Oral argument was held Monday in the Second Circuit Court of Appeals on the case in which U.S. District Court Judge Jed Rakoff of the Southern District of New York ruled the federal death penalty unconsitutional.

Judge Rakoff based his ruling on the "increasing number of exonerations of death row inmates through DNA and other evidence [showing] there was an "undue risk of executing innocent people" in violation of the constitutional right to due process." Here is more on Judge Rakoff's decison.

The Government argued that the death penalty cases that have been overturned through DNA testing have all occurred in state cases, and that the federal system is better because the lawyers are better, there is less pressure on the judges to make popular decisions since they are appointed not elected, and because the Justice Department carefully screens the cases.

We were just about to debunk the Government's argument when we noticed further down in the article that Barry Scheck has already done so.

"Barry C. Scheck, co-director of the Innocence Project at the Benjamin N. Cardozo School of Law, said the conviction of innocent people in capital cases is "a far greater problem than we ever knew," and that the underlying causes of such wrongful convictions "apply just as much in federal court. "They're as prevalent as they are in state court," said Mr. Scheck, who appeared as a friend of the court. Mr. Scheck said such causes included mistaken eyewitness identifications, false confessions and lying witnesses."

One of the Judges hearing the appeal questioned why the issue was being raised for the first time in this case, implying that if the argument was valid, it would have been raised by other lawyers in prior federal cases. We disagree with that concept because novel arguments are raised all the time in legal cases. But we appreciated a portion of his comment (in italics):

"He cited the case of Timothy J. McVeigh, who was executed last year in the 1995 Oklahoma City bombing. "McVeigh had superb counsel, I think, by all accounts, and it didn't occur to them really to make this argument," he said."

There is a possibility the Second Circuit will sidestep the issue. "They asked whether the death penalty question was even properly before their court, given that neither of the defendants, Alan Quinones and Diego Rodriguez, has yet been tried, convicted, or sentenced to death."

The defendants' lawyer was ready for that one, answering (quite correctly in our view) that the issue was ripe for review because certain pre-trial procedures are very different in capital and non-capital cases, as Judge Rakoff had found.

For example, jury selection is very different. In order to serve on a death case, jurors have to say they would be willing to impose the death penalty. So all death penalty opponents are excluded from serving as jurors in capital cases. This skews the jury composition because people who support the death penalty are more likely to convict in the first place. If death is not being sought in a defendant's case, there is no reason to exclude death penalty opponents. By not making the ruling on the constitutionality of the death penalty until after trial, the defendant would get a death-qualified jury and face a greater likelihood of conviction. As defense lawyer Samuel Gross, also a law professor at the University of Michigan, told the Court, "Nobody seriously doubts that changes the courtroom in a momentous way."