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So what was the issue here? Jury instructions. Since the prosecutor had brought capital charges against both men, Smith's lawyers argued that the jury should have been told that that Smith intended the killing to occur and not simply that Smith had intended to engage in the robbery.

Prof. Liu takes Judge Alito to task for arguing in a dissent that granting Smith a new trial over an ambiguous jury instruction 14 years later is "troubling" especially as Judge Alito noted at the time, Smith's attorney did not object at trial to these instructions, and never were these issues even raised in either of his two appeals before the Pennsylvania State Supreme Court.

Now a far more troubling question is that in a case with such ample evidence of the actual guilt of the accused and which included an obvious last minute habeas corpus claim involving jury instructions nearly 2 decades later why wasn't Prof. Liu praising Judge Alito's and castigating his colleagues on the bench?

In another case Prof. Liu cites the 1995 death penalty case of William Henry Flamer. In this case Arthur Smith went to his parents' home one morning only to see this horror. His father, Byard Smith "had been stabbed 79 times, primarily in the head and neck. His [mother], Alberta, had been stabbed 66 times. Both victims had been stabbed with two knives. The Smiths were found on the floor of the living room, surrounded by blood and overturned chairs. Byard Smith's pockets had been turned out and emptied. In the kitchen, packages of frozen food lay strewn about the floor. The Smiths' car and television set were missing."

As the trial judge noted, "Within hours, the police located the stolen car and identified William Henry Flamer, a nephew of Alberta Smith, as a possible suspect." The police went to Flamer's home which he shared with his grandmother. She allowed the police to search the residence. As the trial record noted, "In Flamer's room, they discovered packages of frozen food similar to those found on the floor of the Smiths' kitchen. The Smiths' television set and fan were discovered in the kitchen closet, and a blood-encrusted bayonet was found on a stand in the kitchen."

When he was arrested, "Flamer had blood on his hands and clothing and fresh scratches on his neck and chest." As the record also noted, "Miranda rights were read to Flamer several times during the interrogation, and each time, he waived his right to an attorney." Flamer went to trial, was found guilty and given the death penalty by his jury.

Here again, Judge Alito is being castigated for "excusing defective jury instructions." The argument this time was that the jury indicated one of the reasons for its death penalty decision was that "[t]he murder was outrageously or wantonly vile, horrible or inhuman..." Because this particular justification had been held to be "unconstitutionally vague" by the Delaware Supreme Court, Flamer's attorney's argued that his death sentence should be vacated. As an aside there is the quite reasonable possibility that most Americans might believe that "outrageously or wantonly vile, horrible or inhuman" is a very clear and understandable standard.

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