Death Penalty

Terry Lyn Short is scheduled to be executed in Oklahoma on June 17 for the death of Ken Yamamoto, who was killed in a fire in 1997.  Short was convicted of setting that fire, largely based on the testimony of a jailhouse informant named Jay Brown, who was rewarded for his words with leniency in charges he was facing (such testimony, for obvious reasons, is notoriously unreliable).  Another jailhouse witness, Mark Bayless, who allegedly would have refuted Brown's testimony, was not allowed to testify because the defense announced their intention to call him too late.  The defense suggested the option of a recess to allow sufficient time for the prosecution to prepare for this witness.  But the trial court did not accept this suggestion and simply excluded the testimony.

Upon appeal (Short v. Sirmons), the US Court of Appeal for the 10^th Circuit reacted with strong words:  "the exclusion of relevant, probative, and otherwise admissible evidence is an extreme sanction that should be used only when justified by some overriding policy consideration."  They noted that the defense had acted in good faith, and that the significance of the testimony was heightened by the fact that this was a death penalty case. 

But, in the end and all too predictably, they meekly deferred to the lower courts, claiming that such deference was required by the Anti-terrorism and Effective Death Penalty Act (AEDPA). 

In upholding the death sentence, the 10^th Circuit, citing a previous case, argued that "the Constitution entitles a criminal defendant to a fair trial, not a perfect one."  Apparently excluding evidence that might have undermined the state's case and that could easily have been admitted with a simple recess or a little extra time is just a minor imperfection.

This logic is reminiscent of Justice Scalia's remark in the footnote of his famous (or infamous) concurring opinion in Herrera v. Collins (1993):"... not every problem was meant to be solved by the United States Constitution, nor can be".  The "problem" being discussed in this opinion, of course, was whether or not it is Constitutional to execute an innocent man.  One would think that even if there was just a short list of problems the Constitution was meant to solve, preventing the execution of an innocent person would be on that list.  But it's not.

And excluding extremely relevant evidence when a man's life is at stake is not unfair, it is only imperfect.

Bureaucratic adherence to "deference" has become standard practice in many federal courts; a certain amount of deference is required under AEDPA, but it is not absolute.  There is something wrong with judicial interpretation, or with the law itself, if important evidence that everybody knows about still never gets a hearing in court.  Especially, as the 10^th Circuit itself noted, when a man is facing the death penalty.

An action on Terry Short's case is available here.