Thanks to Instapundit for alerting us to Sixth Circuit Judge Gilbert Merritt (no relation to TalkLeft) and his speech yesterday at the Tennessee Federal-State Judicial Conference in which he said the death penalty system is broken and needs an overhaul. You can read the full text of his speech here.

A few highlights:

"Of the 12 cases completely reviewed on habeas in the 6th Circuit in the last 15 years, the writ has issued in eight, reversing the death sentence. Of the five cases I have had occasion to review from Tennessee, there was just one where we upheld the sentence. I have serious doubts in two of them about whether the defendant even committed the underlying murder or was simply the victim of a mistake. In one of these cases subsequent DNA evidence showed that he did not commit the rape that was supposed to be the basis for his murder of the victim. In two of the remaining three cases there were other serious constitutional problems with the jury instructions."

The Judge lists five reasons why so many death penalty verdicts are set aside:

We don't pay lawyers enough to represent the defendants at the trial level

Too few lawyers know how to defend a death case. Death penalty defense is a specialty and ineffective assistance of counsel is widespead.

"Third, prosecutors and police tend to be extremely zealous in these cases and they fail to turn over exculpatory evidence."

"Fourth, as a result, in a large number of cases newly discovered evidence turns up during the course of the habeas post conviction process after the trial and initial appeals are over. This is because counsel failed to properly investigate the case or because law enforcement did not turn over the exculpatory evidence they had or because of new science like DNA testing."

"Fifth, there is a great tendency after the trial is over to find harmless error. This tendency is based on the normal human tendency toward inertia; but, even more, it is based on the political imperative that judges outside the federal system must be elected."

"The Supreme Court has advised us in Reid v. Covert to remember that ''death is different'' — that ''[t]he taking of life is irrevocable,'' so that ''[i]t is in capital cases especially that the balance of conflicting interests must be weighed most heavily in favor of the procedural safeguards of the Bill of Rights,'' and in Andres that ''[i]n death cases, doubts … should be resolved in favor of the accused'' and in California v. Ramos that ''the court … has recognized that the qualitative difference of death from all other punishments requires a correspondingly greater degree of scrutiny of the capital sentencing determinations.''

"After these admonitions, the basic attitude of many federal judges in these so-called harmless error cases is to say to the state, if you want to execute the defendant, try the case right in the first place with competent counsel on the other side and without covering up exculpatory evidence and without giving the jury constitutionally impermissible instructions."

Judge Merritt went on to urge members of the Tennessee Bar to create a capital defense agency.

"Now is the time for the bar to intervene because there is now pending in Congress an act that seems likely to pass called the ''Innocence Protection Act.'' That act will make money available to the states to create a better defense system in capital cases. It may be that the best system would be to create and fund a state capital trial agency. Whether or not that act passes, our state needs a much better system of defending capital cases."

It is so refreshing to hear a federal judge speak out like this. We hope more of them start doing so. We need the Innocence Protection Act and we need a moratorium on the death penalty.

We hope that Democrats vying for the 2004 presidential nomination take note and make these issues part of their platform.