Judge Sotomayor & the Pa. death penalty

HAVING SERVED in law enforcement for 22 years, I've had the chance to observe some of the worst killers in Pennsylvania. Nearly all of my career was spent investigating and prosecuting homicides.

This fall, the Supreme Court will be reviewing the case of one of the commonwealth's "worst."

In 1983, Joseph Kindler was convicted and sentenced to death for murdering a witness against him in a burglary. Since his conviction, Kindler has escaped from jail - not just once, but twice!

The reason Kindler's case has reached the Supreme Court is a bit complicated. Basically, the Pennsylvania Supreme Court took the position that since Kindler was "on the lam" during the time when he could've appealed his conviction, he'd waived his right to ask for the courts to review his case since the period for filing the appeal had expired.

Nevertheless, the Pennsylvania court ruled that there was sufficient evidence on which to base Kindler's conviction and further that the death penalty was appropriately imposed.

The U.S. Supreme Court declined to review the Pennsylvania court's decision. But another federal court later ruled that it wasn't bound by the state finding that the killer had effectively waived his right to appeal by escaping. That court went on to decide in Kindler's favor and ordered him off death row.

THE U.S. SUPREME Court will shortly be called on to decide if the Pennsylvania Supreme Court is the final arbiter of the state's laws or if a federal court has the final say on the interpretation of a Pennsylvania statute.

Ultimately, whatever its decision, the Supreme Court will set a strong precedent for how our states are permitted to deal with violent criminals in our society.

Enter President Obama and his nominee for the Supreme Court: Judge Sonia Sotomayor.

When going through the Senate confirmation process, court nominees are asked to supply copies of "any reports, memoranda, or policy statements you prepared or contributed to the preparation of on behalf of any bar association, committee, conference, or organization of which you were or are a member or in which you have participated."

Sotomayor neglected to include a memo she wrote where she urged public opposition to the reinstatement of the death penalty in New York while she was the director of a Puerto Rican advocacy group in the early 1980s.

The memo makes a number of controversial assertions about the death penalty, including that "capital punishment is associated with evident racism in our society."

Since then, Sotomayor has served on the federal bench for 17 years without having to address the death penalty.

What is clear is that the assertions Sotomayor outlined in her memo opposing the death penalty are in stark contrast to how most Americans feel. According to recent polling, close to 70 percent of Americans support the death penalty under the proper circumstances.

What is not clear is how Sotomayor will side on the Kindler case this fall should she be confirmed.

Would Sotomayor side with the Pennsylvania jury, law enforcement and courts that took a stand against a violent criminal and clear escape risk?

Or, will she side against Pennsylvanians and allow a federal court to take a murderous criminal off death row where Pennsylvanians decided he belonged?

The beliefs of law-enforcement officials match very closely with public opinion when it comes to judicial philosophy. Judges are supposed to read and interpret the law, not write the law.

Sotomayor's out-of-court statements about her judicial philosophy, including her claim that the appeals court is "where policy is made," are cause for serious concern.

Furthermore, Sotomayor's cases have a relatively high reversal rate. Could this be attributable to judicial activism or latent biases? The burden lies on the Senate to review Sotomayor's judicial record. We need Sens. Casey and Specter to ask the tough questions.

Combining her tendency toward judicial activism and her beliefs about the death penalty, Pennsylvanians should recognize that Sotomayor's nomination will have an effect on their lives. Her opposition could swing the Supreme Court on critical issues pertaining to the death penalty.

In addition to the Kindler case, the Supreme Court will also hear two more cases pertaining to the death penalty this fall.

While these three cases should not present the opportunity to overturn the death penalty, the Supreme Court's decisions could certainly further restrict law enforcement and the criminal-justice system that we all depend on to keep our families safe.

So, please pay attention to

the nomination of Sotomayor and urge our senators to ask the questions all of us should know the answers to about her record.

She absolutely should receive a fair hearing before the Senate, but that hearing must address lingering questions of judicial activism and opposition to the death penalty.

These are of concern to many Pennsylvanians and need to be fully explored. *

Bruce L. Castor Jr. is a former Montgomery County district attorney and current county commissioner.