Tuesday, January 03, 2006

US Supremes to re-confirm - Execution of the Innocent OK?

As I noted in a post a few weeks ago related to Tookie Williams, I am ambivalent about the death penalty, in large part due to its application. More than a decade ago, the US Supreme Court held that actual innocence does not make the death penalty a violation of the constitution (in a Texas case, fathom that). Ruben Cantu was executed in that case despite serious doubts that he had committed the offense. Don't worry, his co-defendant, who got life, has spoken out plenty about how he and another person really did the murder (read about it here), so we can be assured that while justice has not been done, at least the constitution has not been violated.

So now we have a newer case, with somewhat similar issues. Here, Paul G. House was convicted back in the 80s, and using the (now laughable) technology they had back then, the prosecution was able to determine that the he was in a small part of the population who could've left the semen on the victim's clothes, which was evidence that he raped her, which gave him an intent to do the murder.

Problem, using newer technology of late, it has been shown that the semen doesn't match the suspect's DNA, but it does match her husbands, who was an original suspect and who had been seen beating her in the past.

A bunch of other pieces of the prosecution puzzle have slowly melted away through either new technology or new information, and in the latest appeal, the court of appeals split 8-6-1. 8 said something to the effect of "sure, he may be innocent, but we have to respect the verdict of the jury, so let's kill him." 6 said not only is this conviction invalid, but the dude's actually innocent, and he should be released immediately." 1 person said "well, he may be innocent, but at least the prosecution should have to retry him and see if they can convict him with this new information." In other words, a hung jury. Usually, that means the defendant does not die. Not in this case.

I'm sure my readers from the right and left won't be surprised to note that the 8 votes came from Republican appointed judges, and the 7 came from Democratic appointed judges. Someone like me would probably argue that this shows that Republicans don't really care about who they kill as long as they get to kill someone, somehow - killing is good, let God sort them out. Of course, someone on the other side would probably argue that this just shows that Democrats don't think that anyone should ever be convicted, much less killed, when they do evil, and they will stretch facts and law to do anything they can to let bloodthirsty murderers back on the street.

Seriously, though, this case will be an interesting one to watch in the Supreme Court, especially with the new Chief Justice and the spector of a Alito's replacement of O'Conner. It would seem that the Supreme Court would, if they had serious doubts about the case, try to find any technical reason to grant the defendant a new trial, but they are restrained by prior precedent and laws such as the 1996 law that severely restricts the scope of federal review of death penalty verdicts. In 1993 in Cantu, the Supreme Court already wrote that actual innocence is not a constitutional bar to execution, the 1996 law says that the case cannot be relitigated in federal courts. The defendant in this case has already had his opportunity to present new evidence in support of his innocence (he had something like 180 days after his conviction, meaning, several years before the new technology appeared that crumbled the main pillars of the prosecution case).

Here's my thoughts on why there is such a desire in cases like this to ensure that there is no reopening of the cases and to execute the person, quickly and quietly, in spite of serious evidence pointing to his innocence (and why, after someone has been executed, the state, such as Virginia in the case of Roger Keith Coleman, who it executed in 1992, has done everything possible to prevent a showing of a miscarriage of justice even after the execution takes place). (UPDATE - I just found an article from today about this case in Virginia here on CNN, and apparently the state and prosecution are no longer opposed to the retesting. I have a clear recollection of prosecutorial opposition to it in the past, so either I'm wrong, or their position has changed.)

I think that prosecutors nationwide realize the shakiness of many of the cases that they bring. Think about it, over 100 death penalty cases have been reversed due to DNA technology alone. In most of those cases, when they were brought, the cases were not scientific evidence cases, they were eyewitness cases, or circumstantial evidence cases, or confession cases. In other words, they were cases in which potentially faulty evidence was the only evidence possible to sustain the conviction. In those cases, the prosecution probably pooh-poohed defense contentions that the evidence was faulty, and urged the jury to find the defendant guilty despite whatever misgivings they may have about certain aspects of the evidence. The jury probably convicted despite weak evidence due to appeals to racism, or hatred of the defendant's past, or because police urged them to do so by claiming (in many cases - falsely) that the defendant confessed, or through emotional appeals of a victim or other eyewitness who was sure (again, incorrectly) that the defendant was the one who did the crime. In other words, in those cases that were reversed over the last few years in which the defendant was absolutely innocent (as opposed to merely not guilty), the case was like just about any other case, only in this one, years later they found the proverbial smoking gun that proved the defendant was innocent.

Prosecutors worry about what those cases say about every other run of the mill case they get, and, more importantly, if these cases get too much attention, what they say about their ability to convince juries that these other run of the mill cases are not actually like the cases in which defendants were later found to be innocent. I have seen prosecutors struggle with the so-called "CSI effect," which means that they are worried that juries will watch that show and think that this is the standard they need to have a case proven to them by - absolute scientific proof, rather than relying on the words of eyewitnesses or police officers, which are the bread and butter of any prosecutor's office. They now pick juries asking them if they watch CSI, and whether potential jurors understand that they don't have to prove their case "beyond all doubt, only beyond a reasonable doubt" (emphasis mine, and sometimes their's).

This became apparent when the juries in the Michael Jackson and, even more so, the Robert Blake trials came back with verdicts of not guilty, and rejected prosecution witnesses outright without corroboration, or rejected circumstantial scenarios that they presented without some scientific corroboration. In other words, jurors thought about these people walking out of the death chamber innocent of the charges and said "you had better give me more proof than that." Prosecutors do not want this can of worms to extend to the appeals courts. They realize that quite a few convictions they get depend on possibly shaky testimony, and could've gone either way (and certainly, plenty of guilty people are acquitted due to the prosecution having only shaky testimony against the defendant where the defense succesfully argues that the witnesses shouldn't be believed). The last thing they need is any more light shed on those convictions that they do get under those scenarios, or any possibility that the number of those convictions declines to any extent.


Anonymous said...


Dennis R. Wilkins said...

The case you mentioned, Herrera v. Collins (1993) 506 U.S. 390, is a very interesting read. Sometimes it is the dissent which speaks the clearest:

"Without articulating the standard it is applying [to decide whether a person has shown that he is actually innocent], however, the Court then decides that this petitioner has not made a sufficiently persuasive case." Dissent, P. 430.

The most fun quote is from Scalia's concurrence, joined by Thomas: "We granted certiorari on the question whether it violates due process or constitutes cruel and unusual punishment for a state to execute a person who, having been convicted of murder after a full and fair trial, later alleges that newly discovered evidence shows him to be 'actually innocent.' I would have preferred to decide that question, particularly since, as the Court's discussion shows, it is perfectly clear what the answer is: There is no basis in text, tradition, or even in contemporary practice (if that were enough) for finding*428 in the Constitution a right to demand judicial consideration of newly discovered evidence of innocence brought forward after conviction. . . . With any luck, we shall avoid ever having to face this embarrassing question again, since it is improbable that evidence of innocence as convincing as today's opinion requires would fail to produce an executive pardon." P. 427-428.

Cold-hearted bastards, those two.

I would point out that the U.S. Supreme Court, and other courts as well, aren't very good at actual innocence claims, and don't like being questioned. Here's a good example:

In Arizona v. Youngblood (1988) 488 U.S. 51, Larry Youngblood got his case all the way to the U.S. Supreme Court. He had been convicted of rape, but the cops had improperly stored the semen that had been found. Thus, poor Larry couldn't prove his innocence because of the incompetence (very strategic incompetence, mind you) of the cops. The U.S. Supremes stepped in with a crummy decision joined by 5 members that said, basically, hey, too bad Larry, the cops can't be expected to save stuff, and if they destroy it you'll only get relief if you show the evidence was destroyed in bad faith. The majority was wrong, of course, but that's what they held. And at least they were honest - they didn't believe Larry, but even if he were innocent, such a rule would be too burdensome to apply. But Justice Stevens concurred, and basically took his moment to say that maybe forclosing such claims is a bad idea, but poor Larry is obviously guilty. Here's a quote from Steven's concurring opinion: ". . . although it is not possible to know whether the lost evidence would have revealed any relevant information, it is unlikely that the defendant was prejudiced by the State's omission. . . ." P. 59.

Well, fate wasn't through with good ole' Larry. In 1999 Larry Youngblood got in trouble for not registering as a sex offender, and Larry took that time to demand that the semen be analyzed with new DNA technology. And wonder of wonders, the Pima County prosecutor's office admitted that, after testing, Larry had been wrongly convicted. They apologized, and said they were acting in good faith, etc., etc.

Fast forward to 2004, and a U.S. Supreme Court case called Illinois v. Fisher (2004)540 U.S. 544. In that case the defendant in 1989 was arrested for possession of cocaine and he bailed out. His attorney promptly demanded that the drugs be preserved for testing. Then Mr. Fisher disappears for a good 10 years, only to reappear in 1999. Immediately his attorney demands dismissal because the state "knew" that the cocaine should have been preserved. Of course the U.S. Supremes disagree. But instead of talking about "waiver" or something more appropriate (10 years on the lamb is a bad fact, any way you put it), the U.S. Supremes used the case to clarify that just because a defendant asks for evidence, and then the evidence is destroyed, then this is not automatically a showing of bad faith (something that I have been able to do in one prior case).

The best part about the case is Stevens' concurring opinion. Here's what he said:

"While I did not join the three Justices who dissented in Arizona v. Youngblood, 488 U.S. 51, 109 S.Ct. 333, 102 L.Ed.2d 281 (1988), I also declined to join the majority opinion because I was convinced then, and remain convinced today, that “there may well be cases in which the defendant is unable to prove that the State acted in bad faith but in which the loss or destruction of evidence is nonetheless so critical to the defense as to make a criminal trial fundamentally unfair.” Id., at 61, 109 S.Ct. 333 (STEVENS, J., concurring in judgment).FN* This, like Youngblood, is not such a case." P. 549.

To clarify: Justice Stevens didn't think it violated due process for the government to destroy evidence that would have exonerated Larry Youngblood. And, even after Larry Youngblood was proven to be innocent, and that he got shafted by that rule, and that justice got thwarted by that rule, it is nonetheless still okay to allow the government to destroy such evidence, despite the fact that the defendant could be exonerated by it.

Poor Larry. Poor justice system.

Anonymous said...

I'm so glad someone (you) is actually "telling it like it is." I am a lay person who, like most Americans, has been fed the line "It isn't perfect, but we have the best criminal justice system in the world." That's just hogwash. I studied the discovery and then watched two jury trials related to that discovery. Prosecutors and cops lie and cheat to get their convictions and unless you can afford an OJ type defense team, you can't beat the "conviction system." I told and showed our defense attorney how the prosecution was lying and cheating, but he did nothing about it at trial. Now my son is in prison and I'm afraid to do anyting about the misconduct because I understand just how powerful prosecutors are.

Anonymous said...

In the case of Blake, the CSI effect was an excuse. The reporters who wrote these articles failed to mention that the Blake case was “the most extensive in LAPD history,” according to the then Chief of Police Bernard Parks. It was also the most expensive. The State used resources at the FBI, tested his clothes three times at different labs, sent oil samples from the gun to two labs across the country, and spent three years running tests on the car, including super-gluing the entire car and body-scanning the hood. They turned up no evidence and the prosecution filed a motion to suppress this at trial, which the defense opposed. The judge consented to allowing it to be stipulated, but the defense was not allowed to call witnesses regarding the state’s lack of findings. Fortunately, the criminal trial jurors found Blake not guilty of the charges. They spent nine days and filled a roomful of whiteboards with information to draw their conclusions – yes, something you might see on CSI.

Also, I attended Blake's trial. The criminal trial jury did not believe the witnesses that supposedly were solicited by Blake. They were so incredulous and full of holes that six-year-olds could have made up better stories. The prosecution showed the jury no corroborating evidence that these solicitations were any more than ramblings from methamphetamine addicts who were coerced into making up stories. In fact relatives of one of these witnesses testified to what the Blake meetings with the solicitee were about and how delusional and suggestive that witness could be.

The fact of the matter is that the State spent millions on this case and they couldn't admit they were wrong. And the press never questioned it.