Newsgroups: bit.listserv.politics
Date:         Tue, 26 Jan 1993 20:35:00 CST
From:         TI0PSR1@NIU.BITNET
Subject:      sc case and FORD

The recent Supreme Court decision (Herrera) has interesting parallels
to another tough case, Ford v. Wainwright (1986) ... for those with
7-11 guides, I'll furnish the page numbers later.

Ford was convicted of murder and sentenced to death around 1974.
There was no suggestion that Ford was incompetent at the time of the
trial or during the sentencing stage.  Almost 10 years later, however
Ford began to act a little strange ... the record convinces me he
wasn't all there.  When the execution date approached, the obvious
appeal was made - you cannot execute someone that is insane!  The
governor appointed 3 (I believe) psychiatrists to examine Ford and
they all agreed Ford "had the mental capacity to understand the na-
ture of the death penalty and the reasons why it was imposed on him."
The governor then signed a death warrant.

Mr. Marshall (bless 'em) wrote the Opinion of the Court and boldly
asserted the bar against executing the insane "has impressive histor-
ical credential" ... "no state permits the execution of the insane."
Rehnquist points out (fairly, I believe) that Marshall had constitu-
tionalized an already uniform view ... that the insane should not be
executed (the state of the prisoner had been established !)

Blackmun's recent statement of the obvious is strikingly similar -
"The execution of a person who can show that he is innocent comes
perilously close to simple murder." NO S--T !!!

What a great impression a statement like that makes.  How happy the
media must be to report it!

Too bad it borders being clueless in terms of the larger issues of
the case !  Why not attack the central issues: is a state ever justi-
fied in executing someone who CLAIMS to be innocent ?  does the last
minute nature of the appeal figure in judging its validity ?  or, as
Brett (I believe) points out, what if it is a claim based on the
hear-say evidence of non-impartial witnesses ?  Should everything
come to a halt ?

If you are against the death penalty (as Marshall was) then you say
"YES" ... sure, you look a little silly (like Marshall in Ford) and
you make the judicial process even more goofey than it is ... but,
by god, you got your way ... no one would ever be executed under
those kinds of rules!

Everyone, with any sense, would claim to be innocent and hear-say
evidence from non-impartial witnesses blaming people already dead
will be easy to come by.

It really is too bad, for those of us who follow constitutional law,
that Brennan and his 87% agreement man (Marshall) were not around
to impose their convictions on the nation through this case !  All of
us who emphasize the "politics" of judicial decisions would have a
blast in class !

Rehnquist in Ford :

   The defendent has already had a full trial on the issue of guilt
   and a trial on the issue of penalty ... the requirment of still a
    third adjudication offers an invitation to those who have no-
    thing to lose by accepting it to advance entirely spurios claims
    of insanity ...a claim of insanity may be made at any time before
    sentence and, once rejected, may be raised again ... a prisoner
    found sane two days before execution might claim to have lost his
    sanity the next day, thus becessitating anoth judicial determina-
    tion of his sanity and presumably another stay of execution

Thus, Herrera's case is not about :

   "whether the Constitution allows the execution of someone who
       can prove true innocence"
              (AP 1/26)

       ... we don't know the guy could "prove" anything !
       ... and I don't think there is any dissent about executing
             innocent people !

   or "a provable claim of innocence"
       (Dunstan 1/26)

       ... that, again, assumes innocence is proven !

 If it were about these issues, it would have never reached the Su-
 preme Court.

 As for the 30 day rule ... yeah, it sucks!  Can't imagine defending
 it.  Going nuts with a good principle is not new though.


 just theorizing,
                  P.S.Ruckman,Jr.
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