Volume 74, Number 2

May 1999

The Anatomy of an Execution: Fairness vs. “Process”

The Honorable Stephen Reinhardt

Madison Lecture

In this Madison Lecture, Judge Stephen Reinhardt tells the story of the case of Thomas Thompson, a man without a prior criminal record who was executed in California in July of 1998 despite substantial doubt about his guilt of capital murder and an unrefuted decision by the en banc court of the Ninth Circuit that his trial was blatantly unconstitutional. The Ninth Circuit’s decision was based on egregious conduct of the prosecution and ineffective assistance of Thompson’s counsel. The district judge previously had reversed Thompson’s capital sentence on the latter ground.

Judge Reinhardt provides a firsthand account of the unusual events that took place within the Ninth Circuit, including the passing of the deadline within which a judge could request an en banc rehearing; the extraordinary rejection by three judges of a request by colleagues for an extension of time within which to vote on rehearing; a good faith effort, that backfired, by a majority of the Ninth Circuit to comply with the Supreme Court’s arcane procedural rules; and, ultimately, a dramatic en banc rehearing in which the Ninth Circuit ruled in Thompson’s favor. The story then turns to the United States Supreme Court, which, in a wholly unprecedented action, held that the Ninth Circuit’s en banc hearing was invalid because it came too late and offended purported principles of comity and finality, abstract concerns that increasingly predominate over substantive rights in the jurisprudence of the Rehnquist Court.

By telling the story from start to finish, including a report on the factual errors made by the Supreme Court, Judge Reinhardt illustrates the dramatic consequences of the current Court’s elevation of procedural rules over substantive justice and the dictates of the Constitution, particularly in death penalty cases. In Judge Reinhardt’s opinion, the Court’s philosophy in this instance cost Thomas Thompson his life and in its general application seriously tarnishes the integrity and reputation of the American justice system.