Legislation targets death-row appeals Bills' backers seek quicker executions By Gregory A. Hall The Courier-Journal Diana Harrington doesn't consider herself an advocate for the death penalty, but she believes that for heinous crimes, "it should be swift and it should be speedy." But that's not what happened in the case of a man convicted of killing four members of her family in 1980. Donald Ray Wallace Jr. was sentenced to death in October 1982 for murdering Harrington's sister, Theresa Gilligan; her husband, Patrick Gilligan; and their young children, Lisa and Gregory, while burglarizing their Evansville, Ind., home. He was executed in March, more than 25 years and several appeals after his sentence. So Harrington is in favor of pending legislation in Congress that would significantly limit a death-row inmate's ability to appeal in federal court, bills that have drawn the ire of state Supreme Court judges from Kentucky and Indiana. "My frustration is the fact that it has always seemed that the criminal takes precedence over the victims," Harrington said of repeated appeals and delays in that case. The bills, proposed in May by U.S. Sen. Jon Kyl, R-Ariz., and in June by U.S. Rep. Daniel Lungren, R-Calif., would restrict some state prisoners from filing habeas corpus petitions in federal court. Such a petition is often a death-row inmate's last effort to avoid execution, and involves a federal judge reviewing whether errors in state court violated a defendant's constitutional rights. The bills, now in committee, would not affect cases in which a defendant is arguing innocence -- with new DNA evidence, for example. But opponents of the death penalty and others say that the bills, if enacted, would unfairly hamper defendants' ability to ensure that their constitutional rights are upheld. "Federal court would be basically foreclosed," said Ernie Lewis, Kentucky's chief public defender. "That would be deeply troubling." Appeals nearly double In arguing that new limits are needed, Kyl cites federal statistics showing that the number of habeas corpus appeals before U.S. district judges, including non-death-penalty cases, nearly doubled between fiscal years 1994 and 2003, from 13,359 to 23,218. The number before U.S. Courts of Appeal went from 3,799 to 7,025. One result of that increase is that the national average is about a dozen years between sentencing and execution -- and that's too long for crime victims and defendants, said Clark County, Ind., prosecutor Steve Stewart, who supports efforts to hasten the process. "Years can go by with nothing happening in the case," he said. Kentucky Sens. Jim Bunning and Mitch McConnell, both Republicans, and Indiana Rep. Mike Sodrel, R-9th District, did not issue statements on the proposed legislation. Kentucky Rep. Anne Northup, R-3rd District, said she supports it. "It should not take 10, 15 or even 20 years to finalize whether a person was properly convicted or not," she said in a statement. "For victims and their families, this endless litigation and uncertainly makes closure almost impossible. This legislation will streamline the appeals process, making it much more reasonable and fair." But others argue that the legislation would effectively remove a safety net in the judicial system -- and is an unfair response to the fact that new technology is opening new doors for appeal. "The success that some people have had in terms of challenging their convictions because of DNA evidence is sort of being turned against the general population of people who are seeking habeas review" based on other grounds, said University of Louisville law professor Les Abramson. Proving innocence "seems to be the relatively narrow channel that's going to be left if this act passes," he said. And that could lead to death sentences being allowed to stand even in cases that were significantly flawed, according to a July 2004 report by Columbia University researchers. The report, published in the Journal of Empirical Legal Studies, found that about 40 percent of the death sentences upheld in state court were overturned on habeas corpus petitions in federal court. Among the most common reasons found in the study, which reviewed death sentences between 1973 and 1995, were poor lawyering, prosecutorial misconduct, evidence suppression, improper instruction of jurors and bias by judges or juries. Chief justices concerned Both Indiana's Randall Shepard and Kentucky's Joseph Lambert voted for an Aug. 3 resolution by the Conference of Chief Justices calling on Congress to drop the current push and study the issue further. "I see no need to change this fundamental law now," Lambert said in a statement. "We're in favor of the most expeditious reviews possible both in federal and state court," said Shepard, who noted that only about 2 percent of general habeas corpus petitions are granted relief. "(But) whether the details of the bill in its current form achieve that is going to need some more examination." Local prosecutors said they hope the proposed legislation would hasten the appeals process. "Anything that can be done to reduce what has become a ridiculously slow process would be a plus," said Clark County's Stewart. Fayette (Ky.) Commonwealth's Attorney Ray Larson, a proponent of the death penalty, said appeals of "legitimate issues" are appropriate but should not go on for years, with the same arguments being made over and over. Stewart pointed to the case of Harrington's family as an example. Wallace was sentenced to death for their murders in October 1982, but his execution came decades later because of appeals that included a habeas petition that was pending for seven years before it was rejected. Harrington said the delay was "excruciating." Louisville case involved In Indiana, at least five death sentences have been overturned in habeas corpus cases since June 2001, according to Stewart, who tracks death penalty cases in Indiana and served on a statewide death penalty study commission. In Kentucky, death sentences for four defendants have been overturned on such petitions since capital punishment was reinstated in the United States in 1976, Lewis said. In the most recent, U.S. District Judge Jennifer Coffman ruled in 2001 that James E. Slaughter, who was sentenced to death in 1983 for fatally stabbing the owner of a Jefferson County clothing store, is entitled to a new penalty phase for his trial. That case is currently before the 6th U.S. Circuit Court of Appeals. Lewis said the proposed bills, if enacted, also could affect the Victor Taylor case, which might soon be headed for a habeas corpus petition. In May, a divided Kentucky Supreme Court decided that Taylor's death sentence in the murders of two Louisville teenagers in 1984 should stand, although a co-defendant, who is serving a life sentence, recanted a statement used in the trial that said Taylor was the gunman. The court found that any error was harmless because other evidence in the case meant a jury would have convicted Taylor without the co-defendant's statement. But the U.S. Supreme Court has since said that the use of such a statement without the ability to cross-examine is a constitutional violation -- and mentioned the Taylor case as problematic. Taylor's lawyer, Thomas Ransdell, said he believes the congressional proposals would allow Taylor's appeal to proceed, but "I'm concerned any time they change the rules in the middle of the game." A habeas appeal ensures that the death penalty, if it is to be applied, is applied fairly, Ransdell said. "It's not a waste of time," he said.