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?
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?
In another case Prof. Liu cites the 1995 death penalty case of William Henry Flamer. In this case Arthur Smith went to his parents’ home one morning only to see this horror:
“[his father, Byard Smith] had been stabbed 79 times, primarily in the head and neck. His [mother], Alberta, had been stabbed 66 times. Both victims had been stabbed with two knives. The Smiths were found on the floor of the living room, surrounded by blood and overturned chairs. Byard Smith's pockets had been turned out and emptied. In the kitchen, packages of frozen food lay strewn about the floor. The Smiths' car and television set were missing.”
As the trial judge noted, “Within hours, the police located the stolen car and identified William Henry Flamer, a nephew of Alberta Smith, as a possible suspect.” The police went to Flamer’s home which he shared with his grandmother. She allowed the police to search the residence. As the trial record noted, “In Flamer's room, they discovered packages of frozen food similar to those found on the floor of the Smiths' kitchen. The Smiths' television set and fan were discovered in the kitchen closet, and a blood-encrusted bayonet was found on a stand in the kitchen.”
When he was arrested, “Flamer had blood on his hands and clothing and fresh scratches on his neck and chest.” As the record also noted, “Miranda rights were read to Flamer several times during the interrogation, and each time, he waived his right to an attorney.” Flamer went to trial, was found guilty and given the death penalty by his jury.
Here again, Alito is being castigated for “excusing defective jury instructions.” The argument here was that the jury indicated one of the reasons for its death penalty decision was that “[t]he murder was outrageously or wantonly vile, horrible or inhuman...” Because this particular justification had been held to be “unconstitutionally vague” by the Delaware Supreme Court, Flamer’s attorney’s argued that his death sentence should be vacated.
Alito took the commonsense view that since the jury had listed other factors for their decision, there was no risk that merely because the pre-printed questionnaire given to jurors listed the “wantonly vile, horrible or inhuman” language as an option meant that it was the jury’s primary basis for its decision. As shocking as it may be to Prof. Liu, the jury may have concluded that capital punishment was precisely the appropriate penalty for Mr. Flamer.
Amazingly, Prof. Liu concludes that since four judges on the 3rd Circuit disagreed with this decision it means the ruling is somehow troublesome.
What a standard -- when Judge Alito dissents, his decisions are “troubling.” And even when he’s in the majority his “record should give pause.” Unless the goal is to use any and every effort to vacate death sentences, a review of these cases in no way demonstrates Prof. Liu’s claim that Alito “has shown an unbroken pattern of excusing errors in capital proceedings and eroding norms of basic fairness.”
What it may reveal is that he is unwilling to join in the national campaign by elites to water down or erode the administration of capital punishment. Remember that when the American public is asked about capital punishment, about 7 in 10 regularly support it.
The truth is that it is the critics of Alito who are "troubling." For it is they who cloak a far more radical and undemocratic agenda. They embrace a remarkably counter-culture and anti-capitalist worldview. But they use buzz words and smear attacks to overshadow the fact that their agenda is indefensible in the public square.
Rather than modifying or repackaging their vision for the American public they have instead sought refuge in the unelected judiciary. But such an approach is contrary to the principle of self-government and representative democracy.
Perhaps most fatally, such an approach further politicizes the judiciary and contributes to a confirmation process that has come to encompass intrigue, political strategy, active domination by special interest groups, and scrutiny which many nominees find too great to bear.