Austin Criminal Defense Lawyer : Austin Criminal Defense Lawyer & Attorney : Jamie Spencer Law Firm : DWI, DUI, Drug Possession : Serving Georgetown, Round Rock, San Marcos, Travis, Williamson, and Hays County, Texas

It’s been twenty years. Two years after the 1989 murder of a Georgia police officer, Troy Davis was convicted and sentenced to die for the crime. He has still, eighteen long years later, still not been executed.

Former federal prosecutor and noted softie Bob Barr writes an op-ed piece in the NYT:

There is no abuse of government power more egregious than executing an innocent man. But that is exactly what may happen if the United States Supreme Court fails to intervene on behalf of Troy Davis.

Mr. Davis is facing execution for the 1989 murder of an off-duty police officer in Savannah, Ga., even though seven of the nine witnesses have recanted their testimony against him. Many of these witnesses now say they were pressured into testifying falsely against him by police officers who were understandably eager to convict someone for killing a comrade. No court has ever heard the evidence of Mr. Davis’s innocence.

After the United States Court of Appeals for the 11th Circuit barred Mr. Davis from raising his claims of innocence, his attorneys last month petitioned the Supreme Court for an original writ of habeas corpus. This would be an extraordinary procedure — provided for by the Constitution but granted only a handful of times since 1900. However, absent this, Mr. Davis faces an extraordinary and obviously final injustice.

In the same article, regarding his vote for the Anti-Terrorism and Effective Death Penalty Act of 1996, which allows such an absurd result, Barr explains:

I wanted to stop the unfounded and abusive delays in capital cases that tend to undermine our criminal justice system.

Sorry Barr. You, and the other pro-death penalty advocates can’t have it both ways.

Frivolous appeals that clog the system from guilty-as-sin murderers got you down? They’re all filing petitions and writs just to avoid execution? Fine, write a law that shortens time limits, and limits successive appeals.

To insure finality, to protect victim’s families from the pain of not knowing when the condemned will die, make certain courts are able to “bar [defendants] from raising claims of actual innocence”. Otherwise, there will be no end. Certainly can’t have them dying of old age before the needle gets them.

But please accept that there will be other types of casualties: common sense; the public’s regard for the courts and the so called rule-of-law; and, of course, the occasionally innocent man.

Either/Or. Your pick. The last paragraph of your impassioned plea is misguided. Everyone knows you can’t have your cake and eat it too:

I am a firm believer in the death penalty, but I am an equally firm believer in the rights and protections guaranteed by the Constitution. To execute Troy Davis without having a court hear the evidence of his innocence would be unconscionable and unconstitutional.

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Lose a couple of elections and a senator and the even the muckety-mucks in a party will start publicly talking about change. Unfortunately, the Republicans are so married to some of their bad ideas that they are quite possible missing the boat. From SL&P:

[F]olks on the right often assert that the GOP is the only party truly committed to the principles of "life, liberty and the pursuit of happiness."

When I hear that claim, however, I wonder how it squares with modern Republican support for the death penalty (which ends life), and for long prison terms and drug prohibitions (which severely restrict both liberty and the pursuit of happiness).

I find vocal GOP support for the death penalty, mass incarceration and the drug war especially jarring when leading Republicans complain about big government, bureaucracy and excessive taxing and spending — all these problems find particular expression, especially at the state level, in the modern operation of the death penalty, mass incarceration and the drug war.

While not predicting changes in official party positions anytime soon, and especially noting the lack of any clamor for these conservative ideals, Berman’s onto something here. If we don’t make substantial progress in drug war reform during a down economy, it’ll be a long time coming.

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40 years from now (my best guestimate) we might see this story, “Death penalty bill headed to full Senate,” but with the word Texas instead of Colorado and the byline Austin instead of Denver:

DENVER—The Colorado Senate is set to vote on a measure to end the death penalty as they rush to wrap up this year's legislative session.

The measure (House Bill 1274) is expected to come up for a vote Monday, two days before lawmakers must adjourn.

The bill passed the House by a single vote, and another close vote is expected in the Senate.

Getting a bill through the first part of a bifurcated Congress is quite an acompishment, no matter the final result.  (Well, it matters obviously to those put to death while waiting for the other shoe to drop, but still, baby steps.)

There's a bill pending to abolish the death penalty in the Texas Leg, but it has a 0% chance of passing the House, never mind making it to the Senate for a vote.  And some defense lawyers and anti-death penalty advocates might predict four centuries not four decades for the Lone Star State to reach the same point, but then again:

The bill would take the $1 million now being spent to prosecute death penalty cases and use it to investigate cold cases. That would add seven employees to the state's cold case unit, which currently has only one investigator.

Sheesh. The centennial state only spends a million bucks prosecuting capital crimes – what is that? – every year? Not sure that would keep Harris County’s death penalty budget afloat for a day certainly not a week. (See 194 capital cases pending)

Is it possible that it will be financial considerations on the part of the general public that will eventually end government sanctioned killing?

[Hat Tip: Think Outside The Cage]

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The subcommittee hearing on whether to send a bill of impeachment (if that’s what it’s called) to the House floor regarding (some of) CCA Judge Sharon Keller’s outrageous, improper and unethical actions is apparently starting up around 5 pm today.

I just called Mark Bennett, and he’s there, willing and able to help do whatever needs to be done, but I had to tell him that I didn’t have the moxie to tell my wife I wouldn’t be available for twins-pickup-duty at daycare, so I’m skipping out. I’m sure Mark will give us a blow-by-blow update later.
 

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The Orlando Sentinel ran a story about Florida death row inmates dying before they could be executed. Apparently the grim reaper himself often appears in the fourteen year wait between sentencing and government sponsored execution. In the last ten years, it’s been a 50/50 proposition as to which comes first. From “Justice denied? On Florida's death row, many lives end -- but not by execution”:

Such figures don't surprise experts because death-penalty cases can take years -- even decades -- to work through the legal system.

While the condemned wait, they can fall victim to ailments traceable to years of unhealthy living before their convictions, including drugs and alcohol abuse.

It’s doubtful that accurate statistics are kept on how far below average the health habits of future prison inmates compare to the general population, but I’m willing to accept that partial explanation on common sense grounds. But I’d also bet that every year in the joint ages a man at least twice as fast as a year outside. At least twice, probably more.

One inmate committed suicide and therefore didn’t die “strapped to a gurney with witnesses watching through a glass window as the court ordered.” One of his victim’s family members said that while he didn’t feel cheated, he felt no relief either.

Any folks out there sweating Death as their loved one’s murderer appeals his way out of punishment? But of course. For example, one woman whose cousin was murdered (by a man related to her by marriage) said:

[S]he does not oppose appeals, in general, because she wants the "right bad guy" punished. She wants her family to be able to live without the fear that Hitchcock could someday go free, however.

"I do not want him to die of natural causes," Meadows said. "I want him to know the fear of taking that walk to his final destination on earth."

Before my server explodes with angry emails about “how would YOU feel IF…” let me go on record right now:

If you killed one of my family members I would not want you to feel the fear of waiting for the Government to kill you back. Instead, I would want you to feel absolute and total terror as I personally strangled, stabbed, shot, and otherwise tortured you into Hell.

However, I like to think I could acknowledge that “how I felt about it” shouldn’t be the only public policy consideration in determining your punishment. Or, for example, whether or not we stopped to have a trial before we punished you in the first place. But I admit I haven’t been there and hope never to be.

But why so long? Why must it take so damn long to get through the process, right? That’s what concerns most of us. The article finishes with – or is that gives short shrift to? – just one of many examples of a man who was rightly saved by the length of the process:

Former death-row inmate Juan Roberto Melendez, 58, says he's alive because he had the time to appeal.

He was sentenced to die for the 1983 murder of Auburndale beauty-salon owner Delbert Baker.

It took 17 years, eight months and a day before his attorneys uncovered evidence that would have cast doubt on Melendez's guilt. Polk County prosecutors elected to drop the charges.

On Jan. 3, 2002, he became a free man.

"In trying to get the Ted Bundys and child killers, innocent people get caught up in the net," he said by phone from where he lives in New Mexico. "The system is not perfect."

The system is not perfect. Therefore decreasing the time between sentencing and death necessitates increasing the wrongfully executed. So pick your poison, and live with the consequences either way.

[Hat Tip: Sentencing Law & Policy Blog]
 

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Last Fall the Texas Court of Criminal Appeals got some deservedly bad press for allowing the execution of a death row inmate to proceed because the appellate lawyers arrived at the courthouse door 20 minutes late.

Mind you, the defendant had not yet been killed – but his lawyers ran into some problems getting to the courthouse on time, and missed their deadline by twenty minutes. They called beforehand to let the Court know they were on their way, but apparently Sharon Keller was late for happy hour – or something, I forget the exact details – and at 5:20 p.m. they were literally shut out.

So, this morning they decided to fix the problem. They adopted the innocuously titled Miscellaneous Rule 08-101 which moved the deadline for filing a stay of execution or subsequent writ application to 48 hours before 6 p.m. on the scheduled execution date.

Excellent. Sounds like the problem is solved. Unless you take a moment to think about it.

A deadline is a deadline. (If that sounds almost tautological, you got me.)

All the court has done is move the goalpost. You can miss a 6 o’clock Wednesday deadline just as easily as you can miss a 5 o’clock Friday deadline. It’s the same thing.

To be fair, they threw this in:

Special Requirements for Untimely Petitions or Other Motions.

Counsel who seek to file an untimely motion for a stay of execution or who wish to file any other untimely motion requesting affirmative relief in an impending execution case, must attach to the proposed filing a detailed explanation stating under oath, subject to the penalties of perjury, the reason for the delay and why counsel found it physically, legally, or factually impossible to file a timely request or motion.

Counsel is required to show good cause for the untimely filing.

OK. Admittedly, the fact that death penalty lawyers are now given a few extra hours to explain why they were late might make a difference some time in the future.

But as often as we execute people in Texas, who wants to bet that we will be reading future court decisions that reject a lawyer’s reasons for an untimely appeal because they didn’t prove that it was physciall, legally or factually impossible for them to make it to the Courthouse steps by 6 p.m.?

[Hat Tip: Kiele Linroth Pace for originally posting about the new rule on the Austin Criminal Defense Lawyers ListServ]

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I see that my buddy and noted Texas defense lawyer Mark Bennett is speaking at Center for American and International Law CLE called “The Mind and Criminal Defense”. It’s a one day course on Capital Mitigation and it sure looks interesting, but unfortunately it conflicts with my schedule.

Other defense lawyers – especially those that do death penalty litigation, which I do not – should seriously consider attending if at all possible.

Bennett is giving a talk on “Free Will: What It Is and What We Can Do With It”. I wonder how he feels about being billed as Mark Bennett, Esq.

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A Harris County Lawyer continues her (his?) excellent series on the inner workings of the District Attorney’s Office in Houston with “The Capital Murder Decision” which takes us through the process used to determine whether or not to seek the death penalty:

Harris County has long been synonymous with being the "Death Penalty Capital of the World" and it has always been pretty much the center of every debate on capital punishment since the 1970s.

Good opening – I’m glad to not have to debate that point, but let’s throw in some facts and figures just to prove that the nickname is more than well deserved, it’s literally true. If Harris County were a State, it would rank second to Texas and ahead of current number two Virginia in number of inmates executed since 1982, when Texas reinstated the death penalty.

One portion of the decision making process?

If a Defendant has priors, the prosecutor won't just order the Judgment and Sentence reflecting the conviction. They will order the offense report, the old file, and everything else that they possibly can to understand what happened on the prior offense.

Reading offense reports of priors is certainly appropriate. But let’s not forget the number one rule of offense reports: The police put in all the bad facts, and leave out anything mitigating or exculpatory. So if you want the worst possible take on an offense? Read the police report – several times preferably.

They often pull the Defendant's school records if he is young. They will talk to the victim's family members and discuss their feelings about the case.

Victim’s family members are rarely going to oppose the death penalty in a murder case. I hope I would – but frankly, I’m not sure. Actually, I think I’d want to kill the S.O.B. myself, but I wouldn’t want the government to do it. And I’m against the death penalty.

They will look at the offense itself and decide how bad the facts of the case-in-chief are. Sadly, in this day and age, a capital murder during a convenience store robbery doesn't really "shock the conscience" like it used to.

Now we get to the thesis of AHCL’s post. Harris County only asks jurors to execute in cases where the murder shocks the conscience.

But that still doesn’t come close to answering the question of why Harris County’s death penalty rate is so high. And it’s high – I should say the highest and by a long shot - by any metric: total executions, percentage of murder convictions where a sentence of death is imposed, number of capital cases indicted, etc. It’s the percentages of death sentences to murders that begs the next question:

Why are the consciences of Harris County prosecutors/jurors so easily shocked – compared to every other geographical region in the country with statistically significantly lower death penalty rates?

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Grits asks, “Would you confess to a crime you didn’t commit to save your life?” and notes that in Austin, Texas in 1988 Christopher Ochoa did exactly that – then plead to a life sentence and testified against his ‘friend’ Richard Danzinger, who also happened to be innocent. (Danzinger’s jury took 8 minutes to sentence him to life as well. Unfortunately, after several suicide attempts but before eventual exoneration, he was beaten within an inch of his life in prison and suffered tremendous injuries.)

Noting an article profiling now practicing criminal defense lawyer Ochoa in today’s Dallas Morning News, Grits points out that Doug Berman of Sentencing Law and Policy has previously praised the death penalty as en effective plea bargaining tool for law enforcement and prosecutors:

Doc Berman over at the Sentencing Law and Policy blogs says the death penalty is an "effective plea bargaining tool," but to me here's an example of what he means in practice. If you threaten to kill somebody, they may admit to anything, but I'm not sure that's so "effective" as it just makes wrongful confessions more likely.

Holy cow. How could I have missed that one of my favorite bloggers was so off the mark? Here’s a clip from Berman’s original post on the subject, “Another example of the death penalty as an effective plea bargaining tool”:

It seems fair to assume that the federal government would not have been able to secure this plea deal were it not for the threat of the death penalty.  (Other high profile cases with similar "death-defying" plea bargains include the Unibomber and the Green River Killer.)  Though many might debate whether justice has been served by this plea deal, no one can question whether justice was efficient.

Berman is referencing a 2007 plea deal between a ‘drug kingpin’ and the Feds, where the defendant plead to life to avoid the death penalty. And I’m not sure what he meant by debate about “whether justice has been served by this plea deal”. Maybe he meant justice for this crime cried out for the death penalty, and therefore some could be unhappy with it.

But to the extent that the phrase questions the accuracy of the conviction, this logic makes no sense to me at all. Threatening to kill someone if they don’t [fill-in-the-blank] is very likely to produce, well, to produce [fill-in-the-blank]. And if achieving [fill-in-the-blank] is of the utmost importance, than threatening to kill someone to achieve it is likely to be an extremely efficient way of doing just that.

The problem with this logic however, is that while in this scenario you can fill in the blank with the concept of ‘convicting someone of this crime,’ you can not fill in the blank with the concept of ‘convicting the right person of this crime’. More specifically, you can only convict the person you threaten with the death penalty; you do nothing to make certain that you threaten the right person.

Efficiency is the wrong measure of any prosecution. Certainly accuracy should be the hallmark of any capital case. I’m pretty sure the Spanish Inquisition got high marks for efficiency when it came to extracting confessions.

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There’s been some poorly reasoned counter-arguments bandied about the blogosphere regarding the push to have Sharon ‘Killer’ Keller sanctioned, impeached and/or disbarred for her refusal to keep the Texas Court of Criminal Appeals open an extra 20 minutes so that a request to stay an execution could be filed.

The argument boils down to this: the lawyers shouldn’t have waited until 5 o’clock to file their appeal – period, end of story. I responded before, in part, to this by writing:

What does Judge Killer have to say about it?

“You’re asking me whether something different would have happened if we had stayed open,” Keller said, “and I think the question ought to be why didn’t they file something on time? They had all day.”

Let me first address the .000001% of what she said that isn’t ridiculous.

Yes, lawyers for defendants on death row routinely try to time their appeals to be last minute… because several last minute stays can add life span for the client (as opposed to filing each petition as early as possible). And while I don’t handle death penalty appeals, I think those who do should learn from this: have everything ready days or weeks in advance, and then park outside the court with all the necessary paperwork to run in at the last minute, so to avoid last minute ‘technical difficulties’.

Oddly though, while being .000001% ‘correct’, Judge Killer manages to also be 100% wrong.

No, they didn’t have “all day” as they should. Last time I checked, 5:20 p.m. today is still… today.

Houston criminal defense lawyer Mark Bennett has written extensively on this subject as well:

Death penalty enthusiasts are chortling about Judge Sharon Keller's action in closing the courthouse doors to Mr. Richard. A common theme among their responses is "blame the lawyers." One [anonymous] sample, in comments to my first post on the subject:

Why didn't the lawyers who needed to file do so BEFORE the court closed????? That is the most ridiculous thing I have ever heard. She closed on time, so you're filing a lawsuit against her?

HELLO???? Is anyone out there?????

Apparently not. Get real. You're supposedly fighting for a man's life and are running 20 minutes late? What a JOKE!!!!!!!!

Here's Houston criminal defense lawyer Troy McKinney's (an HCCLA past president and, more importantly, my attorney) reply to the argument that Keller was just following the rules, from comments on today's Houston Chronicle editorial calling for Keller's ouster:

The Supreme Court of the United States did not grant certiorari on the case involving the chemicals used in the death solution until that day. There were not days and weeks to prepare. There was less than one full day. As I understand it, it took until afternoon to get the materials that were used to obtain the review in DC and then the rest of the afternoon to draft the materials for the Court of Criminal Appeals. Although the Texas Supreme Court allows email or fax filing of emergency matters, Judge Keller also refused to allow the petition and motion to be filed by fax or email. The court even refused to allow a single copy to be filed immediately and the remaining 11 required copies (of the several hundred page document) to be filed shortly thereafter. At 5:20 p.m., when it was ready to file, the doors to the clerk’s office were locked so there was no way to get it to the people at the court (including in the clerk's office) who were still at the court.

Never before has the Texas Court of Criminal Appeals not been available on the day, evening, or night of an execution to accept whatever, if anything, was to be filed -- unless they were told in advance that nothing would be filed. Of course, here, Judge Keller through the clerk and staff was told that something would be filed and she made a conscious decision not to allow it be by closing the court and making the clerk's office unavailable.

The decisions made by Presiding Judge Keller are inexcusable.

The Harris County Criminal Lawyers Association is also filing a complaint with the Judicial Conduct Commission. There will be over 100 local lawyers who sign it.

I hope it’s clear from my previous posts where I stand on Judge Killer – on this issue as well as others. But let me make 2 points here.

#1) I still think it’s possible to argue that Michael Richard’s lawyers could have been more prepared. Yes, cert was granted that day, but the Supreme Court doesn’t just grant cert out of the blue. This case had been pending for awhile, including of course the request for cert. 

Lawyers should be up to date on the types of cases they are handling, whether initially before the trial stage, or in the post conviction/extraordinary remedy situation. Having said that, this was a pretty unusual situation, and I should have made it clearer that I’m not criticizing the lawyers in this particular case. My comments were meant partly as general advice – and were more specifically labeled as the one / one millionth of one percent of what was defensible of Judge Killer’s quote about her decision.

I’m no stranger myself to paranoia about missing deadlines, and I try to have several levels of safeguards in place to ensure that doesn’t happen. 

But, and this is the biggie…

#2) If it really really had been the fault of the lawyer, then the execution is even more – not less – inexcusable.

So, if as they claim the ‘lawyer should have known better,’ the pro-death penalty argument is truly senseless.

If you believe that the lawyer was the one to blame – rather than say a corrupt, lazy and intellectually dishonest judge – well…

Should the client DIE because his lawyer screwed up?

Is that what passes for ‘justice’ nowadays?

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Glad to see national coverage on ABC News about Judge Sharon Killer’s refusal to keep the Court of Criminal Appeals open an extra 20 minutes to allow defense lawyers, who were apparently having computer/technical difficulties, to file a stay of execution.

Some quick background. The United States Supreme Court has agreed to hear a case, Baze v. Rees,  to decide whether lethal injection is a constitutionally permissible execution method. The legal issues get a little more complicated than that actually, but suffice it to say that this isn’t some crackpot defense lawyer theory: the American Medical Association’s code of ethics prohibits its members from participating in lethal injections. And there is ample evidence to show that without proper medical attention, lethal injection executions run a high risk of being botched. 

Botched execution methods? Potential for Eighth Amendment cruel and unusual punishment appeals? Apparently SCOTUS wants to take a look at the issue.

So, many states are wisely deciding to stay executions using this method until the Supremes come to a decision. After all, it’ll be a little hard to ‘undo’ the punishment, if SCOTUS rules for the defense.

Back to Judge Killer. When Michael Richard’s lawyers called to alert the court that they were having problems getting to the court by 5 p.m., they were told, essentially, “tough s**t”.   No extra hour, not even an extra minute to file the appeal. Richard’s lawyers wanted the stay based on the Baze case. And they would have eventually gotten it.

How do we know? Well, the US Supreme Court ordered Texas to halt an execution two days later, based on the same reason for appeal.

What does Judge Killer have to say about it?

“You’re asking me whether something different would have happened if we had stayed open,” Keller said, “and I think the question ought to be why didn’t they file something on time? They had all day.”

Let me first address the .000001% of what she said that isn’t ridiculous.

Yes, lawyers for defendants on death row routinely try to time their appeals to be last minute… because several last minute stays can add life span for the client (as opposed to filing each petition as early as possible). And while I don’t handle death penalty appeals, I think those who do should learn from this: have everything ready days or weeks in advance, and then park outside the court with all the necessary paperwork to run in at the last minute, so to avoid last minute ‘technical difficulties’.

Oddly though, while being .000001% ‘correct’, Judge Killer manages to also be 100% wrong.

No, they didn’t have “all day” as they should. Last time I checked, 5:20 p.m. today is still… today.

[Also see Mark Bennett’s blog to sign the complaint being filed in this matter.]

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The always excellent Adam Liptak writes about a ‘quirk’ of United States Supreme Court death penalty jurisprudence: the fact that it takes 4 justices to grant review, but 5 to stay an execution leads to the execution of defendants before their cases can be heard.

From ‘Going to Court, But Not in Time to Live”:

It is possible, then, for a death row inmate to persuade the court that his case is so important that it deserves a place on the court’s tiny docket of roughly 80 cases a year — but not so important that he should be allowed to stay alive in the meantime.

Consider the case of Luther J. Williams, who was put to death on Aug. 23 in Alabama. Four justices had voted to stay the execution.

Mr. Williams’s appeal included a challenge to the constitutionality of the chemicals used in lethal injections, which have the potential to cause excruciating torture if administered improperly. A month after his execution, the court agreed to hear that question in another case.

When you hear death penalty advocates insist that all defendants have had full access to the courts… remember that this is the definition of full access.

Supreme Court math used to yield different results. As Justice Lewis F. Powell Jr. wrote in a 1986 decision, “the court has ordinarily stayed executions when four members have voted” to hear an appeal.

But Justice Powell, who was in those days often the swing vote, grew testy about the practice. It “illustrates how easily the system is manipulated in capital cases,” he wrote to the other justices after providing the fifth vote for a stay as a courtesy in a 1985 case.

By 1990, things had changed. “For the first time in recent memory,” Justice William J. Brennan Jr. wrote, “a man will be executed after the court has decided to hear his claim.” The man was James E. Smith, and he was put to death in Texas the day the stay was denied.

This is one of those situations where there’s a clear injustice, and a simple solution.

#1) The reason it doesn’t take 5 justices (out of 9 total) to grant a petition to hear a case in the Supreme Court is that they haven’t actually heard the case yet, so they don’t know how many total votes for reversal there might be. 4 out of 9 to grant review is perfectly reasonably. That fifth vote to reverse is frequently there.

#2) Requiring 5 out of 9 to grant a stay of execution is ridiculous, in light of #1.

#3) The current rules lead to absurd (never mind unfair, immoral, illogical, etc.) results. So change the rule. Make it 4 out of 9. Simple – ‘nuff said.

Gosh, next thing you know, ‘full access to the courts’ will mean they’ll be executing people because some lawyer forgot to file a petition on time, rather than on the basis of actual guilt. Or that executing the actual innocent defendant doesn’t rise to the level of cruel and unusual punishment.

Oh wait…

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Robbie Cooper of UrbanGrounds has weighed in at the comments section of my post ‘A Staunch Pro Death Penalty Advocate Responds’.

For some background, the blogversation starts with Radley Balko, comes to “Execution is Proof of Guilt in Texas,” and has sparked a new thread at Defending People.

Before we get to the meat of Robbie’s comment, let me set the table.

First, Mark pointed out that Robbie was unaware that Texas does now indeed have Life without the possibility of parole in capital cases. And indeed, many Texas District Attorneys opposed giving the jury the option to sentence a defendant to LWOP. And support the destruction of evidence that could prove a defendant’s innocence post conviction, as long as we’re on the subject.

Most defense lawyers believe that opposition to the LWOP option was based, at least in part, in the prosecutors wanting to be able to subtly argue that if the defendant wasn’t executed, he’d be released soon - perhaps even ride the elevator down with the jurors!

Defense lawyers were overwhelmingly in favor of the Life Without Parole option. Go figure.

Back to the main points in Robbie’s comments as to why he favors the death penalty. #1 was ‘there ought to be LWOP’ combined with ‘convicted murderers can still kill while imprisoned’. The rest:

#2) Some people are just pure evil. And the world is a better place without them. Most of the people who are sentenced to die fit this description.

#3) The death penalty isn’t about deterrence. It isn’t about revenge. It’s about justice — it’s about making the penalty for committing the crime equal to or worse than the violence committed upon their victims. Some people commit such ghastly crimes, that death is the only suitable and just punishment.

#4) But mostly, I support it because I believe that the value of human life is so high, that it is best affirmed by killing those who would kill others; that the ultimate price for taking a human life should be to give up your own.

I’m glad you didn’t mention general deterrence.

OK. Point by point.

#2) Some people are just pure evil. Perhaps true, perhaps not. It’s somewhere between a matter of opinion, and a matter of semantics.

But given that the comments from Jeff Deustch earlier in the threads focused on the absolute mathematical certainty that you can’t have a perfect death penalty system and supporters should expect some innocent deaths, it seems out of place. 

I mean, we started the discussion with Balko’s point about Texas DA’s opposing DNA testing for an already executed defendant. Robbie, it’s that kind of thinking that answers your question:

Of the more than 1000 people executed in the U.S. and the more than 400 people executed by the State of Texas --- has a single one of them ever been exonerated by a court of law?

Not when folks aren’t allowed to investigate. Kind of makes it impossible to prove. And for the most part, well over 99.99% of the time, the defense lawyers stop working after their client is killed.

But defense lawyers should also acknowledge that we use a variation of this argument ourselves at times. If you can throw in a healthy dose of ‘the S.O.B. needed killing’ into your self defense argument in a murder trial, you’re going to do it. Yes, there are obvious differences, but let’s admit we aren’t above playing that card ourselves.

#3) The death penalty isn’t about deterrence or revenge. It’s about justice. Again, it’s only justice if you’ve got the right guy. And that’s one of my main problems with the death penalty.

Actually though, I think the point is about restitution. I think that’s the proper legal term for it.

If someone is convicted of theft, they are ordered to pay back what was stolen or damaged. If someone is convicted of a DWI involving a collision, they will be ordered to pay the owner of the other vehicle, or perhaps just the deductible if insurance paid.

The main argument, although rarely enunciated this way, that the State has going for it is the belief by the jury that the family of the decedent will feel better if the defendant is executed. I won’t pretend to be an expert on the subject, but I believe that in fact, there are studies that show that families who initially supported the death penalty in fact get no satisfaction from it.

Assuming that a loved one has been murdered, and that the defendant is the murderer, if the family members don’t actually get this ‘restitution’ as I’m labeling it, I think this argument fails. But, I think in some ways it’s the strongest argument for capital punishment.

#4) The value of human life is so high, that it is best affirmed by killing those who would kill others.

Honestly, and I’m going easy on this one… I just don’t get it.

You either believe #4, or you don’t.

This is an important subject; please feel free to weigh in…

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[Hat Tip: Dave Shapiro, who posted this article on the Austin Criminal Defense Lawyer’s Association listserv.]

UTEP hosted a conference called “Interrogations & Confessions: A Conference Exploring Current Research, Practice, and Policy,” last week. The Rio Grande Guardian wrote an article** about it.

The recent spate of DNA exonerations, usually in death penalty cases, has understandably increased interest in the previously widely disbelieved phenomenon of false confessions. The Innocence Project reports that fully one quarter of wrongful convictions involve false confessions:

False confessions and incriminating statements lead to wrongful convictions in 25 percent of cases. More than 350 jurisdictions now record interrogations.

False confessions are another leading cause of wrongful convictions. Twenty-five percent of cases involve a false confession or incriminating statement made by the defendant.

Of those cases, 35 percent were 18 or under and/or developmentally disabled. The Innocence Project encourages police departments to electronically record all custodial interrogations in their entirety in order to prevent coercion and to provide an accurate record of the proceedings.

More than 350 jurisdictions have voluntarily adopted policies to record interrogations. State supreme courts have taken action in Alaska, Massachusetts, Minnesota, New Hampshire, New Jersey, and Wisconsin. Illinois, Maine, New Mexico, and the District of Columbia require the taping of interrogations in homicide cases.

From the Rio Grande Guardian article:

Professor Ray Bull, from the University of Leicester, spoke on what really happens in police interviews with suspects. He helped to develop reforms in the United Kingdom. That country responded to problems within the criminal justice system and changed the way interrogations were conducted. Tape recording of all interviews with suspects is now mandatory.

“It’s a win-win situation,” said Meissner, who reported that in areas where interrogations are tape recorded, everyone is happy. Judges, prosecutors, defense attorneys and police who are often accused of using force, all can rely on the tape instead of someone’s word. There are fewer expert fees and court costs involved when interrogations are taped, he added.

So, the UK has it right. At least when it comes to capital cases in the United States, we need to go to an absolute rule: Eligibility for the Death Penalty Requires a Videotaped Confession.

We would need rules and jury instructions as well regarding the circumstances surrounding any ‘confessions’.

I assume this would satisfy folks like Jeffrey Deustch, who has been polite enough to engage me and other readers of the blog in a death penalty debate recently.

People who are less concerned with the ‘accuracy rate’ when it comes to the ultimate punishment will remain unconvincible.  But in the meantime, anyone else want to add Texas to that Innocence Project list?

[** Given the url, which ends with “/features_story.asp?story_no=1” I fear this link may go dead. If so, maybe you can use the search feature in the future to look for the story.]

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Jeffrey Deutsch responds to my post “Execution is Proof of Guilt in Texas”:

Hello,

I'm a staunch pro-death penalty advocate. I can't speak for others, but I for one support every effort to follow up innocence possibilities for any convict, even one who has already been executed.

Among other considerations, how can people be expected to trust prosecutors, police or other officials who cover up evidence showing that someone who was executed wrongly?

I care about innocent people being convicted, whether of a traffic infraction, misdemeanor, felony or capital crime. Of course, I care in direct proportion to the severity of the potential punishment.

Furthermore, capital punishment especially requires a degree of public confidence that it will be applied to as few innocent people as humanly possible. Zero innocent victims is not compatible with any human, and necessarily imperfect, institution, but we need to do our best - and be seen to do our best - to save as many innocent people as possible. Otherwise, we jeopardize capital punishment itself.

Last but not least, I also care about the truth. Only in rare circumstances should officials lie or suppress the truth. To the contrary, investigation of the possibility that someone who was convicted and executed for a murder really was innocent is every reason to find the truth and proclaim it - whatever it may be - from the rooftops.

Jeff Deutsch

Jeff, I disagree with your conclusions, but I appreciate the comment, as well as the lack of anonymity. Too many use anonymous commenting on blogs as a way to vent without opening themselves up to any scrutiny or critical response.

Actually, your post fascinates me in some ways. When I say I disagree, I mean more precisely, that I agree with almost everything you write except for the first sentence about being staunchly pro-death penalty. Especially given the rest of it.

We know that police and prosecutors have indeed covered up or hidden Brady material, i.e., evidence that tends to exonerate a defendant. Yes, it may be rare, but you point out that it makes us distrust ‘the system’.

You care “in direct proportion to the severity of the punishment”. Me too. Frankly, I can’t make myself get all worked up when someone is wrongly accused of speeding. It shouldn’t happen, and it’s a shame, but frankly, you were probably speeding five minutes before you got the ticket, or yesterday, and even if you’re the one person on earth who has never sped, it’s ‘only a traffic ticket’.

But then, if you care in direct proportion to the punishment, you have to care the most about capital punishment.

From a logical perspective, I appreciate that you acknowledged that support of the death penalty means accepting that some innocent accused will be put to death or perhaps more fairly ‘murdered by the state’. I’m not being a smart-alec here. Many death penalty supporters insist the innocent have never been executed.

That’s a ludicrous position and you don’t try to make it. Humans err, death penalty trials are abundantly human; death penalty advocates should accept that there is an error rate, even if the exact rate is unknowable. That doesn’t make it 0%.

I just don’t understand, given the premises, how someone with your views can be staunchly pro-death.

Why is it so important to put people to death in the first place?

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Radley Balko on why Texas might try to prevent anti-death penalty groups, as well as the rest of the world, from finding out whether Texas executed an innocent man:

Now, I can think of some reasons why a prosecutor would want to destroy a piece of physical evidence that could prove that the state executed an innocent man. But none of them are compatible with...um...being a human being.

Perhaps, for example, the prosecutor was one of the prosecutors who worked on the case, and doesn't want the stain on his career that might come with a wrongful execution. Perhaps he wants to avoid the inevitable stain on Texas' already execution-happy reputation that would come with proof that the state executed an innocent man. Perhaps he knows that proof of a wrongful execution will make it much more difficult for him to win death penalty cases in the future.

But here's the thing: While I can perhaps see a prosecutor harboring such sentiment deep down inside, I can't possibly conceive of anyone actually making these sorts of arguments publicly. Or with a straight face.

Claude Jones was executed in 2000 for the robbery/murder of a liquor store owner. During trial, the State’s expert proclaimed that a hair found at the scene ‘matched’ that of the defendant. The Texas Court of Criminal Appeals cited the ‘matching hair’ as the corroboration necessary to affirm Jones’ death sentence.

Blogs have recently been covering the story of Texas’ attempt to block finding out whether this ‘crucial’ hair evidence would have actually exonerated Jones. See: StandDown Texas Project, the Innocence Project, Jeralyn Merritt, the Texas Moratorium Project, Capital Defense Weekly, DeathWatch, Grits for Breakfast, PWC Consulting, and finally, a tie for my two favorite blog post titles about this story, from Amnesty International USA “Hair Today, Not Gone Tomorrow” and from Yank in London ‘We’ll expect a retraction and an apology”.

Speaking of retractions/apologies, let’s get to the title of this post “Execution is Proof of Guilt”. There are definitely folks that need Jones to not be found innocent after the fact: death penalty supporters. Because he has already been executed, he is and will remain guilty.

I make this prediction. There will be 1 of 2 possible reactions to the results of the DNA test.

#1) The DNA test proves that indeed it was Jones’ hair at the scene of the crime. The reaction will be, basically “Ha Ha Ha,” and “See, we told you that the anti-death penalty crowd is just a bunch of murder lovers”.

#2) The DNA test proves that it was not Jones hair at the scene. The reaction from the pro-death penalty folks? Will it be, good grief an innocent man was executed? No. We will see all sorts of rationalizations that “just because the hair follicle wasn’t his, doesn’t mean he didn’t do it,” and “they didn’t prove his innocence”.

I’ll follow up on this when the results are in. In the meantime, anyone want to predict other possible reactions from the pro-Death crowd?

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