Sunday, December 11, 2011

Why it makes death penalty case difficult to support

The case at hand is not a death penalty case but it highlights the need for the appeals process. There are arguments - generally cost - that seek to cut off that process. But costs shouldn't be the determining factor, especially when someone's life is about to be taken by the state.

This is from a story about the NC novelist [that] seeks new trial in wife's 2001 death. He is requesting a new trial because of possible state fabrication of evidence. He cites another case wherein exposed fabrication by the same state investigator caused the release of an innocent man.
"At a hearing Friday on [novelist] Peterson's request, two SBI agents testified they retested evidence from a 1993 murder trial and got results that raise serious questions about whether Deaver fabricated results that helped put an innocent man in prison for 17 years. That defendant won his release in 2010."
17 years is a long time - but he has an opportunity to go on with his life - an executed person doesn't get that opportunity.

And see this Texas case.
"The US supreme court last year prevented his execution just 35 minutes before it was due to go ahead, and later ruled that he had the right to press for DNA testing. But the Texas prosecutor has consistently refused to hand over the evidence, and a new execution date was set for 9 November."
And this Tennessee case causes one to pause and think a bit:
"The 58-year-old Memphis woman came within two months of being executed last year before her sentence was commuted — not because she was innocent, but because then-Gov. Phil Bredesen thought her punishment was excessive.
Owens admitted to hiring a hit-man in 1985 to kill her husband and the father of her two children. Supporters who tirelessly made the case to release her say she was an abused wife who has rehabilitated herself in prison."
See this Georgia case:
 The Georgia pardon and parole board’s refusal to grant him clemency is appalling in light of developments after his conviction: reports about police misconduct, the recantation of testimony by a string of eyewitnesses and reports from other witnesses that another person had confessed to the crime.
And now the Oregon governor's position:
"Kitzhaber said he has no sympathy or compassion for murderers, but Oregon's death penalty scheme is "an expensive and unworkable system that fails to meet basic standards of justice.""
The problem is that is basically bunk. The governor is permitted his conscience, but I agree with the Clatsop County district attorney: "It is arrogant and presumptuous for an elected official, up to and including the governor, to say, `I don't care with the voters say, I don't care what the courts say,"' and impose his own opinion "

The good doctor doesn't elaborate on "basic standards of justice." But, apparently there would be some standards by which the governor would approve of the death penalty. And the fact that it may be expensive doesn't alter the need for the death penalty. It is hardly less expensive to house someone for life. Although, life without any chance of parole - no parole board - no clemency - might be an alternative.

Pamela Fitzsimmons, in her blog Held to Answer, has this to say:
"What would you want for your killer, presuming he was caught and convicted (not all of them are)?
Would you want him to continue living – visiting with loved ones, watching TV, reading, eating a candy bar, negotiating with fellow inmates? 
Would those mundane events available to your killer seem like a huge joy compared to death?"
My answer to Pamela would be yes - I would want my murderer sentenced to death. But I would want the right one executed.

I am not against the death penalty, e.g., see this German case for something that seems appropriate. But, I am against the way it is too often determined resulting in the wrong person being sentenced, and am against the cost arguments to eliminate it. The fact that one person is wrongfully sentenced to death is sufficient to put the death penalty on hold until that process can be legitimized.


  1. Your concerns are understandable but a couple of the cases you cite are not what they appear.

    Specifically the Peterson case in North Carolina, which is heavily documented in what was supposed to be a pro-defense documentary called "The Staircase" shows a man who can be charitably called a sociopath who very likely killed another woman 20 years earlier. Watch the movie - made with the defense's enthusiastic co-operation - and decide for yourself whether he is really anything near innocent.

    The Georgia case involves Troy Davis - the latest cause celebre of the anti capital punishment movement, whose supporters claimed that "6 of 9 eyewitnesses recanted their testimony." Except that there were 36 eyewitnesses, not 9, and most of the "recantations" came from people who never identified Davis in the first place. The murder was a virtual execution seen by dozens committed by two black men, one wearing a white tee-shirt, the other a Batman tee-shirt. Davis had also shot another man earlier that day with the SAME gun.

    Of course there are problems with the system but you are FAR more likely to be killed by a doctor in elective surgery or by a pharmacy making a mistake in dispensing a prescription than to be wrongly convicted, let alone wrongly executed.

    Perhaps most importantly none of the issues you've raised - innocence, forensic fraud, eyewitness mistakes, have ever impacted Oregon capital cases.

  2. Thanks Josh - so well stated. And I had visions of playing my 'I am an attorney' card.

    The Troy Davis seems to be one of those cases that seem to fit this Holmes quote: "Great cases like hard cases make bad law. For great cases are called great, not by reason of their importance... but because of some accident of immediate overwhelming interest which appeals to the feelings and distorts the judgment."

    There were many respected people that urged a life sentence be substituted for Davis'execution. For example, Congressman Joe Lewis and former FBI Director William Sessions both offered reasonable rationales for commutation.

    Sessions in an opinion published in September 15, 2011 Atlanta Journal stated: "However, when it comes to the sentence of death, there should be no room for doubt."

    He, I believe, makes the case for doubt. But - this is a Georgia case and when a black man is to be executed it is difficult not to have doubt.

    However, based upon my reading - if I had been on the jury - I would have voted for the conviction and the death penalty. It is the subsequent process that often induces the doubt. A read of Sessions'opinion supports that supposition.

    But I understand that the efficient administration of justice can't endure under an appellate process that continues seemingly forever.

    You are correct about the statistical data re death in elective surgery vs death via wrongful conviction. But, oddly enough we as a society have more of an opportunity to narrow even further the wrongful convictions than avoiding death by elective surgery.

    And based upon my limited knowledge of Oregon capital cases - I agree that none of the issues I raised have impacted those decisions. That speaks well of Oregon justice.

    Bottom line: I support the death penalty when it is clearer than cases like Davis. I believe too that the Oregon governor made an error in his decision on death penalty cases.