Lunes 15 de Julio de 2002, Ip nš 19

Manhattan judge finds Federal death law unconstitutional
Por Benjamin Weiser

A federal judge in Manhattan ruled yesterday that the current federal death penalty law is unconstitutional, citing the growing number of exonerations of death row inmates through DNA and other evidence.

The judge, Jed S. Rakoff of United States District Court, said the exonerations demonstrated that an ''undue risk of executing innocent people'' exists. He called that a violation of the constitutional right to due process, and said the death penalty was therefore ''tantamount to foreseeable, state-sponsored murder of innocent human beings.''

Judge Rakoff's ruling is the first to find the federal death penalty law unconstitutional, lawyers say, and his reasoning, if the case were upheld, would seem to also apply to state death-penalty cases. For now, the ruling applies only to the case before him, which involves two men indicted on federal charges in a drug-related murder in the Bronx.

But the decision, which is based on novel conclusions that Judge Rakoff first raised as questions in the case last fall, is likely to influence the continuing national debate about the death penalty. It comes at a time when the Supreme Court has been issuing rulings clarifying the use of capital punishment and in some cases limiting it, and critics are calling for moratoriums on executions.

''I've been thinking about this issue in a serious way for at least 20 years, and this is the first fresh, new and convincing argument that I've seen,'' said Laurence H. Tribe, a constitutional law professor at Harvard Law School.

James B. Comey, the United States attorney in Manhattan, said his office was considering its appellate options. An appeal seems likely. ''As we set forth in our submissions to the court in this matter,'' Mr. Comey said, ''the Federal Death Penalty Act is constitutional.''

A Justice Department spokeswoman, Barbara Comstock, was pointed in her criticism of Judge Rakoff's ruling. ''The determination of how to punish criminal activity within the limits of the Constitution is a matter entrusted to the democratically elected legislature, not to the federal judiciary,'' she said.

''Congress passed the Federal Death Penalty Act to save lives, and the Supreme Court of the United States has repeatedly said the death penalty is constitutional,'' she said.

But Judge Rakoff indicated in his 28-page ruling that new developments, such as ''groundbreaking DNA testing,'' had rendered earlier thinking about the death penalty moot. It was not until after the enactment of the 1994 federal death penalty law, he said, ''that the most clear and compelling evidence of innocent people being sentenced to death chiefly emerged.''

''What DNA testing has proved, beyond cavil,'' the judge said, ''is the remarkable degree of fallibility in the basic fact-finding processes on which we rely in criminal cases.''

Citing the cases of 12 death-row inmates who were cleared through DNA evidence, the judge noted that each was convicted by a unanimous jury beyond a reasonable doubt; and each had his case reviewed and rejected on appeal.

''Yet, for all this alleged 'due process,' '' he said, ''the result, in each and every one of these cases, was the conviction of an innocent person who, because of the death penalty, would shortly have been executed.''

Since convincing proof of innocence often does not emerge until long after a death penalty conviction, he wrote, ''it is therefore fully foreseeable that in enforcing the death penalty, a meaningful number of innocent people will be executed who otherwise would eventually be able to prove their innocence.''

There was no contention that the two defendants in the case before Judge Rakoff were wrongly convicted, for neither has gone to trial. Federal prosecutors have charged the two, Alan Quinones and Diego Rodriguez, with being partners in a Bronx heroin ring. The government says they hogtied, tortured, and killed a man in June 1999 whom they correctly suspected of being a government informant, court documents show. Both men have pleaded not guilty.

The United States attorney in Manhattan at the time, Mary Jo White, had declined to seek the death penalty, but was overruled by Attorney General John Ashcroft.

Kevin McNally, a lawyer for Mr. Quinones, praised the ruling, saying, ''This is a great opinion to defend on appeal.'' Jean D. Barrett, a lawyer for Mr. Rodriguez, said, ''I would hope that this would mean that other courts will see as Judge Rakoff did, that the death penalty places the lives of innocent people at risk.''

Prosecutors argued, among other things, that it was premature for Judge Rakoff to decide the constitutionality of the death penalty because no trial had been held. But the judge disagreed, saying the decision to seek the death penalty would have a significant impact on jury selection and on the trial itself, thus making the issue ''ripe for adjudication.''

The judge first signaled his concerns in a hearing last October, when he cited the increasing number of people being exonerated through DNA, and asked the defense and prosecution to file briefs on whether a penalty was constitutional that forever precluded the rectifying of errors ''that go to actual innocence.''

Then, in April, he issued a preliminary ruling in which he said he was prepared to find the law unconstitutional, but would give prosecutors ''one last opportunity to be heard.''

The judge yesterday criticized some of the government's filings, although he added, ''No judge has a monopoly on reason, and the court fully expects its analysis to be critically scrutinized.''

Judge Rakoff, 58, a former federal prosecutor, has been a member of the federal bench since 1996.


  02/07/2002. The New York Times.