Diaz leaves bench with call to end death penalty

Published 3:02 am Sunday, December 21, 2008

Outgoing Supreme Court Justice Oliver Diaz Jr.’s impassioned call for an end to the death penalty has drawn both criticism and praise.

In what was likely his departing dissent as his tenure on Mississippi’s highest court ends, Diaz says society finally must recognize that “even as murderers commit the most cruel and unusual crime, so too do executioners render cruel and unusual punishment.”

Jimmy Robertson, a Jackson attorney who served on the state Supreme Court from 1983 to 1992, said Diaz laid out a number of points, including that the death penalty is not a deterrent to murder, that were “pretty close to being irrefutable to anybody that’s objective on the question.”

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However, Kent Scheidegger, legal director for the pro-death penalty Criminal Justice Legal Foundation in Sacramento, Calif., said Diaz’s opinion is “a litany of the familiar arguments against the death penalty, all of which have been refuted many times over.”

“Impassioned pleas are nothing new. The anti-death penalty side has always had more passion than reason,” Scheidegger said.

Robertson said opinions like Diaz’s often come out when a judge is leaving a court. An example, he said, is U.S. Supreme Court Justice Harry Blackmon who grappled with the death penalty question for 20 years before denouncing it as he left the court.

“That’s not to discredit the courage it took (for Diaz) to say it or the credibility of what he said,” Robertson said.

Diaz declined an interview request, saying it “is not appropriate for a judge to comment on a specific case other than through our official opinions.”

Diaz, 49, leaves the court in January after nine years. He was defeated in the November election by Chancery Judge Randy “Bubba” Pierce of Leakesville. Diaz is a former legislator and a former member of the state Court of Appeals.

Diaz, a presiding justice, returned to the court in May 2006 nearly three years after being acquitted of federal bribery in 2005 and tax evasion charges in 2006. Diaz was suspended with pay in December 2003 not long after he was indicted along with two former lower-court judges and a prominent Mississippi Gulf Coast attorney.

His return to the court was marked by an upswing in dissenting opinions, criticized in some legal circles but prompted by what Diaz said during his re-election campaign was a change in attitude fueled by his experience as a defendant in federal court.

“I don’t look at cases the way I used to,” Diaz said at a campaign forum. “It was an experience that not many others have.”

Diaz’s call for an end to the death penalty came in an appeal filed by condemned inmate Anthony Doss. Doss sought a new trial because the trial court never explored his claims of mental retardation or that he had a court-appointed attorney inexperienced in death penalty cases. Doss was sentenced to death in 1993 for his role in the armed robbery and killing of convenience store clerk Robert C. Bell.

Diaz, joined in his Dec. 11 dissent by Justice James E. Graves Jr., said he had voted many times to uphold death sentences.

But, he said, the courts have struggled since the 1980s to ensure the death penalty has been fairly meted out.

Diaz said deterrence as a goal of the death penalty was unsupported. He also noted the relatively small number of death sentences handed out in capital trials in recent years and the deplorable funding for indigent defense.

Diaz, referring to the exoneration of several people death row and in prison across the country, wrote: “Just as a cockroach scurrying across a kitchen floor at night invariably proves the presence of thousands unseen, these cases leave little room for doubt that innocent men, at unknown and terrible moments in our history, have gone unexonerated and been sent baselessly to their deaths.”

“All that remains to justify our system of capital punishment is the quest for revenge, and I cannot find, as a matter of law, that the thirst for vengeance is a legitimate state interest. Even if it is, capital punishment’s benefit over life imprisonment in society’s quest for revenge is so minimal that it cannot possibly justify the burden that it imposes in outright heinousness,” Diaz said.

Scheidegger said Diaz was wrong about the death penalty not being a deterrent. He said for every fact or study cited by Diaz to the contrary, there have been others to support the death penalty.

“An enforced death penalty saves lives. Abolishing it or failing to enforce it kills innocent people,” he said.

Criticism aside, George Cochran, a law professor at the University of Mississippi, said Diaz’s opinion is “an important document to those opposed to the death penalty. It is an opinion that has a lasting value … the impact we’ll know 10 years from now. A lot of dissents become majority opinions as time goes on.”

Robertson said such dissents have an impact “only to the extent that somebody finds them persuasive.”

“It’s really when you’re writing a dissent like this you are appealing to the future. You don’t have illusion that you’re having impact today,” Robertson said. “I would think of this dissent in that vein.”

Scheidegger said there was nothing to support Diaz’s claim that the history of Mississippi shows attempt after attempt to reconcile the death penalty with citizens’ concerns over the gruesomeness of an execution.

“Seeking more humane methods of execution does not support the conclusion that people are against the death penalty itself. The changes in the methods are motivated in large part by a desire to terminate the litigation that prevents execution of the penalty,” Scheidegger said.

Jim Craig, a Jackson attorney who has handled dozens of death penalty appeals, said recent events support Diaz’s argument.

“This year Levon Brooks and Kennedy Brewer were set free from prison, with the prosecutors and the Supreme Court agreeing they were innocent of capital murder all along. They would never have been convicted except for their race and poverty, and we should all be concerned that there are more prisoners like them awaiting death at Parchman,” Craig said.

He said out of the last 49 defendants convicted of capital murder, only two were sentenced to death.

“Anthony Doss’ case was more of the same,” Craig said.

Attorney General Jim Hood, whose office represented the state in Doss’ appeal, said Diaz’s dissent was “excellent prose” but was unlikely to lead to repeal of the death penalty in Mississippi.

“Until the consensus changes among a majority of Mississippians, the Legislature is not going to change it,” Hood said. “It’s certainly not a matter for the court to decide. It is a policy issue for the Legislature.”

On the Net:

Doss v. Mississippi, http://www.mssc.state.ms.us/Images/Opinions/CO53043.pdf

Criminal Justice Legal Foundation, http://www.cjlf.org