ROANOKE TIMES
Copyright (c) 1996, Roanoke Times
DATE: Sunday, November 10, 1996 TAG: 9611110050
SECTION: VIRGINIA PAGE: B-1 EDITION: METRO
SOURCE: LAURA LaFAY STAFF WRITER
SOME THINK A JUDGE whose father was murdered should remove himself from death penalty cases.
On an April night in Tyler, Texas, a cream-colored Mercedes-Benz passed a red Ford Probe on a road near Highway 155.
Inside the Probe were three young men. One of them, 17-year-old Napolean Beazley, was the son of a City Council member and president of his high school class.
They followed the Mercedes.
When it pulled into the winding driveway of an extravagant stone house, the Probe parked on the street. Two of the men got out, walked up the driveway and headed toward the open garage as John Luttig and his wife, Bobbie, were getting out of their car.
Beazley shot the 63-year-old Luttig twice in the head. As Bobbie Luttig huddled in the shadows, the two men backed the Mercedes out of the driveway, lights out. John Luttig died on the concrete floor of his garage.
The murder of John Luttig took place two years ago in a town roughly 1,200 miles from Virginia. But fallout from the crime, some lawyers and legal experts say, could have fatal consequences for death row inmates in four states. The slaying also raises a significant question about the personal and professional experiences of judges and how such experiences intersect.
The reason: Luttig's son, Michael Luttig, is a judge on the 4th U.S. Circuit Court of Appeals.
Experts say he may be the only appeal judge in the country who has undergone such an ordeal.
Last year, Luttig gave powerful testimony, asking for the death penalty for his father's killer. His father, he told a Texas court, had been ``a man of great integrity,'' his ``hero,'' his ``best friend.'' The murder had changed the way he looked at life.
Judge Luttig rules in death penalty cases.
His Richmond-based court is a frequent forum of last resort for death cases in Virginia, Maryland, North Carolina and South Carolina. It is the last stop before a final petition can be made to the U.S. Supreme Court. Because the nation's high court rarely considers such petitions, the 4th Circuit is usually the final arbiter.
Most 4th Circuit cases are heard by a panel of three judges, although the court occasionally grants requests for the full court to rule. The court's job: to ensure the defendant's trial and sentencing complied with the U.S. Constitution. If the court finds problems, it can order a new trial or sentencing.
The 4th Circuit rarely rules in favor of a defendant. Since the death penalty was reinstated in 1976, it has done so in only two Virginia cases.
Luttig, a former assistant U.S. attorney general, clerked for Antonin Scalia on the U.S. Court of Appeals and Chief Justice Warren Burger on the U.S. Supreme Court. President George Bush appointed Luttig to the bench in 1991.
He has never voted - before or after his father's death - in favor of a defendant in a death penalty case.
But some lawyers contend that Luttig should disqualify himself from such cases.
Christopher McMurray, a Washington, D.C.-based attorney representing death row inmate Gregory Warren Beaver, is one of them. He asked Luttig to step down from the Beaver case last year.
``Given the nature of this tragedy, its understandable effect upon Judge Luttig and the extent of Judge Luttig's participation seeking the death penalty for those convicted of his father's murder,'' he should step down, McMurray's motion said.
After reviewing case law, consulting with colleagues and searching his heart, Luttig told the court in September 1995 that he had decided recusal was unnecessary.
``At no time ... have I believed even for a moment that the manner in which I view my obligations as a federal judge has changed or altered in any way due to the tragedy that befell my family,'' he said.
``Ultimately, I have thought that we would not require a federal judge who unfortunately was the target of invidious racial, sexual or religious discrimination to recuse him or herself by virtue of that fact alone. ... All of us experience things in life that we bring with us to this job, and that we take on as we spend our tenure on this court.''
The court affirmed Beaver's death sentence. The penalty is scheduled to be carried out Dec.5.
Luttig said he could not comment for this story.
According to a federal law governing judicial ethics, ``any justice, judge or magistrate of the United States shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned.''
But it's up to the judge in question.
In lower courts - state and federal - a judge's decision not to disqualify himself can be appealed to the next highest court. In the case of the 4th Circuit, however, the next highest court is the Supreme Court. And the Supreme Court, legal experts say, is unlikely to grant a review of such an issue.
The federal law outlines two reasons for recusal: actual bias or interest in a case, such as owning stock in a company that is a party in a lawsuit; and appearance of bias.
The appearance of bias is present, experts say, when a judge's impartiality ``might reasonably be questioned.''
* * *
Since the murder of his father, Luttig, by his own account, has been asked to step down from ``a number'' of cases ``involving petitions of defendants sentenced to death.''
John Blume, a lawyer from South Carolina, prepared a motion asking Luttig to disqualify himself only to find on the morning of arguments that Luttig would not be on his client's panel. Other lawyers have considered making such a motion, but decided against it.
``My conclusion was that there was no chance he would recuse himself for the very reason he stated,'' said Washington lawyer Benjamin Boyd, who represented Virginia death row inmate Herman Barnes.
``I guess it's a slippery slope,'' Boyd said. ``Any time anyone is hurt by anyone, you could make the same argument. ... Ultimately, Judge Luttig is the only person who can decide whether the tragedy that befell his family affects his work; and he's decided that it hasn't, and that's good enough for me.''
A three-judge panel, including Luttig, affirmed Barnes' conviction for the murder of a Hampton grocer. Barnes was executed Nov. 13, 1995.
Luttig's decision to continue to rule in death penalty cases is less significant than it might be if he were a trial judge, said James Moliterno, a professor at the College of William and Mary's Marshall-Wythe School of Law and the author of several books on legal ethics.
``An appellate judge is engaged in a largely intellectual exercise,'' Moliterno said. ``I think it would be more difficult for a trial judge, who is partly a finder of fact and who also must preside over a trial and sit and listen to the victims' testimony and the defendant's testimony and be the first decision-maker to deal with all of the graphic details of crimes.
``Judge Luttig isn't in that position. He doesn't get the opportunity to sentence anyone. He can uphold a conviction, but only as a member of a panel of three.''
David Baugh, a Richmond lawyer and former federal prosecutor who has argued before the 4th Circuit, sees the issue differently. Because appellate judges interpret the law, their decisions are more subjective than those of trial judges who base their decisions on fact, Baugh said.
In addition, he said, ``a trial judge is limited by jury instructions, specific rules of procedure and, of course, the possibility of a jury. You don't have that option on appeal.''
``The whole purpose of the criminal justice system is to lend credence to the criminal justice system. To give the appearance of fairness and impartiality. If it doesn't do that, it's nothing,''Baugh said.
Does that mean divorced judges should not rule in divorce cases? That judges who have been mugged, robbed, shot or victimized by drunken drivers shouldn't rule in cases involving similar crimes? How is it possible to know what a judge has experienced? And don't judges - like the rest of us - bring a lifetime of personal and professional experiences to their jobs?
The decisions of some judges, like the late Justice Thurgood Marshall of the U.S. Supreme Court, are often powerfully informed by experience. Marshall spent 23 years as legal director of the NAACP. As a justice, he was a forceful advocate of civil rights and affirmative action.
On the other hand, Clarence Thomas, Marshall's successor on the Supreme Court, has stepped away from several cases involving sexual harassment because of his former position as the head of an agency that litigated such cases and his experience of being publicly accused of sexual harassment.
For Marvin Miller, an Alexandria lawyer who directs both the Virginia College of Criminal Defense Attorneys and the National Association of Defense Attorneys, the difference lies in the quality of the experience.
``This is not a car accident or being mugged,'' he said of Luttig's experience. ``This is a horrendously horrible event that is way out of the heartland of normal experience for almost everybody.''
Professor William Geimer, who directs the Virginia Capital Case Clearinghouse at the Washington and Lee University School of Law, recently discussed Luttig with students during a class on judges and impartiality.
The students came to no consensus. But Geimer, who has read the 29-page victim impact statement Luttig gave during the trials of his father's killers, believes the judge should disqualify himself.
``Overall, what I saw was an understandable reaction by a family member of a homicide victim,'' Geimer said. ``But we're talking about applying the law in life-and-death litigation, and I don't think a reasonable person would want to have their family members judged by a person in such a situation.''
Recently, Luttig and two other judges served on a committee that rewrote the 4th Circuit's policy for choosing lawyers for indigent defendants who face the death penalty.
The policy, approved by all the judges and announced this month, imposes strict deadlines for filing appeals. Experts say it is the most restrictive policy in the country, exceeding the deadlines mandated by Congress this year.
And, last year in Texas, the murder of John Luttig generated five trials. Two of the men in the red Probe that night were brothers: Donald and Cedric Coleman. Both were convicted of carjacking and gun possession and sentenced in federal court to more than 40 years. They were then tried for capital murder in state court, where each was sentenced to life.
Napolean Beazley, who was 17 the night he killed John Luttig, had one trial in state court. A jury sentenced him to death.
He is appealing his case to the Texas Court of Criminal Appeals.
LENGTH: Long : 184 lines ILLUSTRATION: PHOTO: Tyler (Texas) Morning Telegraph. 1. Appellate Judgeby CNBMichael Luttig (at left) often rules in death penalty appeals. 2.
Cedrick Coleman (above) is quizzed during Napoleon Beazley's trial
for the murder of Luttig's father.