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The fact that innocent people have been sentenced to die does not render the Federal Death Penalty Act unconstitutional, the 2nd U.S. Circuit Court of Appeals said Tuesday. The 2nd Circuit, overturning a ruling by Southern District of New York Judge Jed S. Rakoff, said the U.S. Supreme Court has settled the question of whether the application of the death penalty violates the Due Process Clause of the Fifth Amendment. And the 2nd Circuit said the Supreme Court’s case law makes it clear that a prisoner does not have a limitless or endless right to prove his innocence. Rakoff, in a July 1 decision that discussed the role scientific advances such as DNA testing have played in proving actual innocence, held that “the Federal Death Penalty Act, by cutting off the opportunity for exoneration, denies due process, and, indeed, is tantamount to foreseeable, state-sponsored murder of innocent human beings.” But Tuesday, Judge Jose A. Cabranes, writing for the 2nd Circuit in United States v. Quinones, 02-1403, said “the argument that innocent people may be executed — in small or large numbers — is not new.” He added that it has been “central to the centuries-old debate over both the wisdom and the constitutionality of capital punishment, and binding precedents of the Supreme Court prevent us from finding capital punishment unconstitutional based solely on a statistical or theoretical possibility that a defendant might be innocent.” The defendants in the case, Alan Quinones and Diego B. Rodriguez, were facing trial for the murder of a drug informant when they moved to strike the death notices against them on the grounds that the Federal Death Penalty Act is unconstitutional. Judge Rakoff, while acknowledging that the Fifth Amendment contemplates capital punishment, held that the amendment’s guarantee of due process “must be interpreted in light of evolving standards of fairness and ordered liberty.” The judge said that it was “fully foreseeable that in enforcing the death penalty a meaningful number of innocent people will be executed who otherwise would be able to preserve their innocence,” and therefore its application violated both procedural and substantive due process. Among the issues presented in the government’s appeal was the meaning of the ruling in Herrera v. Collins, 506 U.S. 390 (1993), where the Supreme Court upheld the denial of habeas relief for a prisoner who argued his execution would violate the Due Process Clause and the Eighth Amendment’s prohibition against cruel and unusual punishment because newly discovered evidence would prove he was “actually innocent.” But Rakoff said the majority in Herrera assumed that “in capital cases a truly persuasive demonstration of ‘actual innocence’ made after trial would render the execution of a defendant unconstitutional.” Rakoff also said the Herrera Court could not know that DNA evidence would soon lead to a wave of prisoners being freed from death row. But Judge Cabranes said Herrera actually establishes, “at a minimum, that it is lawful under the Due Process Clause to end judicial review at some point.” The Herrera Court, Cabranes said, insisted that an assertion of actual innocence based on newly discovered evidence was not enough to state a claim for habeas relief unless, in the words of the Court, there was also “an independent constitutional violation occurring in the underlying state criminal proceeding.” The U.S. Supreme Court in Herrera, he said, indicated that “while the Due Process Clause protects against government infringement upon rights that are ‘so rooted in the traditions and conscience of our people as to be ranked as fundamental,’ there is no fundamental right to a continued opportunity for exoneration throughout the course of one’s natural life.” Therefore, Judge Cabranes said, the holding in Herrera “prevents us from finding capital punishment unconstitutional based solely on a statistical or theoretical possibility that a defendant might be innocent.” NO FUNDAMENTAL RIGHT “In sum, if the well-settled law on this issue is to change, that is a change that only the Supreme Court is authorized to make,” Cabranes said. And while the Supreme Court has held that due process is not a concept that is “final and fixed,” Cabranes said, Judge Rakoff erred when he said courts can consider “evolving standards” in conducting due process analysis. But the “evolving standards” concept, Cabranes said, applies to cruel and unusual punishment under the Eighth Amendment and not to due process. Senior Judges Ralph K. Winter and Joseph M. McLaughlin joined in the opinion. Assistant U.S. Attorneys Meir Feder, David B. Anders and David Rod represented the government. The defendants were represented by Samuel R. Gross of the University of Michigan Law School; Don D. Buchwald of New York’s Buchwald & Kaufman; Lee Ginsberg of New York’s Freeman, Nooter & Ginsberg; Jean Barrett of Ruhnke & Barrett in Montclair, N.J.; Avraham Moskowitz of New York’s Moskowitz & Book; and Kevin McNally of Frankfort, Ky. McNally said Tuesday that a decision has not been made on whether to seek a rehearing en banc before the 2nd Circuit. But he indicated an appeal to the Supreme Court was likely. “Nobody likes to lose, but if you are going to lose this is the way,” he said. “What the court said was not that there [aren't] problems with these multiple exonerations from death row, but that their hands are tied.” Several amicus briefs were filed in the case, including one by the Innocence Project at Cardozo School of Law. Barry C. Scheck of the Innocence Project argued part of the case before the 2nd Circuit.

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