High Court Rejects Death Penalty Case

The Supreme Court declined to review a death penalty case Monday, but two justices took the unusual step of saying they wanted to hear it and one issued a statement on why. Another justice responded with his views on the death penalty.

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Under the Supreme Court's rules, it takes the votes of four justices to agree to hear a case. So it usually doesn't mean much when only two justices want to dig into a legal controversy, but sometimes the disagreement over whether to hear a case can be as interesting and intense as the case itself. NPR legal affairs correspondent Nina Totenberg reports on a case that the high court will not be hearing.

NINA TOTENBERG: The question posed by William Lee Thompson's case was whether trial and appeal errors by the state can ever prolong a case for so many years that it's unconstitutionally cruel and unusual punishment to execute a convicted murderer. Only two justices, John Paul Stevens and Stephen Breyer, wanted to hear that question, and their expressed desire to do so provoked Justice Clarence Thomas to write a rare and angry response. The case, involving a vicious crime, comes from Florida, the only state in the country that allows a non-unanimous jury to impose the death penalty.

Defendant Thompson is borderline retarded with an IQ in the mid-70s and evidence of brain damage. Thirty-three years ago, he and a biker gang buddy named Rocky Surace kidnapped and tortured a young woman to death. The facts of the crime are too gruesome to retell on the air. Thompson's lawyer advised him that if he pleaded guilty, he would not get the death penalty. Thompson followed that advice, but was sentenced to death. Rocky Surace did not plead guilty and got life in prison. In the decades since, the state appellate courts have twice set aside Thompson's death penalty because the trial judge did not allow mitigating evidence to be presented to the jury.

At a third death penalty hearing, the defense was allowed to introduce evidence about Thompson's limited mental capacity, his dysfunctional family background and an affidavit from an eyewitness to the crime, asserting that it was Rocky Surace who was the ringleader and Thompson the follower, not the other way around. The jury, however, voted for execution again - this time by a seven to five vote. And today, the Supreme Court declined to intervene. Justices Stevens and Breyer, explaining why they wanted to hear the case, said that it's at least arguable that a delay of 32 years since Thompson's first death sentence is so extraordinary that it amounts to unconstitutionally cruel and unusual punishment.

Stevens, in his written opinion, said long delays are inescapable in capital cases and underscore the inhumanity and unworkability of the death penalty as it's administered in the United States. That statement is as close as Stevens has ever come to saying he'd be willing to find the death penalty unconstitutional, and it was not joined by Breyer. Stevens also made a point of noting that since 1973, one hundred and twenty-nine death row inmates have been exonerated.

Justice Clarence Thomas responded by calling it a mockery of justice for someone who benefits from the appeals process to complain when executions are delayed. And he went on to question the statistics on exoneration, contending that many individuals were released because of the Supreme Court's, quote, Byzantine capital appeals process and not because they were innocent. A fact check on the statistics reveals that of the now 130 death row inmates released since 1973, forty-five were acquitted in second trials, 78 had all charges dropped or dismissed and seven were pardoned by governors based on claims of innocence.

Nina Totenberg, NPR News, Washington.

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