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