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November 29, 2007

Inequities and uncertainties in federal death penalty

As we move into the third month of the Baze-ian moratorium on executions created by the Supreme Court, I continue to wonder how a halt in execution might be impacting the day-to-day administration of the death penalty.  This AP piece from West Virginia notes that Baze "has prompted a federal judge to postpone sentencing two Mingo County residents who face the death penalty for murdering a drug informant."  This local piece discussing the same case also details interesting defense arguments that are being raised.  Here are snippets:

Two Mingo County residents unfairly face execution for murdering a federal drug informant in 2005 because the victim was a white woman, their lawyers said in federal court Wednesday. Earlier this year, George M. “Porgy” Lecco, 58, and Valerie Friend, 45, were convicted of murdering Carla Collins because she gave a federal drug task force information about a cocaine ring operating out of Lecco’s pizzeria in Red Jacket.  Jurors sentenced the pair to death, which is possible in federal court even in states like West Virginia that do not have capital punishment.

Kevin McNally, one of Friend’s lawyers, said Wednesday he had recently completed an analysis of more than 1,000 federal death penalty cases. Only 10 percent of the victims were white women, he said. When those cases go to a jury, half of them result in a death sentence, he said. The unfair application of the death penalty depending on the race and sex of the victim makes it unconstitutional, he argued. “If Congress passed a law that killers of white females should [overwhelmingly] receive the death penalty, you would strike that down in a heartbeat,” McNally told U.S. District Judge John T. Copenhaver Jr. “Essentially, that’s what’s happening.”

McNally, a member of the anti-capital punishment Federal Death Penalty Resource Project, asked the judge to postpone Lecco and Friend’s formal sentencing until he can file a written brief describing his findings.  He said it was “irrational” for American juries to recommend execution for Friend, a middle-aged mother of five with little or no criminal history, when multiple murderers, terrorists, and gang members who killed again while in prison are given life sentences. “I use the word ‘insanity,’” he said.

Some related posts on the federal death penalty:

November 29, 2007 at 09:15 AM | Permalink

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One again, the view that death-eligible killers are entitled to cosmic fairness vis-a-vis the sentences meted out to other death-eligible killers is trotted out. Well, guess what, we have a sentencing scheme whereby killers get to throw themselves on the mercy of the decision makers, usually a jury, which usually can only mete death if the decision is unanimous. This scheme, which limits the total number of death sentences that are going to be given out, cannot help but result in different outcomes.

As for the white woman victim disparity, there could easily be non-racial or non-sexist reasons to explain that, for example, since women are less likely to be serious criminals, they, as a whole, are more sympathetic. In any event, courts have required defendants to show illegitimate bias in their cases to get their punishments overturned.

In any event, this discussion is pointless. Why? Because death-eligible murderers have no Constitutional right to complain about what happens in another case to another death-eligible murderer. In other words, a murderer is not entitled to the lenience given to another murderer. Nor is a murderer entitled to whine that, for whatever reason, juries, as a whole, find white women more sympathetic victims. He's got to prove that, in his case, there was impermissible bias.

And for McNally to call the infliction of capital punishment for the murder of an informant "insanity" just shows what a jerk he is.

Posted by: federalist | Nov 29, 2007 10:32:31 AM

Doug,

Having debated the death penalty issue here and there, I was interested in this piece.

First, I must respectfully take issue with your reference to the "day-to-day administration of the death penalty" by the federal government. There is no such thing. The federal government has executed six people over the last 50 years. That would not seem to qualify as the "day-to-day" administration of anything.

Second, I question Mr. McNally's analysis of the case. To say that Hawaii is one of the twelve states that do not have the death penalty is correct; to imply that a majority of Hawaiians oppose capital punishment no matter what the circumstances is almost certainly incorrect, and at best undocumented. An impartial jury of 12 Hawaiians, which Mr. McNally had no little influence in choosing, unanimously concluded that death was warranted here. Why is a defense lawyer (or any other lawyer) better suited to speak for the conscience of Hawaiian citizens than the jury?

Defense counsel also seems to be wide of the mark in arguing that, because only five white women were victims in 1000 federal death penalty cases, there is "discrimination" in the system. Five out of 1000 is one-half of one percent, a paltry proportion by any standard. The usual anti-DP argument runs in exactly the opposite direction: That because a disproportionately LARGE number of murder victims in DP cases are white, THAT shows discrimination. Both propositions cannot simultaneously be true. (In fact neither is true, but that is a somewhat different and longer debate).

Mr. McNally also seems unaware of the hypocrisy of his argument: He says (according to the quoted article) that it's insane to sentence this defendant to death, while mutiple murderers, terrorists and gang members who killed again while in prison get off with prison sentences. The direct implication is that these latter defendants should have received the death penalty, or at the very least that they were more deserving of it. But of course defense counsel believes no such thing; his actual view is tnat NO ONE should get the death penalty.

This is similar to the argument made by DP opponents that we should abandon capital punishment because it costs too much -- never mentioning that the ballooning costs are something those self-same opponents have done their utmost to create, not the least by filing frequently meritless and occasionally frivolous appeals for 10 or 12 or 14 years after their client did his "work."

Thanks for your work in keeping this blog going.

Bill

Posted by: Bill Otis | Nov 29, 2007 10:57:56 AM

Of course Bill you noticed the case of Lynn DeJac yesterday - released after yet another DNA test revealed at least the unreliability of the murder conviction - after 13 years! DP opponents seldom cite one reason for abolition of the death penalty. It just happens to be one of the many compelling reasons.

Posted by: peter | Nov 29, 2007 12:47:16 PM

FYI, Bill Otis - Mingo County, West Virginia is a hell of a long way away from Hawaii. Also . . .

"But of course defense counsel believes no such thing; his actual view is that NO ONE should get the death penalty."

Actually, his personal view doesn't mean anything in proceedings like these. He's representing a client whose best interest is to not have the state put her to death. What's he supposed to say, "if the Government executes some really heinous people, I'll withdraw my objections"?

Posted by: JDB | Nov 29, 2007 1:32:36 PM

I think the whole "the death penalty is racist" thing is disingenuous. I'm against the DP, but it's not directly racist. Because rich people have an advantage in our criminal justice system necessarily means poor people (who are more often minorities) are at a disadvantage. There may be a disparate impact on blacks and other minorities, but that's due to financial disparity, not racist intent.

While I've seen stats and numbers regarding minority defendants and the death penalty, I've never seen stats regarding the race of the victim and the death penalty.

“If Congress passed a law that killers of white females should [overwhelmingly] receive the death penalty, you would strike that down in a heartbeat,” McNally told U.S. District Judge John T. Copenhaver Jr. “Essentially, that’s what’s happening.”

Somehow I doubt that's essentially what's happening. Yeah it's a stereotype right out of To Kill a Mockingbird that a black man who kills a white woman is going to get the chair. But are there any actual stats on that? Is a black person who kills a white woman more likely to have the state seek the DP than a white person who kills a white woman? Maybe so, particularly in small counties in the South. But I've never seen numbers.

If there are numbers that show the race of the victim has an impact on the death penalty, that would be much better evidence of racism, because the disparate impact of money = better lawyer (as noted above) would be irrelevant.

Posted by: bruce | Nov 29, 2007 2:06:15 PM

"While I've seen stats and numbers regarding minority defendants and the death penalty, I've never seen stats regarding the race of the victim and the death penalty."

You apparently haven't looked very hard. The opponents have been making this claim since the 80s.

For those who look past the superficial stats, though, what happens is that the apparent "race of the victim bias" disappears once other legitimate factors are taken into account.

http://www.cjlf.org/deathpenalty/DPenaltyRace.pdf

Posted by: Kent Scheidegger | Nov 29, 2007 4:21:20 PM

Peter,

I had never heard of Lyn[ne] DeJac until reading your response. I just did a two-minute Google on the case. Apparently she will face re-trial, so there is no judicial finding of innocence, and the nature and result of the DNA testing is not discussed in the news story I saw.

But that is not the main point. The point is the abolitionist anthem that we are "executing the innocent."

If you know of any person that a neutral and responsible organization has found to to be innocent and who has been executed in the USA in the modern era (that is, in the 30-plus years since Gregg), please let me know who it is, which neutral organization (or court) says so, and on what factual basis. To my knowledge, the abolitionist lobby has never come up with such a person.

Well, actually, it did. His name was Roger Keith Colemman. He was loudly and indignantly proclaimed to be an innocent man, framed by a rural, Southern police force under political pressure to nail someone, innocent or guilty. He was hustled into the death chamber by an immoral prosecutor, abetted by a confused, what-me-worry jury. Years after the execution, it was a sure thing that the governor (Mark Warner, a pro-death penalty Democrat) would never allow DNA testing lest it show up his state, Virginia, for the morally indifferent (at best) jurisdiction that it was.

There was only one problem with this account of things. Every bit of it was false.

The governor allowed DNA testing, although he was under no court order requiring him to do so. The test proved, not that the police and the judge and the jury were moral cretins, as the abolitionists had claimed, but that Coleman was guilty, and his defenders had been putting up another "innocent-but-executed" campaign that was pure hokum.

So that "innocent-but-executed" story has now gone down the convenient memory hole. However, if you want to dispute my account of it, I shall respectfully listen.

Thank you for your interest in this compelling subject.

Bill

Posted by: Bill Otis | Nov 29, 2007 4:36:12 PM

JBD,

Mingo County is indeed a long way from Hawaii. My mistake. Thank you for the correction.

Having been a litigating lawyer for a long time, I am aware that counsel represents the client's interests, not his (counsel's) own views.

As to what the lawyer should say, how about the truth? The truth, in that instance, was that counsel thought no one should get the death penalty because it is, in his view, uniformly immoral. It is therefore disingenuous to attempt to draw distinctions that he doesn't really think are there.

My father, who wanted to be a lawyer but was too poor to afford law school -- but made enough to send me -- taught me that there is a word for saying things you don't believe. The word is "dishonesty."

Bill

Posted by: Bill Otis | Nov 29, 2007 4:54:29 PM

Bill, you don't have to make all of the arguments at your disposal. You make the ones that have a chance at working. Are you sure you're a "litigating lawyer?" What state do you practice in?

Posted by: | Nov 29, 2007 5:13:16 PM

JBD,

Well, yes, I'm pretty sure I was a litigating lawyer. I was an AUSA and Senior Litigation Counsel for the Eastern District of Virginia from 1981 to 1999. One way you can verify this, if you care to, is to look up my name on Fourth Circuit cases, of which I argued more than 100. A bunch of them are published, so I won't be hard to find.

In that time, I did not say stuff I did not believe was true. This is not because the canons of ethics require prosecutors to be honest. It is because morality requires human beings to be honest.

Do you disagree?

Bill

Posted by: Bill Otis | Nov 29, 2007 5:59:16 PM

Bill

The fact that she was never subject to the death penalty is only partially relevant. The point, as you will certainly recognize, is that she was convicted of murder. Her retrial will downgrade the charge to manslaughter, and apparently even if found guilty she would serve no further prison sentence having already been incarcerated for 13 years. There are other cases that have and are continuing to come to light, some included death row inmates, where DNA testing, not previously being either available, or not being made available of, or not being permitted (!), that have shown wrongful conviction - leading to release. I don't believe that you are unaware of them. In Texas, where I am most aware of the practice, DNA testing is being made for some inmates on the basis of donations from individuals and organisations, sometimes raised through charity events. The State is not prepared to fund them. There was the case a few days ago in Alabama where the State has refused DNA testing and the Supreme Court refused to intervene. There, only the intervention of the Governor to demand DNA testing can succeed apparently. The Governor in question is not noted for his generosity or charity and so his intervention is by no means certain. Even taking the position that the Death Penalty has some merit (which of course I don't), to deny a test that has become routine today for current crime, and is known to have revealed error in so many other cases, is sickening to all that hold human life as a respectful gift of God.
You write of Coleman. Yes, the DNA tests revealed that he was probably guilty. But how can you say that the authorities were therefore wrong in allowing the tests that were called for by supporters? That is surely the purpose of tests - to help determine guilt or innocence. It in no way makes other claims of innocence "pure hokum". Set against that result, there have been many more instances where DNA testing has proved innocence.
You know, and therefore in a sense it is a fruitless argument, that finality of proof that an innocent man or woman has been executed can never be determined after the event. But there is certainly a balance of probability, given the evidence that has been re-evaluated subsequently - which if determined at the time could perhaps have been supported by DNA evidence which wasn't then available or availed upon. It is enough that there is uncertainty. You know the names, you have read the in-depth reports in the Chicago, Dallas and Houston press just to refer to some. The Gallop polls of which you like to refer also state that a majority of people believe that an innocent man has in all probability been executed in the past. You also fail to acknowledge that when the question of punishment in capital cases pits the death penalty against LWOP, then there is a majority to LWOP. Most people are now ready to acknowledge that public safety is no longer a valid argument in favor of the death penalty.
Going back to Lynne DeJac, the DNA report implicated her boyfriend of the time. He cannot now be tried for the crime because prosecutors granted him immunity in exchange for his testimony before a grand jury and at Ms. DeJac’s trial. Some justice.
http://www.nytimes.com/2007/11/29/nyregion/29mother.html?_r=1&oref=slogin

Posted by: peter | Nov 30, 2007 4:30:08 AM

Bill - the unsigned comment challenging your bonafides wasn't from me (I've got no problem signing onto things here).

But I'm not sure why you think defense counsel is required to disclose broad policy positions that aren't particularly relevant to the discrete legal issues being discussed. I think the "war on drugs" is a hideous mistake and favor some kind of legalization. But I don't think when I go to Richmond to argue a Fourth Amendment issue in a crack case I have to finish up by saying, "of course, your honors, I think what Defendant was charged with shouldn't be a crime, so take all the rest I said with a grain of salt."

Feel free to disagree with the argument he was actually making (I'm not all that convinced myself - and I'm anti-death penalty!), but don't get bogged down on what he's not saying when it's not relevant.

Posted by: JDB | Nov 30, 2007 7:54:00 AM

Peter,

Thank you for your reply. I would make several points in response.

1. I asked whether you knew of any person that a neutral and responsible organization has found to to be innocent and who has been executed in the USA in the modern era (that is, in the 30-plus years since Gregg). You did not come up with any.

Instead, you state, "You know, and therefore in a sense it is a fruitless argument, that finality of proof that an innocent man or woman has been executed can never be determined after the event."

Actually I don't know that, and I have considerable doubt that it's true. Certainly it's inconsistent with the abolitionist argument in the Coleman case and others, which was that DNA testing should be undertaken PRECISELY BECAUSE it would clearly establish Coleman's "innocence" while pointing to the "real killer."

But for however that may be, it seems that the abolitionist forces want it both ways: They want to maintain (1) that in case X (Coleman's to use one recent example), DNA testing will show innocence, and thus that we have executed the wrong man; and (2) more in line with what you're saying, that definitive evidence of innocence cannot be had, but the public should assume anyway that an innocent person has been executed. This latter argument has always struck me as odd, since it seeks to transform the ABSENCE of evidence -- formerly regarded as a weakness -- into yet another source of indignation.

If abolitionists want to continue the refrain that, "We're executing the innocent!" it's beyond me why they should not assume the burden borne by every other advocate, namely, the burden of coming up with evidence that proves their point.

2. You continue, "You write of Coleman. Yes, the DNA tests revealed that he was probably guilty. But how can you say that the authorities were therefore wrong in allowing the tests that were called for by supporters?"

That's a good question. The answer is that I never said it. What I did say is that Coleman's BACKERS, of whom I certainly was not one, maintained that Governor Warner would never allow DNA testing, and this was not true.

3. You then say, "It is enough that there is uncertainty. You know the names, you have read the in-depth reports in the Chicago, Dallas and Houston press just to refer to some."

Actually I haven't read them. I comment here as a hobby, not a profession. But if I did read them, I would take them with the same large grain of salt that I take with all press accounts. At one point I read press accounts of documents showing that George Bush was AWOL for his Air National Guard training (execept that the documents were fake), and that Barak Obama went to a Muslim jihadist school (which was also fake). That something shows up in the press as "in depth reporting" does not persuade me, because I've seen too many instances in which even respectable papers printed sheer fiction as "news." Journalism simply does not have the same truth-finding mechanisms that a trial does, such as cross-examination and the prospect of a perjury charge for false stories.

As to your point that "[i]t is enough that there is uncertainty" -- I agree that it is enough to not impose the DP in an on-going case where the uncertainty exists. I do not agree that uncertainty is enough to establish the historical proposition that we have executed an innocent person in the post-Gregg era. Indeed I would think that uncertainty in that context would have the opposite effect -- that it should be enough for people to be more modest in making such categorical claims. But apparently this is not to be.

4. "The Gallop polls of which you like to refer also state that a majority of people believe that an innocent man has in all probability been executed in the past."

I believe that is correct -- which makes the strong and continuing public support for capital punishment in the face of this belief all the more compelling.

By the way, it's true that, in discussing public sentiment, I have referred to the Gallup poll. Is there something wrong with that? If so, you might want to tell that to the DPIC, which has a whole section of its website devoted to polls, and, in addition, actually paid for ITS OWN poll.

"You also fail to acknowledge that when the question of punishment in capital cases pits the death penalty against LWOP, then there is a majority to LWOP."

The reasons I "failed to acknowledge" it are (1) that I don't believe it's correct, and (2) even if it were, it's inapposite to the central abolitionist question, to wit, whether the death penalty is EVER MORALLY ACCEPTABLE.

"Most people are now ready to acknowledge that public safety is no longer a valid argument in favor of the death penalty."

Well something is sure convincing them to be in favor of the DP, since, in a part of the poll you "fail to acknowledge," half the respondents said that the DP is not used often enough. This dwarfed the other two positions, which were split roughly evenly between those who thought it was used with about the right frequency and those who thought it was used too often.

I suspect that what has the public so thoroughly persuaded are the specific and horrible facts in case after case -- facts that the abolitionist side never seems very eager to discuss, and which to my knowledge have seen almost no discussion in this forum.

Such cases would include, for example, the beltway sniper (who, for sheer amusement, blew the head off of a neighbor of mine at the parking lot of the Home Depot where I shop -- and then did the same thing, from ambush, and using a hunting rifle, to at least ten other people he selected at random); the rapist and killer of Jessica Lundsford, who, after having his "fun" with the ten year-old victim, buried her alive in a trash bag; or the pair of repeat convicts in Connecticut who, on their most recent ill-advised (but "compassionate") parole, murdered three people, consisting of a mother and her two teenage daughters, the younger of whom they first raped as the mother and father (who they tried to kill but failed) looked on.

Now maybe yet another trip to the pokey for these fellows is justice enough, because, after all, what would Jesus do, etc., but at a certain point, it seems to me -- and to the great majority of our fellow citizens, and to our leaders from Lincoln to FDR to Eisenhower and Clinton -- that society has a right to stop being unendingly defensive: to say NO and actually mean it.

Bill

Posted by: Bill Otis | Nov 30, 2007 8:02:10 AM

JDB,

Something in the context of the conversation made me think the message was from you. But I should not have assumed -- I should have asked. Thank you for setting that straight.

I don't think defense counsel is required to disclose broad policy positions that aren't particularly relevant to the discrete legal issues being discussed. I do think, however, that it's slippery, shall we say, for a lawyer to tell the court, apparently with lectern-pounding emphasis, that the death penalty is excessive for defendant X when scandalously it was not imposed on the more malevolent defendants A, B and C -- all the while believing that it shouldn't have been imposed on them either. It's not all that flagrant, I agree. Indeed, if it were the worst thing that lawyers do in court, our profession would not have the sleazy public reputation that, unfortunately, it has earned.

I'm glad to see a Fourth Circuit groupie here. It's a gentleman's court -- the only one in the country I know of where the judges step down from the bench after argument to shake hands with counsel. Among my first cases there was one I argued to a panel consisting in part of Albert V. Bryan SENIOR, who was wearing spats, and Clement Haynsworth, who was ALSO wearing spats. I thought I had stepped off a space ship that landed in the 19th Century. But they treated me, a totally green lawyer, with the same courtesy they would have shown the Solicitor General.

Bill

Posted by: Bill Otis | Nov 30, 2007 9:26:15 AM

Bill

Thanks for your robust responses, and apologies for not being more specific - I assumed from your CV you would be familiar with key cases that have formed much of the backdrop to the arguments of innocence etc in recent times.

So, responding to your numbered points:
1 and 3. A good starting point for reviewing some of these claims is available on this blog:
http://sentencing.typepad.com/sentencing_law_and_policy/2005/11/more_buzzing_ab.html
They refer specifically to Cantu and Willingham, but even a cursory google search will reveal others.
While you may be sceptical of the press, I think The Houston Chronical and Chicago Tribune, and the people who have contributed to the information they have collected, can fairly be called neutral and responsible. If not, who do you suggest would be, and would/could produce such reports?

You argue that finality of proof IS probably possible. I think that in the case of Willingham, the evidence of his innocence is as compelling as you will ever get. The forensics people simply got it wrong. Earnest Willis was convicted based on similar un-scientific analyses of arson evidence, but subsequently exonerated by Texas courts in 2004 when the arson testimony used against him was exposed as wholly invalid. Mr. Willis was later awarded $400,000 from the state of Texas as compensation for his wrongful conviction and the 17 years he spent in jail as an innocent man. In the case of Cantu, identification was I think the key issue. My doubt about absolute proof in the case of wrongful executions was that, even where DNA was still available for testing, the opportunity and indeed willingness of the authorities to review other evidence in the light of that has been demonstrated to be practically zero. Willis was lucky - he was still alive 17 years after the error was made.

You also argue that abolitionists should carry the burden of proof - the evidence is that all of a sudden, as a result of DNA testing, many people are being exonerated and released from death row who would certainly have been executed were such tests not made available. It beggers belief that if DNA tests had been available in earlier cases (or even employed today in all cases where an inmate still languishes on death row, and is possible) similar cases of error would not have been found. It's a matter of simple statistics. And that doesn't touch on all those cases, such as with Cantu, where DNA evidence is unavailable or irrelevent.

2. One wrongly defended case of innocence shouldn't penalize or give rise to comments as "pure hokum", by association.

4. re your comment "The reasons I "failed to acknowledge" it are (1) that I don't believe it's correct, and (2) even if it were, it's inapposite to the central abolitionist question, to wit, whether the death penalty is EVER MORALLY ACCEPTABLE."

Not only is the poll correct on this, but the evidence of vastly changed patterns of jury sentencing, even in Texas, shows that people are less willing to go for the death penalty when LWOP is made a viable alternative:
"Over the last 10 years, the number of death sentences imposed in the state has dropped 65%, from 40 in fiscal 1996 to 14 in 2006, according to statistics compiled by the Texas Office of Court Administration. In that time, murders have remained about the same: State crime statistics show 1,476 murders in 1996 and 1,405 in 2005.
The figures are in line with a national decline in death sentences, and show that "Texas is catching up with the trend," said Richard Dieter, executive director of the Death Penalty Information Center."
http://www.willsworld.com/offendersent.htm

Finally, your comments about the nature of the crimes of murder and public reaction. No-one denies the horror of the examples you quote. But too often we see prosecutors overwhelm a defense and jury with these images, and this in itself is enough to colour judgment against a defendent - whether guilty or innocent. The law needs to be above such histrionics in its court practice and to take an altogther more objective and mature route to Justice.

Posted by: peter | Nov 30, 2007 10:13:54 AM

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