Should we just be philosophical about capital punishment?

Great Debates
101

[QUOTE=gonzomax]
By the way poor people do not get a very good lawyer nor do they have the money to fight off the prosecutors. OJ showed what money can buy. Death row shows what poor people can buy. It is not just a tactic. It is a fact that poor people get a much worse defense.
[/QUOTE]

That isn’t due to any systematic screwing of the poor, but rather due to cheapness on the part of most states, counties and cities.

In many major metropolitan areas, assistant DAs make something like 40k. That’s in the realm of what a teacher might make, and certainly not the $100k or so that most civil lawyers make. They aren’t the cream of the crop usually, and neither are public defenders. It’s just that occasionally, there’s money to be made as a criminal defense attorney, so there are some really good ones in that category (Racehorse Haynes, Robert Shapiro, etc…)

The real money’s in civil law, from what I can tell. That’s where the really good lawyers tend to go.

Another way to look at is: Would you want to pay 10% more taxes in order to pay assistant DA’s and public defenders a comparable salary to civil law positions, in order to make sure that the poor get good representation?

Most people wouldn’t.

102

[QUOTE=Der Trihs]

First, Phelps is condemning people who are born a particular way and who are not part of an organized attempt to harm others. Not people who choose to join an organization an participate in an organized campaign to inflict ( massive ) harm upon others. So, in fact my position is pretty much the opposite of his. Second, there’s no comparison between police doing a necessary job and a bunch on conquistadors involved in conquest. Third, I never said anything about wanting “all military personnel the world over” to die, just those in Iraq. In other words, the army of conquest, who condemn themselves by being there just as any army of conquest would.
[/QUOTE]
Phelps condemns my son because, he alleges, my son is supporting a government that supports homosexuality. Phelps believes my son should be killed for this, and the sooner the better. You believe my son should be killed, and the sooner the better, because you equate him with 16th century Spanish invaders. Like Phelps, you aren’t intellectually capable of separating the pawn from the king or understanding their different roles and choices.

103

[QUOTE=Sunrazor]
<snip> because you equate him with 16th century Spanish invaders.
[/QUOTE]
Actually, the more I think about it, Der Trihs is exactly right on that point. The foot soldiers who trudged across the American continent in the 1500s were miserable, lonely, demoralized, and wanted nothing more than to just go home. Which is just about what every American GI in the Middle East wants right now, and what we very much want for them. So yes, American troops in Iraq and those who support them around the region are exactly like the Spanish troops accompanying the conquistadores – engaged against their will in an illegal military invasion mounted by stupid rulers for ridiculous reasons. On that we can agree. Oh, I know, you dispute the “against their will” part, and all I can say is that life’s choices must be very easy for you.

You also assume that I, personally, care nothing for the Iraqis who have died in that war, and only for the Americans. Well, insofar as I grieve less for the death of a stranger’s mother than I do for my own, that’s probably true, and quite understandable. But my outrage at what my government has done, quite against my own better judgement and despite my constant hounding of it on this point, is every bit as much for the families destroyed in Iraq as the ones destroyed here. It is unconscionable and I feel that outrage on a deep, personal level. I can easily put myself in the shoes of an Iraqi man who has had his home blown apart and his children killed for reasons he does not understand.

Tell me how I personally can stop this tomorrow and I will do so.

104

[QUOTE=Sunrazor]
Der Trihs, I find your blanket condemnation of U.S. troops in the Mideast deeply and personally offensive. My son is serving there now and, with the silliness over Israel insisting on bombing Iran and Iran insisting it will retaliate by striking U.S. bases, I’m very worried for my son’s life. I spent over 18 years raising that young man, he’s deeply loved by my entire family and by his wife, and his death would be an unbearable tragedy to us, especially because my wife and I – indeed, our entire family – have opposed the war in Iraq from the beginning. But we don’t get to choose where he is posted, and neither does he.
[/QUOTE]
I would strongly urge you to drop this line of argument. By injecting your family into the discussion, you have created a situation where any number of responses are going to look like personal attacks even when that is not the specific intention of your opponent.

This line of argumentation never ends well. If you really feel that there is a point to making this personal, you might want to consider the BBQ Pit.

105

[QUOTE=Diogenes the Cynic]
That’s a problem with the prison system. It’s not caused by the lack of a death penalty, as evidenced by the fact that you cited Texas, which is one of the most enthusiastic practicioners of execution.
[/quote]

Perhaps I’m not making it clear enough. Every murder committed by a convicted capital murderer, whether in prison or on escape, could be prevented by that murderer’s execution. I doubt a prison could be built that wouldn’t allow an opportunity for them to kill again. So, I take it you’re cool with the extra people who get killed or permanently injured by these lowlifes?

Your statement was, “we know for a fact that many of them are not”, which I took to mean that there are factually innocent people currently on death row. What you’ve linked to there is just evidence that the system works the way it should: people who have a legitimate claim of wrongful conviction who have been freed. I probably should have been more specific: show me someone currently on death row who is factually innocent.

Sentenced? No. No system is perfect. However, I’m saying there are many many checks on the system to ensure that an innocent person is not executed, and I have yet to find one. Point to one innocent person who has been executed since the US reinstated the death penalty in 1976. Just one.

Incidentally, looking at your Innocence Project list of people freed by DNA evidence: it appears that numbers 49, 59, 62, 63, 80, and 100 were released from death row and therefore in no danger whatsoever of execution at the time of the DNA testing. Seems a little disingenuous to declare that they were “freed from death row because [of] DNA evidence,” just to inflate the numbers. But then again, I’m a stickler.

It’s an absurd question. First, “being sentenced” is not the same as “being executed,” so your illogical juxtaposing of “innocent people being sentenced to death” and “the sacrifice of innocent people” is inherently ridiculous. Second, you’re asking this question to a prosecutor. I’m about as big a Boy Scout as you’re likely to find. I am constantly conscious of the law, and I know that I must avoid even the appearance of breaking the law to maintain my integrity. I cannot envision any set of circumstances that would result in what you want me to contemplate. It’s like asking a priest, “But what if you had to kill a baby and eat its heart?” It’s just not gonna happen.

About the best I can answer the question is by reforming it to: would I like being in prison? The answer to that, obviously, is no, not only because the conditions and lack of freedom would suck, but because as a prosecutor I’d be a target. One of the capital murderers you’d like to keep hanging around would slice my throat within 6 months. So, were I theoretically in prison, I’d fight like hell to get out, using every tool at my disposal. Which is exactly what the people on death row do right now.

So, as long as we’re asking for answers to absurd questions, let’s turn it around. You come home one day, and find your family slaughtered. Your mother has been raped, sodomized with a broken beer bottle, mutilated, and decapitated. Your father has been beaten to death with a bat with nails in it and dismembered. The family dog was killed in the microwave oven. Your wife has been raped, sodomized with your favorite samurai sword, and disemboweled. Your 9 year old daughter was vaginally penetrated with a rusty tuna can lid, shot in the face, and set on fire. All of their heads have been placed in the toilet, with the dog’s severed penis in your wife’s mouth and your father’s in his own mouth. Little do you realize, looking at all this, that the perpetrator, David the Bushman, is still in the house, and he whacks off your legs at the knees with an axe. You get a good look at him just before you lose consciousness.

Of course, now that you’re awake, you realize that David went to town on your unconscious form, and you’re completely limbless, neutered, your face has been carved into a permanent frown, and your eyelids have been cut off. Luckily, David was caught at the scene thanks to an alert neighbor. David is undeniably guilty, thanks to DNA evidence of the multiple blood samples on him and his semen basically everywhere. The prosecutor believes this is an excellent case to seek the death penalty. Will you cooperate?

106

So what you’re saying is that even though dozens of people on death row have been proven innocent, you’re 100% confident that no innocent person has ever been or ever will actually be executed? You know that for a fact?

The answer to your hypthetical is no, I would not support the death penalty for david. I’d rather see him actually be punished. Giving him a shot and letting him go to sleep is letting him get away with it.

107

[QUOTE=Diogenes the Cynic]

The answer to your hypthetical is no, I would not support the death penalty for david. I’d rather see him actually be punished. Giving him a shot and letting him go to sleep is letting him get away with it.
[/QUOTE]

So - in your opinion, no one, innocent or guilty, who has been executed has been punished. And therefore, being sentenced to life in prison with no parole when innocent is a greater injustice than being executed when innocent.

OK.

Regards,
Shodan

108

[QUOTE=Shodan]
And therefore, being sentenced to life in prison with no parole when innocent is a greater injustice than being executed when innocent.

[/QUOTE]

No - the logical thing if you had read Diogenes’ comments would be that serving life in prison with no parole would be a greater injustice than being executed when innocent.

But serving a few years while innocent, and then being released when pardoned is (probably) less of an injustice than being killed.

109

[QUOTE=Shodan]
So - in your opinion, no one, innocent or guilty, who has been executed has been punished. And therefore, being sentenced to life in prison with no parole when innocent is a greater injustice than being executed when innocent.

OK
[/QUOTE]

Like I’ve already said, the Death Penalty punishes the the victim’s family and loved ones more than the victim. And not for nothing, but a prison sentence is reversible.

110

[QUOTE=Max Torque]
Sentenced? No. No system is perfect. However, I’m saying there are many many checks on the system to ensure that an innocent person is not executed, and I have yet to find one. Point to one innocent person who has been executed since the US reinstated the death penalty in 1976. Just one.

[/QUOTE]

Just a few questions based on your prosecutorial experience:

Is it easier or harder, in general, to determine guilt or innocence of a living person or of a corpse?

Is it easier or harder, in general, to prove guilt or innocense the further removed from the date of a crime we are?

If resources are limited, would you expect defense attorneys and legal groups to spend those resources on preventing innocent people from being executed, or on investigations into past executions?

How likely is a prosecutor’s office to be helpful to an investigation into the circumstances surrounding the execution of a person who is colorably innocent? Do they have a legal responsibility to turn over exculpatory evidence discovered after that person’s death?

111

[QUOTE=villa]
But serving a few years while innocent, and then being released when pardoned is (probably) less of an injustice than being killed.
[/QUOTE]

Unfortunately, that is not what he said - he said that being executed is not punishment.

On preview, I see that he has changed his tune. Good enough.

That’s an interesting point. It argues against the idea that we can save money on appeals if we eliminate the DP.

If we eliminate the DP, we must redouble our efforts to free the innocent, since serving life when innocent is worse than being executed when innocent. Therefore appeals must be even more prolonged for life sentence than for death (since we are morally obligated to eliminate injustice when we can).

But if we can’t impose the DP for fear of committing an injustice by executing an innocent, we can’t take the risk of imposing a greater injustice by sending someone to prison for life either. Just as there is a very remote possibility that we might execute an innocent and find out about it after he is dead, there is also a possibility that we might let someone die in prison of natural causes and only find out after the fact that he was innocent.

So life in prison without parole is not a morally acceptable option.

Regards,
Shodan

112

[QUOTE=Shodan]

But if we can’t impose the DP for fear of committing an injustice by executing an innocent, we can’t take the risk of imposing a greater injustice by sending someone to prison for life either. Just as there is a very remote possibility that we might execute an innocent and find out about it after he is dead, there is also a possibility that we might let someone die in prison of natural causes and only find out after the fact that he was innocent.

So life in prison without parole is not a morally acceptable option.

[/QUOTE]

Once again, the difference which you are not seeing, or more likely are chosing to ignore, is that one is reversible, and the other isn’t. I have far fewer qualms about LWOP, even though I view it as a worse punishment than execution, provided the doors for appeal are open. It’s not all about costs - everyone accepts capital punishment could be cheaper than LWOP, even though it isn’t (from what I have seen) at the moment. The reason it could be is that we could eliminate all appeals and execute with a rusty knife on the day of the trial. Or we could even do away with the trial itself, if we really wanted to reduce costs.

But appeals are part of our justice system, and rightly so. What LWOP does is allows those appeals to be meaningful, in a way they can’t be for a corpse (which probably does not have standing to appeal anyway).

113

[QUOTE=Max Torque]
Your statement was, “we know for a fact that many of them are not”, which I took to mean that there are factually innocent people currently on death row. What you’ve linked to there is just evidence that the system works the way it should: people who have a legitimate claim of wrongful conviction who have been freed.
[/quote]
I’d argue that at least one of the names on that list was freed in spite of the system rather than because of it working correctly: Anthony Porter. Porter came within 48 hours of execution at one point, but received a stay based on an appeal from his attorneys that he had only a 51 IQ and could not understand his punishment. During that stay, an investigation by six undergrad journalism students found evidence of Porter’s innocence and secured a videotaped confession from the real killer, who is now serving a 37 year sentence. If Anthony Porter had a higher IQ, he’d be dead now. Relying on investigation by undergrad journalism students shouldn’t be part of the process. You said earlier that you can’t imagine how things could go so wrong in your life so as for you end up on death row, and as an educated professional you’re probably right, but things can go plenty wrong for a borderline mentally retarded homeless man.

We’ll never know for sure, but there are a few eyebrow raisers, like Ruben Cantu. A decade after Cantu’s execution, the sole testifying eyewitness came forward to recant his testimony, saying he’d been pressured by police to identify Cantu while hospitalized for his gunshot wounds. Similarly, Ernest Willis was freed and exonerated after the arson investigation methods used to convict him were scientifically disproven, but the those same methods were used to convict Cameron Willingham, who was executed in 2004.

You cited some horrific crimes earlier in support of your argument that some crimes merit the death penalty, and actually, I agree with you on that point: some crimes do merit death as a punishment. The kicker, though, is that I feel that that’s conflating two arguments that should be rigidly scrutinized on their own merits, the second argument being whether we have adequate checks in place to determine that no factually innocent person is executed despite the system. That’s the part I have doubts about.

114

[QUOTE=villa]
Just a few questions based on your prosecutorial experience:

Is it easier or harder, in general, to determine guilt or innocence of a living person or of a corpse?
[/quote]

Having never prosecuted a corpse, I couldn’t say. Thinking in the very broad abstract, however, it would honestly make little difference. A defendant is not required to take the witness stand in any case, and in most trials I’ve had, the defendant did not in fact take the stand; defense attorneys, again in my experience, advise their clients against it, since there’s little to gain and much to lose. So, since it’s not common for the court to hear from the defendant during trial anyway, I can’t see that there’d be much difference if the defendant were dead, apart from the fact that he’d be unable to intimidate or threaten witnesses, and character witnesses could say what a fine gentleman he was without him being around to prove them wrong.

As time goes by, evidence goes stale, memories get fuzzier, and people move away or get transferred. So, the sooner the better. Which, incidentally, puzzles me about some of these johnny-come-lately exonerations. So, 20 years later, the star witness isn’t sure that Willie The Hatchet is the killer anymore. What, we’re supposed to believe that the witness’s memory today is so much better than back when they originally held the trial? That’s just cherry-picking the stuff you want to support your argument.

Dead people don’t pay bills, so I’d expect defense attorneys to make their best effort to get it right the first time. However, here’s the unfortunate truth from the prosecution side: it’s an adversarial process. The State, at least through a prosecutor’s office, won’t fund inquiries into the potential innocence of people who have been convicted. Were it to do so, the State would be representing that person’s interests, possibly even acting as that person’s legal representative. And the criminal laws do not permit prosecutors to do work on behalf of criminal defendants. That’s as it should be; each side in the adversarial process is responsible for taking care of their side of things. As a result, it’s up to the defense to make those inquiries. As long as someone is either paying the bills or willing to work for free, they can keep on investigating.

“It shall be the primary duty of all prosecuting attorneys, not to convict, but to see that justice is done.” That’s in article 2.01 of the Texas Code of Criminal Procedure. I don’t know of any rules that require disclosure of evidence discovered after the person is dead, because the defendant’s death closes the case and there are no more criminal proceedings to be had. That being said, you could make a compelling argument that justice requires disclosure of exculpatory evidence, even after a person is dead. I doubt there’s any caselaw on it, but I could poke around.

Many of you seem to have this idea that prosecutors want to see everyone possible get executed. We don’t. I’d hate to convict an innocent person; it would haunt me forever. And if that person were to be executed, well, that’s just plain evil. I’ve never had a capital case, but if I did, I’d want to be absolutely sure in my mind that the person deserved the death penalty before I went forward with it. On the other hand, I do work with victims quite a bit, and I know what impact a violent offender can make on their lives. In those cases, being the good guy is what makes the job worthwhile.

I’m in a little prosecuting office. There’s just me and the elected official, two lawyers prosecuting for the whole county. We don’t get extra money for putting more people in jail. We don’t get bonuses for dishing out longer sentences. I don’t like putting people in jail if there’s any alternative; a person in jail can’t work and support his family. But sometimes, there is no alternative. And in the very worst cases, in my opinion, the needle is the right way to go.

115

[QUOTE=Max Torque]
Having never prosecuted a corpse, I couldn’t say. Thinking in the very broad abstract, however, it would honestly make little difference. A defendant is not required to take the witness stand in any case, and in most trials I’ve had, the defendant did not in fact take the stand; defense attorneys, again in my experience, advise their clients against it, since there’s little to gain and much to lose. So, since it’s not common for the court to hear from the defendant during trial anyway, I can’t see that there’d be much difference if the defendant were dead, apart from the fact that he’d be unable to intimidate or threaten witnesses, and character witnesses could say what a fine gentleman he was without him being around to prove them wrong.
[/QUOTE]

I’d certainly find it easier to defend someone who could assist in their own defense. But I am sure that is outweighed by the fact that all defendants intimidate and threaten witnesses. But it could also be a reason why people aren’t exonerated after execution.

[QUOTE=Max Torque]
As time goes by, evidence goes stale, memories get fuzzier, and people move away or get transferred. So, the sooner the better. Which, incidentally, puzzles me about some of these johnny-come-lately exonerations. So, 20 years later, the star witness isn’t sure that Willie The Hatchet is the killer anymore. What, we’re supposed to believe that the witness’s memory today is so much better than back when they originally held the trial? That’s just cherry-picking the stuff you want to support your argument.
[/QUOTE]

Witnesses who were threatened by police, or dare I say it prosecutors, not that they would ever do that of course, may be more willing to come forward as time goes on.

But generally, I agree - it is harder to put a case together as time goes forward. Yet another possible reason why people aren’t exonerated after being executed.

[QUOTE=Max Torque]
Dead people don’t pay bills, so I’d expect defense attorneys to make their best effort to get it right the first time. However, here’s the unfortunate truth from the prosecution side: it’s an adversarial process. The State, at least through a prosecutor’s office, won’t fund inquiries into the potential innocence of people who have been convicted. Were it to do so, the State would be representing that person’s interests, possibly even acting as that person’s legal representative. And the criminal laws do not permit prosecutors to do work on behalf of criminal defendants. That’s as it should be; each side in the adversarial process is responsible for taking care of their side of things. As a result, it’s up to the defense to make those inquiries. As long as someone is either paying the bills or willing to work for free, they can keep on investigating.
[/QUOTE]

So you agree there is significantly less incentive to try to prove the innocence of a corpse? Another reason why people aren’t exonerated after execution.

[QUOTE=Max Torque]
“It shall be the primary duty of all prosecuting attorneys, not to convict, but to see that justice is done.” That’s in article 2.01 of the Texas Code of Criminal Procedure. I don’t know of any rules that require disclosure of evidence discovered after the person is dead, because the defendant’s death closes the case and there are no more criminal proceedings to be had. That being said, you could make a compelling argument that justice requires disclosure of exculpatory evidence, even after a person is dead. I doubt there’s any caselaw on it, but I could poke around.
[/QUOTE]

No, I doubt there is either. I also suspect that there is no requirement to exonerate the dead, and that most prosecutors would feel no compunction to make exonerating evidence available in that situation - after all, who would it help. You would still have helped kill an innocent. It’s enough trouble trying to get the state to live up to its moral and ethical responsibilities when the prisoner is still alive…

[QUOTE=Max Torque]
Many of you seem to have this idea that prosecutors want to see everyone possible get executed. We don’t. I’d hate to convict an innocent person; it would haunt me forever. And if that person were to be executed, well, that’s just plain evil. I’ve never had a capital case, but if I did, I’d want to be absolutely sure in my mind that the person deserved the death penalty before I went forward with it. On the other hand, I do work with victims quite a bit, and I know what impact a violent offender can make on their lives. In those cases, being the good guy is what makes the job worthwhile.
[/QUOTE]

I’d wager that significant numbers of the miscarriages of justice occur as a result of either prosecutorial or police misconduct. I’m sure I have as much of a cite for that as you have for your previously allegations towards defense attorneys. And the fact that you think of yourself as “the good guy” presumably as opposed to the defense attorney says something to me.

[QUOTE=Max Torque]
I’m in a little prosecuting office. There’s just me and the elected official, two lawyers prosecuting for the whole county. We don’t get extra money for putting more people in jail. We don’t get bonuses for dishing out longer sentences. I don’t like putting people in jail if there’s any alternative; a person in jail can’t work and support his family. But sometimes, there is no alternative. And in the very worst cases, in my opinion, the needle is the right way to go.
[/QUOTE]

I am sure the elected official is not more likely to be re-elected if he has a better clean up rate, or a better conviction rate. Losing or not solving high profile cases isn’t likely to be bad for his career?

I generally respect most prosecutors I have come across. But to pretend you are all knights in shining armor pushes it a little far.

116

[QUOTE=villa]
Once again, the difference which you are not seeing, or more likely are chosing to ignore, is that one is reversible, and the other isn’t.
[/quote]
Oh, I understand that completely. And far from ignoring it, it is necessary to the argument that one option has a definite end and the other does not. I am simply bringing the necessary consequences to your attention.

The argument being made is that appeals must continue for as long as any (even unreasonable) doubt exists, which means essentially forever. Therefore, LWOP would be more expensive than the DP, because appeals should continue for longer (on average) than for those actually executed. And therefore the argument that we could save money by not instituting the DP is bogus.

I am not arguing that we should not have any appeals. What I believe we agree on is that those appeals should and would be more extensive if we eliminated the DP in favor of LWOP.

No, but it is a factor that usually gets mentioned.

That’s the fallacy of the excluded middle, as I am sure you would agree. We could equally well disallow any appeals for those sentenced to LWOP and thus eliminate the necessarily greater costs of using that.

And the reason that the costs are necessarily greater is because if you assert that innocent LWOP is worse that innocent execution, then we have a greater moral duty to prevent the former than the latter.

Or we could take a reasonable approach to the situation, and impose the DP after a reasonable number of appeals. Thus we save money, and avoid the greater moral evil of LWOP for the innocent.

Regards,
Shodan

117

Sighs. Cost was not initially an argument against the death penalty. It evolved that way because people kept putting forward the argument that we should not have to pay for murderers to live the Life of Riley in our luxurious prisons. As a result it was pointed out that, as currently instituted, the death penalty is more expensive than LWOP.

No one has made the argument that appeals should continue even if there is unreasonable doubt. You’ve made that up.

There is also no reason to believe appeals would be more extensive with LWOP. They might be, or they might not be. It depends on the legal structure. Personally I would liberalize the appeals process to a degree; others might differ.

The bottom line difference is that as long as ongoing appeals are allowed, there exists the possibility that a person wrongly committed can be released. Such a possibility does not exist when that person has been executed. It’s not the sole argument for LWOP as opposed to capital punishment, or even the strongest IMHO, but it is there.

118

[QUOTE=villa]
I’d certainly find it easier to defend someone who could assist in their own defense. But I am sure that is outweighed by the fact that all defendants intimidate and threaten witnesses. But it could also be a reason why people aren’t exonerated after execution.
[/quote]

I found it humorous that this sarcastic comment was followed immediately by:

Because, of course, all police officers and prosecutors threaten witnesses. What color is the sky on this planet, where all state agents are petty thugs and all defendants are paragons of virtue?

The simplest and most obvious explanation for why people aren’t exonerated after execution, of course, being that the sons of bitches are guilty. Occam’s razor, and all that.

Ah, this is a powerful argument. Prosecutors wouldn’t reveal exculpatory evidence, because, well, they’re just mean is why. I’m guessing you’re one of those defense attorneys who goes to NACDL seminars and gets a good chuckle every time a presenter says “persecutor” instead of “prosecutor”, right? I went to those seminars, before I was a prosecutor. It was at local defense attorney meetings, by the way, where I first heard the “falling on one’s own sword” argument I mentioned upthread being discussed as a possible strategy. But, since I’m a prosecutor, I’m obviously lying.

All lawyers take the same oath when they become licensed. Prosecutors take an additional oath, to ensure that justice is done. Defense attorneys take no such oath. Both sides are there to ensure the integrity of the system, but do you honestly believe that defense attorneys have the interests of crime victims at heart?

Regarding the earlier allegation of ineffective assistance: not that it’ll do any good, since apparently all prosecutors are liars, but here are some old threads on the message board of the Texas District and County Attorneys Association (TDCAA) discussing the problem of defense attorneys using the “ineffective assistance of counsel” strategy to give their clients grounds to appeal: Falling on your own sword (2005), Reporting ineffective assistance (2002), Give Me Death (2003). The law that prohibits defense attorneys from trying capital cases if they have been previously found ineffective in a capital case was passed in 2005, and it can be found in Section 13 here. It met some criticism, since the available pool of defense attorneys qualified to try capital cases was small to begin with and the law would make it smaller, but it was passed to address a recent problem that needed correction. Sorry if that ruffles your criminal defense feathers.

Conviction rates for prosecutors, in general, are high. That is because the overwhelming majority of criminal cases filed result in a guilty plea. Cases that go to trial, from the perspective of the State, are very often losers. If the person’s guilt were plain he would have accepted a plea bargain and pled guilty in the first place; if he were clearly innocent, it would have been dismissed or otherwise dealt with. The cases that go to trial are in the murky middle, and because the State’s burden is so high, it’s impossible to win every case, or even nearly every case. Unlike defense attorneys, we don’t get to select the cases we’re given, and as the saying goes, you can’t polish a turd. Astronomical conviction rates by assistant DAs only exist in movies and television. Note that I said “assistant”; I have no doubt that there are a few vain DAs out there who pawn the loser cases off on their underlings and keep the winnable cases for themselves. Still, in my experience it’s unavoidable that most cases that go to trial will be lost by the State.

I never said “knights in shining armor”. But I do sleep well at night.

119

I’m going to try to take a step back, because I think I wrote the last post a little bit angry…

My comment regarding defendants intimidating witnesses was one born of amazement. When I asked if you thought it would be easier or harder to determine guilt or innocence of a corpse or a living person, it seemed the only difference you could come up with was a corpse not being able to intimidate. As opposed to the fact that a living person might have some relevant information as to the offense… Similarly, I don’t think all police officers or all prosecuters threaten witnesses; I do think it happens way too often, and the use of jailhouse snitches has gotten out of hand. Threats don’t have to be physical, of course, and pretty much the entire basis behind a plea bargain is that of a threat.

The simplest reason people are not exonerated after death is that no one tries to exonerate them in the overwhelming majority of cases. To suggest that not a single person has been executed while innocent (of the crime for which they were sentenced to death), while multiple people are exonerated at times up to the last minute before execution would be to fly in the face of Occham’s Razor as far as I can work out. In the individual situation, the most likely answer is that the person was guilty. As you repeat the game, however, that small chance of innocence gets bigger.

I don’t think prosecutors hide exculpatory evidence because they are mean. I think it happens for multiple reasons. Sometimes, before conviction, it is out of a belief the person is guilty, and a desire not to muddy the waters. After a person was convicted, it becomes even easier. After all, what good is releasing the evidence going to do. It won’t bring the person back to life, and I imagine admitting to oneself that one was involved in killing an innocent person would be very difficult to come to terms with. It also would not be good for future prosecutions, and, for a prosecutor who is a firm believer in the death penalty, it would be likely to lead to stronger calls for an end to the death penalty.

I am sorry - I don’t buy three message board links from an association of prosecutors as evidence here. Especially because I initially said that the claim of clarge numbers of defense attorneys accusing themselves of malpractice is one which I have only heard from hang 'em and flog’em prosecutors.

I’m not (predominately) a defense attorney. I have worked with the PD in the past, and they had a very good relationship with the prosecutors as a whole. There were some issues, but generally speaking that prosecutor office did not use the death penalty as a tool to try to extort pleas, which is a good thing IMHO.

I overreacted to the idea, in particular, that the prosecutors are the “good guys” and the implication I got (possibly falsely) that the defense attorneys were on the side of the bad guys. As I said, I generally respect most prosecutors I have met, and I find them to be honest and ethical. I also unfortunately know of people who have become prosecutors who I don’t think should have been given the authority to supervise detention at grade school.

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You are correct, it is not at all common for people to even attempt to prove that someone was factually innocent of a crime for which they were executed, due to limited resources. Many people not in the legal profession seem to feel that the state should do all it can to exonerate people. What they don’t realize is, it’s an adversarial process, which means each side is duty-bound and rule-bound to advocate solely its own position. If a prosecuting office were to actively attempt to prove that someone was not guilty, that office would be acting as that person’s advocate, and the rules do not allow that. I have to tell people all the time, “I can’t do that for you, because then I’d be acting as your attorney, and I’m not allowed to represent you.” Then I’ll steer them toward the other attorneys in town (there are only four, so as you can imagine we all know each other pretty well).

Of course, there’s a fine line to walk there; if our investigations uncover exculpatory evidence, we’re required to turn it over to the defense and not conceal it, and I have no problem with that. We have an “open file” policy here. But we can’t ourselves present that evidence to the court on the defendant’s behalf to prove his innocence.

As I indicated earlier, I was on the defense side of the table for a while, and of course as a prosecutor I meet and work with (and am friends with) loads of defense attorneys. I’ve never considered defense attorneys “bad guys,” so I’m sorry if that’s the impression you got. In general, their clients aren’t “bad guys” either; I’ve said elsewhere on this board that one of the things I’ve learned in this job is that the overwhelming majority of defendants I see are regular folks who just made a really bad choice. Those are the ones that’ll make it all the way through probation without a single black mark. That being said, there are some really bad folks out there. When a defense attorney represents one of those people, in most situations I recognize that they’re not “taking his side” so much as defending the integrity of the system and ensuring that we prosecutors do everything correctly. Again, there are a few defense attorneys who see it as “gamesmanship” and want to win for the sake of winning; that rubs me the wrong way. Anyway, the “good guy” thing is something I picked up from the DA in another nearby county, who frequently refers to his job as “wearing the white hat.” I like that, and I agree with him that it’s a profession to be proud of.

As far as the death penalty goes: since I’ve been in this office, there has been only one attempted murder case in the county, a small handful of attempted vehicular homicide cases that were pled down, and no murders. We’ve been fortunate. So, I’ve never been on a capital case. If the facts were there, I’m sure my boss, the elected official, would pursue it, but I’ve never known him to use higher penalties as plea bargaining leverage, and I follow his example. The opening offer will be a fair one.

All of that being said, I still believe that the death penalty is not morally unsound, and I believe that, with the state of technology and the legal safeguards in place, the chance of a factually innocent person being actually executed is minuscule at best, and therefore not a justifiable reason to halt all executions. I suppose we can go on to argue about whether the social benefits outweigh the costs, if y’all would like…