Judge Samuel Alito’s critics are once again relying on distortion and misrepresentation to malign his record. This time the focus is on death penalty cases. In a recent Los Angeles Times piece, UC Berkeley professor (and former law clerk to Supreme Court Justice Ruth Bader Ginsburg) Goodwin Liu claimed ominously that Alito’s “opinions show a troubling tendency to tolerate serious errors in capital proceedings.”

As former House Majority Leader Dick Armey would say, “You can’t be this wrong by accident.”

This claim is just flat wrong. In the 15 years Alito has served on the 3rd Circuit Court of Appeals he’s only been involved in 10 capital cases. And of these Professor Liu argues that only half should even be considered. 

While looking at the more than 300 3rd Circuit cases Alito has been involved in might entail a greater effort, such an approach would yield more comprehensive results than the cramped results of a handful of cases.

Unless of course, a comprehensive assessment isn’t what is sought.  

Examining five cases out of 300 is a futile means of achieving any significant insight into Alito’s legal theories. Furthermore, Prof. Liu's specific conclusions, reached on such a limited scope, are worrisome.

According to Prof. Liu, “In every one of the five contested cases, Alito voted against the inmate.” 

Is this surprising in such a limited pool? Moreover, why the negative conclusion based solely on this result? Arguably this limited evidence could indicate that Alito is a “law and order” judge who isn’t tempted by novel sociological theories about crime control. 

Or it could also mean that he’s for free trade -- or any other interpretation you want. If the mere result alone is the basis for a conclusion, then all manner of conclusions can occur.

On the other hand, a close examination of two of the death penalty cases selected speaks volumes about Prof. Liu’s views on judicial interpretation. In the first example Alito dissented, in the second he wrote the majority opinion. 

The first case referenced by Prof. Liu involves Clifford Smith. A jury found that “Clifford Smith and Roland Alston entered a pharmacy with the intention of robbing it, that they forced three persons inside the store to lie in a prone position on the floor as they committed the robbery, and that one of the robbery victims, Richard Sharp ... was ordered to lie face down on the floor, [and was executed] with a gunshot to the head.”

There was ample additional evidence demonstrating that Smith had committed the killing. This record included forensic evidence that his partner’s firearm was not discharged; evidence of the victim’s blood on Smith’s shoes, and perhaps most tellingly, both Smith’s girlfriend and another accomplice's testimony. Both women reported that after the men came out of the pharmacy Roland Alston shouted “Why did you shoot the mother*****, why did you shoot him?” 

Both eyewitnesses separately reported that Smith’s answer was “I had to, I had to.” Both would add later that Smith demanded a ring -- part of the proceeds of the robbery -- arguing that he deserved it since “he killed the man.” Ultimately Smith was tried and found guilty and given the death penalty.

So what was the issue here? 

Jury instructions. 

Since the prosecutor had brought capital charges against both men, Smith’s lawyers argued that the jury should have been told that Smith intended the killing to occur and not simply that Smith had intended to engage in the robbery.  

Prof. Liu takes Alito to task for arguing in a dissent that granting Smith a new trial over an ambiguous jury instruction 14 years later is “troubling” especially as Alito noted at the time, since Smith’s attorney did not object at trial to these instructions, and never were these issues even raised in either of his two appeals before the Pennsylvania State Supreme Court.

A far more "troubling" question is that in a case with ample evidence of the guilt of the accused (and which included a last minute habeas corpus claim involving jury instructions nearly two decades later) why wasn’t Prof. Liu praising Alito and castigating his colleagues on the bench?    Continued...