Far too many of the appeals were long and complicated and were deliberately filed at the last minute so as to try to force a delay of the execution. The strategy, in effect, was to throw so much material at the justices and their law clerks so as to force them to throw up their hands and say, “We need more time to figure this out, so let’s delay the execution.” These last-minute appeals were not typically driven by late-breaking news. Nor, in the vast majority of circumstances, did they contain even the slightest allegation of innocence. Instead, lawyers for capital murderers would raise all sorts of technicalities which activist judges could often be counted to seize upon because they did not personally support the death penalty.
One case that illustrates the gamesmanship that pervades the federal judiciary concerns a convicted murderer from Arizona named Luis Mata. Ironically, his name was Spanish for “he kills,” which in his instance, was very much the case. In 1977, Mata was tried and convicted by a jury of his peers and sentenced to death. Following extended state court litigation, Mata filed a federal habeas corpus challenge in 1985, which the federal district court took over two years to assess. At the end of those two years, the federal district court rejected his claim in a straightforward opinion on the substantive legal merits of his case.
Mata appealed to the Ninth Circuit of Appeals, which is famously the most liberal federal court of appeals in the country. The Ninth Circuit took another four years to consider the appeal and then in July 1991 rejected it on the merits. Mata filed a petition for rehearing, asking the Ninth Circuit to revisit its ruling. The Ninth Circuit took another year and a half before rejecting the petition for rehearing in November 1992. All told, activist judges had managed to delay the execution of Mata’s sentence by seven and a half years, even though he had no valid legal claims and they had no argument to the contrary. Finally, in 1996—more than nineteen years after he brutally raped and murdered twenty-one-year-old Debra Lopez—Mata was put to death. Simply by dragging their feet and engaging in deliberate delay and destruction, activist judges frustrated the faithful execution of the law.
A similar Ninth Circuit case was the tale of Robert Alton Harris, who was executed in California the night of April 21, 1992, after a long night in which the Ninth Circuit issued and the Supreme Court lifted four separate stays of execution. The Harris case was discussed at length by my former Harvard Law School professor Charles Fried in a 1992 law review article entitled “On Impudence.” The level of cynical and wily lawyering in the Harris case was, quite simply, absurd. The Harris case highlighted the abuse of our system of habeas corpus to needlessly delay the sentence of a brutal murderer. As Professor Fried wrote about one of the final twists of this sad story, “there can be no justification in law for Ninth Circuit Judge Harry Pregerson’s stay, the last in [the Harris] case, issued after Harris was already in the gas chamber.” But far too often, liberal activist lawyers and judges will go to the most extreme lengths possible to stretch out and prolong the inevitable. That was certainly what happened in the case of Robert Alton Harris’s long, slow march that finally resulted in the carrying out of justice.
Congress corrected some of these abuses in 1996 with the passage of the Antiterrorism and Effective Death Penalty Act, otherwise known as AEDPA. That statute imposed meaningful time limits to expedite judicial consideration of death penalty cases. But even with AEDPA, death penalty cases take many years and consume millions of dollars of resources—almost always without serious claims of innocence.
I remember well one case out of Virginia that came before the Fourth Circuit of Appeals when I was clerking for Judge J. Michael Luttig, and which also came before the Supreme Court the next year, when I clerked for the chief justice. Joseph Roger O’Dell III had committed a horrific crime. He had murdered a forty-four-year-old woman, Helen Schartner, in cold blood. It was a brutal rape and murder by a depraved killer, and O’Dell was ultimately indicted for capital murder, abduction, rape, and sodomy.
In his defense, O’Dell raised numerous technical issues, all of which were ultimately rejected by the federal court of appeals and then by the Supreme Court in a 5–4 vote. One of his claims, which his lawyers tacked on at the end of his appeals, was ostensibly a claim of actual innocence. When he was convicted, the trousers he had been wearing on the night of the crime had several blood stains. Forensic scientists had tested the blood and concluded, based on the available technology at the time, that the blood on his trousers was the victim’s blood. Subsequently, DNA tests were developed that were able to ascertain with far greater certainty to whom a particular blood stain belonged.
O’Dell’s lawyers subjected the trousers to DNA tests, and the lab that they hired concluded that one of the blood stains on O’Dell’s pants was conclusively from the victim. That same lab also concluded that another blood stain on his pants was not from the victim.
And so, remarkably, O’Dell argued to the courts that the laboratory that he had hired was credible and should be believed when talking about the second blood stain, but the very same laboratory was not credible and should not be believed when talking
