POLITICS
05/08/2013 01:39 pm ET Updated May 09, 2013

Mississippi Supreme Court Justice Writes A Remarkably Political 'Dissent' To Willie Manning's Stay Of Execution

MS Supreme Court

I've done a lot of reporting on the criminal justice system in Mississippi. When confronted with overwhelming evidence of innocence, prosecutorial misconduct, and forensic charlatanism, I've often heard or read state officials duck the actual merits of the arguments, and instead point out that the people making them are anti-death penalty zealots, or liberals from out of state, or some other effort to malign their motives. This obviously isn't an attempt to win the argument. It's more about wagon-circling -- signaling to political allies and residents of the state that they needn't take the allegations seriously, because they're come from people who just don't understand Mississippi.

It's bad enough, but perhaps expected, when that kind of posturing comes from a district attorney trying to cover his own mistakes. But it's appalling to hear it come from a state supreme court justice -- and not in a speech or an offhand remark, but in an actual opinion. This brings me to Mississippi Supreme Court Justice Michael Randolph's written objection (which I gather is different from an official dissent -- hence the quotes in the headline) to yesterday's order to stay the scheduled execution of Willie Manning.

If you've followed the case, you know that the state is attempting to execute Manning without testing available crime scene DNA. The state's main argument is that even if the DNA tests come back as a match to someone other than Manning, it doesn't necessarily mean that person committed the murders, and that the other evidence pointing to Manning overwhelmingly points to his guilt. Part of that other evidence, however, is testimony from an eyewitness and testimony from a jailhouse snitch, which have both since unraveled. Another portion of the remaining evidence is testimony from an FBI hair fiber analyst who claimed it was statistically likely that hair fiber found at the crime scene came from a black person. That's hardly damning, even if the testimony was accurate. The problem there is that on May 3, the Justice Department sent letters to Manning's lawyers stating that the testimony from its own FBI agent "exceeded the limits of science and was, therefore, invalid." DOJ then sent another letter declaring that the testimony of its own ballistics expert at Manning's trial was also invalid.

This is all part of a broader scandal in which federal expert witnesses were found to have overstated the significance of forensic evidence in thousands of cases -- and to have trained who knows how many crime lab technicians at the state level in the same flawed methods of analysis. This isn't some last-minute scheme cooked up by Manning's lawyers and liberal Obama DOJ appointees to fend off executions. In fact, Attorney General Holder's DOJ had to be publicly shamed into finally admitting the breadth and scope of the scandal, and into making an effort to bother to notify the people who were convicted based on the flawed testimony.

But that isn't how Justice Randolph sees it. He first notes that, "The [DOJ] letter states that the Department of Justice is "assist[ing] the [Innocence Project and the National Association of Criminal Defense Lawyers] in their evaluations." He next points out that, "The Innocence Project supports a moratorium on capital punishment," and that "The NACDL has been an outspoken critic of the death penalty system." In other words, pay no attention to the actual argument these lawyers are making, folks. They're just crazy death penalty opponents.

Of course, the DOJ can't easily be characterized that way. And the DOJ letters are what have really thrown this execution off schedule. So Randolph next sets out to malign the agency.

Of critical concern is the language contained in the FBI report stating that "[given] the abbreviated time frame for review, the FBI requests the Innocence Project to advice as to whether or not they agree with the FBI's conclusions as soon as possible.

I guess the implication here is that this language calls into question the integrity of the DOJ's conclusions -- that they were conspiring with the Innocence Project to concoct this last-minute appeal. This, again, is refuted by the fact that the DOJ forensics scandals is years (decades, actually) in the making. The last-minute nature of the letters is probably due to the fact that the DOJ is processing thousands of requests related to that investigation. A typical request for reanalysis of an FBI witness in a prior case in light of the scandal probably goes to the end of a long queue. A request with a letter noting that the defendant is days away from execution probably goes to the front of the line.

As for "whether or not they agree with the FBI's conclusions," sure, if one were looking for evidence of a plot between DOJ and the Innocence Project, the wording could perhaps be construed that way. It could also simply mean "Here are our conclusions, if you agree with them and want someone from DOJ to testify or submit an affidavit, please let us know."

It's in the next passage that Randolph flies off the rails. It would be almost comical if we weren't talking about a man's life.

Although the connectivity and expediency by which this review was accomplished is mind boggling, I should not be surprised, given that the families of victims of the clandestine 'Fast and Furious' gun running operation can't get the Department of Justice to identify the decision makers (whose actions resulted in the death of a border agent and many others) after years of inquiry, and that this is the same Justice Department that grants and enforces Miranda warnings to foreign enemy combatants.

Holy non-sequiturs! I can only guess that the need to release the stay of execution quickly prevented Justice Randolph from segueing into a detailed critique of the DOJ's failure to investigate allegations of voting intimidation by the Black Panthers, a synopsis of the latest James O'Keefe undercover operation, or footnoting to Ben Shapiro's new expose at Breitbart.com -- all of which have about as much bearing on the legal merits of Willie Manning's petition as Fast and Furious or reading the Miranda warning to suspected terrorists. Which is to say none.

Justice Randolph, by the way, was reelected last year. So he'll be on the bench at least through 2020.

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