New York Times
January 2, 2005
At night in his chambers, the federal judge would sign on to the Internet. He would pore over the details of criminal cases from around the country that had resulted in death sentences, and in which serious questions remained about the guilt of the condemned. Then he began to keep count - 10, then 20, then more than 30.
During the day, he assigned his law clerks to further research the cases, track down opinions and records, and pull together any information leading to suspicions that those sentenced to death might be innocent.
Over the days and nights of 2001 and 2002, Judge Jed S. Rakoff of Federal District Court in Manhattan was engaged in what amounted to a bit of intensely personal, somewhat stealthy jurisprudence - seeking to determine the constitutionality of the death penalty on new grounds.
While Judge Rakoff was overseeing one of the first federal death penalty cases to come before a judge in Manhattan in years, no one, including the lawyers for the two drug dealers facing trial before him, had made the novel legal claim that he was quietly exploring. Aware of the growing number of wrongly convicted inmates who were being exonerated through DNA testing, the judge wondered whether the death penalty violated due process because such prisoners obviously could not pursue claims of innocence if they were dead.
In an opinion in April 2002, Judge Rakoff sought to take a first step toward ending the death penalty.
"We now know, in a way almost unthinkable even a decade ago," he wrote, "that our system of criminal justice, for all its protections, is sufficiently fallible."
The decision gave brief if unexpected joy to the two defendants. It drew a sharp attack from prosecutors, who called it erroneous and over-reaching; it set off debate - including scathing editorials - about judicial activism run amok; and, perhaps not surprisingly, it won some praise from defense lawyers specializing in capital cases, who kicked themselves a little for not having made such an argument before.
"I gave a speech to numerous death penalty lawyers from around the country and said, 'Why are we asleep at the wheel?' " recalled Kevin McNally, a lawyer in the case before Judge Rakoff.
The mix of joy and outrage, though, did not last. A federal appeals court overturned the ruling, although, as it turned out, the drug dealers on trial before Judge Rakoff were ultimately sentenced by a jury to life in prison without parole.
Judge Rakoff recently agreed to talk about the 2002 decision and the surprise, the upset and the animated legal conversation it generated. In more than six hours of interviews, he offered a relatively rare and candid look at the private thinking of a federal judge taking on one of the most prominent and divisive legal issues of the day.
And among the things Judge Rakoff disclosed was that he himself had suffered the kind of devastating personal loss that many victims often accuse judges in death penalty cases of being insensitive to: the grisly murder of his older brother.
A Random Assignment
Judge Rakoff, 61, was randomly assigned the death penalty case in 2000. By then, there had been no been no federal death penalty trial in Manhattan in nearly half a century. But with new death penalty laws enacted in the late 1980's and mid-1990's, it was only a matter of time before one reached trial.
The case stemmed from racketeering and narcotics charges filed in July 2000 against a group of people in the Bronx, including charges that four of them were involved in the murder of Edwin Santiago, a man they correctly suspected of being a police informer. Other defendants later pleaded guilty, but two - Alan Quiñones and Diego Rodriguez - were tried in Mr. Santiago's murder. The evidence showed that they tied him up, taunted and beat him, and suffocated him with duct tape.
Judge Rakoff, who joined the federal bench in 1996 after his appointment by President Bill Clinton, had seen his own views evolve after a career as a federal prosecutor and later as a defense lawyer in cases of white-collar crime.
"I've never thought that the death penalty was one of those issues that was open and shut for either side," he said.
He had concluded that a state legislature or Congress should have the right to decide if the punishment was acceptable. His was a "utilitarian kind of approach," he said, "having nothing to do with retribution or anything like that." His view, he said, was, "I'll do whatever the law tells me to do."
But in recent years, he became troubled by the implications of the increasing number of exonerations of those sentenced to death, many of them through DNA evidence.
By summer 2001, even before the lawyers in his case filed legal papers challenging the death penalty, Judge Rakoff had begun his own basic research.
He focused on a controversial 1993 decision by the United States Supreme Court holding that Leonel Herrera, a Texas death-row inmate who had exhausted his appeals in a murder case, was not entitled to a new federal hearing based on a belated claim that he was "actually innocent."
Chief Justice William H. Rehnquist, in the court's majority opinion, made it clear that Mr. Herrera did not appear to be innocent. The opinion left open the possibility that "a truly persuasive demonstration of 'actual innocence' " would render an execution unconstitutional, but it made the point for the sake of argument, without conclusively deciding it.
The opinion also said that such inmates were not without recourse, as they could always seek executive clemency.
In an angry dissent, Justice Harry A. Blackmun charged that the majority was virtually endorsing the death penalty for innocent people. "The execution of a person who can show that he is innocent comes perilously close to simple murder," he wrote.
Beyond the Hypothetical
But as Judge Rakoff perused the writings, he noted that two justices in the majority, Sandra Day O'Connor and Anthony M. Kennedy, had said in a separate opinion that they agreed with "the fundamental legal principle that executing the innocent is inconsistent with the Constitution."
Counting them and the three dissenters, Judge Rakoff said, he realized that there were five justices who were prepared to rule that executing the innocent was unconstitutional.
With that in mind, he set out to investigate the assertion that clemency was an adequate safety valve. He had a summer intern study the history of clemencies, which showed, he said, that their use had steadily declined, and that in murder cases, they were particularly rare.
In October 2001, the judge raised his concerns in court. Given the number of DNA exonerations in cases of wrongful convictions, he asked the lawyers whether a penalty could be constitutional if it "precludes forever" rectifying such a wrong for an innocent inmate on death row.
It was different, he said, four or five years earlier, when such mistakes seemed like "a fairly remote hypothetical."
"Now it would appear that it's neither a hypothetical nor so remote," he said.
In following months, defense lawyers filed papers echoing the judge's concerns and also challenging the death penalty on other constitutional grounds.
The judge, meanwhile, pursued his research. He wanted to determine as precisely as possible how many death row prisoners had been found to be "factually innocent," as he put it in the interviews. If it were just 1 out of 100, he said, he would be less troubled.
"You can't design a system that's perfect," he said, "and due process is, by definition, what is reasonably due, not what is perfect."
He reviewed a list of exoneration cases on the Web site of the Death Penalty Information Center, a research group that says it is critical of how the death penalty is carried out. His law clerks, too, went to work. He ultimately came up with 32 cases of exonerated prisoners who, he concluded, were "factually innocent" - 12 were cleared through DNA testing and 20 through other means.
Such exonerations exposed "something pretty upsetting, if you think about its broader ramifications," the judge said in court in March 2002. "It is that our legal system is not as good in ascertaining the truth as we thought it was."
"I appreciate the fact that this issue is somewhat novel," he conceded.
In April, he took the unusual step of releasing a preliminary opinion that found the death penalty unconstitutional, but invited prosecutors to make further arguments before he rendered a final decision. If the government sanctioned executions, he wrote, knowing that the probable result would be "the state-sponsored death of a meaningful number of innocent people," did that not deprive those people of the due process the Constitution promised them?
Prosecutors responded in a detailed brief, and the judge wrestled with their arguments but ultimately rejected them, he said. In July, he issued a final decision that the penalty was unconstitutional.
The ruling spurred heated debate, including strong criticism, like an editorial in The Wall Street Journal titled "Run for Office, Judge."
The short-lived opinion would later be overturned by the appeals court, putting the capital case against Mr. Quiñones and Mr. Rodriguez back on track.
The Personal Angle
Throughout the legal debate, Judge Rakoff maintained a silence about his own family tragedy, but that ended one day in June 2002 as he prepared to sentence a co-defendant of the two men, Janet Soto, to 20 years in prison. She had pleaded guilty to conspiracy.
In court, the prosecutor, David B. Anders, introduced Minerva Rodriguez, the victim's mother, who made an angry, almost scathing, attack on Ms. Soto. "You have no idea the pain and agony you have caused me," the mother began. "You took away my firstborn son."
After her emotional statement, Judge Rakoff, obviously moved, offered a surprising response.
"Let me say," he began, "that I understand more fully than you might realize the pain you feel."
Then, he revealed something he had always treated as a private matter, not liking to talk about it.
"Twenty years ago," he told the victim's mother, "my older brother was murdered in cold blood."
In 1985, his brother, Jan, then 44, had been killed in the Philippines - beaten to death with a piece of metal and an ice pick.
The judge said in the recent interviews that he still felt the loss deeply; that the anguish never left. "It's an unhealable wound," he said.
His brother, a graduate of the University of Chicago, was a brilliant teacher and an educational innovator who had started a school in Vermont, the judge said.
It took almost a year to make an arrest. A signed confession was lost. The murderer wound up serving a short prison term, the judge says, which convinced him that the attacker had benefited from a corrupt judicial process in Manila.
Judge Rakoff said that he never lost the sense of vulnerability that any victim feels, like the mother who had lashed out in the courtroom.
"I felt justice was not done in the case of my brother," he said, "and clearly this woman lived in fear that justice was not being done in the case of her son. I understood that completely."
He said that he did not think his brother's attacker should have been executed, but that he would have been satisfied with life imprisonment.
"The victim wants to have some reassurance that there is cosmic justice, so to speak, that things like this are recompensed," he said.
During the jury selection for the death penalty trial last June, Judge Rakoff appeared torn - questioning, even criticizing, the process while making clear that he would follow the law.
That became evident during his inquiry of one prospective juror. The juror said that although she had once been pro-death penalty, believing it was a deterrent, she had since changed her views. One factor, she explained, had been her work in prison ministries, where she had heard eloquent testimonies from inmates who had "done very bad things."
"I know too many converted prisoners," she said, adding, "I don't want to be in a place of God."
Under the law, prospective jurors who take what appears to be an absolutist position against or for capital punishment are not supposed to sit on a jury.
But after excusing the woman, Judge Rakoff told the lawyers, "I think the Supreme Court has got this whole process completely wrong." He called the woman thoughtful and conscientious, and said that in any other criminal case, she and others like her - who could favor the death penalty - were the kind of people who should be on a jury. "They come together, they reason together, they often change their mind or modify their views," he said. "They take very seriously, in my experience, the court's instructions, put aside their views and decide a case on the law."
It was bizarre, almost misguided, that in a death penalty case, such people had to be disqualified, he suggested. "In a matter as serious as this," he said, "I just think that it is a filthy business."
But later that day, when defense lawyers questioned the process on the ground that a disproportionate number of people who said they were opposed to the death penalty were being disqualified, skewing the jury pool, Judge Rakoff sided with the prosecution.
"I made no bones about the fact that I think the entire process is flawed," he said. "But it's the law of the land," he added, "and I'm following it as best I can."
Ultimately, the men who appeared before Judge Rakoff would be spared death by the jury, and the judge's unusual legal journey was, for the moment at least, completed.
Looking back today, he said he accepted that he was bound by the appellate ruling that rejected his attempt to throw out the death penalty.
"I am, as the Supreme Court usually refers to all other courts, a judge on an 'inferior court,' " he said.
But his doubts remain as strong as ever. "I continue to think that the process is deeply flawed," he said. "It posits a very high likelihood that no innocent person is convicted, which I no longer believe to be true."