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Challenging studies purporting to show that a “meaningful” number of innocent people have been sentenced to death in America, prosecutors have urged Judge Jed S. Rakoff of the U.S. District Court for the Southern District of New York to affirm the constitutionality of the federal death penalty statute. In a filing prompted by Rakoff’s warning that he is ready to rule the law unconstitutional, Southern District prosecutors David B. Anders and Amy K. Orange also argued the U.S. Supreme Court has recognized that Congress, in enacting the Federal Death Penalty Act, considered capital punishment constitutional despite the “fallibility” of the judicial system. The 36-page memorandum was filed Tuesday in United States v. Quinones, 00 Cr. 761, in which Alan Quinones and Diego Rodriguez are charged with killing police informant Edwin Santiago as part of a large-scale heroin ring. The two men are scheduled to go on trial in September. On April 25, Rakoff ruled that the act, 18 U.S.C. �� 3591-3598, violates a defendant’s right to due process under the Fifth Amendment, because it creates “an undue risk that a meaningful number of innocent persons” are being convicted of capital crimes and sentenced to die. Citing the high frequency of reversals in state capital cases, either on direct appeal or through habeas corpus petitions, and the frequency with which DNA and other newly discovered evidence has cleared death row inmates, Rakoff said the system’s fallibility raised the question of whether “it is tolerable to put a time limit on when someone wrongly convicted of murder must prove his innocence or face extinction.” However, well aware that he would be the first judge in the country to declare the Federal Death Penalty Act unconstitutional, Rakoff gave the prosecutors another chance to convince him otherwise. Lawyers for Quinones and Rodriguez now have until the end of the month to respond to the government’s memorandum. In their memorandum, the prosecutors begin by noting that the framers of the Constitution explicitly address indictments for “capital” crimes in the Fifth Amendment. “It fundamentally misapprehends the Constitution to use a provision that regulates the procedures by which the Government may deprive someone of life to require that defendants may never be deprived of life at all,” they state. ACTUAL INNOCENCE After arguing that the issue is not yet ripe for decision because the defendants have yet to be convicted, the prosecutors then took aim at Rakoff’s interpretation of Herrera v. Collins, 506 U.S. 390 (1993), in which the Supreme Court refused to declare the death penalty unconstitutional and stated that the safeguards mandated by the due process clause do not require perfection or infallible outcomes. In April, Rakoff said that “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.” “That assumption no longer seems tenable,” he said. But Anders and Orange said Rakoff misinterpreted Herrera. They said the Herrera Court assumed, without so holding, that a defendant who makes a persuasive showing of his or her “actual innocence” could not be executed without violating the Constitution. But the Court also found that Herrera, sentenced to die for the murder of two Texas police officers, had not made such a showing. “ Herrera thus does not lend support to this court’s preliminary ruling; it forecloses it,” they said. “Defendants here make no claim that they are ‘actually’ innocent. Indeed, as the Court is aware, one of the two defendants [Rodriguez] has previously admitted murdering Santiago during proffer sessions with the government.” And so, absent a claim of actual innocence, “ Herrera holds that it is permissible under the Constitution to place a finite limit on the defendant’s efforts to vindicate himself or herself, so long as that limit comports with limitations” that legislative bodies, representing the “traditions and conscience of our people,” accept as reasonable. Anders and Orange go on to note that “safeguards under the FDPA are more elaborate than those provided for by most states.” And the prosecutors argue that Congress was well aware of the risk that innocent people might be executed when it enacted the Federal Death Penalty Act in 1994, but it passed the act anyway “based at least in part upon a balancing of defendants’ rights against the rights of innocent victims.” The prosecutors said Judge Rakoff, in citing the number of cases in which DNA testing has freed innocent defendants, “overlooks that the very availability of DNA testing decreases, rather than increases, the likelihood of erroneous convictions . …” TOO SMALL A SAMPLE And the studies cited by the defense lawyers are irrelevant to the issue before Rakoff because the statistics there “pertain exclusively to state capital cases,” they said. “In the 14 years since the death penalty was re-enacted under federal law [with the 1988 Drug Kingpin statute], 31 defendants have been sentenced to death in accordance with the procedures set forth in the FDPA and other federal laws,” they said. “None of those defendants has subsequently been found actually innocent. Accordingly, there has been no demonstration, through statistics or any other method, that Congress’s expectations about the reliability of death penalty determinations under the FDPA have been undermined by the actual workings of the FDPA.” But the prosecutors have an uphill climb in persuading Rakoff to reconsider, in part because the sampling of death row inmates under the Federal Death Penalty Act is so small, but also because of the judge’s concern about newly discovered evidence and technological advances. Rakoff said the U.S. Supreme Court, in discussing the possibility of “actual innocence” when it decided Herrera, made its ruling just as DNA was beginning to be employed to challenge capital convictions. 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,” which is a fact that “strongly suggests that more than a few” innocent people have been executed in recent decades, Rakoff said. Moreover, the judge said, the emerging usefulness of DNA testing raises the possibility that some yet unknown technology could be developed that could further establish a death row inmate’s innocence. Kevin McNally of McNally & O’Donnell, and Lee Ginsberg of Freeman, Nooter & Ginsberg, represent Quinones. Rodriguez is represented by Jean Barrett of Runhke & Barrett, Don Buchwald of Buchwald & Kaufman and Avraham C. Moskowitz of Moskowitz & Book.

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