, the rulings by the judge took courage, but not because the judge lacked legal support for his actions. Rather, he was in a situation where the law was being openly flouted and a judge who insisted upon following the rule of law could end up dead.

    All the best.


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  88. First, allow me to acknowledge that I’m not involved in making those decisions. However, when I ascended the bench my father-in-law, a superior court judge, gave me what I believe to be very good advice, i.e. ‘sometimes a judge has to rise above the law to do justice’. I see numerous options, a few being:
    1-Do as the judge is opining;
    2-Excuse himself from deciding;
    3-Request the Chief Judge assign an alternate;
    4-Bring all interests together, REALLY seek input and fully and thoroughly discuss;
    5-Make the kind of decision that you can:
    a-Face yourself
    b-Face your family and friends
    c-Have no problem with it being on the front page of the newspaper or the social media the
    the next day

  89. When I began a law enforcement career back in the late 70’s, it didn’t take very long for me to realize that our system of justice was only as good as the people that meted it out.

    With that reality serving as a constant influence in my exercise of discretion, not once in my 23 year career did I ever arrest an innocent person. To accomplish that, I had to let a number of people go free that may have satisfied some element of guilt.

    If Lawyers and Judges could adopt this principle in the exercise of their duties, our system would produce very few victims.

    Justice without perfection is more desirable that perfection without justice.

  90. It is truly disturbing that you would, hypothetically, allow an innocent person to be executed by the state if the law provided no relief (or if you thought there was an easier way the innocent person could have sought relief. You have truly lost sight of the purpose of the justice system. What is scary is that you are a key part of that system.

    In addition, the opinion excerpt you provide contains a glaring omission: the role of the police and prosecutor. If they haven’t been forthcoming, there is no way for the zealousness of the defense lawyers or the fairness of the jury to make up for that.

  91. I thoroughly enjoyed your post, and your responses in the comments. I agree with your argument that this approach is “just” but may not be “moral”.

    Just one question: if a defendant in your courtroom was sentenced to death, and you believed this person to be factually innocent, would you contact the office that could pardon them and say so?

  92. This is why I against the death penalty. I don’t remember who said it but .it is better for 10 guilty men to go free than one innocent man be convicted.

  93. Judge,
    I have just now tumbled onto this discussion and it has changed my thinking. I think that while I might be more proactive than you are willing to be in the case of a factually innocent person sentenced to death, that does not mean that I am right and you are wrong, or that I am a better person than you are, but more likely that I would not be a good judge. It probably also means that I could not take the oath without reservation, and should not do so.

    A judge who is not willing to take the position that you believe you are compelled to take on a death penalty case might well be willing to tinker with the law in a case less significant to a party, in the name of doing the right/moral thing. That would pose a grave danger to the social contract.

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