[PassedOut]

David Grann has a sobering piece in the September New Yorker: TRIAL BY FIRE: Did Texas execute an innocent man?

The death penalty has not been a big issue for me, although I have long considered it poor policy on grounds of ineffectiveness, of tying up the courts with many appeals, of inconsistent application, and of making it impossible to correct the very rare error that might occur. The actual execution of murderers does not bother me.

Now it seems that the execution of the innocent is not quite as rare as I believed. DNA testing has established the wrongful convictions of several people who have since been released from prison. No one does that testing for people who have already been executed (and no one wants to know).

David Grann shows just how a non-scientific arson investigation led to the 2004 execution of Cameron Todd Willingham in Texas. Evidently pseudo-science has been used routinely to convict other people of arson crimes as well.

The only true villains I identified in this story were the "fail-safe" people who let the execution proceed after having been given clear evidence that the man was innocent. Up to that point it was just people -- investigators, "experts" (like BBO "experts"), lawyers -- with the normal amount of incompetence doing business as usual.

Better to lock people up for life (and I do mean life) to eliminate the chance of executing innocent people.

[blackshoe]

PassedOut, on Sep 4 2009, 12:05 PM, said:

Better to lock people up for life (and I do mean life) to eliminate the chance of executing innocent people.

Maybe. If we later find out the conviction was wrong, does society owe compensation to its victim? How much compensation? What kind of compensation? If we don't owe it, why not?

[kenrexford]

Death penalty cases are extremely rare, but everyone is on edge to get it right. And yet, the system fails too often.

How much injustice do you think is done in the thousands of cases for every one death penalty case, where attorneys, prosecutors, judges, and juries are not on edge and sometimes even caring about getting it right? You would be surprised by what I see, in my world.

Just this week, I took over a case another attorney was handling. A yound man with a good job was offered a plea to 3-5 years for a felony charge, while he was sitting on a $100,000 bond. At my first court appearance, after simply filing a motion tomreduce bond because, in short form, the facts alleged in the prosecutor's discovery did not even amount to a crime, the judge agreed and reduced the bond to personal (promise to show up -- no money needed), and the prosecutor made a vain attempt to offer us a misdemeanor and credit for time served, which we rejected. Take the family out of the picture, with no retainer help, and the man serves 4 years in prison for no reason, with thousands of others like him.

[PassedOut]

kenrexford, on Sep 4 2009, 05:32 PM, said:

How much injustice do you think is done in the thousands of cases for every one death penalty case, where attorneys, prosecutors, judges, and juries are not on edge and sometimes even caring about getting it right?  You would be surprised by what I see, in my world.

I do understand that injustice occurs in other than death penalty cases. During the 1960s a college aquaintance of mine who was very outspoken about his opposition to the Vietnam war was arrested for threatening the life of the president of the US. His crime was the statement, "I'd like to wring his neck." He took no steps toward an assassination. I was involved because I heard him make that statement and had to testify to that fact both to a grand jury and at two federal trials.

Both trials took place in (the very conservative) Wichita, Kansas. The first jury hung 11-1 for acquittal. A new federal prosecutor took over the case and tried to negotiate a settlement. The defendant's attorney offered a guilty plea to a (non-existent) traffic offense. The prosecutor, wanting a felony conviction, offered to reduce the charge to defacing coins. No deal was struck, so the taxpayers sprang for the second trial that resulted in an acquittal.

In that respect, justice was served, but through no action of the government. The defendant lost time and money defending against a ridiculous accusation. People opposed to the Vietnam war pitched in to make sure he had good representation, and the case had high visibility. If he had been an anonymous poor person without resources, his fate would have been different. It was an eye-opener for me.

But still, an incorrect death penalty is, in my opinion, beyond the pale. Especially since the remedy for that is so simple.

[gwnn]

The article certainly looks compelling (and heartbreaking). I really hate indifference and prejudices. But I wonder what MikeH would say about this, well I know he's anti capital punishment but I wonder what he'd say to counterbalance the biased article's tone. I remember him defending the woman who got a million dollars from the McDonald's coffee, he totally convinced me. So bottom line, I miss you mikeh.

[Winstonm]

Because of our fallibility, I oppose the death penalty in any case. These forums prove that "beyond reasonable doubt" varies dramatically from person to person.

I would hate to have a juror who thought me to be "scum of the earth" deciding if the prosecution proved its case "beyond reasonable doubt".

[mikeh]

I am breaking my silence to comment on this topic, altho I doubt that I will post on other topics for a long time, if ever.

A good friend of mine has been a Crown prosecutor... the equivalent of the US and (especially) state-level prosecutors, for many years. Early on he told me that no-one keeps score in his office. All Crown counsel are trained that it is NOT their job to WIN. It is their job to present the case honestly and impartially.

Are all Canadian prosecutors able to keep their desire to win out of the mix? Are they all as true to the ideal as is my friend (on whose integrity I would be willing to stake my freedom if not my life)? No, of course not, but the great majority are.

And, perhaps critically, they are hired, not elected. They do not need to pander to the semi-literate or worse population, whose opinions about crime and punishment are largely un- or ill-informed. So they do not need to 'get tough on crime', even tho we have our share of right-wing loonies who are ignorant of or choose to ignore the research that demonstrates that being 'tough on crime' plays little if any role in crime reduction.

I once had a fascinating discussion with a Louisiana trial judge, in a hot tub in a motel when I was playing in the 1994 Rosenblum in New Mexico. He said that he was strongly against the right of citizens to carry firearms, and strongly in favour of no imprisonment for first offenders and for many repeat offenders involved in low-level crime. He felt that many would benefit from strong supervision and alternate forms of punishment, rather than be sent to the criminal-rich prison environment. But, he told me, he could never dare express these beliefs, because he would never be elected/re-elected. Instead, early in a new term, he was lenient while in the year or two pre-re-election, he was harsh. That attitude undoubtedly impacts prosecutors as well.

There may be issues with appointed judges and hired prosecutors... historically getting to be a judge was often dependent on which political party held office, altho that has been far less of a factor for the past 40 years or so. But those issues pale in comparison to the perils of electing these offices.

We have had our cases of wrongful convictions. Fortunately, since we don't have the death penalty, at least those we know about have been freed and compensated (liberally...we are talking millions of dollars). But I suspect that our wrongful conviction rate is lower than that in most areas of the US precisely because of the relatively non-partisan role and behaviour of prosecutors. It goes back to the old saying that it is not whether you win or lose, it is how you play the game. That seems to be a very un-american concept.... where the equivalent appears to be: win, baby, win.

[Lobowolf]

Winstonm, on Sep 5 2009, 08:40 AM, said:

Because of our fallibility, I oppose the death penalty in any case. These forums prove that "beyond reasonable doubt" varies dramatically from person to person.

I would hate to have a juror who thought me to be "scum of the earth" deciding if the prosecution proved its case "beyond reasonable doubt".

I think that the inference from the other forum thread is that if you were proven guilty, you'd be thought (by some) to be the scum of the earth. I haven't written anything (or seen anything from Mike) that suggests that the "scum of the earth" determination comes before the determination of guilt.