The other side of my “conflicted” feelings about the death penalty

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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.

RGK

 

The Bestest System Around–Jeff Gamso

Photo credit: Windypundit and Mark Draughn.

Photo credit: Windypundit and Mark Draughn.

My post yesterday regarding Judges Kane and Rakoff and innocent people pleading guilty drew a response from Jeff Gamso. See here.

Jeff is a very bright guy, a highly regarded criminal defense lawyer (from my hometown once upon a time), and a helluva a writer. I urge you to read what he has to say. I also look forward to reading his suggestions that he promises will come in subsequent posts about how the system might be improved.

I hope Jeff concentrates on the federal system. In particular, I hope he tells me whether he wants federal district judges to get all up in his business as he negotiates pleas. Additionally, I hope he tells me whether guilty pleas by innocent people in federal court represent a significant problem or whether such events are rare. If he thinks there is a significant problem, I would be very glad to learn upon what basis he concludes that is so.

RGK

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