McCaffery comments stir debate in death-row case

When Seamus P. McCaffery ran for the state Supreme Court last year, he was quick to tout his experience as a former Philadelphia police officer who had worked his way through law school and then become a judge.

He was a longtime member of the local Fraternal Order of Police, and he drew wide support from law enforcement during his campaign.

Last week, he made a point of his police background during an oral argument in a death-penalty case - and his remarks have become a hot topic among judges and lawyers who handle criminal cases, with some expecting defense attorneys to challenge McCaffery's ability to be fair to death-row inmates.

The case focused on the novel question of whether defendant Thavirak Sam, who was sentenced to death in 1991, can be forcibly medicated so his appeal can proceed.

The question is important because Sam, who suffers from mental illness, can't be executed because he has been ruled mentally incompetent. If he is forcibly medicated with antipsychotic drugs, Sam might become competent, and that could set the stage for his execution.

As defense lawyer Jules Epstein made his case that it would be unconstitutional to forcibly medicate Sam, McCaffery leaned forward and told the packed courtroom that he could restrain himself no longer.

The justice said he felt compelled to point out that Sam's relatives had been waiting years for justice.

Referring to his years on the police force, McCaffery said, "I was the one who picked up the bodies" and notified family members about such deaths. "How about finality for these family members?" he asked.

New York University law professor Stephen Gillers, an expert on legal ethics, said there was nothing inappropriate about a justice talking about the importance of finality in a capital case.

"I do have a problem with the reference to picking up the bodies," Gillers said, because "a judge's own experience" as a police officer "should not influence the application of legal rules."

He said the remark was "problematic" because "it's his job to put that out of his mind and not let it influence his analysis of the legal issue."

Though Epstein declined to comment about McCaffery's statement, lawyer Samuel C. Stretton, who was in court the same day to argue a related case involving another mentally ill death-row inmate, said this week that he was surprised by the remarks.

"I thought it was inappropriate," said Stretton, who told McCaffery during the oral argument that his comments were not relevant to the issue before the court.

"I almost said, 'You're not on the campaign trail anymore,' " Stretton said.

Assistant Philadelphia District Attorney Hugh Burns, chief of the appeals unit, called the justice's remarks "an appropriate comment" on the valid point "that moving a criminal case toward conclusion is in the interest of victims of violent crime."

The justice, he said, "properly" used his own experience, "which may be richer and more diverse than those of some lawyers and judges," to show that victims and their families should be considered.

McCaffery did not return phone calls yesterday, saying through a representative that he could not discuss a pending case.

L. Stuart Ditzen, a spokesman for the Administrative Office of Pennsylvania Courts, said that McCaffery was no longer a member of the FOP. He said McCaffery told FOP officials that he was resigning from the FOP when he was elected to the Supreme Court.

Sam, now 52, was convicted of first-degree murder for shooting and killing his mother-in-law, brother-in-law, and 2-year-old niece in July 1989.

The ethnic Chinese family had arrived from Cambodia about six years earlier.

After he was convicted, Sam told his lawyer that he didn't want any arguments to save his life. He was sentenced to death.

Over the years, Sam descended into a dark world of mental illness on death row, at some points insisting that the U.S. Supreme Court had ordered him freed, and that a Cambodian prince had interceded on his behalf.

Epstein contended that it was unconstitutional to forcibly medicate Sam because he is not a danger to himself or others and does not meet the strict test for when a prisoner can be medicated against his will.