Wednesday, July 2, 2008

More on the Death Penalty

(Minor UPDATE: This link related to DNA evidence and "one bad apple" cops who convict defendants with false testimony seemed somewhat germaine. WARNING: The second video is particularly disturbing).

Dudleysharp has seen fit to fill the comments of my last death penalty post with a rather large array of pro-death penalty boilerplate, some of which I've addressed in the comments of that post, but I thought this deserved special attention. When I pointed out how the deck is stacked against poor defendants in the criminal justice system, he reponded with more boilerplate, including the impressive-sounding 28 steps required for the state to kill someone in (I think) Texas. Well, I thought I'd go through that list to see just how "impressive" that list really is.

Here's the list, first, which I'll go through it one by one:

There are at least 28 procedures necessary in reaching a death sentence. They are: (1) The crime must be one listed as a capital crime in the penal code;

Ok, wow, it must be listed as a crime punished with death - I suppose this is needed, but then, it is also rather trivial and irrelevant to the discussion. Plus, you could have the death penalty on the books for jay walking. That doesn't make it a good thing.

(2) a suspect must be identified and arrested;

Again, rather trivial - why is this a due process step? You can identify and arrest someone without any evidence. Presumably no one in even the most harsh of dictatorships is executed without first having been identified and taken into custody.

(3) Beginning with the Bill of Rights, the Miranda warnings and the exclusionary rules, U.S. criminal defendants and those convicted have, by far, the most extensive protections ever devised and implemented;

The Bill of Rights has been whittled away with time to a great degree. The fourth amendment barely exists anymore - there are more exceptions than enforcements. It is usually trivially easy to get a poor, uneducated defendant to waive any Miranda rights, usually to his detriment. Police are very good at manipulation. And it is amazing the number of interrogations that are not put on tape. Again, just listing this without analyzing how they actually work in practice is rather meaningless.

(4) in Harris County (Houston), Texas a panel of district attorneys determines if the case merits the death penalty as prescribed by the Penal Code (See 12-19);

Ooo, wow, the prosecutors get to get together and unilaterally decide what the charges will be. Prosecutors have a ridiculous amount of power, with little check against it. So I don't see how this is such a great thing for defendants.

(5) a grand jury must indict the suspect for capital murder;

Ooo, see my previous post about how a prosecutor could get a grand jury to indict a ham sandwich.

(6) the suspect is presumed innocent;

Again, this sounds nice on paper, but a lot of people actually assume someone is guilty once they've been arrested and charged. Look at what many people said about the Duke players in that case. Some people STILL think they are guilty, even after the unprecedented admission by the DA's office that they were not only not being charged but that they were innocent.

(7) the prosecution must prove to the judge that the evidence, upon which the prosecution will rely, is admissible;

A lot of judges are former prosecutors and are also elected and plenty seem to err on the side of allowing in all sorts of evidence that probably isn't admissible against defendant. Then, on appeal, when it is found that some evidence really should not have been admitted against defendant, the conviction is affirmed because it is determined by the appeals judges that the evidence was "harmless" because hey, the defendant was clearly guilty. This happens extremely often.

(8) the defendant is assigned two attorneys. County funds are provided to defense counsel for investigation and trial;

Wow. And are these funds at the same level as the prosecutor's office, the state crime lab, and the police are funded?

(9) it takes 3-12 weeks to select a jury;

The time taken to select a jury doesn't say much. Especially considering that probably jurors are disqualified if they have objections to the death penalty, making it more likely that you'll get a jury more biased toward conviction.

(10) trial is conducted;

Wow, they get a trial - why is this a separate step - isn't the jury selection part of that? It kinda seems like this list is padded to be as long as possible.

(11) the burden of proof is on the state;

While true, it is amazing just how easy it is to satisfy. Particularly with a jury that is predisposed to find favor with the death penalty. Techincally, to convict someone of ANY crime, all you need is a single witness to testify that defendant did the crime and have the jury believe that one witness, regardless of how many other witnesses the defense has who say otherwise.

(12) all 12 jury members must find for guilt, beyond a reasonable doubt. In most cases, the jury knows nothing of the defendant's previous criminal acts, at this stage. If found guilty, then, the punishment phase of the trial begins;

LOL - Thanks for the great laugh! "In most cases the jury knows nothing of defendant's previous criminal acts" - that's a good one! Uh, the reality is, it is trivially easy for prosecutors to get into evidence all sorts of prior criminal acts that really have nothing to do with the capital crime. In Michigan this is done under MRE 404(b). It is explicitly a rule of inclusion, not exclusion. And this all comes in during the main part of the trial, not sentencing.

Again, why is the notion of a jury having to find guilt beyond a reasonable doubt listed as a separate step from the notion of having a trial. Isn't that what a trial is? More list padding, it seems.

(13) the prosecution presents additional damning evidence against the murderer, i.e., other crimes, victims, victims’ or survivors’ testimony, police reports, etc;

In other words, all sorts of horribly prejudicial stuff that makes the defendant look even worse than the defendant did at trial.

(14) In order to find for death, the issues to be resolved by the jury are {a}(14) did the defendant not only act willfully in causing the death, but act deliberately, as well,

Which probably also includes an instruction that this sort of intent can be inferred in all sorts of different and creative ways.

{b}(15) does the evidence show, beyond a reasonable doubt, that there is a likelihood that the defendant will be dangerous in the future,

Does this include if they escape from death row? Sure, it is good to have this, but again, beyond a reasonable doubt sounds good on paper, but jurors already pre-selected to be pro-death penalty are probably more likely to find this

{c}(16) if there was provocation on the part of the victim, were the defendant's actions unreasonable in response to the provocations and

Sure, this sounds nice, but where would it ever be reasonable to respond to a provocation with a murder? It seems to me that if it is ever reasonable, that would be for self-defense, in which case, we wouldn't have gotten this far because defendant would have been found "not guilty."

{d}(17) is there something about the defendant that diminishes moral responsibility or in some way mitigates against the imposition of death for the defendant in this case, whereby,
(18) the defense presents all mitigating circumstance, which may lesson the probability of the jury imposing death , i.e., family problems, substance abuse, age, no prior criminal record, mental disability, parental abuse, poverty, etc. Witnesses, such as family, friends, co-workers, etc., are presented to speak and offer the positive qualities of the defendant;

So someone who doesn't have any family or anyone to speak for them is just going to be flushed down the toilet? But popular people will be ok?

(19) the jury must take into consideration those mitigating circumstances (Penry decision) and, if only 1 juror believes that the perpetrator deserves leniency because of any mitigating circumstances, then the jury cannot impose the death penalty;

Again, if the jury is made up only of people who are pro-death penalty and already found defendant guilty unanimously, it makes it more likely that there won't be a doubting juror. Not that it isn't nice that it needs to be unanimous, but with the deck already stacked against defendant from the beginning with the jury selection, this is less of a check than it should be.

and (20) when the death sentence is imposed, the perpetrator receives an automatic appeal.

That's nice - but then with all convictions for any crime, there is one automatic appeal.

(21& 22) the death row inmate is provided an attorney, or attorneys, to handle the direct appeal, at county expense, through both the state and federal courts;

And that automatic appeal you get for any crime also comes with a court-appointed attorney if you can't afford one - in fact, you even get this if you are appealing after a guilty plea. Michigan tried not to provide attorneys at that point and the US Supreme Court said that no, you have to, even in those instances. Of course, you still have the problem with the original attorneys - how much money is allocated for it? In Michigan, it is done on a county-by-county basis (see this post) and generally speaking, the rate paid is about 20% or less of the actual cost to hire an attorney, so quality is really bad. Though it is nice that you get an attorney for both state and federal courts (presumably for habeas corpus). Still, how much those attorneys are paid by the state matters. And I also wonder how many prosecutors work on the other side and how much they are paid.

(23 & 24) the state pays attorneys for the inmate's habeas corpus appeals, at both the state and federal level;

How is this different from the previous point? Generally speaking, the only way you could appeal federally is with Habeas. Looks like more padding here.

(25 & 26) death row inmates may be granted a hearing, in both state and federal court, to present post conviction claims of innocence. The burden of proof for these claims of innocence mirrors that used by the Federal courts;

And that burden is squarely on defendant. I notice you didn't point that out here.

and (27 & 28) Convictions and sentences are subject to pardon or sentence reduction through the executive branch of government, at both the state level (Governor) and federal level (President).

The same is true of any other crime. But of course, politicians are reluctant to look "soft on crime" (whatever that means) and if you look at the sorry record done, for instance, by Bush when he was governor of Texas and had to consider death penalty reductions, this does not exactly impress me.

These 28 procedures represent the broad categories of defendant and inmate protections. Within these 28 procedures, there are hundreds, if not thousands, of additional procedures and protections.

I don't know - just within that list of 28 it looked like things were repeated just to pad the list. If you needed to pad just this list of 28, it rather cuts into your claim that there are even MORE procedures to protect defendants.

Color me unimpressed. Why not save a whole lot of time and money for all those procedures and just have a maximum penalty of LIFE without parole? Unless you can cite statistics showing prison breaks by LWOP inmates are anything but extremely rare, there really shouldn't be any greater risk by doing this and, again, as I pointed out (but you repeatedly failed to address), wrongful executions make it more likely real killers will never be caught because of the reluctance of anyone in the system to want to admit they screwed up after an innocent person has died. They are still reluctant to admit wrongful convictions even absent a death sentence, but they are at least somewhat open to it where the innocent person is still alive and can be released, even if it is decades later.


Erin said...

What about Texas's famous "mirror test"? I didn't notice that one on the list.

DBB said...

What is the famous "mirror test"?

Erin said...

It's how they make sure the defense attorney's competent to represent the defendant: if he can fog up a mirror, he is.

DBB said...

Ah, ok. That's what confused me. In Michigan, they check for a pulse.