Death row cases

Deference shown for state, police

Alito has taken part in at least 10 cases involving death row inmates since 1991, and he has sided with the defendants in two and allowed a third capital case to proceed in federal court without taking a position on the merits. That puts him among the 3rd Circuit’s most conservative jurists regarding the death penalty.

Former 3rd Circuit Chief Judge Edward Becker, appointed by President Reagan, has sided with death row inmates eight times in as many cases in the same period.

In one death row case, the Supreme Court ruled that Alito was wrong. Ronald Rompilla, a Pennsylvania death row inmate, would have been executed this year under Alito’s reasoning. But the Supreme Court, in a 5-4 ruling this June written by O’Connor, found that Rompilla received such dreadful representation at his 1988 trial that his death sentence should be overturned, a rebuke to Alito’s view that his lawyer did enough to protect his rights.

The death penalty case that appears to best illustrate Alito’s stance came in 2001, when a splintered 3rd Circuit overturned the death sentence of James William Riley, who was on Delaware’s death row for the 1982 murder of a liquor store owner.

The majority expressed deep concerns about racial bias in the selection of Riley’s jury, citing the fact that prosecutors dismissed all three prospective black jurors. Defense attorneys also produced evidence that no black juror had sat on any Dover capital case during the time when Riley, who is black, was on trial.

‘‘One of the principal objections to the operation of the death penalty in this country is that it is applied unevenly, particularly against black defendants,’’ wrote 3rd Circuit Judge Dolores Sloviter, one of the court’s more liberal judges.

Alito was unmoved. He argued that much more than legal worry is required to justify overturning the findings of a state court, especially in a death-penalty case.

Alito called the majority’s finding ‘‘simplistic’’ and added that it treated the challenge of the jurors as ‘‘if they had no relevant characteristics other than race, as if they were in effect black and white marbles in a jar from which lawyers drew.’’

To supporters and detractors, that was vintage Alito. He demands clear proof that something is awry — not just inference — and the burden of proof is high.

He wrote a majority decision this year ordering a new murder trial for defendant Curtis Brinson — but only after the record showed that a Philadelphia prosecutor had dismissed 13 of 14 prospective black jurors, then showed up in a training videotape explaining ways to keep black jurors off criminal trials.

‘‘It shows a very consistent conservative record of deferring to either the state courts or deferring to police and prosecutors in criminal cases,’’ said David Rudovsky, a University of Pennsylvania law professor who argued numerous criminal cases before Alito. ‘‘It seems that unless the error is very egregious, he won’t step in.’’

In one highly publicized case, Alito upheld a police strip search of a 10- year-old girl by arguing that a warrant that didn’t mention the girl should be read ‘‘broadly.’’