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Diaz leaves bench with call to end death penalty

By JACK ELLIOTT JR.

Associated Press Writer

JACKSON, Miss. (AP) - 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."

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."

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On the Net:

Doss v. Mississippi,

http://www.mssc.state.ms.us/Images/Opinions/CO53043.pdf

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

(Copyright 2008 by The Associated Press. All Rights Reserved.)

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