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The 1994 federal death penalty statute violates the Constitution by creating “an undue risk that a meaningful number of innocent persons” are being convicted of capital crimes and sentenced to die, a Southern District of New York judge said Thursday. In a stunning decision, Judge Jed S. Rakoff said he was prepared to declare that the Federal Death Penalty Act, 18 U.S.C. �� 3591-3598, violates a defendant’s right to due process under the Fifth Amendment. But the judge gave prosecutors one last chance to defend their decision to seek death for two men accused in the drug-related killing of a police informant. Two themes underlying Rakoff’s decision on the constitutionality of the death penalty were timing and certainty. The judge cited the high rate of reversal in capital cases and the frequency with which DNA and newly found evidence exonerates convicted defendants. “We now know, in a way almost unthinkable even a decade ago, that our system of criminal justice, for all its protections, is sufficiently fallible that innocent people are convicted of capital crimes with some frequency,” Rakoff said in United States v. Quinones, 00 Cr. 761. “Just as there is typically no statute of limitations for first-degree murder — for the obvious reason that it would be intolerable to let a cold-blooded murderer escape justice through the mere passage of time — so too one may ask whether it is tolerable to put a time limit on when someone wrongly convicted of murder must prove his innocence or face extinction,” Rakoff said. Although death penalty experts say that several federal judges have expressed concern about the rising evidence that innocent people have been convicted of capital crimes, Rakoff, should he remain unpersuaded by the government’s arguments, will become the first federal judge in the country to find the Federal Death Penalty Act unconstitutional. Because of the importance of the issue, Rakoff said “prudence dictates” that prosecutors be given “one last opportunity to be heard” before a final decision. The government now has the option of filing an additional brief by May 15 and, if they choose to, lawyers for defendants Alan Quinones and Diego Rodriguez must respond by May 31. Quinones and Rodriguez were scheduled to go on trial Sept. 2 for the June 1999 murder of informant Eddie Santiago as part of a narcotics racketeering enterprise. But a final decision striking down the law would almost certainly postpone jury selection while the government takes the case to the 2nd U.S. Circuit Court of Appeals. A spokesman for Southern District U.S. Attorney James B. Comey declined comment, saying only that his office was reviewing the decision. Following the indictment of Quinones and Rodriguez and eight others in 2000, then-Southern District U.S. Attorney Mary Jo White initially declined to seek the death penalty against the pair. But White was overruled by U.S. Attorney General John Ashcroft last October. Lawyers for the defendants mounted several challenges to the application of the death penalty. Jean Barrett of Montclair, N.J.-based Ruhnke & Barrett, one of three lawyers representing Rodriguez, said that “the judge has always been concerned about this aspect of the death penalty.” “He knew that a whole battery of arguments were going to be made, but he really suggested that the parties direct their attention to this particular point,” Barrett said. ADVANCED TECHNOLOGY Judge Rakoff noted that advances in technology and forensic science played a key role in his decision. “Fortunately, as DNA testing illustrates, scientific developments and other innovative measures (including some not yet even known) may enable us not only to prevent future mistakes but also to rectify past ones by releasing wrongfully convicted persons, but only if such persons are still alive to be released,” Rakoff said. “If instead, we sanction execution, with full recognition that the probable result will be the state-sponsored death of a meaningful number of innocent people, have we not thereby deprived these people of the process that is their due?” Rakoff said the legal landscape had changed dramatically since the U.S. Supreme Court saw as remote the possibility of an innocent person being executed in Herrera v. Collins, 506 U.S. 390 (1993). “While recognizing that no system of justice is infallible, the majority in Herrera implicitly assumed that the high standard of proof and numerous procedural protections required in criminal cases, coupled with judicial review, post-conviction remedies, and when all else failed, the possibility of executive clemency, rendered it highly unlikely that an executed person would subsequently be discovered to be innocent,” he said. “That assumption no longer seems tenable.” Despite all of those safeguards, the judge said, evidence has emerged that “innocent people — mostly of color — are convicted of capital crimes they never committed,” and the convictions of those people have been affirmed “with a frequency far greater than previously supposed.” The use of DNA as a means of re-evaluating criminal convictions was only just beginning at the time Herrera was decided, the judge said. “Yet in just the few years since then, DNA testing has established the factual innocence of no fewer than 12 inmates on death row, some of whom came within days of being executed and all of whom have now been released,” he said, a fact that “strongly suggests that more than a few people have been executed in recent decades” who could have been saved by DNA testing. But the problem, Rakoff said, goes beyond DNA testing. In at least 20 cases where DNA testing was irrelevant or unavailable, defendants facing execution were exonerated and released. COLUMBIA LAW REPORT And the magnitude of the problem was not clear, he said, until 2000, when James S. Liebman and his colleagues at Columbia Law School released a comprehensive study of more than 4,000 capital appeals between 1973 through 1995. “A Broken System: Error Rates in Capital Cases,” Rakoff said, showed the overall rate of prejudicial error in capital cases to be “a remarkable 68 percent.” “Unless we accept — as seemingly a majority of the Supreme Court in Herrera was unwilling to accept — that considerations of deterrence and retribution can constitutionally justify the knowing execution of innocent persons, the answer must be that the federal death penalty statute is unconstitutional,” he said. “Consequently, if the Court were compelled to decide the issue today, it would … grant the defendants’ motion to dismiss all death penalty aspects of this case.” On March 29, two weeks after oral argument before Rakoff, Assistant U.S. Attorney David B. Anders took a view of Herrera different than that of Rakoff. Anders said the Supreme Court “explained that perfection is not required to satisfy due process.” In Herrera, Anders wrote, “the Court recognized the possibility of innocent people being convicted, yet did not hold that such a possibility rendered the death penalty unconstitutional.” “To the contrary, the Court simply focused on the implementation of procedures to prevent the conviction of the innocent,” Anders said. “Thus, defendants’ suggestion here that the death penalty should never be sought because innocent people can possibly be convicted is not supportable.” Kevin McNally of McNally & O’Donnell and Lee Ginsberg of New York’s Freeman, Nooter & Ginsberg represent Quinones. Rodriguez is represented by Barrett and Don Buchwald of New York’s Buchwald & Kaufman and Avraham C. Moskowitz of Moskowitz & Book, also in New York. David B. Anders and Assistant U.S. Attorney David M. Rody represent the government. There have been two executions under federal law since 1994. Oklahoma City bomber Timothy McVeigh was executed in June 2001, as was Juan Raul Garza, who was convicted of murder under the 1988 Drug Kingpin law.

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