THE appeals process that helps make the United States' criminal justice system the best in the world can also be maddening at times, as illustrated by recent events here and around the country.
An Oklahoma inmate on death row for killing a Le Flore County couple 12 years ago raised as part of his appeal the fact that the victim' relatives were allowed, during the penalty phase of the trial, to urge the jury to recommend a death sentence. This resulted in a “hyper-emotional plea for revenge,” James DeRosa's attorneys said. The appeal noted that one family member told the jury, “My family pleads with you to give the death penalty.”
Two of the three judges from the 10th U.S. Circuit Court of Appeals who ruled on DeRosa's appeal weren't swayed. They upheld the death sentences. But one of the judges agreed with DeRosa's appeal and was critical of Oklahoma prosecutors and the courts for allowing such testimony. He said Oklahoma state law and policy denies capital crime defendants their 14th Amendment rights guaranteeing due process. “Much of the unconstitutional testimony in these cases is shockingly prejudicial,” Judge Carlos F. Lucero said said.
As The Associated Press noted, allowing relatives of murder victims to give their recommendations in capital cases has long been criticized by federal courts. We and some Oklahoma prosecutors wonder why such testimony should be frowned upon when the defendants' families are allowed to urge juries not to impose the death penalty?
DeRosa's appeal was a serious one. It merits serious discussion. At the other end of the spectrum is an appeal filed this week by an Ohio death row inmate who says he may be headed for a “torturous and lingering death” because he's obese.
Ronald Post, who according to news accounts weighs about 480 pounds, argues that his executioners are likely to run into problems due to his weight, vein access, scar tissue and other medical problems. Post, 53, is set to be executed in January for killing a woman in 1983. His appeal contends there is “a substantial risk that any attempt to execute him will result in serious physical and psychological pain to him.” Post has tried to lose weight, he says, but knee and back problems have gotten in the way of exercise.
Here's an idea: Throw in a salad once in a while between now and January. And if it takes medical personnel more than one try to find a vein on the day he's to be executed, well, life's not fair.
On the other hand, Michelle Kosilek may tell you life couldn't be more fair. Earlier this month, a federal judge in Massachusetts ordered the state's Department of Corrections to pay for Kosilek's sex-change operation. Kosilek, 63, was born male. He was convicted of murdering his wife in 1990, when he was named Robert, and now lives as a female in an all-male prison. The judge ruled that the surgery was the “only adequate treatment” for Kosilek's gender-equity disorder and said prison officials had violated the inmate's Eighth Amendment right to protection against cruel and unusual punishment.
A few days ago the judge issued another order, this one saying Kosilek is entitled to legal fees in the long-running case. The inmate's attorney estimates those could approach $500,000. That should make taxpayers plenty mad indeed.