[hoa] 'The Fugitive' Could Be Executed Anyway

  • From: "Robert @ Colorado HOA" <robert@xxxxxxxxxxxxxxx>
  • To: hoa@xxxxxxxxxxxxx
  • Date: Thu, 9 Apr 2015 10:07:39 -0600

Not H.O.A. related, but this article about the 1993 movie "The
Fugitive", starring Harrison Ford, illustrates how absurd the legal
system in this country can be -- something that anybody who has ever
been involved in H.O.A. litigation can relate to.



Under Supreme Court Rules, 'The Fugitive' Could Be Executed Anyway
Phillip S. Figa
Denver Post. Sunday, May 29, 1994. p. 5D.

"The Fugitive," now playing on the cable TV circuit, is a gripping
movie. In it, Dr. Richard Kimble, a respected doctor, is wrongly
convicted of murdering his wife and sentenced to death.

By luck and pluck he escapes and sets out to find the actual
killer of his wife, the one-armed man he encountered when he arrived
home during the course of the murder. Despite being hunted by the
competent and relentless Deputy U.S. Marshall Gerard (played
masterfully by Tommy Lee Jones), the fugitive tracks the surprising
killer as he determines the real and sinister motives behind the
crime. The movie, like the television series it is based on, ends in
apparent triumph -- Dr. Kimble, although in custody, has solved the
murder and convinced Deputy Gerard of his innocence.

This story is movie-making at its finest. The plot is suspenseful
and taut, the cinematography stunning and the acting first-rate. But
it is just a movie. In the real world what would have happened to to
a Dr. Kimble in similar circumstances? Would there be the happy
ending of an innocent man set free? The answer is far from clear.

First, remember that while Dr. Kimble was wrongfully convicted of
murder and sentenced to die for the hideous crime he did not commit,
there was no procedural error. The evidence was ample for a jury to
find Dr. Kimble guilty beyond a reasonable doubt. He was found
disheveled at the crime scene, his wife had referred to him in her
incoherent 911 emergency call, under the victim's fingernails were
traces of her husband's skin (the result of the melee among Kimble,
his wife and the one-armed man before the wife died), and there was no
evidence of forced entry or the presence of an intruder. The apparent
and plausible motive was money. Dr. Kimble stood to inherit a
sizeable sum from his wife's personal wealth and as a beneficiary
under her life insurance policy.

Second, the trial was fair and free from defects. The prosecutor
had sufficient evidence to charge Kimble. The jury not only had
enough to convict him based on the evidence and the instructions they
presumably were given, they could hardly have been expected to do
anything else.

After all, Kimble's alibi of the one-armed man as the murderer was
totally unsupported by evidence presented at trial. His protests of
innocence were simply unbelievable at that time.

The trial judge was acting as he should have in not overturning
the verdict and, given the constitutionality of capital punishment, in
sentencing the convicted doctor to death by lethal injection in these
apparent circumstances.

Third, the accused could not claim any violation of his
constitutional rights. There was no improperly obtained confession;
no inadmissible evidence was introduced; lawful investigative
techniques were used; the accused's defense attorney was not
incompetent and all conduct of the prosecutor was fair and ethical.

In short, Dr. Kimble had no basis for an appeal. An appeal of a
criminal conviction is in essence a review of the trial judge's
rulings. From the movie we are given every impression that the trial
judge rendered all his decisions well within the scope of his
discretion and the requirements of the law.

These things sometimes happen. Innocent people are convicted and
on rare occasions executed. Some are let out of prison after several
years with an apology from the state; a few executed convicts have
been exonerated after their deaths.

Assume the one-armed man refused to confess to the murder of Dr.
Kimble's wife after he was taken into custody. Where would that leave
Dr. Kimble? Very likely with little more than he had at the time of
his conviction. The one-armed man had an alibi for the night of the
murder that had been deemed credible during the initial investigation.
What he did after Kimble's escape could easily be chalked up to the
fact that he was being stalked by a convicted murderer.

The real reason for the crime, as the movie demonstrates, is
complex and murky even to moviegoers with near perfect knowledge of
what occurred. Dr. Kimble's efforts to exonerate himself after his
escape could be viewed objectively as a cunning and cynical ploy to
create doubt about his guilt in the minds of law enforcement
authorities and thereby escape execution.

Kimble's search for the one-armed man during his brief interlude
of freedom could also be viewed reasonably as deranged and irrational
-- after all, from all appearances he killed a beautiful and loving
wife for money when he was quite comfortable financially.

Thus, convincing the police investigators and the prosecutor who
convicted Dr. Kimble that they made a grievous error would be very
difficult. They have a vested career interest in justifying their
work leading up to the trial. The trial judge probably would not be
easily persuaded either, and the state appellate courts would not
easily believe that the trial judge abused his discretion in not
voiding a lawfully obtained conviction in the face of equivocal post
conviction circumstances.

And when it comes to obtaining federal habeas corpus relief, Dr.
Kimble could just about forget it. The federal courts are authorized
to review claims of prisoners convicted in state court proceedings,
but the scope of such federal review is essentially limited to
constitutional errors occurring in the state system. And there is
almost no hope for a reprieve from a federal judge if the prisoner
previously sought habeas relief on the same grounds (that he is
actually innocent of the offense), if he advances new claims not
previously raised which are deemed to constitute an abuse of the
habeas corpus writ, or if he raises procedurally defaulted claims
which his lawyer should have first filed in state court.

The U.S. Supreme Court has been working hard in the last few years
to narrow the ability of death row inmates to seek habeas corpus
relief asserting they were actually innocent of the crime of which
they were convicted or they are otherwise not eligible for the death
penalty. Supreme Court Justices dissenting from the recent
elimination of federal safeguards against state court errors have
called the Court's perfunctory denials of habeas claims as a "skewed
value system, in which finality of judgments, conservation of state
resources, and expediency of executions seem to receive greater
solicitude than justice and human life." Certainly, the Supreme Court
is right in its goal of trying to keep repetitious habeas claims,
particularly those filed on the eve of scheduled executions, from
dragging on interminably and constantly causing last minute litigation
hysterics.

Also the court has made it clear that the federal courts have the
right to entertain late and even defaulted claims where an execution
would result in a "miscarriage of justice." Yet the elimination of
many procedural hurdles in executing death row inmates has much more
quickly dispatched prisoners to their deaths, some of whom may not
have been deserving of death.

The chances for extending judicial compassion because of new,
previously unknown or undisclosed evidence have been narrowed
considerably by these recent Supreme Court rulings.

And it is not clear that the remaining loopholes available to a
federal court, including the Supreme Court, would extend to
overturning state court convictions, like Dr. Kimble's, not tainted by
procedural or constitutional error.

Other nations are different. Their top courts often have a more
abiding interest in the substantive result than whether the conviction
was fairly obtained. The overturning of John Demjanjuk's death
sentence by Israel's Supreme Court is illustrative. The ex-Nazi's
conviction and capital sentence by an Israeli trial court was fairly
obtained based upon multiple eye witness testimony and concentration
camp documents.

Yet, unauthenticated KGB documents from KGB files from the former
Soviet Union, obtained after the trial, made it unclear whether
Demjanjuk was truly Ivan the Terrible of Treblinka. Such ambiguity
was enough for the Israeli high court to send him packing. In the
U.S., post-trial evidence of equivalent dubious validity and effect
seldom would be given much weight by an appellate court reviewing a
conviction.

Where does that leave Dr. Kimble? Perhaps Harrison Ford will star
in the sequel. One in which Dr. Kimble is executed after his
recapture because he fails to convince judges by clear and convincing
evidence that he was actually innocent of the crime for which he was
"lawfully" convicted and the governor lacks the political courage to
pardon him or commute his sentence.

Such a sequel would be far more realistic than the original hit in
this world where senseless and violent crime is increasingly
commonplace and the impulse for prompt retribution sometimes
overwhelms the quest for careful and dispassionate justice.



Philip S. Figa is the incoming president-elect of the Colorado Bar
Association. This article is adapted from one he originally wrote for
the National Law Journal.







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