Justice O'Connor Speaks About Death Penalty Cases

08/04/03

By ANNE GEARAN

WASHINGTON - The Supreme Court has no "overarching objective" when it comes to the death penalty, despite a large number of recent cases wrestling with the way capital punishment is carried out, Justice Sandra Day O'Connor says.

O'Connor was in the majority last year when the high court outlawed capital punishment for the mentally retarded, but in the minority when justices ruled that juries, not judges, must make the crucial decisions that can lead to a death sentence.

"We aren't here trying to develop something in the sense of where the country should go with this issue. We're a reactive institution," O'Connor said in an Associated Press interview Monday. "We proceed case by case as they come to us, and not with any overarching objective that the court itself" has developed.

In other recent cases, the high court has examined the conduct of lawyers assigned to represent poor people charged with murder, but O'Connor said it is not for the Supreme Court to outline just what lawyers ought to do.

O'Connor, 73, has served on the court for nearly 22 years. She is one of the oldest and longest-serving justices, and there is speculation that she may be ready to step down this year.

"I have no current plans," to retire, O'Connor said in the interview for her forthcoming book. "The Majesty of the Law; Reflections of a Supreme Court Justice" is dedicated to O'Connor's law clerks, "past, present and future."

The book, published this month by Random House, is partly a personal account of her experiences as the first woman named to the high court and partly a historical look at the development of U.S. law.

Having women and minorities on the court helps the public accept Supreme Court rulings, O'Connor said in the AP interview.

"It's not for me to say," whether racial, ethnic or gender diversity on the court should be a goal, she said. "But I think it's been desirable from the standpoint of public perceptions of fairness to see a court that includes women and minorities."

O'Connor is widely expected to be the deciding vote when the court rules later this year on the constitutionality of affirmative action in college admissions, but her remarks were not made in the context of any specific case.

The high court currently has six white men, one black man and two white women.

O'Connor was a politician and a state trial judge in Arizona before President Reagan chose her for the court in 1981. She drew on her experience as a judge for a section of the book dealing with juries.

Jurors ought to be free to take notes during a trial, and even pose written questions, O'Connor said. Only some states and courts allow such departures from custom.

O'Connor tried to instruct her juries about the law at the beginning of the case rather than at the end, she said.

"It seems to me when I listen to complicated things it helps me to know ahead of time what I'm supposed to decide," O'Connor said. "I can hear the arguments to better effect, and I think jurors can hear the facts more effectively if they know ahead of time what specifically they have to decide."

Her book contains some strong criticism of the way juries are now chosen, including the reliance on outside jury consultants that some believe "can virtually guarantee a verdict by stacking the jury with people who fit the ideal demographic profile."

Even so, O'Connor said in the interview, she does not blame defense lawyers for using whatever tools are available to them.

"Yet people who can't afford it are not going to have that benefit, and you get a little nervous about how that might play out in terms of fairness," O'Connor said.

One of the court's two swing votes, O'Connor often sides with more conservative justices as she did in the Bush v. Gore ruling in 2000. Although some lawyers and Republicans have said that ruling did not really decide the election, O'Connor does not mince words in a brief reference to the case in her book.

Bush v. Gore, she said, "held unconstitutional Florida's presidential election recount procedures, and thereby determined the outcome of the election."

O'Connor said her tenure on the high court probably has not hastened the day when America will elect a woman president. But that day is inevitable, she said.