On a Big Issue, Little Is Known

Feingold asked Roberts whether he was "concerned that poor defendants may not receive adequate legal representation, especially at the trial level of a capital case."

Roberts said he did not know much about the situation, but that "it certainly can't be the case that in all cases they receive adequate representation."

He added: "I have long been of the view that whether you're in favor of the death penalty or opposed to it the system would work a lot better to the extent that defendants have adequate representation from the beginning." Roberts said prolonged appeals based on claims of inadequate representation were a major reason "these cases drag out so long."

Then Feingold asked: "Do you think that the current system is fair or do you agree with an ever-increasing number of Americans that it risks executing the innocent?"

Roberts did not answer directly at first, noting that "one thing that is unfair" is that "it's not certain, it's not definite, and there doesn't seem to be any reasonable time limitation." The long delays undermine any deterrent effect the death penalty might have, he said.

Feingold pressed Roberts about "the fact that 100 people have been exonerated, who were already sentenced to death."

Roberts replied that "obviously the first reaction is that the system worked in exonerating them."

Then Feingold asked whether Roberts thought "we've gotten all the ones that are innocent on death row."

When "you're talking about capital punishment, it is the ultimate sanction, and sort of getting it right in most cases isn't good enough. I agree with that," Roberts said.

If he is confirmed, Roberts may get a chance to wrestle with these issues in his first term. The issue of innocence will be before the court this fall in House v. Bell , No. 04-8990. The case involves a death row inmate in Tennessee who has DNA evidence showing that semen found on a woman whom he was convicted of raping and murdering did not come from him.

By a vote of 8 to 7, the Cincinnati-based U.S. Court of Appeals for the 6th Circuit ruled that, under the standards set in a 1995 Supreme Court ruling, this evidence was not sufficient to overturn state court rulings upholding the conviction and sentence.

Thus, the case calls on the court to revisit the 1995 ruling in light of new and better DNA science -- and recent history with DNA-based exonerations of inmates on death row in Illinois.

"Whether a prospective justice believes the states can be trusted with all of this or whether he thinks we need another layer of federal review is going to be an important aspect," said Richard C. Dieter, executive director of the Death Penalty Information Center, which opposes capital punishment.