THE ULTIMATE C.Y.A. MANUEVER?
Missouri Prosecutors Favor Executing the [Potentially] Innocent

From today's New York Times and Kansas City Star comes a story on what can only be called "The Ultimate Cover-Your-Ass[ets] Maneuver" proposed by some in the legal system.

According to the Times and the Star, the following exchange took place in the Missouri Supreme Court between the judges and a prosecutor attempting to block an appeal by a death row inmate to have his case re-opened based on new evidence which had surfaced long after his conviction:

Judge Laura Denvir Stith: "Are you suggesting [that] even if we find Mr. Amrine is actually innocent, he should be executed?"

Assistant State Attorney General Frank A. Jung: "That's correct, your honor."

Judge Ronnie White: "So you would put an innocent man to death as long as he got a fair trial."

According to the Star, Jung replied that

...[T]he remedy in such a case is the governor, who has the power to pardon. The Supreme Court, however, has adopted the proposition that innocence should be considered only if a constitutional violation has occurred, [Jung] said.

Judge Michael Wolff, however, questioned how the courts could allow a wrong decision to stand. He mused that such a policy would require the courts to depend for a just outcome on a political decision by the governor, who is not obligated to issue such a pardon.

The Times article goes on to say that state prosecutors and attorneys general are becoming increasingly resistant to allowing those facing execution to try to vindicate themselves based on DNA testing and other newly discovered evidence or potential evidence once the standard appeals deadlines have passed:

While death row inmates have always peppered the courts with legal filings, the recent wave of death row exonerations, based on DNA and other evidence, has inspired more defense lawyers and academics to seek to reopen death penalty cases in a sustained and vigorous way.

Courts are beginning to express concern that they may be parties to the occasional miscarriage of justice. Gov. George Ryan's commutations of the death sentences of all 164 prisoners on death row in Illinois focused public attention on the issues of wrongful convictions and flaws in the capital justice system.

Jeremiah W. Nixon, Missouri's attorney general, said Mr. Jung's response to Judge Stith was a legally correct answer to an inflammatory hypothetical question. The point Mr. Jung was trying to make, he said, is that there must come a time when cases can be closed.

"Is the state required to prove every day that someone committed an offense beyond a reasonable doubt?" Mr. Nixon asked.

Well, yes --if new reasonable doubt arises as the result of covering grounds which had not been covered before. Damned right! After all, the last time we looked the proper role of American jurisprudence is to protect the innocent and punish the guilty, not the other way around. (Unless, of course, one is an ACLU lawyer; but we digress...)

Nevertheless, Messr.s Nixon and Jung "argue" that the legal system should not be so terribly inconvenienced by such petty matters as life and death. After all, they seem to say, isn't it more important to stay on schedule? As well as save the courts all that extra time and work? But we suspect that there's another more "important" reason for such adamant quasi-bureaucratic insistence upon adhering to deadlines and procedures:

As we all know, state prosecutors make their careers and reputations on the quality of their track records in court: The more conviction notches you can put on your belt, the better are your chances for becoming Mayor, or Governor, or Senator. Or being named United States Attorney General by the next President. Or being recruited by a high-profile New York City law firm.

On the other hand, the more of those whom you've prosecuted manage to get their convictions overturned, the more likely you'll end up becoming a law clerk in Moose Knee, Montana.