A CONSPIRACY NIPPED CAN STILL BRING CONVICTION, JUSTICES SAY

WASHINGTON, Jan. 21 - The Supreme Court ruled today that members of a
criminal conspiracy can be convicted regardless of whether the discovery of
the plot by the police has made it impossible for the conspiracy to achieve
its goal.

"The court has repeatedly said that the essence of a conspiracy is `an
agreement to commit an unlawful act,' " Justice Stephen G. Breyer wrote for
the court. He added that the criminal agreement "is a distinct evil,"
punishable whether or not the substantive crime ever takes place.

The decision overturned a ruling two years ago by the United States Court
of Appeals for the Ninth Circuit, in San Francisco. The appeals court
overturned the conspiracy convictions of two drug couriers who went to a
shopping mall in Idaho expecting to pick up a shipment of drugs, not
knowing that the police had already discovered the shipment while it was in
transit.

Instead of carrying out their part in a conspiracy to distribute narcotics,
the two men, Francisco Jimenez Recio and Adrian Lopez-Meza, stepped into
what had become a government sting operation. The appeals court reasoned
that because the object of the conspiracy had already been frustrated by
the time the men arrived, the conspiracy itself had terminated, and the
convictions were invalid.

In overturning the decision today, the justices were unanimous in their
legal reasoning. But Justice John Paul Stevens voted against overturning
the Ninth Circuit's judgment, because federal prosecutors had not objected
at trial to jury instructions that embodied the appeals court's approach to
conspiracy law. Nor had the government challenged the theory in the initial
phase of the men's appeal, which cited a number of grounds. "The
prosecutor, like the defendant, should be required to turn square corners,"
Justice Stevens said.

The appeals court's ruling was based on one of its own precedents, United
States v. Cruz, a 1997 case that adopted a view of conspiracy law that was
unique among the federal circuits and had never been endorsed by the
Supreme Court. There was little surprise in the Supreme Court's rejection
of that approach in its decision today, United States v. Jimenez Recio, No.
01-1184.

In its appeal, the government argued in passing that the Ninth Circuit's
approach would make it more difficult to prosecute terrorist conspiracies,
noting that the government's interest lay both in intercepting the
conspiracy and in achieving convictions. But even without the allusion to
current concerns, the government's arguments would clearly have found a
receptive audience at the Supreme Court.

The Ninth Circuit's approach would potentially threaten "the use of
properly run law enforcement sting operations," including the use of
undercover agents, Justice Breyer said. A conspiracy "poses a threat to the
public over and above the threat of the commission of the relevant
substantive crime," he added, because it remains likely that the same
person will conspire to commit other offenses even if frustrated in one
instance.

These were among the other developments at the court today:

Insanity Appeal

Without comment, the court cleared the way for Texas to execute a prisoner
whom the justices granted a last-minute stay in November. The question
raised by the prisoner, James B. Colburn, convicted of the 1995 murder of a
woman hitchhiking near his home, was whether the federal courts have
jurisdiction to consider a claim that an inmate is mentally incompetent to
be executed when an earlier federal court petition failed to present that
issue.

That technical-sounding question is illustrative of a predicament that
death-row inmates now face as a result of the interaction between Supreme
Court precedents and new Congressional restrictions on access to federal
court review by means of petitions for a writ of habeas corpus.

The court ruled in 1986 that the execution of inmates who are insane
violates the constitutional prohibition against cruel and unusual
punishment. The court has also ruled that because mental status changes
over time, such a claim is not ripe for federal court review until
execution is imminent. But under current habeas corpus law, a legal claim
that is not raised in an initial petition will generally not be considered
if presented for the first time in a second or successive petition.

In this case, lawyers for Mr. Colburn, who has received a diagnosis of
paranoid schizophrenia, did not raise his incompetency claim in his first
federal habeas corpus petition, in 1999. They did raise it late last year,
after his execution date had been set and his mental state had deteriorated
to the point that the state itself requested a mental evaluation.
Court-appointed experts agreed at that time that he was mentally ill but
able to understand the reason he was being executed, thus meeting the
minimal competency requirement that the court set in the 1986 case, Ford v.
Wainwright.

The Federal District Court in Houston ruled that it lacked jurisdiction to
hear Mr. Colburn's second habeas corpus petition, citing a 1996 federal law
under which only a federal appeals court can grant permission to file a
second petition. In the United States Court of Appeals for the Fifth
Circuit, in New Orleans, his lawyers argued that the new petition with the
competency claim should not be considered a true second petition, because
had the claim been made initially, it simply would have been dismissed as
not yet ripe. The Fifth Circuit rejected that argument and dismissed the
petition.

In their appeal, the inmate's lawyers said that "petitioners like Mr.
Colburn are trapped in a fatal conundrum formed by the intersection of the
ripeness doctrine" and the new rules on successive habeas corpus petitions.
They argued that it made no sense to require a competency claim to be
included in an initial petition, before an execution date was set, noting
that the inmate in the 1986 case had not become manifestly mentally ill
until he had been on death row for eight years.

The Fifth Circuit's approach, they said, "creates an unacceptable risk that
a truly incompetent person will be executed" for purely procedural reasons.

The justices' evident lack of interest today in the case, Colburn v.
Cockrell, No. 02-7910, was surprising given their stay on Nov. 6, hours
before Mr. Colburn's scheduled execution. A stay requires the votes of at
least five justices. The purpose of the stay was to give Mr. Colburn time
to appeal the Fifth Circuit's ruling. The court's order specified that if
the appeal was denied, "this stay shall terminate automatically."

Argument Dates

The court assigned argument dates in the term's most closely watched cases.
A gay-rights challenge to the Texas sodomy law, Lawrence v. Texas, No.
01-102, will be heard on the morning of March 26. Arguments in the
University of Michigan affirmative action cases, Grutter v. Bollinger, No.
02-241, and Gratz v. Bollinger, No. 02-516, will be heard the morning of
April 1.