by Ted Cruz
A similar Ninth Circuit case was the tale of Robert Alton Harris, who was executed in California the night of April 21, 1992, after a long night in which the Ninth Circuit issued and the Supreme Court lifted four separate stays of execution. The Harris case was discussed at length by my former Harvard Law School professor Charles Fried in a 1992 law review article entitled “On Impudence.” The level of cynical and wily lawyering in the Harris case was, quite simply, absurd. The Harris case highlighted the abuse of our system of habeas corpus to needlessly delay the sentence of a brutal murderer. As Professor Fried wrote about one of the final twists of this sad story, “there can be no justification in law for Ninth Circuit Judge Harry Pregerson’s stay, the last in [the Harris] case, issued after Harris was already in the gas chamber.” But far too often, liberal activist lawyers and judges will go to the most extreme lengths possible to stretch out and prolong the inevitable. That was certainly what happened in the case of Robert Alton Harris’s long, slow march that finally resulted in the carrying out of justice.
Congress corrected some of these abuses in 1996 with the passage of the Antiterrorism and Effective Death Penalty Act, otherwise known as AEDPA. That statute imposed meaningful time limits to expedite judicial consideration of death penalty cases. But even with AEDPA, death penalty cases take many years and consume millions of dollars of resources—almost always without serious claims of innocence.
I remember well one case out of Virginia that came before the Fourth Circuit of Appeals when I was clerking for Judge J. Michael Luttig, and which also came before the Supreme Court the next year, when I clerked for the chief justice. Joseph Roger O’Dell III had committed a horrific crime. He had murdered a forty-four-year-old woman, Helen Schartner, in cold blood. It was a brutal rape and murder by a depraved killer, and O’Dell was ultimately indicted for capital murder, abduction, rape, and sodomy.
In his defense, O’Dell raised numerous technical issues, all of which were ultimately rejected by the federal court of appeals and then by the Supreme Court in a 5–4 vote. One of his claims, which his lawyers tacked on at the end of his appeals, was ostensibly a claim of actual innocence. When he was convicted, the trousers he had been wearing on the night of the crime had several blood stains. Forensic scientists had tested the blood and concluded, based on the available technology at the time, that the blood on his trousers was the victim’s blood. Subsequently, DNA tests were developed that were able to ascertain with far greater certainty to whom a particular blood stain belonged.
O’Dell’s lawyers subjected the trousers to DNA tests, and the lab that they hired concluded that one of the blood stains on O’Dell’s pants was conclusively from the victim. That same lab also concluded that another blood stain on his pants was not from the victim.
And so, remarkably, O’Dell argued to the courts that the laboratory that he had hired was credible and should be believed when talking about the second blood stain, but the very same laboratory was not credible and should not be believed when talking about the first blood stain (which DNA showed to be the victim’s). This was a claim that was understandably rejected by every judge who considered it: the federal district judge, all thirteen of the federal court of appeals judges on the Fourth Circuit, and all nine justices of the Supreme Court.
Nonetheless, given the highly politicized context of death penalty cases, O’Dell’s case became something of a cause célèbre, with international calls for his execution to be stopped from many luminaries, including the pope. It went so far that the Sicilian city of Palermo awarded O’Dell honorary citizenship and ordered the flags flown at half-mast when he was executed.
When the Court rejected O’Dell’s legal claims, I stayed late at the Court that evening. I remember driving home that night and listening to news that reported something to the effect of, “tonight, by a 5–4 vote, the Supreme Court allowed the execution of a man whom DNA evidence had proven was innocent.”
Here’s the opening paragraph of how the L.A. Times story covered it: “The Supreme Court upheld a death sentence Thursday in the strange case of a Virginia inmate who was convicted of a brutal murder but has won international acclaim as an innocent man wrongly facing the ultimate punishment.”
I remember yelling out loud at the news reports because they was so patently contrary to what the facts of the case had shown, as demonstrated by the fact that every single federal judge who had considered his “innocence” claim had rejected it. DNA evidence had not shown he was innocent; to the contrary, the DNA lab actually confirmed that the victim’s blood was on O’Dell’s pants. Instead, all DNA proved was that he had also contacted somebody else’s blood—and whatever conduct may have led to that other blood stain was never explained.
In my view, claims of actual innocence are qualitatively different from any other claims in criminal justice. Our justice system exists to ensure that the guilty are punished and that the innocent are freed. And I believe the justice system should always consider real and credible evidence of innocence.
Indeed, when I was a lawyer in private practice, one case I was particularly proud to work on involved John Thompson, a man who had been wrongfully accused and wrongfully convicted of murder in Louisiana. My law firm had represented Mr. Thompson for years, and my firm and I represented him pro bono—without charge. After his conviction, it was unearthed that prosecutors in Louisiana had wrongfully suppressed blood evidence that, when analyzed, proved Mr. Thompson’s innocence. The judicial process worked; Mr. Thompson was subsequently freed because he had not committed the crime with which he had been charged. And the prosecutors, in that instance, had committed serious misconduct in suppressing the evidence.
I represented Mr. Thompson before the Supreme Court in his civil case, where he sued the prosecutors who had prosecuted him and wrongfully suppressed the evidence. I joined my law partners in urging the Court to uphold the $14 million damage judgment he had won—$1 million for every year he had languished undeservedly on death row. Unfortunately, we didn’t prevail in that case, and Mr. Thompson lost 5–4. He died of a heart attack in 2017, having received public compensation of only $150,000 for the fourteen years stolen from him. But he was rightly freed because there was credible and, indeed, compelling evidence that he had been wrongfully accused.
But the case of Connick v. Thompson is very much the exception when it comes to death penalty cases. In almost all federal death penalty cases, there is no genuine issue as to guilt and innocence.
That was certainly true with the case of Kennedy v. Louisiana. Patrick Kennedy committed an unspeakable crime. He savagely raped his eight-year-old stepdaughter, leaving her badly injured and bleeding in her bed. Kennedy was a recidivist child rapist, and this was the second time he had brutally raped a young girl. Louisiana law at the time provided for capital punishment for aggravated child rape—for the very worst child rapists. Kennedy was tried and convicted by a jury of his peers and sentenced to death. His case went all the way to the Supreme Court, and I argued on behalf of Texas and eight other states, supporting Louisiana. The question before the Court was whether it should strike down every law in the country providing capital punishment for the very worst child rapists.
The preceding year, Texas had enacted legislation known as Jessica’s Law, a law targeting sex criminals with child victims. It was named for Jessica Lunsford, a nine-year-old girl who was kidnapped, sexually assaulted, and murdered in 2005 in Florida by a registered sex offender. The Texas Legislature joined the Legislatures of Florida, Louisiana, Montana, Oklahoma, and South Carolina in authorizing the death penalty for people who commit repeated sex crimes against children. At the time the case was argued, similar legislation was under active consideration in Alabama, Colorado, Mississippi, Missouri, and Tennessee.
Louisiana was the party to the case, but the Court granted Texas argument time to appear as an amicus—a friend of the Court. It was the first time in nearly a decade that the Court had granted argument time to a state that was not a part
y to the case. Kennedy argued that the “evolving standards of decency”—the same amorphous standard that the Court had invoked to strike down the death penalty in Furman v. Georgia in 1972—had now evolved to the point that the Court should prohibit, in all circumstances, capital punishment for child rape.
In 1977, in Coker v. Georgia, the Court had already struck down capital punishment for adult rape. The Coker plurality opinion was careful to carve out that it was addressing the rape of an “adult woman” fourteen separate times, as opposed to the rape of a child. Patrick Kennedy’s lawyers argued that, in the time that had passed between 1977 and 2008, society’s “standards of decency” had sufficiently “evolved” so as now to mandate extending the same legal logic not just to adult rapists, but also child rapists.
Another one of the arguments Kennedy put forward was that the Constitution forbids the imposition of capital punishment in any non-homicide crime—in all types of crime, that is, where no one’s life is lost. Although it might have some intuitive appeal, that proposition directly contradicts criminal laws across the country. Indeed, at the time the case was argued, non-homicide crimes that state and federal criminal codes made eligible for the death penalty included child rape; treason; aggravated kidnapping; drug trafficking; aircraft hijacking; espionage; aggravated assault by incarcerated, persistent felons; and attempting, authorizing, or advising the killing of any officer, juror, or a witness in a case involving a continuing criminal enterprise.
Of those non-homicide crimes, treason stands out because it is the only crime defined in the text of the Constitution—in Article III, Section 3—and the Constitution explicitly confers on Congress the “Power to declare the Punishment of Treason.” Under that constitutional authority, a congressional enactment authorizing the death penalty for treason has been in continuous effect since 1790. To this day, it is enacted in the U.S. Code at 18 U.S.C. § 2381.
Also central to Kennedy’s argument was his contention that there was an “evolving national consensus” against the death penalty for child rape because it was no longer permitted in many states. At the oral argument, there was one particularly notable exchange. Justice John Paul Stevens asked if, in the course of the history of criminal jurisprudence, standards of punishment had ever evolved in any direction other than greater lenience. As it so happened, I had an example to point to. In the thirteenth century, under Saxon law operating at the time in medieval England, the punishment for rape had been lessened from capital punishment to merely removing the culprit’s eyes and the testicles.
At this point in oral argument, I committed the same error in judgment I had made at the Van Orden Fifth Circuit Court of Appeals oral argument: I attempted humor. I quipped that the reduction in punishment from death to just removing the eyes and testicles was “William the Conqueror’s kinder, gentler version” of English common-law justice. Once again, the justices showed mercy and laughed heartily.
But I continued reading from famed legal scholar and English common lawyer William Blackstone, who noted that the lessened punishment didn’t work: “that previous lenity being productive of the most terrible consequences, it was subsequently necessary to return to making it a capital offense.”
Unfortunately, at the end of the day, the Supreme Court went the other way. By a vote of 5–4, the Court struck down Louisiana’s law and every other law in the country providing for capital punishment for the very worst child rapists. Justice Kennedy agreed with the arguments of Patrick Kennedy and authored the majority opinion, in which he concluded that “evolving standards of decency” empowered the Court to strike down these laws. He further opined that there was an objective “national consensus” against capital punishment for child rape.
After the case was decided, it was discovered that not only had six state legislatures explicitly disagreed, but so had both the Congress of the United States and the president of the United States. Federal law, namely the Uniform Code of Military Justice, provided explicitly for capital punishment for child rape when such a horrendous crime was committed in a military context. The underlying legislation authorizing that Uniform Code of Military Justice article had passed Congress by an overwhelming majority.
Rape in the military context had long been punishable by death, at least since the 1863 Army Articles of War. In 2006, Congress separated the rape provision into several subsections and explicitly made child rape punishable by the death penalty. The Department of Defense had advocated that revision and specifically pointed to the Louisiana child-rape law as an example. That federal law passed the House (as part of a much larger package) by a vote of 374–71, and it passed the Senate by voice vote. President George W. Bush signed it, and he issued an executive order specifically implementing the child-rape provision.
These facts were demonstrably contrary to the conclusion of five justices that—in 2008, just two years later—there was some sort of “national consensus” against capital punishment for child rape. Unfortunately, prior to the decision, this federal law eluded everyone’s research. Much to my frustration, neither I nor the lawyers in my office had uncovered it prior to argument. But Louisiana had also failed to discover it, as did all nine justices, and all ten briefs filed in the Court had failed to point it out. Critically, the U.S. solicitor general, who is expressly charged with defending the constitutionality of the laws of the United States, also did not discover it, and so chose not to participate in the case or present any argument to defend the underlying federal law.
When the federal law was uncovered—in a military-law blog post, of all places, after the opinion had been issued—I assisted Louisiana in filing a petition for rehearing and helped recruit a prominent Supreme Court advocate (and future Obama solicitor general) to file it on their behalf. Unfortunately, the Court had already made up its mind, so the fact that recently enacted federal law conclusively disproved the supposed objective “national consensus” did not change their underlying legal conclusion.
* * *
At the end of the day, death-penalty cases remain highly contested and highly controversial. Within the federal courts, they are still deeply politicized, as illustrated powerfully by another claim that federal courts have entertained, called a Lackey claim. In that underlying 1995 case, Lackey v. Texas, another convicted murderer who had appealed his case over and over and over again, delaying the imposition of his sentence for seventeen years, argued that it was now unconstitutional to carry out the sentence because it was so delayed. At the time, both Justice Stevens and Justice Breyer had suggested that such a claim might have merit.
My former boss, Judge J. Michael Luttig, who served on the Fourth Circuit Court of Appeals, was perhaps the most prominent and respected conservative appellate judge in the country when I clerked for him. He had also been directly affected by violent crime. On April 19, 1994, Judge Luttig’s father, John Luttig, was murdered after driving back from Dallas to his home in Tyler, Texas. John Luttig pulled into his family’s garage, and three teenage boys followed him and his wife into the garage in order to steal his car. The criminals shot and killed John Luttig in cold blood while Judge Luttig’s mother pretended to be dead. Then the boys leapt into the car, drove away, and abandoned it just blocks away from the home.
All of this occurred when I was still in law school. And Judge Luttig, a sitting federal judge at the time, was forced to go through five separate criminal trials for the murderers who killed his father. Judge Luttig gave, at one of the trials, a federal victim impact statement which remains one of the most powerful statements about the consequence of violent crime that I have ever seen. He described, in matter-of-fact fashion, but also incredibly poignantly, the small, mundane details of one’s life after one’s father is murdered. Judge Luttig allowed that victim impact statement to be published in the newspaper because he wished to speak for so many victims of violent crime who lacked the opportunity to speak for themselves. Here are some excerpts from his statement:
Words seem trite in describing w
hat follows when… your father is stripped from your life.… it’s being frightened out of your mind in the middle of the night by a frantic banging on your door… Your body goes limp as you see one of your best friends standing in the doorway. No words need even be spoken. For you know that the worst in life has happened. Then, he tells you: “Your mom just called. Father was murdered in the driveway of your home.”
… it’s realizing that, at that very moment, the man you have worshipped all your life is lying on his back in your driveway with two bullets through his head.
… it’s going down to the store where your dad had always shopped for clothes, to buy a shirt, a tie that will match his suit, and a package of three sets of underwear (you can only buy them in sets of three) so your dad will look nice when he is buried.
… it’s sitting beside your father’s grave into the night in 30-degree weather, so that he won’t be alone on the first Christmas.
… If I had any wish, any wish in the world, it would be that no one ever again would have to go through what my mother and my father experienced on the night of April 19, [1994,] what my family has endured since and must carry with us the rest of our lives.
For Judge Luttig, violent crime was real and personal. And as his law clerk, I still recall standing by the judge at his father’s gravesite in Charlottesville, Virginia, as the judge wept, remembering his dad. Judge Luttig was deeply committed to the Constitution and the rule of law, and I am confident that his own personal tragedy did not influence how he ruled in cases. He had been Justice Scalia’s very first law clerk in Scalia’s first year as a judge on the D.C. Circuit Court of Appeals. And he and Scalia remained incredibly close until Justice Scalia passed away. Indeed, when Judge Luttig’s father was murdered, it was Justice Scalia who came to Judge Luttig’s home late at night to beat on the door, awaken Judge Luttig and his wife, and inform them that the judge’s father had just been murdered in East Texas.