Scott Greenfield and Jeff Gamso have fair but critical posts about about my earlier piece today regarding the death of Michael Ryan, a sadist and convicted killer. My earlier post was intended to illustrate one side of my conflicting views about the death penalty. Briefly, I offer an illustration of the other side of my conflicted feelings about the death penalty.
When I was a Magistrate Judge (and shortly before the White House began consideration of yours truly for nomination as a district judge), I recommended that the writ be granted in a death penalty case. The district judge adopted my recommendation, and the issuance of the writ was affirmed on appeal. Rust v. Hopkins, 984 F. 2d 1486 (8th Cir. 1993).
I had concluded that the Nebraska Supreme Court created a reasonable doubt requirement for sentencing after the three-judge sentencing panel made its findings on aggravating circumstances using a lesser standard of proof, and even if the Nebraska Supreme Court could have remedied the invalidity of the sentencing panel’s determination by “resentencing” the defendant under the proper standard, the defendant would be deprived of his due process right to either a two-tier sentencing procedure or notice that the Supreme Court intended to “resentence” Rust on appeal. In a related vein, I was appalled at one of the factual findings by the Nebraska Supreme as the court grievously misstated the record as to whether Rust pumped bullets into the victim while the victim lay on the ground. (None of the members of the Nebraska Supreme Court that handled Rust are on the Court today.)
Mr. Rust came very close to being put to death, and that was so because of a screwy and blatantly unfair ruling by a state appellate court made worse by an important misstatement of the record. The Rust case is an illustration of the other side of my “conflicted” feelings regarding the death penalty.