BY FRANK GREEN
TIMES-DISPATCH STAFF WRITER
Concerns about capital punishment expressed in public by U.S. Supreme Court Justice Sandra Day O'Connor might have stemmed in part from Virginia cases and could signal that changes are ahead in the way the high court deals with the death penalty, say some experts and death penalty foes.
Ronald J. Bacigal, a professor of criminal law at the T.C. Williams School of Law at University of Richmond, said O'Connor's questioning of the administration of the death penalty could be significant because "that's what prompted them to outlaw capital punishment in Furman versus Georgia back in the'70s."
"It all sounds like it's building toward that again," Bacigal said.
Bacigal said he was surprised O'Connor would make public comments on the death penalty. "Given her generally conservative approach and all, I think it is a pretty good indication that this stuff is starting to trouble her quite a bit."
In a speech last week, O'Connor said serious questions were being raised about whether the death penalty is being administered fairly in the United States - one of the same basic issues that troubled the court when, in 1972, it called a halt to capital punishment that lasted until 1976.
O'Connor, who often is the swing vote between conservatives and liberals on the nine-justice court, also said, "Perhaps it's time to look at minimum standards for appointed counsel in death cases."
According to The Associated Press account of the speech to a group of women lawyers in Minneapolis, O'Connor commented on death-row inmates who have been exonerated in recent years and said, "If statistics are any indication, the system may well be allowing some innocent defendants to be executed."
A.E. Dick Howard, a professor of law with the University of Virginia Law School and a constitutional expert, agrees with Bacigal. "I'm intrigued by the resemblance between those remarks and the views of [former Justice] Harry Blackmun.
"Justice Blackmun, when he first came on the court in 1970, was willing to uphold the death penalty and gradually migrated across to a position where he be- came an abolitionist," Howard said.
Some of the justices on the high court, "seeing actual cases, case after case come before the court," are now "aware of the problem of the [possible] execution of innocent defendants," Howard said, "and it seems to me that O'Connor has now joined that group."
"I'm not necessarily predicting that she will come in time to be for the abolition of capital punishment. She may or she may not. But she's clearly having second thoughts," he said.
O'Connor "tends to be at the very middle of the court. She's frequently the fifth and dispositive vote in a number of areas. She's often the vote in the middle, and in this area I think she's becoming increasingly concerned about . . . how capital punishment is actually carried out," Howard said.
"It's very interesting of her to, in effect, wear her conscience on her sleeve in those remarks in Minnesota - to sort of think out loud about the problems that you might expect a justice to put on paper in an opinion," Howard said.
James S. Leibman, of the Columbia University School of Law, said it was likely her remarks, and similar ones made recently by Justice Ruth Bader Ginsburg, were based in large part on problems presented in Virginia cases.
In recent years, the Supreme Court's attention to the death penalty has been focused more on Virginia cases than any other state's, he said. Leibman pointed to last year's decision in the Terry Williams case in which the high court, for the first time, found that the performance of a trial lawyer had not met constitutionally acceptable standards.
Williams, convicted and sentenced to death for the 1985 robbery and murder of an acquaintance in Danville, wound up with a life sentence after the Supreme Court ordered a new sentencing hearing.
Timothy W. Floyd, a professor of law at Texas Tech University Law School, said, "What's surprising is that a sitting justice would be so candid about problems with the death penalty, especially one who has voted to affirm a good many death sentences."
But, "What she said is not surprising to anybody who has paid attention to the administration of the death penalty. She's clearly correct. She's absolutely right. There is a real risk of executing the innocent," Floyd said.
"The other point she made, about effective counsel for these defendants, she would know, having seen so many cases, that's still a big problem. That's probably the biggest single variable as to who is going to get the death penalty and who isn't: the quality of defense counsel," he said.
Floyd said he did not know what significance her speech would have for the court, but, "I assume these weren't just off-hand remarks. She must have thought about what she was saying before she said it. I don't know if she intended that to be a signal. That's kind of dangerous business, starting to predict how the court will start deciding cases."
Stephen Bright, director of the Southern Center for Human Rights in Atlanta, a capital punishment foe, said O'Connor's remarks "demonstrate once again that the problems with the death penalty - and particularly the poor quality of counsel - are undeniable."
Bright also believes that "Justice O'Connor, like Justice Blackmun, has struggled with the death penalty throughout her tenure on the court. Yet it is clear that at the end of 20 years, she sees the poor quality of counsel for the poor and the substantial risk of executing innocent people."
One of the key provisions of the Innocence Protection Act now being considered in Congress is setting minimum standards for court-appointed lawyers representing defendants in death cases. Virginia has set minimum standards and has greatly raised the compensation for such lawyers.
Nevertheless, critics contend Virginia's system has not prevented poor lawyers from doing poor jobs.
U.S. Sen. Orrin G. Hatch of Utah, a member of the Senate Judiciary Committee, opposes setting minimum standards, but Bright said O'Connor's comments will make it difficult for Hatch to continue his opposition.
The top priority of a bipartisan Blue Ribbon Committee studying the death penalty in the United States was to set standards for court-appointed lawyers. Virginia has room for improvement in its system, said William G. Broaddus, a former Virginia attorney general who was a committee member.
"It certainly is gratifying to me to see a justice who has obviously had several decades of experience in dealing with the death penalty . . . express concerns which are very similar to those expressed by" the committee, Broaddus said.
Not everyone agrees that O'Connor's remarks signal a possible shift in the direction of the Supreme Court. Charlene Hall, vice president of Justice For All, a Houston-based, victim advocacy organization, said O'Connor's votes tended more toward the liberal than the conservative side.
"She's only one vote on the court," Hall said. "I think that even though she's a Republican appointee, there's other conservative justices that balance out ones who have a little more liberal tendency toward these kinds of cases."
Hall said much of the information on which O'Connor was basing her statements came from the media and is not correct. It has never been proved that anyone who was innocent has been executed. Cases in which people have been found to be legally and/or factually innocent simply prove the system works, she said.
"Nobody likes the death penalty," Hall said. "It's not a good thing. It's not a happy thing. I wish we didn't have it. But it would cause a lot more murders if we didn't have it."
Kent Scheidegger, legal director of the Criminal Justice Legal Foundation, which favors capital punishment, agreed with Hall that O'Connor had fallen victim to a myth. "From the minimal reports I have read on Justice O'Connor's speech, it appears that she is among the many people deceived by the most successful lie in contemporary public affairs."
Scheidegger said death-row proponents contend that roughly 90 former death-row inmates have been proved to be innocent. But they have not been proved innocent, he said. Instead, they are "people whose convictions have been reversed and who, for various reasons, have not been successfully reprosecuted. That means the evidence available at the time of retrial and admissible by the rules of evidence was not sufficient to convince a jury unanimously of guilt beyond a reasonable doubt. Either the jury hung, it returned a verdict of not guilty, or the prosecutor decided not to proceed.
"There is a world of difference
between these results and affirmative proof of innocence."