Court weighs timing of death row appeal


POSTED: Thursday, March 25, 2010

WASHINGTON » As is his custom, Justice John Paul Stevens did not ask a question on Wednesday until the lawyer before him had almost finished his argument. When Stevens did speak up, it was in a seeming effort to guide his colleagues on the Supreme Court toward what he considered to be the central argument advanced by the death row inmate in the case.

“;Let me just ask,”; Stevens said, “;is this the case in which the claim is he's ineligible for the death penalty?”;

Corey L. Maze, Alabama's solicitor general, said that was so.

“;The merits of the claim have never been decided?”; Stevens went on.

Maze said no, adding that the question should be left unresolved and that the inmate should be executed because his lawyers had raised the issue too late.

The other justices had been focused solely on that procedural question, and it was not clear whether Stevens' attempt to reorient their thinking had had any effect.

The inmate, Billy Joe Magwood, shot and killed an Alabama sheriff in 1979. At the time, Alabama law allowed defendants to be sentenced to death only if they had committed murders in connection with at least one of several listed “;aggravating circumstances.”;

Though Magwood's crime did not fit any of those circumstances, he was sentenced to death in 1981. In 1985, a federal judge ordered Magwood resentenced for unrelated reasons, and he was again sentenced to death the next year.

Over the years, Magwood's lawyers have challenged his sentence on various grounds, but it was not until 1997 that they raised the question of whether his was a capital crime under Alabama law in the first place.

A 1996 federal law, the Anti-terrorism and Effective Death Penalty Act, imposes strict limits on successive federal habeas corpus petitions. Under the law, a second petition challenging Magwood's original 1981 death sentence would almost certainly be barred.

But Jeffrey L. Fisher, a lawyer for Magwood, said his client was challenging his 1986 resentencing for the first time.

“;You can't waive something by failing to raise it in a different case,”; he said. “;This is an entirely different case.”;

Fisher tried an analogy. “;Imagine that smoke goes over and pollutes somebody's property every first day of January every year,”; he said. “;Somebody brings a lawsuit about that saying it violates certain laws, and they lose. If the next year smoke goes over the property again, you can bring a lawsuit for the identical thing.”;

Justice Antonin Scalia was not buying the argument. “;Not the identical thing,”; he said. “;The last one was for the smoke that went last year. The next one is for the smoke that went this year.”;

The two were talking past each other. Fisher was suggesting that the new sentencing restarted the litigation clock, while Scalia meant that the same underlying crime and surrounding circumstances were present both times.

Maze added a wrinkle.

“;The difference is in this case,”; Maze said, “;he asked us to blow the smoke at him a second time.”;

Justice Stephen G. Breyer, who initially appeared attracted to the simplicity of the rule proposed by Fisher - that a new sentencing opened the door to all claims concerning it - had by the end of the argument formulated an alternative that would not help the inmate in the case, Magwood v. Patterson, No. 09-158.

“;If this claim could have been raised”; after the first sentencing “;and would have been fully adjudicated had it been, it's barred,”; Breyer said. “;But if either it couldn't have been raised, or if it could have been raised and wouldn't have been fully adjudicated or was not fully adjudicated, not barred.”;