Some Death Row appeals would be limited by legislation


LOUISVILLE - Diana Harrington waited 22 years to see the killer of her sister's family put to death in March.

For Harrington, who doesn't consider herself a death penalty advocate, that was too long to wait for Donald Ray Wallace Jr.'s sentence to be carried out for the 1980 deaths of Harrington's sister, Theresa Gilligan; her husband, Patrick Gilligan; and their young children, Lisa and Gregory, during the burglary of their home in Evansville, Ind.

"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.

Now, Harrington is in favor of pending legislation in Congress that would curtail a Death Row inmate's ability to appeal in federal court. But the bills have drawn the ire of state Supreme Court judges around the country, including Kentucky's chief justice.

The measures, 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 -- often a last-ditch effort by Death Row inmates -- in federal court.

Habeas corpus allows a federal judge to review 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.

Critics, including opponents of the death penalty, say the changes 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."

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.

U.S. Rep. Anne Northup, R-Louisville, said she supports the measure because a decade or more is too long to finalize a conviction, and the bills would streamline appeals.

Fayette 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.

But University of Louisville law professor Les Abramson said the legislation would effectively remove a safety net in the judicial system and is an unfair response to new technology that 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, Abramson said.

Proving innocence "seems to be the relatively narrow channel that's going to be left if this act passes," he said.

Kentucky Chief Justice 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.

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.

Thomas Ransdell, the lawyer for Victor Taylor, who is on Death Row for the slaying of two Louisville teenagers in 1984, said habeas appeals ensure that the death penalty is used fairly.

"It's not a waste of time," he said.