Nonetheless, given the highly politicized context of death penalty cases, O’Dell’s case became something of a cause célèbre, with international calls for his execution to be stopped from many luminaries, including the pope. It went so far that the Sicilian city of Palermo awarded O’Dell honorary citizenship and ordered the flags flown at half-mast when he was executed.
When the Court rejected O’Dell’s legal claims, I stayed late at the Court that evening. I remember driving home that night and listening to news that reported something to the effect of, “tonight, by a 5–4 vote, the Supreme Court allowed the execution of a man whom DNA evidence had proven was innocent.”
Here’s the opening paragraph of how the L.A. Times story covered it: “The Supreme Court upheld a death sentence Thursday in the strange case of a Virginia inmate who was convicted of a brutal murder but has won international acclaim as an innocent man wrongly facing the ultimate punishment.”
I remember yelling out loud at the news reports because they was so patently contrary to what the facts of the case had shown, as demonstrated by the fact that every single federal judge who had considered his “innocence” claim had rejected it. DNA evidence had not shown he was innocent; to the contrary, the DNA lab actually confirmed that the victim’s blood was on O’Dell’s pants. Instead, all DNA proved was that he had also contacted somebody else’s blood—and whatever conduct may have led to that other blood stain was never explained.
In my view, claims of actual innocence are qualitatively different from any other claims in criminal justice. Our justice system exists to ensure that the guilty are punished and that the innocent are freed. And I believe the justice system should always consider real and credible evidence of innocence.
Indeed, when I was a lawyer in private practice, one case I was particularly proud to work on involved John Thompson, a man who had been wrongfully accused and wrongfully convicted of murder in Louisiana. My law firm had represented Mr. Thompson for years, and my firm and I represented him pro bono—without charge. After his conviction, it was unearthed that prosecutors in Louisiana had wrongfully suppressed blood evidence that, when analyzed, proved Mr. Thompson’s innocence. The judicial process worked; Mr. Thompson was subsequently freed because he had not committed the crime with which he had been charged. And the prosecutors, in that instance, had committed serious misconduct in suppressing the evidence.
I represented Mr. Thompson before the Supreme Court in his civil case, where he sued the prosecutors who had prosecuted him and wrongfully suppressed the evidence. I joined my law partners in urging the Court to uphold the $14 million damage judgment he had won—$1 million for every year he had languished undeservedly on death row. Unfortunately, we didn’t prevail in that case, and Mr. Thompson lost 5–4. He died of a heart attack in 2017, having received public compensation of only $150,000 for the fourteen years stolen from him. But he was rightly freed because there was credible and, indeed, compelling evidence that he had been wrongfully accused.
But the case of Connick v. Thompson is very much the exception when it comes to death penalty cases. In almost all federal death penalty cases, there is no genuine issue as to guilt and innocence.
That was certainly true with the case of Kennedy v. Louisiana. Patrick Kennedy committed an unspeakable crime. He savagely raped his eight-year-old stepdaughter, leaving her badly injured and bleeding in her bed. Kennedy was a recidivist child rapist, and this was the second time he had brutally raped a young girl. Louisiana law at the time provided for capital punishment for aggravated child rape—for the very worst child rapists. Kennedy was tried and convicted by a jury of his peers and sentenced to death. His case went all the way to the Supreme Court, and I argued on behalf of Texas and eight other states, supporting Louisiana. The question before the Court was whether it should strike down every law in the country providing capital punishment for the very worst child rapists.
The preceding year, Texas had enacted legislation known as Jessica’s Law, a law targeting sex criminals with child victims. It was named for Jessica Lunsford, a nine-year-old girl who was kidnapped, sexually assaulted, and murdered in 2005 in Florida by a registered sex offender. The Texas Legislature joined the Legislatures of Florida, Louisiana, Montana, Oklahoma, and South Carolina in authorizing the death penalty for people who commit repeated sex crimes against children. At the time the case was argued, similar legislation was under active consideration in Alabama, Colorado, Mississippi, Missouri, and Tennessee.
Louisiana was the party to the case, but the Court granted Texas argument time to appear as an amicus—a friend of the Court. It was the first time in nearly a decade that the Court had granted argument time to a state that was not a party to the case. Kennedy argued that the “evolving standards of decency”—the same amorphous standard that the Court had invoked to strike down the death penalty in Furman v. Georgia in 1972—had now evolved to the point that the Court should prohibit, in all circumstances, capital punishment for child rape.
In 1977, in Coker v. Georgia, the Court had already struck down capital punishment for adult rape. The Coker plurality opinion was careful to carve out that it was addressing the rape of an “adult woman” fourteen separate times, as opposed to the rape of a child. Patrick Kennedy’s lawyers argued that, in the time that had passed between 1977 and 2008, society’s “standards of decency” had sufficiently “evolved” so as now to mandate extending the same legal logic not just to
