What Kind of Justice Will Samuel Alito Be? A Recent Death Penalty Decision Provides Some Insights

By EDWARD LAZARUS
Thursday, May. 11, 2006

As the Supreme Court moves into the climactic months of the current Term, all eyes are focused on the impact of the new Justices, John Roberts and Samuel Alito, on the Court's political balance and its approach to cases.

The signs so far have been rather confusing - as I explain. It's already clear that, in a number of ways, both Roberts and Alito are likely to defy predictions.

In this column, I'll briefly explain why Roberts has defied expectations, even in the short time he's been on the Court - and I'll analyze a recent, important Court decision penned by Alito to examine what kind of Justice he may turn out to be.

It May Be Roberts, Not Alito, Who Resembles Scalia

Most prognosticators, based largely on the confirmation hearings, assumed that Roberts would prove more moderate and open-minded than Alito. Certainly, Roberts portrayed himself -- and was portrayed by a bi-partisan group of supporters -- as someone with few ideological pre-commitments and a penchant for extraordinary collegiality.

Alito's allies tried to play upon the same themes; indeed, his Third Circuit Court of Appeals colleagues, of various political stripes, testified on his behalf. But somehow, Alito came off as not only nerdier than Roberts, but harder-edged - a Reagan revolutionary whose views, unlike Roberts, had never been tempered by the compromises and moral ambiguities of litigation and of big firm private practice.

So far, however, the roles have been reversed. At oral argument (a tricky barometer, but one of the few we have thus far), Roberts has often sounded little like the placid moderate conservative of his confirmation hearings, and a lot like Antonin Scalia, aggressively conservative and sometimes caustically so. On the bench, Roberts's questioning has sparked some testy exchanges with his liberal colleagues, some of whom are rumored to have found little evidence of Roberts's much ballyhooed collegiality in their experience with him thus far.

Certainly, Roberts's first published dissent (in Georgia v. Randolph, a Fourth Amendment case about a co-occupant's power to consent to a police search of a home) gave the Court's liberal wing no comfort. It was biting and uncharitable in its critique of the majority holding - and yet, often overly glib in the arguments it put forth, as Sherry Colb noted in a recent column for this site.

A Revealing Decision By Alito: His Work on a Decision Overturning a Death Sentence

Alito, by contrast, has been studiously even-handed at oral argument. And, now, in his first published opinion, Alito has authored a unanimous decision in Holmes v. South Carolina overturning a murder conviction and death sentence.

This is a slim reed on which to rest any predictions about Alito, the Justice - and other imminent decisions will tell us much more. But Alito's work on Holmes - his inaugural effort - is worth parsing, and offers at least some useful clues. (Full disclosure, I was one of Holmes's lawyers at the Supreme Court).

Bobby Lee Holmes was convicted and sentenced to death for the rape-murder of an elderly South Carolina woman in 1989.

At trial, the prosecution relied very heavily on forensic evidence, including a palm print and DNA blood evidence that implicated Holmes.

In response, Holmes sought at trial to undermine this evidence in two ways: first, by introducing expert testimony suggesting that the forensic evidence had been contaminated and was unreliable; and, second, by trying to show that the police had planted the incriminating forensic evidence in a plot to frame him.

In support of both these defenses, Holmes sought to introduce evidence that the crime had actually been committed by another man, Jimmy White. Holmes had witnesses who placed White in the immediate vicinity of the crime at the approximate time of the crime. He also had witnesses who would testify that White had acknowledged to them that Holmes was innocent of the crime and that he, White, in fact was the perpetrator. In a pretrial hearing, White denied making these statements and offered an alibi; but yet another potential defense witness refuted the alibi White offered.

The trial court excluded all of Holmes's evidence of "third-party guilt." And, after Holmes's conviction and sentencing, the South Carolina Supreme Court affirmed.

The South Carolina Supreme Court's Decision

As a starting point, the South Carolina court noted that, in order to be admissible, third-party guilt evidence must involve "a train of facts or circumstances as tends clearly to point out such other person as the guilty party" or, put differently, must raise a "reasonable inference" as to the defendant's own innocence.

But then the court went much farther. It held that, where there is "strong evidence of appellant's guilt, especially where there is strong forensic evidence, the proffered evidence about a third party's alleged guilt does not raise a reasonable inference as to appellant's own innocence."

Accordingly, the court concluded even third-party guilt evidence that, if believed, would conclusively exonerate the defendant was inadmissible in cases of "strong" forensic evidence because the third-party guilt evidence "cannot overcome" that evidence to create a reasonable inference of the defendant's innocence.

Holmes's Arguments

Before the U.S. Supreme Court, Holmes challenged South Carolina's rule under several theories:

First, he argued that South Carolina had violated his right - rooted in the Due Process, Compulsory Process, and Confrontation Clauses - to present a complete defense, and not to be encumbered by arbitrary rules regarding witness competence or the reliability of evidence.

Historically, the Supreme Court had struck down several limitations on the admissibility of evidence, including bans on the admissibility of co-defendant testimony or hypnotically- refreshed testimony.

Nevertheless, this first argument faced some obstacles: In several cases, the Court had also emphasized that states have wide latitude to create evidentiary rules, and had rejected challenges to other evidentiary bars, including a bar on the admissibility of polygraph evidence. And a number of the Court's conservative Justices had expressed skepticism toward the precedents striking down state evidence-admissibility limitations.

Holmes's second argument was that South Carolina had deprived him of his right to have a jury determine all facts relevant to the issue of guilt or innocence. After all, under South Carolina's rule, the trial judge was called upon to act as a kind of preliminary trier-of-fact charged with determining the credibility of the defendant's proffered evidence, and then weighing that evidence against the state's.

Particularly in cases involving forensic evidence, under South Carolina's approach, if the judge ruled against the defendant - as occurred in Holmes's case - then the jury would never get to hear even competent, probative third party guilt evidence. The upshot would be that the trial judge would have screened out that evidence -- and thus partially pre-judged the facts of the case - before the case ever got to the jury. That reality clashed strongly with the basic division in our criminal system: The judge says what the law is and instructs the jury on it, whereas the jury is the sole trier of fact - assessing the evidence presented to it.

Unlike Holmes's first argument, this second argument tended to appeal to some of the more conservative Justices on the Court - who'd championed the necessity of jury fact-finding. Indeed, in a line of cases including United States v. Booker, the conservatives had struck down various sentencing guideline schemes (both state and federal) for allowing judges to impose criminal sentences based on facts found by a judge, rather than a jury.

Alito Replaces O'Connor: The Fear that This Would Be Bad News For Holmes

After the Court granted review in Holmes, but before oral argument, Alito replaced Sandra Day O'Connor. It seemed, at the time, that this could only be bad news for Holmes. O'Connor was a very strong advocate for the line of cases on which Holmes's first argument - the due process/confrontation clause argument -- rested.

Alito, by contrast, came to the Court with no track record on these issues. And all indications from the record Alito did have, seemed negative: He had been a federal prosecutor, and seemed to be a supporter of the death penalty and states' rights. The fear was that he might bend over backward to give states leeway in crafting evidentiary rules, and would be dismissive of a defense that rested in significant part on an alleged police frame-up. Prosecutors, after all, depend on, and often trust deeply, the police or FBI agents with whom they work, and whom they must put on the stand. As a result, prosecutors don't tend to look kindly upon allegations that these investigators are corrupt or duplicitous.

But Alito's opinion declaring South Carolina's rule unconstitutional did not fulfill any of these fears. Instead, it reflects much of the persona Alito ascribed to himself at his hearings - namely, that he was a plainspoken, pragmatic, and precedent-oriented judge. Whereas Roberts has thus far shown signs of being more strident and less open-minded than advertised, Alito has been true to his word during his brief tenure. So far, he's vindicated the many colleagues who vouched for him.

Alito's Decision Style in the Holmes Case: Clear and Minimal

Only 11 pages long, his decision is a study in minimalism.

Unlike many death penalty opinions, which wallow in the gruesome facts of the crime, Alito's sticks to the bare-bones story.

Unlike countless Court opinions that engage in long academic discussions of doctrine, Alito's contains almost no theorizing at all. Indeed, his opinion never even clearly states exactly what constitutional provision it is that South Carolina's rule violates. Instead, Alito briefly summarizes the relevant cases, and simply adduces a pragmatic rule that state evidentiary rules must be rationally related to the goal of excluding evidence with "only a very weak logical connection to the central issues" of a case.

In applying this test, Alito's pragmatism again shows through. It cannot be, he concludes, that the strength or weakness of a defendant's third-party guilt evidence can be viewed by measuring it against prosecution evidence that is already assumed by the judge to be credible. "The point is," he reasons, "that, by evaluating the strength of only one party's evidence, no logical conclusion can be reached regarding the strength of contrary evidence offered by the other side to rebut or cast doubt."

There is nothing magical about Alito's phrases; no lyricism in his opinion-writing. But on a Court that routinely divides sharply over death penalty issues, his unadorned logic brought unanimity and a surely just result.

Holmes, to be sure, is not a blockbuster case. It overturns an unfair verdict. It undoes an unfair rule. And it is an important reminder that DNA evidence, despite its strong scientific moorings, still depends for its reliability on human factors such as the honesty of the police, and the integrity of the collection process.

But perhaps a small step in the right direction by Alito holds the promise of larger steps to come. This Spring will hold many other clues about that.


A former federal prosecutor, Edward Lazarus is the author of two books -- most recently, Closed Chambers: The Rise, Fall, and Future of the Modern Supreme Court.

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