FARAI CHIDEYA, host:

And Carl Tobias is a professor of law at the University of Richmond, has some insights on how the Supreme Court deals with the death penalty. Professor, thanks for coming on.

Professor CARL TOBIAS (Law, University of Richmond): My pleasure.

CHIDEYA: So you just heard a little bit of Jeff's perspective as someone who supports Mumia Abu-Jamal's efforts to be free. But what I want to do is put this in a larger context, because we have been, you know, covering both the Abu-Jamal case and the Troy Davis case. And again I would reiterate that we have spoken to the family of Daniel Faulkner, the police officer who was killed - that Mumia Abu-Jamal was convicted of killing. But I want to broaden this a little bit because the Supreme Court is delaying its decision in the Troy Davis case. He was granted a stay of execution just hours before he was scheduled to be put to death last month. What's going on with the Supreme Court and the death penalty? What are these cases saying about the court?

Professor TOBIAS: Well, I think in part they're saying that the Supreme Court does receive a number of these appeals. But also I think it's that the Supreme Court very seriously considers each of these cases. They receive 8,000 appeals a year, and only grant some 100. So there is always a long shot in this connection. But obviously, as your prior speaker was saying, we want to be exceedingly careful that when someone is executed that we're absolutely certain that that person committed the crime.

CHIDEYA: What aspects of the Constitution come into play when the government considers death penalty cases and whether or not justice has been served?

Professor TOBIAS: Well, a whole number of considerations in the criminal procedure area in the Fourth, Fifth and Sixth Amendments, which have to do with the right not to incriminate yourself, to confront witnesses, to present evidence and a whole number of constitutional guarantees. Also, the Eighth Amendment, which talks about cruel and unusual punishment. So all of those constitutional provisions are relevant, and we've seen some of these in the latest term.

You may remember the lethal injection appeal out of Kentucky last year. But these two cases we're talking about now are individuals and who are basically, I think, saying that they were improperly convicted of the crimes, and therefore either should have another trial - I mean, both of them are protesting their trials and saying they should have another trial before another jury, because they were prejudiced in the earlier cases.

CHIDEYA: In the Troy Davis case, one of the issues that has really come to the forefront is that the majority of the witnesses in the case are now saying that their own testimony was flawed or coerced or fictitious. And in a case like that, why wouldn't there be a new trial?

Professor TOBIAS: Well, there - as I understand it, at least in Georgia - and there was a very close decision of the Georgia Supreme Court, I believe four to three, on recantation. But there's a very high standard as to recantation. And four of the seven justices felt that that had been satisfied, though you can make a very persuasive argument that if a number of witnesses recant, then perhaps the case aught to be retried.

CHIDEYA: So when you look at what's going on with Supreme Court now, and with these moves to make exoneration a big part of the criminal process, and the fact is, more than a hundred people have been freed from death row since 1976, what do you see as the trends in how the death penalty is going to be meted out in America? Do you see legal changes coming from the top, from the Supreme Court, or from state levels, local levels?

Professor TOBIAS: That's a good question. I mean, the Supreme Court, as you remember last term, had the Kennedy vs. Louisiana case, and was asked to reconsider that, where the court ruled five to four that the death penalty for child rape violated the Constitution. And the court in that case and many other cases looks at whether there's a national consensus in terms of mostly state and federal government legislation. And then secondly, exercises its own independent judgment informed by its precedents and its understanding of the Constitution and the right it secures in deciding whether the death penalty is appropriate.

But - and some justices, for example Justice Stevens, recently said that he almost never thinks that it is appropriate. And earlier justices like Burton and Marshall said that they believed it was never proper. And so I think there is beginning to be some national re-examination, and some states have suspended the death penalty. I believe Illinois did because they felt it couldn't be properly administered. But I think we're going to see development, state by state, and I don't know that we're going to see the U.S. Supreme Court say that the death penalty is unconstitutional.

CHIDEYA: All right. Well, professor, thank you.

Prof. TOBIAS: Thank you.

CHIDEYA: That was Carl Tobias, professor of law at the University of Richmond.

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