Disorder in the Court - Judges Squabble Over Proceedings Surrounding Ohio Man's Stay of Execution

By Charles Lane

Monday, November 12, 2001

An angry dispute over capital punishment has erupted at a federal court in Ohio, with judges hurling harsh words at one another after unusual orders by the court gave a death row inmate a reprieve to air his claim of innocence.

GOP-appointed members of the Cincinnati-based U.S. Court of Appeals for the 6th Circuit, who opposed the stay of execution, described their Democratic-appointed colleagues, who supported it, as a "cabal" and "lawless."

 The Democratic appointees returned fire, including a letter signed by three African American judges that blasted a Republican appointee's "patronizing and condescending" assertion that a senior black judge had lied.

 The war of words at the 6th Circuit, whose jurisdiction encompasses Ohio, Kentucky, Tennessee and Michigan, centers on the case of John W. Byrd Jr., who has been on death row in Ohio since he was convicted in 1983 of stabbing a store clerk to death. Byrd says an accomplice has since admitted that he, not Byrd, wielded the knife.

 Catholic bishops, the Columbus Dispatch editorial page and Amnesty International have urged the state not to execute a man who, they say, might be innocent. Byrd has announced that, as a protest, he wants to be executed in the state's 100-year-old electric chair rather than by lethal injection.

 Ohio's courts and Gov. Robert Taft (R) have rejected Byrd's claims, noting that the accomplice's contradictory statements are inherently not credible.

 Adding to the drama, the matter came to a head just as the terrorist attacks of Sept. 11 plunged the country into confusion and mourning. Indeed, the case triggered strong -- but polite -- disagreements at the Supreme Court, where a key appeal by the state arrived just as a hijacked airliner hit the Pentagon.

 Sharp disagreement among judges is nothing new, especially at the 6th Circuit, where ideological squabbling has surfaced over not only the death penalty but also such issues as taxpayer-subsidized vouchers for private school education.

 Still, people familiar with the court say this case took that tradition of debate to a new level.

 "It's very atypical to see judges going after each other like this," says Joe Case, a spokesman for Ohio Attorney General Betty D. Montgomery.

 The case also illustrates the often polarizing impact of death penalty litigation on even the judiciary and the high stakes in the federal judicial nominations process. Recent departures from the 6th Circuit by mostly GOP-appointed judges have shrunk the court's active membership, authorized at 16, to nine. Of the remaining active judges, Democratic appointees outnumber GOP appointees 6 to 3.

 President Bush has named three conservatives to fill vacancies on the court, but those nominations have been stalled in the Democrat-controlled Senate, as were President Bill Clinton's nominations when the Senate was led by Republicans.

 With Byrd's execution set for 10 a.m. Sept. 12, his attorneys approached the same three-judge panel of the 6th Circuit that had rejected previous appeals, seeking a new hearing by a lower court.

 On Sept. 10, the panel rejected the claim, 2 to 1. Republican-appointed Judges Richard F. Suhrheinrich and Alice M. Batchelder voted against Byrd; Judge Nathaniel R. Jones, an African American appointed by President Jimmy Carter after a long career fighting in court for school desegregation, argued that Byrd should receive a stay of execution and a new hearing.

 As a compromise, Suhrheinrich's order granted a stay of execution until Sept. 18, to give Jones "additional time to consider the matter."

 Batchelder objected, and a fourth judge, Danny Boggs, a Reagan appointee, weighed in, writing that it was "simply lawless to stay an execution as a matter of comity to one member of the panel," and requesting that all nine active judges vote on the stay.

 However, Jones kept lobbying, and on the morning of Sept. 11, the 6th Circuit published an order saying a majority of the active judges had voted to extend the stay until Oct. 8, as Jones had wanted.

 How this came about is not clear, but it appears that the court clerk was told by Jones, who, as a semi-retired senior judge, was not eligible to vote on the question, that five active judges had voted for the longer stay. Opponents said they were not contacted, and paper ballots were not collected.

 Batchelder published an opinion accusing a "cabal" of ramming through the order. "This was, procedurally, virtually criminal," Boggs added in his own opinion.

 The chief judge of the court, Boyce Martin, another Carter appointee, was not present to supervise his colleagues. In Washington for a meeting presided over by Chief Justice William H. Rehnquist at the Supreme Court, he was evacuated from the Supreme Court on the morning of Sept. 11, lost his cell phone and was unable to communicate with his court until late in the day on Sept. 12.

 "I should have done more to avoid this situation," Martin said in an interview.

 However, Martin supported the stay, and none of the other judges who supported it has questioned the validity of their reported votes.

 Responding to Boggs, Jones, joined by an active black judge, R. Guy Cole Jr., wrote that the "informal" voting was proper given "the exigencies of the circumstances." As of Sept. 11, he wrote, Byrd still faced execution because the eight-day stay in Suhrheinrich's Sept. 10 order had been rejected by Jones and Batchelder.

 This, Boggs shot back, was "simply a lie." "This type of secret undocumented decision-making by exclusive in-groups is the way decisions are made in totalitarian countries," Boggs wrote.

 Meanwhile, Ohio Attorney General Montgomery asked the Supreme Court to overrule the 6th Circuit. Her faxed request arrived at the clerk's office on the morning of Sept. 11, but there was no one at the court.

 The clerk's office often must track down justices on short notice, but Sept. 11 was a special case. For example, Justices Stephen G. Breyer and Sandra Day O'Connor were traveling in India.

 But the court announced at 5 p.m. Sept. 12 that a majority of the justices voted not to vacate the stay.

 A report on the Web site of the Ohio public defender's office, which represents Byrd, says: "Clerks with the high court say that many in that courthouse were amazed that the Ohio Attorney General would push for the right to execute a single man in Ohio while so many sat stunned in the wake of thousands of deaths after the bombings."

 Case, the Ohio attorney general spokesman, said, "We were not aware of the gravity of the [attack] until later in the day. We had to do our job as enforcers of the law." Supreme Court spokeswoman Kathy Arberg declined to comment.

 For his part, Rehnquist, whisked to safety by court security officers when the news of the Pentagon attack came, composed a dissenting opinion, joined by Justices Antonin Scalia and Clarence Thomas, saying the execution should have proceeded.

 Rehnquist called the 6th Circuit majority's action legally unfounded and hence "particularly egregious."

 Feelings still ran high inside the 6th Circuit. On Sept. 18, Jones wrote to Boggs: The suggestion that he had lied, Jones said, was "totally unwarranted, unprofessional and wrong." Boggs stood by his comments.

 Then three black members of the court -- Cole, Eric L. Clay and Senior Judge Damon J. Keith -- circulated a letter calling Boggs "patronizing and condescending."

 Sources familiar with the letter said the judges considered accusing Boggs, who is the son of an Anglo father and a Cuban American mother, of racial animus, but chose to leave that "implicit," as one source put it.

 Boggs declined to comment.

 On Oct. 9, the 6th Circuit issued an order extending Byrd's stay of execution indefinitely and ordering a hearing by a magistrate judge on his claim. The magistrate is to make a report, after which the full court will decide whether to order a district judge to decide the merits of Boyd's appeal.

 Boggs, joined by Batchelder and Suhrheinrich, wrote that the order contravened statutes governing last-ditch death penalty appeals.

 Jones, joined by Cole, Clay and Judge Martha Craig Daughtrey, responded that this was "a fanciful exegesis that bears little relationship to the facts of this case or the requirements of the law."

 Though federal law bars those who lose last-ditch habeas corpus petitions before a three-judge appeals court panel from asking for a rehearing, the judges wrote, nothing in the law prevents the full court from ordering one.

 However, even legal analysts who support the 6th Circuit's move say it is unprecedented.

 "You have some judges with an end in mind and they're doing what it takes to achieve it," said Kathy Swedlow, deputy director of the Cooley Innocence Project at Cooley Law School in Lansing, Mich.

 Last week, Justice John Paul Stevens rejected a state appeal to stop the hearing.

 On Dec. 6, the full 6th Circuit will hear a case involving white students' claim that the University of Michigan discriminates in favor of minority applicants. The politically charged case is likely to be appealed to the Supreme Court whatever the circuit decides.

 "If the temperature is this high on this court, the affirmative action case could be really incendiary," says Clint Bolick, a conservative public interest lawyer.