Judge Alito And The Death Penalty
By Horace Cooper
December 2, 2005

Judge Alito's critics are once again relying on distortion and misrepresentation to malign his record. This time the focus is his record involving death penalty cases. In a recent Los Angeles Times piece, UC Berkeley Professor (and former Justice Ruth Bader Ginsburg law clerk) Goodwin Liu claimed ominously that Judge Alito's "opinions show a troubling tendency to tolerate serious errors in capital proceedings."

As former House Majority Leader Dick Armey would say, "You can't be this wrong by accident." It's just flat wrong to make this claim. In the 15 year period that Samuel Alito has been on the 3rd Circuit Court of Appeals he's only been involved in 10 capital cases. And of these Professor Liu argues that only half of the cases should even be looked at.

While looking at the more than 300 cases on the 3rd Circuit that Judge Alito has been involved in might entail a greater effort, such an approach would at least be far more comprehensive than the cramped results that reading the handful of cases yields. Unless of course, a comprehensive assessment isn't really what is sought.

In any event, examining five cases out of his entire judicial career is a futile means of achieving any significant insight into Judge Alito's legal theories. Furthermore, whatever insights that might be obtained, the specific conclusions that Prof. Liu reached based on such a limited scope are what should be considered worrisome.

According to Professor Liu, "In every one of the five contested cases, Alito voted against the inmate." Is this surprising in such a limited pool? Moreover, why the negative conclusion based solely on this result? Arguably this limited evidence could be used to argue that he is a "law and order" judge who isn't tempted by novel sociological theories about crime control. Or it could also mean that he's for free trade or any interpretation you want. If the mere result alone is the basis for your conclusion, then all manner of conclusions can occur.

In other words there is no basis for taking the results and reaching broader conclusions and certainly not in the ominous way Prof. Liu does. On the other hand, a close examination of two of the death penalty cases selected speaks volumes about Prof. Liu's views on judicial interpretation. In the first example Judge Alito dissented, in the second he wrote the majority opinion.

The first case that Prof. Liu references involves capital defendant Clifford Smith. A jury found that "Clifford Smith and Roland Alston entered a pharmacy with the intention of robbing it, that they forced three persons inside the store to lie in a prone position on the floor as they committed the robbery, and that one of the robbery victims, Richard Sharp ...... the pharmacist was ordered to lie face down on the floor, Smith proceeded to execute him with a gunshot to the head."

Furthermore, in the trial record there was ample additional evidence demonstrating that Smith actually had committed the killing. This record included forensic evidence that his partner's firearm was not discharged; evidence of the victim's blood on Smith's shoes, and perhaps most tellingly, both Smith's girlfriend Cheryl Yancy and another accomplice Yvette Barrow's testimony. The two women reported that after the men came out of the pharmacy Roland Alston shouted "Why did you shoot the mother*****, why did you shoot him?" Both eyewitnesses separately reported that Smith's answer was "I had to, I had to." Both would add later that Smith demanded a ring -- part of the proceeds of the robbery -- arguing that he deserved it since "he killed the man." Ultimately Smith was tried and found guilty and given the death penalty by his jury.

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.

But in any event Judge Alito took the commonsense view that since the jury had listed other bases for their decision as well, there was no risk that merely because the pre-printed questionnaire given the jury listed the "wantonly vile, horrible or inhuman" language as an option meant that it was the jury's primary basis for its decision. As shocking as it may be to Prof. Liu, the jury may have concluded that capital punishment was precisely the appropriate penalty for Mr. Flamer.

Amazingly, Prof. Liu concludes that since four judges on the 3rd Circuit in written dissents disagreed with this decision it means the ruling is somehow troublesome. What a standard -- when Judge Alito dissents, his decisions are "troubling." And even when he's in the majority his "record should give pause." Unless the goal is to use any and every effort to vacate death sentences, a review of these cases in no way demonstrates Prof. Liu's claim that Judge Alito "has shown an unbroken pattern of excusing errors in capital proceedings and eroding norms of basic fairness."

What it may reveal is that he is unwilling to join in the national campaign by elites to water down or erode the administration of capital punishment. Consider, when the American public is asked about capital punishment, about 7 in 10 regularly support it. Strikingly although most Americans believe the death penalty is applied fairly, and about half say it is not imposed often enough.

The truth is that it is the critics of Judge Alito who are troubling. For it is they who cloak a far more radical and undemocratic agenda. They embrace a remarkably counter-culture and anti-capitalist worldview. But they use buzz words and smear attacks to overshadow the fact that their agenda is indefensible in the public square.

Rather than modifying or repackaging their vision for the American public they have instead sought refuge in the unelected judiciary. But such an approach is contrary to the principle of self-government and representative democracy.

Perhaps most fatally, such an approach further politicizes the judiciary and contributes to a confirmation process that has come to encompass intrigue, political strategy, active domination by special interest groups, and scrutiny beyond which many nominees find too great to bear.

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Horace Cooper is an assistant professor of law at George Mason University

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Note -- The opinions expressed in this column are those of the author and do not necessarily reflect the opinions, views, and/or philosophy of GOPUSA.