The anatomy of an execution: Fairness vs. "process"

In this Madison Lecture, Judge Stephen Reinhardt tells the story of the cas e of Tho,nas Thompson, a man without a prior criminal record who was execut ed in California in July of 1998 despite substantial doubt about his guilt of capital murder and an unrefuted decision by the en bane court of the Nin th Circuit that his trial was blatantly unconstitutional. The Ninth Circuit 's decision was based on egregious conduct of the prosecution and ineffecti ve assistance of Thompson's counsel. The district judge previously had reve rsed Thompson's capital sentence an the latter ground. Judge Reinhardt provides a firsthand account of the unusual events that too k place within the Ninth Circuit including the passing of the deadline with in which a judge could request an en banc rehearing; the extraordinary reje ction by three judges of a request by colleagues for an extension of time w ithin which to vote on rehearing; a good faith effort, that backfired, by a majority of the Ninth Circuit to comply with the Supreme Court's arcane pr ocedural rules; and, ultimately, a dramatic en bane rehearing in which the Ninth Circuit ruled in Thompson's favor. The story then turns to the United States Supreme Court, which, in a wholly unprecedented action, held that t he Ninth Circuit's en bane hearing was invalid because it came too late and offended purported principles of comity and finality, abstract concerns th at increasingly predominate over substantive rights in the jurisprudence of the Rehnquist Court. By telling the story from start to finish, including a report on the factua l errors made by the Supreme Court, Judge Reinhardt illustrates the dramati c consequences of the current Court's elevation of procedural rules over su bstantive justice and the dictates of the Constitution, particularly in dea th penalty cases. In Judge Reinhardt's opinion, the Court's philosophy in t his instance cost Thomas Thompson his life and in its general application s eriously tarnishes the integrity and reputation of the American justice sys tem.