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High Court's Look at Death Penalty Apt to Shift in Wake of Recent State Decision 
Tony Mauro
American Lawyer Media

August 13, 2001 

The coming term of the U.S. Supreme Court is shaping up as the occasion for a major examination of the death penalty. 

But, in a reflection of the volatile state of capital punishment policy and politics nationwide, the focus of the Court's inquiry could be shifting dramatically. 

Until last week, the case of McCarver v. North Carolina, No. 00-8727, appeared to be the major death penalty case of the term. The question in McCarver: Is it constitutional to execute the mentally retarded? 

Yet after the recent passage of a North Carolina law barring the execution of the retarded, state officials are arguing that the McCarver case no longer presents a "case or controversy." Under a provision of the state law signed Aug. 4, even those sentenced before the law passed -- including condemned North Carolina prisoner Ernest McCarver -- will have an opportunity to convince a judge that they are retarded and should be spared. 

With that avenue open, it is unlikely the Supreme Court will keep his case on its docket. Other cases from Missouri and Alabama are waiting in the wings, but they may not be ready for argument until later in the term or next term. Meanwhile, the case of Texas inmate Napoleon Beazley could come to the fore instead, raising a question about a different class of condemned prisoners. 

The Beazley case addresses the constitutionality of executing juveniles. Scheduled for execution on Wednesday, Beazley has asked the high court for a stay of execution and for a review of his appeal -- which argues that he should not be put to death because he was only 17 years old when he committed murder in 1994. 

The stay request went first to Justice Antonin Scalia, the justice who handles emergency pleas from the 5th U.S. Circuit Court of Appeals, which includes Texas. On June 28, the Court indicated that Scalia had recused himself, passing it on to Anthony Kennedy, the next most senior justice. 

Scalia never details his reasons for recusal, but the explanation is clear nonetheless. Beazley was convicted of murdering John Luttig, the father of J. Michael Luttig, the former Scalia clerk now sitting on the Richmond, Va.-based 4th Circuit. Scalia and Luttig are close friends. 

In a 1999 carjacking case, Holloway v. United States, Scalia made reference to the murder without naming Luttig. "I have a friend whose father was killed, and whose mother was nearly killed, in just such an incident," Scalia wrote, referring to carjackings. 

The Scalia recusal, while not a surprise, was not a foregone conclusion. Luttig himself has continued to rule in cases whose facts veer close to the tragic circumstances of his father's death in Tyler, Texas. And it is conceivable that, in later stages, Scalia could change his mind and participate. 

But if Scalia stays out of the case, the dynamics change significantly, possibly increasing the chance that four justices will have the opportunity to grant cert and that five may then stay his execution. A party's ultimate chances of prevailing are a factor that justices weigh. 

Scalia was the author of the plurality opinion in Stanford v. Kentucky, the Court's last take on the execution of juveniles. In the 5-4 ruling in 1989, Scalia concluded that executing 16- and 17-year-olds did not violate the Eighth Amendment. Justice Sandra Day O'Connor wrote a concurring opinion asserting that there was no national consensus against executing 16- and 17-year-olds. 

Twelve years later, Beazley's lawyers argue, the consensus -- both in the United States and abroad -- is far clearer. 

"There is now a universal norm on this," says Walter Long, partner in the Law Office of David Botsford and one of Beazley's lawyers. China and Iran have banned the execution of minors, and acceptance of the practice in the United States is leaving the country increasingly isolated in the world, says Long. 

The international consensus argument may have particular impact on O'Connor and Stephen Breyer, Long's brief suggests. Comments this summer about the death penalty by both O'Connor and Ruth Bader Ginsburg also offer hope that they will be interested in the juvenile issue, and even Anthony Kennedy might be swayed by international law arguments. Long also cites the justices' acceptance of the McCarver case on retardation as evidence that the Court would find the juvenile issue just as certworthy. 

Abolitionists are cautiously optimistic that the Court will find the Beazley case attractive. "With Scalia out and O'Connor possibly being more open, they might take it up," says Richard Dieter of the Death Penalty Information Center in Washington, D.C. 

But Dieter also hopes the retardation issue will remain on the Court's docket either through the McCarver case or others. "The public is a little more sympathetic toward retarded people than toward 17-year-olds who commit crimes." 

ASHTON'S ASHES

A Supreme Court law clerk leaks the outcome of a pending case, he is caught, and all hell breaks loose. 

If that sounds like fiction, it was: Brad Meltzer's 1997 bestseller "The Tenth Justice." 

But long before it was fiction, it was fact. A recent article in the Northwestern University Law Review details, for the first time, the forgotten story of Ashton Embry, the law clerk to Justice Joseph McKenna who resigned in 1919 and was indicted in 1920 for using inside knowledge of a forthcoming opinion to profit on Wall Street. The episode made headlines in Washington, D.C., at the time, but appears not at all in biographies of Justice McKenna, books about the Court of that era, or even in the memoirs of the late Dean Acheson, who clerked at the Court the same year and later became secretary of state. 

John Owens, himself a former law clerk -- and son of another law clerk -- wrote the article as a labor of love while working at the Justice Department. He stumbled onto a brief reference to the case in an old law review article, and pursued it by looking at Justice Department and Supreme Court files at the National Archives. 

"I was consumed by it," says Owens, an associate at O'Melveny & Myers who leaves the firm later this month for a job as Assistant U.S. Attorney in Los Angeles. "I couldn't believe no one had written about it." 

His historical pursuit led him to old case files and investigative reports, including one memorandum by a young Federal Bureau of Investigation agent named J. Edgar Hoover. A scandal-hungry journalist named Marlen Pew first heard about the scheme and went to Chief Justice Edward White who, according to a later report, wept upon hearing of the scandal visited upon his Court. On Dec. 16, 1919, Washington papers reported that a leak from within the Court about the outcome of United States v. Southern Pacific Railroad had helped a group of Wall Street speculators. Later that day Embry, who had been McKenna's clerk for nearly nine years, resigned to devote himself to a bakery business he had run while serving as clerk. 

The Justice Department convened a grand jury and began an investigation. But from the start, the case against Ashton Embry was flawed. The government's informant was a shady character, and it had difficulty in locating a law that Embry had actually violated. Insider trading was not yet illegal, and leaking a Court opinion early violated the Court's customs but not any statute. Ultimately, Embry and his co-conspirators were indicted for depriving the United States of the "right and privilege" to have Supreme Court decisions handed down as its customs prescribed. The defendants hired a "dream team" of lawyers, proclaimed their innocence, and challenged the indictment. But in 1921, the Court without comment denied Embry's appeal of the indictment. 

There the matter sat until 1929, when without explanation, the government dismissed the indictment. "The war between the Department and the Dream Team was never fought," Owens wrote, speculating that the weakness of the government informant among other factors led prosecutors to think they could not win their case before a jury. Owens concludes, as did Hoover, that Embry was guilty as charged. "Too many independent pieces of evidence point in his direction, and he never adequately explained them all away," Owens wrote. 

Nonetheless, Embry barely skipped a beat in his career as a baker. He prospered, ultimately running a chain of seven bakeries in the D.C. area until he retired in 1950. 

In a delicious coda, when Embry died in 1965 he requested that his ashes be scattered on the grounds of the Supreme Court. His son Lloyd, a noted portrait artist, fulfilled the request "under the cover of darkness." 

While researching the article, Owens reflected on his own clerkship for Justice Ginsburg, and his father Jack's clerkship for the late Justice Lewis Powell. It would be nearly impossible for a modern-day Supreme Court clerk to do what Embry did, says Owens -- although he says he is surprised that lower-court clerks, under less scrutiny, do not give in to temptation more often. The ethical obligations of Supreme Court law clerks today are deeply ingrained, Owens says. 

"At the Supreme Court now, there is a code of conduct for clerks, and the chief will talk to us about how important confidentiality is," says Owens. "It is also made clear to the printers, the librarians, who may see an opinion before it is released." 

More relevant laws and precedents are also in place, including one that declares the United States' right to "honest government services." Says Owens: "I would not want to be the law clerk who tests that law." Meanwhile, Brad Meltzer, who has read Owens' article, says, "Ashton Embry was the best response for that one Supreme Court clerk who said, 'The Tenth Justice could never happen.' The funny thing is, I never knew about the Embry case when I wrote "The Tenth Justice" -- it came up years later, when the whole Supreme Court clerk lovefest/fascination started. And I thought Ben Addison [his main character] had it rough." 

SWING VOTE

Comity is customary between the judicial and legislative branches when it comes to the Supreme Court's annual budget. Congress usually approves the Court's request with little comment or change. 

But this year could be an exception. 

The sticking point appears to be disagreement over one key aspect of the planned $122 million renovation of the Court building, necessitated by the years as well as long-standing neglect of the Court's infrastructure. This year's Court budget proposal includes $110 million for the renovation project, which calls for major overhaul of basic electrical, fire safety, and security systems. Court officials, as well as the architect of the Capitol, who has jurisdiction over the structural and mechanical care of the building, speak in grave and veiled terms about fire code violations and safety conditions at the Court. 

"The Supreme Court, unlike other buildings on Capitol Hill, has not been upgraded since its completion in 1935," architect Alan Hantman told a House Appropriations subcommittee hearing in March. "Virtually all systems have become obsolete and replacement parts are not available." 

Both the House committee and its Senate counterpart have voiced support for the renovation. But the Senate Appropriations Committee last month still slashed $110 million out of the Court's request, all but halting the project in its tracks. In its report accompanying the budget request as it awaits action on the Senate floor, the committee explained that it is "very concerned" about what it describes as the "linchpin" of the project, namely an underground expansion of the Court under the Maryland Avenue side of the building. The Senate concern came as something of a surprise, since it was not raised at any public hearing. The Senate Appropriations Committee did not even hold a hearing on the Court's budget this year. 

As conceived, the planned underground "annex" of the Court would ultimately serve as dedicated space for the Court police force, which is currently housed in offices and nooks and crannies spread along the ground floor of the building. But before it is given over to the police, the area would be used as "swing space" -- temporary quarters for other Court staff members displaced by other phases of the renovation. 

"Better utilization of existing Court space, particularly conversion of ceremonial or public areas into working offices, presents a far less risky and costly alternative to burrowing under the north wall," the Senate committee report asserts. Temporary space might be made available at the nearby Thurgood Marshall Building as well, the committee said. "The committee directs the Architect of the Capitol to develop a plan for installing the necessary building services without recourse to an underground annex." A deadline of Jan. 1, 2002, was set for delivery of the new plan. 

The Senate committee's terse rejection of the renovation plan has not, thus far, caused anyone at the Court or at the architect's office to hit the panic button. Officials at both places depict the committee's objections as an unremarkable opening gambit in the time-honored process of negotiation over the federal budget. 

"It is normal for concerns to be raised at this point," says Bruce Milhans, communications officer for the Architect of the Capitol. "We're confident it will be worked out." Milhans adds, "We think the project is very well-considered. We had extensive discussions with the Supreme Court, and it makes sense the way it is." 

Perhaps, Milhans said, there is a need to "clarify" for the Senate that the space would ultimately have a permanent use and is not just for temporary quarters. But once that clarification is made, the expectation at the Court is that the Senate will get back on board with the project and let it begin. 

Tony Mauro is Supreme Court correspondent for American Lawyer Media and Legal Times. 
 
For more Supreme Court news, calendars and cases, visit the Supreme Court Monitor
 

   

 
 
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