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Judge Kopf Blogs About Death Penalty Cases, Executing Innocents

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By William Peacock, Esq. on September 16, 2014 11:22 AM

"When I took my oath of office as a federal district judge in 1992, I knew that someday I might condemn an innocent man to die. I willingly accepted that risk when I took that oath, and I willingly accept that risk now. I will have to live with my knowing choice if such a horror comes to pass. I will have no one to blame but myself."

Early this month, a death row inmate was exonerated, thanks to a little DNA that was recently uncovered and tested. This was not particularly remarkable -- there have been many DNA-based exonerations over the last couple of decades. But the case drew attention because of a passing reference to the crime by Justice Antonin Scalia, who mocked the inmate's appeal while discussing Justice Blackmun's famous "tinker with the machinery of death" dissent.

At the time, we noted that both Justice Scalia and Justice Blackmun were assuming that the defendant was guilty -- Blackmun later argued for leniency because of the inmate's IQ, not factual innocence. But because Justice Scalia has a way with words, he himself was mocked by the press, including a particularly harsh take by "Digby," a blogger writing for Salon. U.S. District Court Judge Richard Kopf, a trial judge for the District of Nebraska who imposes the death penalty, penned an equally harsh (and hilarious) response in his usual, frank style.

And then, in a follow-up, he wrote something even greater: insight into what it is like to be a judge who imposes the death penalty, sometimes, maybe, on innocent defendants.

The Will of The Electorate

Judge Kopf's fascinating blog post begins by deferring to the will of the populace:

"As a judge, I strongly believe the death penalty is a matter of policy to be determined by the people through their elected representatives and as such deserves special respect from federal trial judges like me. I agree with the statement, if not the tone, of Mr. Justice Holmes when he said that 'If my fellow citizens want to go to Hell I will help them. It's my job.'"

Judge Kopf calls the judiciary a "brake" on popular sentiment, one that is to be used as rarely as possible. And if the will of the people is that an imperfect system should be in place, "it is the job of the federal trial judge to provide it."

While this may sound like the typical "just following orders" defense (reductio ad Hitlerum!), it's a bit more than that -- he's preaching judicial restraint, rather than activism, or separation of powers and deferment to the judgment of the legislature, rather than legislating from the bench.

Morality Is Not Justice

This is a point that many, regardless of political beliefs, would agree with: A person's personal morality is not the same thing as legal justice. Justice Scalia, for example, is often accused of letting his Roman Catholic beliefs bleed into his opinions, especially in gay rights cases.

Here, Judge Kopf is kind of arguing that principle: While it is probably immoral to execute an innocent man, it could very well be legally just. As he notes later, if he were confronted with such an inmate, one who was factually innocent with no legal remedy, "I would move heaven and earth to stop the execution, but I would not play games with the law to do so."

Law and justice are not morality and religion. Of course, I'm greatly oversimplifying his explanation, which includes a lot of legal philosophy (positivism, realism) that is a bit beyond my comfort zone -- check out his piece for a more full explanation on that point.

What About Factually Innocent Defendants?

There are three situations where Judge Kopf said he would definitely let an execution move forward, despite being certain of factual innocence:

  • If precedent compelled such a result;
  • If there was a fair and speedy pardon process prior to the execution; and
  • If the petitioner had "sat on his rights."

Do you agree with Judge Kopf? Does law always trump morality? Could you let an execution move forward because precedent dictated it, or because an inmate "sat on his rights"? Given the prevalence of mental impairment amongst death row inmates, and the overly complex web of time deadlines weaved by the federal Antiterrorism and Effective Death Penalty Act and state collateral relief procedures, I'm not so sure that I could.

Toss us your thoughts on Twitter @FindLawLP.

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