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The first challenge to the constitutionality of the federal death penalty statute based on the possibility that innocent people may be executed was argued in the 2nd U.S. Circuit Court of Appeals on Monday. In a case watched closely by both prosecutors and capital punishment opponents, a three-judge panel questioned lawyers on whether the Due Process Clause of the Fifth Amendment can tolerate fallibility in the federal death penalty scheme. James B. Comey, U.S. Attorney for the Southern District of New York, asked the appeals court to reverse a decision by U.S. District Judge Jed S. Rakoff of the Southern District, who earlier this year, in United States v. Quinones, 02-1403, became the first federal judge to find the Federal Death Penalty Act unconstitutional. Second Circuit Judge Jose A. Cabranes, who asked most of the questions for the panel, queried whether even the slightest chance of a wrongful conviction rendered the act unconstitutional. Surprisingly, the lawyer for two men facing a possible death sentence in the Southern District of New York said the system did not have to be perfect for the death penalty to pass constitutional muster. University of Michigan Law School Professor Samuel R. Gross, who is handling the appeal, said that enhanced procedural safeguards in federal capital trials could allow the statute to withstand constitutional scrutiny. And Gross stuck to his position even after Judge Cabranes jokingly asked whether he would be willing to be “quoted” on his position before a congressional committee. But Gross used his argument time to hammer home the point that as the act currently exists there is far too great a risk that an innocent person could be convicted and executed. Gross’ clients, defendants Alan Quinones and Diego B. Rodriguez, were awaiting trial for the 1999 murder of informer Edwin Santiago when Judge Rakoff found the death penalty law unconstitutional on its face. The judge based his decision, in part, on the mounting statistical evidence that innocent people were being convicted of capital crimes. Rakoff also turned aside the government’s objection that the issue was not yet ripe for adjudication because the two men had yet to be convicted and sentenced to death. Monday, Assistant U.S. Attorney Meir Feder said the statistical evidence of actual innocence relied upon by the defendants’ lawyers and Judge Rakoff was flawed because the numbers were largely drawn from either state cases or state convictions that have been reversed in federal court. And the differences between the federal death penalty law and the administration of the death penalty in the states, Feder said, made analogies between the two systems “an apples and oranges comparison.” While 3,700 people are on death row from state court convictions, only 26 are currently awaiting execution for federal crimes, Feder said, adding that only two people have been executed under the federal death statute. And the process for deciding whether to seek capital punishment is more exhaustive in the federal system, Feder said — one that ensures that the death penalty is “only applied very narrowly.” Feder said that the federal government employs a two-tier review process before deciding to seek the death penalty: it begins with the local U.S. Attorney, moves to the Justice Department, and often involves consultation with defense lawyers. Feder also said the quality of appointed counsel is much higher in the federal system, and that state judges, in contrast with life-tenured federal judges, are often elected, and therefore subject to political pressure. Feder added that the death penalty in federal courts can be imposed only after the prosecution meets a “tremendously heavy burden of proof.” Judge Cabranes questioned Feder twice on why the government abandoned the ripeness argument on appeal. Gross was questioned by the panel, consisting of Cabranes and Senior Judges Ralph K. Winter and Joseph M. McLaughlin, about other possible remedies to the fallibility of the capital conviction process. And Cabranes expressed surprise to Gross that a due process argument based on the conviction of innocent people had not been raised to challenge the federal death act before. Rakoff had based his decision in part on the revolution in DNA testing since the federal death penalty was reinstated. The judge left open the possibility that future scientific advances would not be available to an innocent person already executed by the state. For that reason, Judge Winter on Monday appeared skeptical that changes in the administration of the death penalty would satisfy Gross, or, for that matter, Rakoff. “Wasn’t it a critical point of Judge Rakoff’s that, because death is final, it moots all issues and that’s the reason that due process is violated?” Winter asked. But Gross said he did not understand Rakoff’s decision as standing for the proposition that a federal death penalty statute could never be constitutional. He said that the problems with the federal death statute could be addressed “by reducing the application of the death penalty” to a much smaller number of cases. Judge Cabranes asked whether the federal statute would still be unconstitutional if DNA was used to conclusively prove a defendant’s guilt. But when Gross answered “yes,” Judge Winter asked, why is the statute unconstitutional on its face when the constitutionality turns on the “quantity, the weight and the reliability of the evidence?” Attorney Barry Scheck of the New York-based Innocence Project used his seven minutes of allotted time to drive home his point that the federal system is likely to produce wrongful convictions. Scheck, who appeared as an amicus, said one problem was that in “40 to 50 percent of cases” DNA testing favors the defendant, but in “75 percent of cases, evidence is lost or destroyed.” Scheck criticized “junk forensic science” and the federal system’s reliance on cooperating witnesses as the problems that could lead to innocent people being convicted. The appeals panel took the matter under advisement without issuing an immediate decision.

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