CHICAGO -- Supreme Court Justice John Paul Stevens steered the debate over President Bush's nominee to a new subject -- capital punishment -- sharply condemning the country's death penalty system.

The court has been closely divided in death row cases, with Justice Sandra Day O'Connor often in the middle.

Bush's choice to replace her, Judge John G. Roberts Jr., has a limited record on the issue. Roberts, 50, showed little sympathy for prisoner appeals as a government lawyer in the Reagan administration but later did free legal work for a death row inmate.

In a February 1983 memo while serving in the Reagan White House, Roberts suggested that the high court could cut its caseload by "abdicating the role of fourth or fifth guesser in death penalty cases."

Stevens used a speech Saturday to the American Bar Association to underscore the matter's prominence at the court, noting evidence of "serious flaws."

His remarks provide the first sign of internal dismay over the retirement of O'Connor, a pragmatist who has been a key voter on affirmative action, abortion rights and the death penalty.

So far, much of the focus of the Roberts nomination has been on matters such as abortion and civil rights -- not the death penalty. His confirmation hearings begin Sept. 6.

"It doesn't appear to be shaping up as a major issue," said Kent Scheidegger, legal director of the pro-death penalty Criminal Justice Legal Foundation.

Scheidegger said that although Roberts' wife is a member of a group that opposes capital punishment, Roberts has had no opportunities to vote on death penalty cases in his two years on a federal appeals court.

Stevens has evolved into the Supreme Court's most liberal member in the 30 years since his nomination by Republican President Gerald R. Ford.

At 85, Stevens is the oldest justice and has given no hints that he will retire soon. A Stevens retirement while Republicans control the White House and Senate would probably dramatically reshape the court.

Stevens, speaking in his hometown of Chicago, began his speech to lawyers with what he called the "sad news" that O'Connor was leaving the court.

"It's really a very, very wrenching experience," he said.

The comments were not part of his prepared remarks for the evening, to honor former judge and congressman Abner J. Mikva, nor were the remarks about capital punishment.

Stevens said DNA evidence has shown "that a substantial number of death sentences have been imposed erroneously."

"It indicates that there must be serious flaws in our administration of criminal justice," he said.

Death penalty cases dominate the work of the high court, as week after week, justices deal with final emergency appeals.

In their last term, which ended in June, justices overturned the death sentences of four inmates, ruled that states cannot put to death killers who were not at least 18 at the time of the crime and held that it was unconstitutional to force defendants to appear before juries in chains during a trial's penalty phase.

Justices have four capital cases on their docket when they return in October, including a potentially significant issue of letting inmates have a new chance to prove their innocence with DNA evidence.

Other justices, including O'Connor and Ruth Bader Ginsburg, have also spoken out about concerns that defendants in murder cases are not adequately represented at trial.

But Stevens told the ABA that the problems were deeper. He said the jury selection process and the fact that many trial judges are elected work against those accused of murder. He also said that jurors might be improperly swayed by victim-impact statements.

Stevens laid out the case for close review of appeals, pointing to "special risks of unfairness" in capital punishment.

According to the anti-capital punishment Death Penalty Information Center, more than three dozen death row inmates have been exonerated since 2000.

Said Scheidegger: "I wouldn't say that 20 or 30 cases out of 8,000 constitutes a broken system."

© 2005 Associated Press

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