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July 22, 2012

Offense/offender distinctions in first-cut punishment reactions to Batman mass murder

Not surprisingly, my first post about the horrific mass murder in Colorado this past week has generated lots and lots of strong comments from all sorts of perspectives.  I do not wish to respond or even engage with all the commentary (which, helpfully, has been at least a bit more respectful and measured than seen in some comment threads here), but I do want to encourage a bit more precision in how people understand my first-cut reaction and also in how they discuss this case.  I hope to do so by using what I consider an important (and too rarely stressed) distinction between offense conduct and offender characteristics in the assessment of crimes and punishments.

I suspect all would agree that, short of crimes of genocide and mass terrorist killings, the offense conduct involved in the Batman mass murder is among the worst kinds of offenses one can imagine.  Without any apparent justification or provocation, an adult has slaughtered in cold blood a dozen innocent individuals and did so in a manner indicating he hoped to kill many more persons (both at the scene of the crime and back at his booby-trapped apartment full of explosives).  And though we still are learning more about the offense, we already know enough to make some first-cut, informed judgments about the offense conduct.

Meanwhile, I suspect all would also agree that, absent some magical comprehensive indisputable report about the shooter's life history and mental issues, the offender characteristics surrounding the Batman mass murderer could take a long time to understand and assess.  Though early reports about the shooter allow us to imagine various theories to explain his behavior, we must discover a whole lot more about his history and characteristics before we could even begin to make even first-cut, informed judgments about the impact and import of the shooter's offender characteristics. 

Finally, I suspect all would agree that fair, fitting and effective punishments must give some weight to both offense conduct and offender characteristics.  But there is great disagreement as to how much weight to give to these (often divergent) factors AND as to whether and when some factors can and should overwhelm others in the assessment of fitting punishments.  Putting all this together, it is not at all surprising that some are eager to reach first-cut punishment assessments based on the Batman mass murder mostly known offense conduct, while others are eager to resist any such assessments based on the shooter's mostly unknown offender characteristics.

July 22, 2012 at 06:26 AM | Permalink

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Offender characteristics, in particular his ability to distinguish right from wrong, and conform his behavior to the requirements of law, of course should be found out. But that can be done in a year or less (probably a lot less). Indeed, anything even conceivably relevant can be found out in a matter of months.

There is not a wisp of indication here of any of the usual excuses, i.e., racism, poverty, poor education. There is also no psychiatric history. What is actually going on is not a rush to judgment, but a rush to non-judgment, said non-judgment to be (defense types hope) permanent or quasi-permanent. Why should the country put up with that?

We already know the two most important things -- who did it and what he did. It will not take years or anything close to years to find out the rest, unless there is intentional foot dragging.

The defense will seek delay simple for delay's sake (and also so they can run the meter). There is no reason to allow it. Justice delayed is justice denied.

Posted by: Bill Otis | Jul 22, 2012 8:01:09 AM

It is not helpful to marginalize those who care about offender characteristics as "hard-core" radicals. It is those who call for the death penalty without an assessment of offender characteristics who are outside the constitutional mainstream. Those of us wanting to wait for offender characteristics are simply taking the position of the majority of United States Supreme Court post-Gregg.

Posted by: Josh | Jul 22, 2012 9:00:20 AM

Professor Berman stated: "Putting all this together, it is not at all surprising that some are eager to reach first-cut punishment assessments based on the Batman mass murder offense conduct, while others are eager to resist any such assessments based on the shooter's mostly unknown offender characteristics."

You portray the other thread in an obviously biased and backwards fashion. If you look at the previous thread, it is quite clear that that the defense types did not "resist" the the "offense conduct" approach at all. They began the comments with "the guy is crazy" defense.

To be accurate, those sympathetic to the prosecution "resisted" the "offender characteristics" crowd.

Let's at least try to be more fair and accurate than Brian Ross and ABC.

Posted by: TarlsQtr | Jul 22, 2012 9:29:57 AM

The shooter wanted to cause the death of other human beings. You are so outraged that you want to cause the death of a fellow human being.

Looks like you two have a lot in common.

Last I checked it was the JUSTICE SYSTEM, not the VENGEANCE SYSTEM.

Posted by: clarkcountycriminalcops | Jul 22, 2012 9:44:55 AM

Take an extreme offender characteristic, say, he was asleep when carrying out his intentional acts, and now aghast at what he did. (neither is true of course; he is acting like a nut in jail).

What difference does it make if public safety is the priority? He should still be executed as soon as possible. It should have been done at the scene after victim 1, where the entire audience was armed and blasted him.

The lawyer protects the retarded, the insane, the emotionally distraught to generate government make work. These mitigating factors are in bad faith, to generate income.

Posted by: Supremacy Claus | Jul 22, 2012 10:38:39 AM

clarkcountycriminalcops said, "Looks like you two have a lot in common."

Assuming a fair process, if the defendant did what he is accused of, he should be executed. Yes, I am outraged! Please tell me again what I have in common with this mass murderer!

Posted by: Stanley Feldman | Jul 22, 2012 11:49:56 AM

Clarkcountycriminalcops stated: "Looks like you two have a lot in common."

Care to explain how walking into a movie theater and mowing down people whose greatest offense is wanting to enjoy a movie with friends and family is similar in any way to the years of trials and appeals that the murderer will get?

In a nutshell, your statement is absurd. Of course, reading your user name gave little promise it would be anything but.

You stated: "Last I checked it was the JUSTICE SYSTEM, not the VENGEANCE SYSTEM."

An overwhelming majority of your countrymen see the DP as justice and I suspect it will be even higher for this guy. You are the one on the radical limb.

And incarceration falls under the category of "punishment" just as much as the DP does. Using your own logic, then it must be "vengeance" as well.

Posted by: TarlsQtr | Jul 22, 2012 12:33:13 PM

clarkcountycriminalcops --

"The shooter wanted to cause the death of other human beings. You are so outraged that you want to cause the death of a fellow human being."

Some people think the reason for killing counts in assessing both its morality and legality, but we wouldn't want to let that stop you.

"Looks like you two have a lot in common."

Looks like you might benefit from learning that thinking involves differentiation.

"Last I checked it was the JUSTICE SYSTEM, not the VENGEANCE SYSTEM."

Last I checked the justice system permitted the death penalty, including for cases a great deal less aggravated than this one.

Posted by: Bill Otis | Jul 22, 2012 1:50:38 PM

I speak for myself (and maybe some others, too) when I say there's a whole 'nother factor to take into consideration aside from offense and offender characteristics when talking about the death penalty, and that is just simply this: the belief that it is a morally wrong thing and that not the state nor anyone ought to have the power to lawfully take another's life (except in cases of self defense). That remains true for me irrespective of the offense or offender characteristics.

FWIW, I say that even agreeing with Doug that as far as offense characteristics go, this is among the worst.

Posted by: Guy | Jul 22, 2012 1:58:08 PM

Guy: I always find (seemingly) absolutist positions appealing as a way to simplify a debate, but I have to wonder if self-defense is the only exception you really concede. What about killings during a war OR state killings (via, say, drone strikes) that seek preventively to take out future mass murderers? And where might abortions fit into this mix (either of the early-term or late-term variety), OR "killings" that are surely foreseeable when a government decides to raise a speed limit?

I have great respect for TRUE ABSOLUTE pacifists who believe so strongly in the "no knowing killing" position that they would say that even a killing in self defense is morally wrong. But once one begins to acknowledge/accept/endorse that some killings might be morally justifiable --- e.g., for self defense, in war, to stop sure to commit murders in the future --- then I think the debate quick becomes a very messy one concerning which offense/offender realities can be thought to justify in some cases a lawful state killing.

Indeed, this is my main conceptual beef with many DP abolitionists: they are often prepared to accept/sanction lawful the state-sanctioned taking human life for self defense and in war (and sometimes via abortion), but then claim to have an "absolutist" opposition to state killing. This view on taking life is surely defensible, but it is not properly viewed as an absolutist position in any real sense. In my opinion, it is just one (of many) nuanced view on when killing is and is not potentially justifiable.

Posted by: Doug B. | Jul 22, 2012 2:28:24 PM

—► A L L

In my opinion , the offender is either insane or unbelievably evil .

The curve of distribution has extremes at evil and kind.

CO’s death penalty did NOT deter this offender .

The State should use its time and resources to study the offender from birth to planning stage and beyond .

His desire for evil did not begin nor ripen a nanosecond before the gas canister throw .

DJB Columbus , Ohio 43209
Reachable at [email protected]

Posted by: M. Blank | Jul 22, 2012 2:31:36 PM

Ideally , a movie attendee with a firearm near the exit door would immediately go to full alert when anyone entered the theater through the same exit door that one earlier exited .

Upon seeing the offender’s paraphernalia , e.g. , canister , firearms , helmet , etc., the offender should have been immediately eliminated to PREVENT* the attack .

* STOP the attack does not apply in this situation ; it had already begun with the canister throw.

Posted by: M. Blank | Jul 22, 2012 2:41:18 PM

I agree in toto with Doug's comment. The absolutist position against the deliberate taking of human life is almost never as airtight as it claims to be, and if it were, it would be utterly indefensible.

Guy would allow for self-defense. But what about defense of another in imminent danger of death or great bodily harm? Is it OK to kill some guy who's about to toss a hand grenade into a crowded school bus? Virtually every sane person would say, you bet.

We had Navy Seals cold-bloodedly plan and carry out the killing of Osama, even though Osama was, at the time of his shooting, watching TV with his wives, and even though the USA has no declared war in Afghanistan, much less with al Qaeda.

Are the SEALS morally blameworthy? Again, the overwhelming majority would say that, not only are they not blameworthy, they're heroes.

In WWII, some inmates at a Nazi work/gassing camp in Poland (Sobibor) covertly organized a revolt which resulted in the ambush deaths of many German guards. Their "cold-blooded" plan is regarded by history, not as murder, but as a mind-bending act of courage.

And of course, as Doug points out, we undertake many enterprises (highways, mining, major project construction) knowing in advance that deaths will result -- deaths that could be and would be averted if we would all just go back to living in caves. Are those who organize these projects murderers?

Guy is a good guy, so to speak, but his position that all deliberated killing except in self-defense is impermissible is so patently wrong that it has virtually no subscription, even on this blog.

Posted by: Bill Otis | Jul 22, 2012 4:11:28 PM

"the belief that it is a morally wrong thing and that not the state nor anyone ought to have the power to lawfully take another's life"


Why is it morally wrong?

Posted by: muscleman | Jul 22, 2012 4:31:35 PM

Rent seeking explains the contradictions inherent in the abolitionist position. None can utter the V word, where millions have been foreseeably murdered over the decades, especially with dark skins. Not a word about those murders. Never. No abolitionist can utter the V word.

However, the government must go to the ends of the earth to protect the murderer. Why? Because the murderer generates massive government make work lawyer employment. The abolitionist is always a big government advocate, a government employee, such as Claudio, or a government dependent parasite on mental disability or welfare. The inherent economic conflict of interest makes the abolitionist position one in bad faith, if they fail to disclose that conflict of interest, so their credibility may be discounted accordingly. Economic conflict of interest is a middle class, educated synonym for armed robbery. If you refuse to pay your taxes for them to steal, a man with a gun will come over and help you pay your taxes.

Posted by: Supremacy Claus | Jul 22, 2012 4:45:55 PM

"You two have a lot in common."

I know for a fact that I am not morally superior to anyone, not even Bin Laden. I fully grasp his thinking and justifications. And if God exists, he took Bin Laden's side on 9/11, and severely punished the US with a $7 trillion strike to its economy. The US suffered because it is run by lawyers, and not leaders, cowards, appeasers, rent seekers, plea bargainers, feminists and their male running dogs, bitches in prison parlance. Whereas the enemy is poor, stupid, primitive but courageous and bold. No feminist has pussified the Taliban. When our warriors are courageous and bold, they get prosecuted by the internal feminist traitors and weasels.

What we are is us, and they are them. And we have to kill them before they kill us. The lawyer traitor allows 17,000 murders a year. Over 2000 are by paranoid schizophrenics defending themselves against imaginary tormentors, under the full protection of the feminist lawyer and its male running dogs. There is an excess of 5000 unexpected murders of black males. The KKK lynched 5000 in over 100 years. The feminist traitor is 100 times as effective as the KKK in eradicating black males.

No, I do not feel morally superior to the mass murderer. I just want us to go first.

Posted by: Supremacy Claus | Jul 22, 2012 5:10:37 PM

@ Supremacy Claus .." if the defendant did what he is accused of, he should be executed. Yes, I am outraged! Please tell me again what I have in common with this mass murderer!"

A. The desire to end the life of a fellow human being. What part of your own post confuses you?

@ Stanley Feldman "An overwhelming majority of your countrymen see the DP as justice and I suspect it will be even higher for this guy."

There was a time when the "overwhelming majority of [my] countrymen" believed slavery was right and proper.

There was a time when the "overwhelming majority of [my] countrymen" thought the Earth was flat.

There was a time when the "overwhelming majority of [my] countrymen" thought burning witches was a fun family outing.

I have no desire to join those that lust for the blood of their fellow man. I have no desire to abandon my Christian values. I have no desire to support a government program that is both more costly than the alternatives and, as a bonus, is entirely ineffective. leave such things to the liberals.

And since a dictionary has never been made available to you, there is a vast difference between punishment and vengeance. Punishment is a penalty or sanction on (someone) in order for them to a. pay for their crimes, or b. to remove the dangers they pose from society. Vengeance is not about making a criminal pay, but making YOU feel better about what happened. It satisfies the most base emotions. Vengeance is selfish.

So once again, you support the selfish killing of your fellow man. Yep crazy to think you had something in common with the shooter.

p.s. What's up with the Jul 22, 2012 9:44:55 AM post that is attributed to me? I didn't write that.

Posted by: clarkcountycriminalcops | Jul 22, 2012 5:27:14 PM

"p.s. What's up with the Jul 22, 2012 9:44:55 AM post that is attributed to me? I didn't write that."

My bad, I mis-read the format.

Posted by: clarkcountycriminalcops | Jul 22, 2012 5:29:42 PM

I think Guy's point is that a civilized society should do its best not to kill unless out of necessity. War can create necessity, and all are likely to agree that war is a "necessary evil." But there is a difference between war and killing someone who is incarcerated. There is typically no necessity in the latter, not even in attenuated form (unless one believes that the death penalty actually adds deterrent value over a life sentence). Life in prison is a dreadful punishment that protects the public. At that point, killing may seem to serve the purpose only to satisfy a craving for revenge. Some call it retribution, but I think it a pathological desire to pacify one's own base feelings by inflicting an unnecessary death.

Posted by: AnonymousOne | Jul 22, 2012 6:34:34 PM

AnonymousOne: This is a personal attack.

I demand you utter the V word. You can't without choking.

You must also disclose whether you are a government dependent parasite.

The death penalty is nothing you say it is. It is to get rid of the person, and to end the problems this person causes.

LWOP is a license to kill better than that of James Bond. There are far more murders of innocent people in prison than there are executions, thanks to obstructionists, and pro-criminal rent seekers. A prison official was quoted on this blog, "He could lose his cafeteria privilege," of the lifer murderer of a female guard.

Posted by: Supremacy Claus | Jul 22, 2012 7:34:33 PM

ClarkCountyCriminalCops stated: "There was a time when the "overwhelming majority of [my] countrymen" believed slavery was right and proper.

There was a time when the "overwhelming majority of [my] countrymen" thought the Earth was flat.

There was a time when the "overwhelming majority of [my] countrymen" thought burning witches was a fun family outing."

I am not certain if any of the above statements are true. At the time of our founding, slavery was abolished in the north (which were more populous), it was common knowledge that the earth was round, and the Salem witch trials were a century old.

In any event, your entire answer is a dodge. Although majority opinion does not necessarily mean a position is correct, examples otherwise also do not prove yours is. Being in such a minority should give you pause though...

You stated: "I have no desire to join those that lust for the blood of their fellow man."

You operate on a false premise, that support for the DP is out of a "lust for blood." Any evidence that my support of the DP is a lust for blood and NOT out of justice and the safety of society?

You stated: "I have no desire to abandon my Christian values."

You do understand that there is not a single verse on scripture that bans the governmental imposition of the DP, correct? You do understand that a majority of people that follow "Christian values" as ardently as you do support the DP, correct?

You stated: "I have no desire to support a government program that is both more costly than the alternatives and, as a bonus, is entirely ineffective."

There are reams of scientific studies that point to it being a deterrent.

You stated: "Punishment is a penalty or sanction on (someone) in order for them to a. pay for their crimes, or b. to remove the dangers they pose from society. Vengeance is not about making a criminal pay, but making YOU feel better about what happened. It satisfies the most base emotions. Vengeance is selfish."

Again, a false premise. Revenge is personal. I have had no personal attachment to the execution of a murderer. In fact, although I am a DP supporter, I am probably the ONLY poster here that has helped a serial murderer escape the DP without getting paid for it. If you have evidence that I support the DP out of vengeance, show it. Put up or shut up...

Posted by: TarlsQtr | Jul 22, 2012 8:58:46 PM

@ Doug:

Guy: I always find (seemingly) absolutist positions appealing as a way to simplify a debate, but I have to wonder if self-defense is the only exception you really concede. What about killings during a war OR state killings (via, say, drone strikes) that seek preventively to take out future mass murderers? And where might abortions fit into this mix (either of the early-term or late-term variety), OR "killings" that are surely foreseeable when a government decides to raise a speed limit?

To be honest, I'm not entirely sure. It gets more complicated when you start broadening the frame. It's a more straightforward question when you're talking one-on-one self-defense, but when we start talking governments and war, it becomes more complicated for sure. As you might imagine, as far as armed conflict goes, I'd align my position along something of a peacekeeping theory -- or to say that a defensive war is at least more just than an offensive one.

Even still, I'm not sure that makes it just, or good. Maybe sometimes circumstances are such you (you in the collective, not the personal sense) feel it necessary to commit evil in order to produce a greater good. That may be so, and I'll even grant that the calculus may be accurate (or less accurate, cf. Operation Iraqi Freedom). To me, however, that doesn't make the underlying act any more or less morally defensible. You may engage in evil with good intentions, but you engage in evil nonetheless.

I have great respect for TRUE ABSOLUTE pacifists who believe so strongly in the "no knowing killing" position that they would say that even a killing in self defense is morally wrong. But once one begins to acknowledge/accept/endorse that some killings might be morally justifiable --- e.g., for self defense, in war, to stop sure to commit murders in the future --- then I think the debate quick becomes a very messy one concerning which offense/offender realities can be thought to justify in some cases a lawful state killing.

I guess in a sense you could paint me with that brush. What I mean to say is that no killing is morally justifiable, but circumstances may dictate that it be necessary and in line with the instinct of self-preservation. The most which I would say is that the circumstances certainly can mitigate culpability, blameworthiness even, but the act itself is still a wrong -- nothing to be cheered, to be feel good about.

Indeed, this is my main conceptual beef with many DP abolitionists: they are often prepared to accept/sanction lawful the state-sanctioned taking human life for self defense and in war (and sometimes via abortion), but then claim to have an "absolutist" opposition to state killing. This view on taking life is surely defensible, but it is not properly viewed as an absolutist position in any real sense. In my opinion, it is just one (of many) nuanced view on when killing is and is not potentially justifiable.

I guess that's the thing, I'm not sure I'd ever sanction it. Abortion is a whole 'nother can of worms, because then you get into the personhood debate, and what a debate it is.,..

But, in sum, I just feel like it's not something that can ever really be completely defended, morally. Self-defense is probably the closest case, but even then the underlying act is still wrong, even if it is justifiable. As I believe I posted on here once, you only ever have to justify the things you know to be wrong to begin with.

Posted by: Guy | Jul 22, 2012 8:59:01 PM

@ Bill:

I agree in toto with Doug's comment. The absolutist position against the deliberate taking of human life is almost never as airtight as it claims to be, and if it were, it would be utterly indefensible.

Guy would allow for self-defense. But what about defense of another in imminent danger of death or great bodily harm? Is it OK to kill some guy who's about to toss a hand grenade into a crowded school bus? Virtually every sane person would say, you bet.

See my response to Doug, which hopefully clarifies. I would say that the killing is justifiable, but still morally wrong. Would I kill him, if I were in that position? I would, absolutely. I still nevertheless believe I would have committed a wrongful act, even if my wrongful act is nevertheless excusable on the grounds of defense of others.

We had Navy Seals cold-bloodedly plan and carry out the killing of Osama, even though Osama was, at the time of his shooting, watching TV with his wives, and even though the USA has no declared war in Afghanistan, much less with al Qaeda.

Are the SEALS morally blameworthy? Again, the overwhelming majority would say that, not only are they not blameworthy, they're heroes.

I didn't cheer when bin Laden was killed. I think it was wrong, even despite the vast carnage that he was responsible for. He should have been brought to stand trial, either here or in the Hague. I know that my opinion is not popular, and that's fine. If everyone thought like me, what a boring place this would be.

In WWII, some inmates at a Nazi work/gassing camp in Poland (Sobibor) covertly organized a revolt which resulted in the ambush deaths of many German guards. Their "cold-blooded" plan is regarded by history, not as murder, but as a mind-bending act of courage.

And, were I in those inmates' position would I have done the exact same thing? Absolutely. And, as I've tried to explain, my actions would probably be justifiable -- but that doesn't make the underling act somehow not wrong. As I wrote in the closing to my response to Doug's post, you only have to justify the things that are wrong to begin with.

And of course, as Doug points out, we undertake many enterprises (highways, mining, major project construction) knowing in advance that deaths will result -- deaths that could be and would be averted if we would all just go back to living in caves. Are those who organize these projects murderers?

Guy is a good guy, so to speak, but his position that all deliberated killing except in self-defense is impermissible is so patently wrong that it has virtually no subscription, even on this blog.

No, and I never asserted that they were. On that view of causality, have my actions resulted in the deaths of at least a few persons over the course of my life? Have yours? Doug's? Almost certainly. I would say, though, that at a certain point the....oh I need to study torts again....intervening cause steps in and cuts that chain.

Posted by: Guy | Jul 22, 2012 9:07:54 PM

@ muscleman:

Why is it morally wrong?

For the same reasons it is morally wrong for any of us to go out and kill someone, I would imagine.

Posted by: Guy | Jul 22, 2012 9:09:31 PM

We know Obama's mental state when he gave the order to kill bin Laden. We know his mental state when he gave the order that resulted in the killing of al-Awlaki's 16-year-old son with a drone. http://www.salon.com/2011/10/20/the_killing_of_awlakis_16_year_old_son/

1) What provision in the U.S. Constitution purportedly authorized these premeditated and deliberate killings?

2) Why has Obama not been indicted for murder?

Guy -- I'm with you: The death penalty is immoral. In addition to it being immoral, government is simply to incompetent to be entrusted with taking lives. Perhaps certain killers should be deemed to forfeit their right to live by virtue of the killing(s) they have committed. However, government utterly lacks the competence to enforce any such forfeitures.

Posted by: Calif. Capital Defense Counsel | Jul 22, 2012 9:40:17 PM

Some of the comments seem to suggest that the central argument of "abolitionists" is that it is not morally unjustified under any circumstance, or alternatively, that it's a scam intent on using the justice system to seek rent in capital cases. If I may be frank, that's an insulting reduction of the case against the DP.

The central argument against the DP is three-fold: a) that the government is incapable of administrating it in a fair and unbiased manner, b) that a small but still distressing minority of capital cases involve wrongfully convicted defendants, and c) that limitations on human knowledge prevent us from establishing guilt with the moral certainty necessary to justify a death sentence. I assure those concerned that it has nothing to do with making money off death penalty appeals.

The counter-examples involving self-defense are inapposite, because they necessarily assume perfect knowledge of a person's circumstances. In most DP cases, neither the jury nor the court can claim to have perfect knowledge of the events that led to the sentence. This stems from the fact that DP cases are no different than any other criminal trial: the jurors are making their best guess as to what they think the evidence shows beyond a reasonable doubt. The question in our case is whether "reasonable doubt" is capable of establishing the type of moral certainty that justifies sentencing a person to death. The impressive number of death row inmates who have been exonerated in recent years demonstrate that jurors can and do get this question wrong. Even if we assume a 99% accuracy rate for guilty verdicts in capital cases, that still means that 1 out of every 100 people we execute is innocent. Are we really comfortable with killing 1 in 100 to get at the other 99? On that question, I defer to Thomas Paine:

"An avidity to punish is always dangerous to liberty. It leads men to stretch, to misinterpret, and to misapply even the best of laws. He that would make his own liberty secure, must guard even his enemy from oppression; for if he violates this duty, he establishes a precedent that will reach to himself."
— Thomas Paine, Dissertations on First Principles of Government, 1795

Posted by: LTMC | Jul 22, 2012 9:50:50 PM

LTMC: Again, will the criminal increase your income? If you are a corporation lawyer, you are still making money off the criminal by decreased competition for your job, as the criminal justice system absorbs your colleagues. You must disclose that fact if you are going to defend the indefensible, so we can understand why. If you will make money off the criminal, you are a crook, stealing tax dollars, collected at the point of a gun. That is the sole explanation for the 18 million FBI Index felonies that go unanswered by the lawyer each year, and why the US is the most violent First World nation. The criminal is in utter failure. No other human activity is carried out so badly in the US. The lawyer running the criminal sucks, in total failure at protecting the public. Its sole success is to steal tax dollars and hunt the productive male.

Your main arguments are really one argument, the error rate. It was dispatched long ago in this blog.

To be consistent logically, you must advocate the end of all transportation. There are 30,000 deaths a year in the most horrific manner, where people are butchered slowly by metal and glass, and linger in agony for hours. That includes hundreds of pedestrian deaths, many times the number of murderers executed. Stop all walking in the street until the error rate is eliminated 100%. While at it, end all other human activities until their error rate is corrected.

We choose to build roads, and drive cars because the benefits outweigh the risks. I have never seen this moderate analysis by abolitionists. The abolitionist wants to stop all executions, because of an error rate. That means the arguments about error are phony, and pretextual. If made in an appellate court, the judge should assess all costs to the personal assets of the abolitionist bringing false arguments to fool the court. To deter.

Posted by: Supremacy Claus | Jul 22, 2012 10:09:30 PM

LTMC: You are a law student. I withdraw my personal remarks above. Go in peace, my friend.

Posted by: Supremacy Claus | Jul 22, 2012 10:12:38 PM

@ CCDC & LTMC:

I agree, also, with the position that I'm not frankly very confident in our ability to separate out the guilty from the innocent. We have probably executed

Posted by: Guy | Jul 22, 2012 10:58:40 PM

@ CCDC & LTMC:

I agree, also, with the position that I'm not frankly very confident in our ability to separate out the guilty from the innocent. We have probably executed at least one innocent person , at least that we know of, though I'm sure there's bound to be others.

Even if we could be afforded a system, devoid from bias in its application and granted omniscience in its imposition, I would still object.

(apologies for the double post)

Posted by: Guy | Jul 22, 2012 11:00:28 PM

My concern with the death penalty, among others, is that they have the right person. If that is the case here and the authorities have arrested the person who did the shooting, if he is convicted, he should be executed. Nevertheless, CCDC has declared my DP position as the Moral Equivalent of first degree murder. I don't understand the self-righteous reference to Christianity in support of that position though.

Would the (CCDC's) logic follow that the executions following the Nuremberg trials are the moral equivalent of the atrocities committed by the defendants?

Although I would have stated it differently, SC made the very legitimate point that executing certain murderers is likely to save lives in the future, as LWOP arguably is not a deterrent to future murders.

Posted by: Stanley Feldman | Jul 23, 2012 12:16:26 AM

In my last post (12:16), I mistakenly wrote CCDC when I should have written clarkcountycriminalcops (CCCC). Please excuse my error.

Posted by: Stanley Feldman | Jul 23, 2012 12:26:20 AM

I don't think the offensive conduct here is as clear cut as you might like, Doug. One of the more interesting reactions to this event is the way that the "movie community" has taken it almost as a personal insult. I know some movie buffs who are huffing and puffing about how this isn't going to keep them from attending movies. I find it rather odd because I don't think his decision to attack a movie theater had anything to do with a hatred of movies; it was just a place where he knew a lot of people would be congregated.

I find it ironic that we have a tizzy fit over 12 dead people in America when 20x that amount died in fighting in Syria this weekend. It becomes very messy indeed when you try to explain all the moral outrage over the deaths in CO and the lack of moral outrage over all the deaths in Syria.

Posted by: Daniel | Jul 23, 2012 1:42:16 AM

While it would be right and moral for John Q. Public to kill Bad Man if John walks in on Bad shooting at a group of kindergarteners in a classroom, it would be wrong and immoral for the government to strap Bad down to a table and inject him with a lethal dose of poison 23 years after Bad's kindergarten shooting spree. The former would be necessary to prevent ongoing killings. The latter is unnecessary, and involves the State in the premeditated and deliberate killing of a defenseless human being.

Posted by: Calif. Capital Defense Counsel | Jul 23, 2012 1:56:17 AM

The comparison of tone and substance of the debate on these two threads, with the reaction and process to the atrocity in Norway that occurred a year ago and which is nearing a sentencing of the guilty party there, is surely relevant and fascinating. Whereas the Norwegian authorities and public have maintained a dignified response, determined to safeguard the moral basis of law which determines that the state should never be reduced to the demeaning practice of the killing of civilians, here we have a body of commentators, with notable exceptions, who are blind, apparently, to what is important to a healthy civil society today. Doug states no more than what everyone can agree on ... that the offense conduct has resulted in a devastating consequence of loss of life .... and a rightful public response of horror and shock. But that takes the required debate nowhere. Unlike in Norway, where we have a perpetrator who at least proclaims a political motive, here we have an act that that seems likely to be nothing more than the result of a perverse fantasy. Already we can rule out other motives such as financial gain, personal loathing, lovers passion etc. The likelihood of mental instability, whatever its cause, is just about as high as it could get. All this talk of evil, unfortunately echoed by the President, is not a rational, considered or healthy response, but an emotional and even hysterical one. That is not to say we are not entitled to have such emotions ... we clearly are .... but in relation to an official response within the process of law, there is a need for detachment. The public at large, as in Norway, are then supported by the State in arriving at a dignified and calm response to the aberration of behavior which has occurred. The scale of death was much larger in Norway. The political motive (be it a rational one or the result of mental aberration) could possibly reflect a wider issue within Norwegian society that needs addressing. Yet throughout, the Norwegian people and the Norwegian authorities have acted to preserve personal and legal dignity without endangering life, and without the intention to take life. That is a healthy society ... and one the US should aspire to.

Posted by: peter | Jul 23, 2012 4:22:29 AM

Peter: The Norwegians are too intoxicated and depressed to react. If they were more sober, their eerie calm would be less weird. The shooter will not even get life. Aren't they the ones with the luxury prisons? Why do they love the criminal? They are a Commie country, and the criminal generates government make work. They care more about the rent than about people, the drunken Commies.

Daniel: Those are Americans in Colorado. In Syria, it is hard to tell which side is more heinous, and both sides hate America. The news is also one sided. The more killed, the fewer are left to attack us or Israel. The situation was similar in the Iran Iraq war. All those embassy attackers were likely among the million dead Iran suffered. We fed Iraq military intelligence to bring the Iranians to their knees. Our revenge was total and sweet. One million dead for the offense the US suffered seems about right. Japan attacked us. We killed 6 million of them. Germany did too. It cost them 7 million, and those million, blond, Aryan officers captured by the Russians? Still missing. Seems about right. To deter.

CCDC: "premeditated and deliberate killing of a defenseless human being." What the ...? There are many more prison murders by lifers than there are executions. Your ipse dixits are disgusting, not to mention uninformed. You never show the slightest evidence of ever having attended any law school.

Posted by: Supremacy Claus | Jul 23, 2012 6:34:00 AM

The fact that Norway can't think of anything to do to a guy who spends more than an hour mowing down 77 defenseless teenagers except send him to "treatment" is an indictment of Norway, not the United States.

Posted by: Bill Otis | Jul 23, 2012 8:32:27 AM

"While it would be right and moral for John Q. Public to kill Bad Man if John walks in on Bad shooting at a group of kindergarteners in a classroom, it would be wrong and immoral for the government to strap Bad down to a table and inject him with a lethal dose of poison 23 years after Bad's kindergarten shooting spree."

I agree in part. It shouldn't take anything like 23 years.

Posted by: Bill Otis | Jul 23, 2012 8:35:14 AM

Poor Doug B. he thought he could escape the blinding, accusatory fury of the DP-abolitionists by explaining about how he was concentrating on the wrongness of the act. He doesn't understand that, to their bizarre view, anyone who contemplates the DP in any circumstance is a combination of simpleton and murderer. And they react with special pain to a case like this where they can't marshal sympathetic facts and they know the American public ain't buying their argument...

Posted by: Sorry | Jul 23, 2012 9:25:29 AM

Dear Mass Murderers:

Proposition 34 is coming up on the ballot in California this November. It looks like it has a reasonable chance of passing, and that we will succeed in removing the barbaric death penalty from California. Could you guys hold off in carrying out anymore grizzly mass murders? We don't need to galvanize the other side.

Thank you.

Posted by: Calif. Capital Defense Counsel | Jul 23, 2012 11:47:31 AM

While I am against the death penalty across the board, it seems a little disturbing that people in this thread are downplaying what this guy in Colorado did. At least I think Daniel did so and I think, although I have not had time to read the entire thread with attention to detail, others may be doing so.
This guy in Colorado whacked a bunch of people. Wake up.

Posted by: Tim Holloway | Jul 23, 2012 12:07:59 PM

Daniel said, "I don't think the offensive conduct here is as clear cut as you might like."

How much "clearer" can it be? Numbers aside, how could it be any more offensive?

Posted by: Stanley Feldman | Jul 23, 2012 1:05:08 PM

"Proposition 34 is coming up on the ballot in California this November. It looks like it has a reasonable chance of passing, and that we will succeed in removing the barbaric death penalty from California. Could you guys hold off in carrying out anymore grizzly mass murders? We don't need to galvanize the other side. Thank you."

Translation I: "Please keep out of sight until after the referendum evidence massively relevant to the referendum. Thank you."

Translation II: "The best reason to avoid mass murder until after November 6 is to allow liberals enough space to hoodwink the public. On November 7, back to business."

Posted by: Bill Otis | Jul 23, 2012 1:10:20 PM

Sorry,

For my part, I am against the death penalty across the board, but I don't regard those who think different from me as simpletons and murders. Reasonable people can differ, and can do so respectfully -- though the existence of reasonable people, and of them differing respectfully, is a concept that the internet challenges on a routine basis.

Posted by: Guy | Jul 23, 2012 1:46:57 PM

Under the "mad dog" theory we kill the dog without hesitation regardless of how he became mad, why he became made, or how long he was mad. Indeed we kill the dog even though he became mad through no fault of his own, and even though he may, at one time, have been the most loving of pets. Why? In small part to save the dog from a horrible, lingering death. But in much larger part for the the safety of the rest of us who might be bitten by the dog. In a sense sense the "offender" characteristics of the dog, are vastly outweighed by the "offense conduct"--even if that conduct is merely the state of being mad.

So here, assuming defendant is found competent to be tried, and assuming defense of insanity is not raised, or if raised, is rejected by the jury, we find ourselves in the penalty phase. In California at least, jury would be instructed on aggravating and mitigating circumstances (one of the latter of which would me mental illness). Jury would be instructed to return penalty of death if aggravating circumstances outweigh mitigating circumstances. Presumably (but by not means certainly) the jury will return a verdict of death. Not sure what the Colorado instructions will be.

Posted by: onlooker | Jul 23, 2012 2:15:36 PM

Onlooker, I think most people would agree that they way we deal with humans should be different than the way we deal with dogs --- but I acknowledge others made analogies to dogs in previous posts (perhaps in the earlier thread).

Posted by: Tim Holloway | Jul 23, 2012 2:26:51 PM

Tim Holloway --

I agree that human beings must be treated better than dogs (although it's not fully clear why, since dogs have nicer temperments), but I also agree with onlooker's view of how this Aurora case ought to, and very likely will, play out.

Abolitionists tend not to want to admit it, but the best thing they have going for them is the fear that we will execute an innocent person. Where, as here, we know we have the right guy, and the scale of the brutality is stupendous, abolitionism is like lugging water up Mt. Everest (which was the reason for CCDC's post).

Posted by: Bill Otis | Jul 23, 2012 3:18:12 PM

Bill:

Then I'll carry some water up. I could do with the fresh air.

Posted by: Guy | Jul 23, 2012 3:20:29 PM

Bill errs when he tries to characterize all death penalty opponents as liberals.

Barack Obama is, in Bill Otis' mind, a liberal. However, Obama is not only a death penalty proponent, but also a proponent of ordering state-sponsored hits.

I oppose the death penalty in all cases. I'm not a liberal. I'm a libertarian.

Some people need to stop viewing everything through the prism of Team Red v. Team Blue.

Posted by: Calif. Capital Defense Counsel | Jul 23, 2012 3:36:11 PM

@clarkcountycrimialcops

"The shooter wanted to cause the death of other human beings. You are so outraged that you want to cause the death of a fellow human being.

Looks like you two have a lot in common."

That's ridiculous. Wanting to see a mass murderer executed is in no way the equivalent of wanting to kill innocent people for fun anymore than wanting to see the mass murderer locked away for life makes you like Elizabeth Smart's kidnappers.

Posted by: MikeinCT | Jul 23, 2012 3:48:06 PM

OK - I'm not a doctor, and I can't diagnose people based on seeing them on TV. But, I just saw a shot on TV of dude being arraigned, and what I saw makes me question whether dude is all there.

Posted by: Calif. Capital Defense Counsel | Jul 23, 2012 3:53:08 PM

With regard to CCDC's statement and liberal vs conservatism, it seems like many people want to put everything on some sort of continuum. Unless you drink the kool-aid of one party or the other and march completely in step, there is a great deal that you will disagree with even if you tend or always vote a straight party ticket.
With regard to the execution of an innocent person, yes, that is a big concern. The system is just too sloppy. Not giving the state the power to do this at all, prevents an error in this regard.
With regard to executing people like Ted Bundy, etc, it is very difficult to think these people deserve to live. They, assuming nothing like mental illness, are the poster boys for the death penalty.
However, even with them, you have to think where do we stand as a society, even assuming we got the right person who did this crazy stuff, when we essentially say "okay, lets put our collective resources behind exterminating them." It seems to me that the only justification, in relation to a Bundy, etc, is basically a moral standpoint that "we just don't do that to other humans regardless of what those persons have done as long as we can eliminate their danger to society." As a somewhat factor in this regard, think about the people who line up near the highway or prison with BB-Q and beer when they were executing Bundy. I tend to think many people believe the message that was being sent by that was not a good one. On the other hand, I bet there are a good number of people that would say that was just fine.

Posted by: Tim Holloway | Jul 23, 2012 4:05:14 PM

I meant to say" "It seems to me that the only justification [FOR NOT IMPOSING A DP], in relation to a Bundy [WHEN -- LIKE WITH THIS COLORADO GUY -- IT IS BEYOND DISPUTE THEY DID IT], etc, is basically a moral standpoint that "we just don't do that to other humans regardless of what those persons have done as long as we can eliminate their danger to society."

Posted by: Tim Holloway | Jul 23, 2012 4:07:54 PM

Bill & others:

There is more to the DP abolitionist argument than the possibility of mistake. See comment below, which might have gotten lost in the weeds:

I think Guy's point is that a civilized society should do its best not to kill unless out of necessity. War can create necessity, and all are likely to agree that war is a "necessary evil." But there is a difference between war and killing someone who is incarcerated. There is typically no necessity in the latter, not even in attenuated form (unless one believes that the death penalty actually adds deterrent value over a life sentence). Life in prison is a dreadful punishment that protects the public. At that point, killing may seem to serve the purpose only to satisfy a craving for revenge. Some call it retribution, but I think it a pathological desire to pacify one's own base feelings by inflicting an unnecessary death.

Obviously, some will disagree whether the satisfaction we get by killing a wretched person (rather than just incapacitating them) is "base." But that is a legitimate matter of debate. I don't believe it is an extreme position.

On a related note, though I am no longer religious, I recall one relevant lesson from a cleric, one to which I still adhere. He taught that one should not rejoice in the death of an opponent. That doesn't mean one should not kill an opponent. On the contrary, it is often necessary to do so to save lives. However, I will teach my children that killing is a sad necessity, not a cheerful game. I think that is the ultimate respect for life.

AO

Posted by: AnonymousOne | Jul 23, 2012 4:41:20 PM

@Stanley

Oh, I agree that the conduct was offensive. I don't think it's especially offensive. IMO, which is why I posted the link to The Onion in the last thread, is that the public's reaction to the crime is vastly, overwhelmingly, and disgustingly disproportionate to the crime. The vapid outrage is silly and honestly rather saddening.

I find the whole capital punishment debate stupid. He thought others could die at his whim so he has no cause to complain when society decides to kill him on their whim. I simply refuse to find any of the lives involved, victim or criminal, meaningful.


Posted by: Daniel | Jul 23, 2012 4:50:26 PM

Guy --

"Then I'll carry some water up. I could do with the fresh air."

You won't get it climbing Everest. On account of the altitude, you have to wear an oxygen mask, so that's all you get.

Posted by: Bill Otis | Jul 23, 2012 5:06:32 PM

@ AO:

On a related note, though I am no longer religious, I recall one relevant lesson from a cleric, one to which I still adhere. He taught that one should not rejoice in the death of an opponent. That doesn't mean one should not kill an opponent. On the contrary, it is often necessary to do so to save lives. However, I will teach my children that killing is a sad necessity, not a cheerful game. I think that is the ultimate respect for life.

I think that sums up my emotional approach to it quite nicely.

@ Bill:

Well, as they say, I'll take what I can get. At least the view will be nice, if not the air.

Posted by: Guy | Jul 23, 2012 5:16:22 PM

Tim Holloway --

Two points. First, someone like Bundy has earned his way out of this world, and I have no problem giving people what they've earned. I don't regard it as uncivilized; indeed I regard it as the central purpose of litigation.

Second, it's just not the case that LWOP, no matter how secure we think it is, will keep us as safe from these people as executing them will. See Allen v. Woodford, 395 F.3d 979 (9th Cir), cert. den., 126 S.Ct. 134 (2005).
The final, chilling paragraph of that decision, written by Clinton appointee Kim Wardlaw, reads as follows:

"Evidence of Allen's guilt is overwhelming. Given the nature of his crimes, sentencing him to another life term would achieve none of the traditional purposes underlying punishment. Allen continues to pose a threat to society, indeed to those very persons who testified against him in the Fran's Market triple-murder trial here at issue, and has proven that he is beyond rehabilitation. He has shown himself more than capable of arranging murders from behind bars. If the death penalty is to serve any purpose at all, it is to prevent the very sort of murderous conduct for which Allen was convicted."

The notion that LWOP will keep us safe is simply false, as the Allen case proves. Abolitionists are well aware that courts are fallible and that innocent people might be (and occasionally have been) convicted. What they overlook, or prefer not to see, is that prison security is also fallible, and that for that reason, LWOP is no more a guarantee of the safety of innocent people than the abolition of the death penalty would be. The record shows the opposite.

Posted by: Bill Otis | Jul 23, 2012 5:18:47 PM

Bill Otis' post needs a rejoinder:

Damien Echols spent nearly two decades on death row in Arkansas for a crime he did not commit. Prosecutors from the State of Arkansas put him there and kept him there. http://wm3.org/

The Norfolk Four were threatened with the death penalty. All four of them were members of the United States Navy. Virginia law enforcement officials coerced them into confessing to a murder they did not commit. Virginia prosecutors and law enforcement officials ruined the lives of these men, by, among other things, exploiting possible imposition of the death penalty. http://www.deathpenaltyinfo.org/conditional-pardons-granted-three-norfolk-four

Numerous other cases involving convictions of innocent people, some of whom were sentenced to death, are described in detail in Barry Scheck's book Actual Innocence. http://www.criminalprofiling.com/Book-Review--Actual-Innocence_s297.html

The foregoing demonstrates that 1) government entities in the United States convict and sentence innocent people to death, and 2) government entities exploit the possible imposition of the death penalty to get innocent people to confess to crimes they did not commit.

This is not tolerable.

Government simply cannot be entrusted with the power to sentence people to death.

Even if the Colorado killer is sane, and even if he has morally forfeited his right to live, his horrendous crime does not justify bestowing upon government the power to sentence people to death. The fact that the death penalty is enforced against actually guilty murderers does not justify its existence when it is threatened against and imposed upon even a small number of innocent people.

Posted by: Calif. Capital Defense Counsel | Jul 23, 2012 11:33:20 PM

CCDC --

"Bill Otis' post needs a rejoinder."

Then perhaps you should have provided one. The post quotes from a unanimous Ninth Circuit opinion that affirmed the death sentence imposed on Clarence Ray Allen. Allen, previously convicted of capital murder (but spared the DP) plotted from prison to overturn his conviction and make a conviction on retrial impossible by murdering the state's chief witness. He succeeded in doing so. Indeed he more than succeeded, since the hit man he hired killed two other people as well -- people who just happened to be in the wrong place.

That would make three innocent people killed courtesy of a fellow who could have, and should have, been executed for his previous murder. This is in one case.

Can you name three innocent people (innocent as determined by something other than an advocacy website) who have been executed post-Gregg?

Of course you can't.

What this means is that we have lost more innocent life because we FAILED to impose the DP than because we imposed it. And that in turn rebuts Tim Holloway's point that we are just as safe with LWOP as with the DP.

What you fail (or, more correctly, refuse) to understand is that EVERY system of punishment has tradeoffs in which, because of the unavoidable fact of human fallibility, innocent life will be lost. The only question a mature person can ask is which system does a better job of preserving innocent life, and the answer, provided by the Allen v. Woodford case ALONE, is that imposing the DP is the better and more humane tradeoff for protecting the innocent.

It's nothing more than childish to stomp one's foot wailing that imposing the DP might take an innocent life, while refusing to recognize the established fact -- not even counting deterrence -- that failing to impose it will take more, and has already done so.

You can win middle school debates with myopic slogans, but adults have to understand alternatives and make choices. As Aurora, and Clarence Ray Allen, teach, real life is more dangerous than middle school.

Posted by: Bill Otis | Jul 24, 2012 7:55:49 AM

Bill:

"It's nothing more than childish to stomp one's foot wailing that imposing the DP might take an innocent life, while refusing to recognize the established fact -- not even counting deterrence -- that failing to impose it will take more, and has already done so."

Isn't there a rich body of theory (both conservative and liberal) in philosophy and ethics that says that it is worse to affirmatively cause harm (i.e., executing an innocent man) than it is to passively allow harm to occur (i.e., failing to kill someone that might kill again). I think you are glossing over that distinction. I realize that is not your main point--I agree that every system has tradeoffs--but want you to be aware that your claim is not without legitimate moral debate.

Now I wonder about the hypothetical of a brutal murderer being held in permanent solitary confinement in a supermax facility who is also afflicted with neck-down paralysis. Obviously, he is completely incapacitated. Should we kill him nonetheless? And, if so, is this simply revenge. As I've said before, I think we need to take a hard look at "retribution." In my hypothetical, the killing is not necessary in any sense. It is optional, and motivated by an often unexamined (and perhaps "base" or "pathological") desire for revenge.

AO

Posted by: AO | Jul 24, 2012 9:45:44 AM

Bill, after posting the idea that we should not use the DP if we can eliminate the threat to society, I did think about the fact that some of these incarcerated murderers have gone on to kill others. I believe I can recall at least two instances where that happened with guards as the victims --- but cannot cite to a case or news article.
We have in the past failed to completely eliminate the threat to society and probably cannot completely eliminate it in the future. However, for the most part, the threat is eliminated --- but obviously takes a great deal of effort to contain in some instances. Also, contrary to what you state in the post at 7:55, you cannot prove that failure to use the DP has resulted in the loss of more innocent lives than it use would have taken --- except by the standard you set forth in the following statement.
You stated: "Can you name three innocent people (innocent as determined by something other than an advocacy website) who have been executed post-Gregg?" Based on this statement, you appear to be refusing to believe that more than 2 innocent lives have been being taken by the DP -- post-Gregg. Your proof that it has not happened is essentially based on the idea that the government did not find itself to have erred after an execution was performed, so the execution was not in error. If anyone else presents prove of this type of error, it does not count or is not worthy of consideration.
You may note that, once the government executes someone, there is no method to prove through the criminal courts that the execution was invalid (at least to my knowledge). Is there a potential claim for civil liability? Yes, but how difficult is it to bring these cases given: (a) the absolute and qualified immunities that are handed out to government actors; (b) the fact that an innocent person can be executed when no one at fault in any sense that would for a potential defendant; (c) the money necessary to fund such a case; and (d) statutes of limitation.
Has the criminal court system stopped any pre-execution sentences of death that ultimately resulted in someone being freed on the basis of actual innocence? I think the answer to this is unquestionably "yes." Had the criminal court system failed to stop the execution process in any of those cases, that would have likely been the end of the matter in terms of any litigation. After that point, the case would have fallen into the category you suggestion in your statement: "Can you name three innocent people (innocent as determined by something other than an advocacy website) who have been executed post-Gregg?"

Posted by: Tim Holloway | Jul 24, 2012 9:57:36 AM

@Bill Otis
Allen is a good example, as well as a favorite of mine, but not the only one. Thomas Silverstein was convicted of murder four times while serving time in maximum security prisons. Had he beeen put to death after killing the first inmate he would have been unable to kill the other two inmates and one prison guard. William Gollehon and Douglas Turner were each serving life for first degree murders (three in Turner's case) when they beat an inmate to death at the Montana State Prison. While being held in segregation for that murder the men led a prison riot and took part in a further five inmate murders. There are also numerous prison gang leaders who have ordered further murders from their maximum security prison cells.

For decades we've tried to make prisons so secure the inmates could not kill again. We have failed in spite of our best efforts and unless that changes death is the only way to truly remove the threat to society.

Posted by: MikeinCT | Jul 24, 2012 2:13:05 PM

MikeinCT --

Thank you for your response, which I am putting in my files. The great thing (as it were) about Clarence Ray Allen is that it's all laid out in a federal circuit court opinion -- the Ninth Circuit, no less -- and the dynamite language was written by a Clinton appointee.

That case and the ones you noted just leave abolitionists no place to hide if the question is -- as it should be -- which penalty, the DP or LWOP, really better protects innocent life?

They have speculation and websites; we have cases. I'll take that match-up.

Posted by: Bill Otis | Jul 24, 2012 2:30:05 PM

Mr. Bill's argument goes like this:

The execution of the innocent is a necessary evil in a human fallible system and we must accept that risk.

That anyone who could have been executed but was not goes on to kill is a greater evil and we cannot accept that risk.

Therefore, we must risk killing the innocent to uphold the ideal that killing is evil.

Posted by: George | Jul 24, 2012 4:47:34 PM

George --

"Mr. Bill's argument goes like this...[followed by your burlesque of it]."

That's just so cool, George.

Hey, look, it you want to make a serious abolitionist argument for a change, there are a lots of good examples on this thread: Tim Holloway, Anonymous One, Guy, LTMC, Fed Defender.

It's not that hard. All you need to do is exchange Holier Than Thou for thinking.

Posted by: Bill Otis | Jul 24, 2012 7:51:59 PM

Come on Bill --- admit it; you want the Colorado killer to be executed, and you want it done quickly. Just admit it. It's what you want. You really, really want it.

Posted by: Calif. Capital Defense Counsel | Jul 25, 2012 12:53:13 AM

CCDC --

Does it ever occur to you that the subject of this blog is not me or what I want, but the legal issues Doug posts about?

If, nonetheless, you are interested in what I "really, really" want (which you aren't), you can find it by reading my comments, rather than pretending you're a shrink.

P.S. Like George, you could look to your fellow abolitionists Tim Holloway, Anonymous One, Guy, LTMC, and Fed Defender -- among others -- to see what an analysis-based, rather than an ad hominem-based, argument looks like.

Posted by: Bill Otis | Jul 25, 2012 10:08:41 AM

Bill --- isn't George saying that you have indicated which risks are acceptable and which ones are not? While I believe you are also indicating that you believe the absolute numbers -- in terms of actual innocent people who are killed (a factor that I believe is very difficult to verify or negate) -- favor your argument and the use of the DP actually lowers the risk of killing innocent people, I think he is summarizing your argument as to which risks are acceptable.
Also, I am wondering if anything can be said for the idea that a distinction should be made if the killing of an innocent person is by the state as opposed to an individual that has already killed someone? Beyond shear numbers (which no doubt are important), it seems that there is something worse about the government taking an innocent life as opposed to some other person doing it.
I suppose the counter-argument is that the state has responsibility for making sure the most vicious of those who have killed, and who have a propensity for killing, don't do it again. If there is going to be a DP, should the aggravating and mitigating factors and what is sufficient for a DP reflect something along these lines? It appears that at least some of the factors may already reflect this (but I am not really sure as I have never really studied the factors).
Also, in relation to convicting and executing the innocent, I have heard lay people state that that if it is not 100% certain that the defendant killed somebody, then the DP should not be imposed. While I question how often that standard could be met (and perhaps could almost never really be met), perhaps jury instructions should require something like this? Note that it seems that the case law has dodged exactly what is a "reasonable doubt." However, I think there is indication that the "beyond a reasonable doubt" is not a standard of 100% certainty.

Posted by: Tim Holloway | Jul 25, 2012 10:14:44 AM

CCDC --

To follow up, and in the hope that legal analysis might not be completely alien to you, could you tell us whether the legal analysis in the Ninth Circuit's unanimous opinion in Allen v. Woodford, 395 F.3d 979 (9th Cir), cert. den., 126 S.Ct. 134 (2005), is incorrect? If you think it is, what specific passages do you think are erroneous, and why? What authoritative holdings, in the Ninth Circuit or the Supreme Court, undermine it? Do you dispute that, if Allen had been executed promptly after his first capital murder conviction, the three people he later arranged to murder would be alive today?

Posted by: Bill Otis | Jul 25, 2012 10:16:47 AM

Bill --- it seems to me that you are Nancy Grace's male analogue.

Posted by: Calif. Capital Defense Counsel | Jul 25, 2012 10:51:15 AM

Tim Holloway --

1. I don't need for George to "summarize" my argument, which he is certain to do (and does) in a sly way designed to make it look callous or worse. I choose my words carefully, and I don't need them recast.

2. My argument is this: That in choosing between LWOP and the DP, it's erroneous to think that the former will keep us as safe as the latter. History shows this is not so. Thus, in terms of the safety of potential future victims, the DP is preferrable.

3. If it's difficult to tell exactly how many innocent people are killed by life-term murderers who did it again, I'd be happy to settle for some unarguable minimum number. That would consist of, at least, the victims of Clarence Ray Allen, Thomas Silverstein, William Gollehon, Douglas Turner, and Kenneth McDuff. That gets you to 15, minimum. No serious person claims that we have executed anywhere close to 15 factually innocent people post-Gregg (or in the last 50 years for that matter).

4. It feels like there's a difference between (1) erroneous execution and (2) subsequent murder(s) committed by a person the state could have executed but didn't, I grant you that. But I think the difference is more one of aesthetics than ethics. The question for public policy analysis is how to maximize the protection of innocent life, and for purposes of that question, (1) and (2) stand on the same footing. In addition, it makes a big difference whether there are more preventable deaths through (a) post-life sentence murders, or through (b) erroneous executions, and the answer is that there are whole lot more of (a).

5. It seems to me that the jury standard for imposing the DP should be beyond a reasonable doubt and to a moral certainty. There are hundreds and hundreds of cases that meet that standard, including, of course, the case that started this thread. As you very likely know, the question in homicide cases (actually, in most criminal cases) is not factual guilt. The question is almost always something else, such as degree of guilt and/or (as here) mental state. But we almost always know who did it.

Posted by: Bill Otis | Jul 25, 2012 10:59:44 AM

CCDC --

"Bill --- it seems to me that you are Nancy Grace's male analogue."

More ad hominem having zilch to do with analysis or law.

Wanna take on Allen v. Woodford, 395 F.3d 979 (9th Cir), cert. den., 126 S.Ct. 134 (2005), which you were asked about, or is that of no interest to you?

Posted by: Bill Otis | Jul 25, 2012 11:04:33 AM

How many times has the existence of the death penalty been exploited by the likes of Bill Otis, Nancy Grace, the Norfolk Four persecutors, and the WM3 persecutors to coerce innocents to "confess"?

Posted by: Calif. Capital Defense Counsel | Jul 25, 2012 11:09:02 AM

Bill, with regard to determining how many erroneous executions have been performed post-Gregg, I tend to think it nearly impossible to determine this based on a number of things related to sloppy work, lack of complete honesty in prosecuting the case and/or problems that are never uncovered. While the following example is not statistically significant, it does provide some degree of anecdotal evidence or at least an understanding of my perspective. I think it was possible in this case for the forensic evidence described below to have gone undiscovered.
The very first extremely serious felony matter, on which I started working on at the ground floor (meaning pre-conviction), involved allegations of a serial CSC defendant. I did not do the trial, but did a number of pre-trial motions and helped the trial attorney prepare. At one point, just a day or so prior to the trial on which I worked, the prosecutor delivered a stack of discovery materials. Somewhere within those pages, there was a report that a semen stain had been found on the clothing of the complaint in that case that was about to go trial ("the Hillsdale County case"). The report also included indications that the lead investigator told the forensic people not to test it against the defendant because they knew the stain came from the complainant's boyfriend. They also contended this in a side-bar type colloquy at trial, but outside the hearing of the jury.
After the trial I did the appeal and the habeas work. It took awhile, but I found that they had in fact tested the stain against the defendant and their results indicated the blood type from the stain was not the same as the defendant's blood type. On that case, relief was granted over 11 years after the charges were brought. Sawyer v. Hofbauer, 299 F.3d 605 (6th Cir. 2002). Note that this was post-AEDPA.
With regard to other cases, he was acquitted in another case in a different county (Monroe) after about 20 minutes of deliberations, but remains incarcerated on another conviction out of a different county (Ingham)(see the aforementioned opinion which denied relief on that case but granted it in the Hillsdale case). That is the extent of his convictions and acquittals. He was not retried in the case from Hillsdale County.
My thought has been along these lines --- because this was the first serious felony I ever dealt with from the start of the case (and have also seen other questionable things in other cases). I had to imagine that things like this must be happening more often than people realize (including with DP cases) or are willing to admit. If that is correct, any post-Gregg numbers or statistics regarding the execution of innocent people OR the execution of people when the jury did not hear evidence that suggests, but does not conclusively proof, innocence cannot be deemed to involve all the cases that actually involve executions of innocent people and/or execution of people when the jury did not hear evidence that was exculpatory but did not conclusively proof innocence.
Note that I believe I just expanded the category that was the basis of prior posts. I went from proof of actual innocence to a category that includes cases involving exculpatory evidence that the jury did not hear. However, it seems that discussion along these lines is important in terms of trying to estimate how many innocent defendants may have been executed post-Gregg.

Posted by: Tim Holloway | Jul 25, 2012 12:47:32 PM

CCDC --

"How many times has the existence of the death penalty been exploited by the likes of Bill Otis, Nancy Grace, the Norfolk Four persecutors, and the WM3 persecutors to coerce innocents to 'confess'?"

I'm glad you're posting today, CCDC. The contrast between your ad hominem nonsense and Tim Holloway's serious and gentlemanly discussion says all that needs saying.

P.S. Since I don't hide my name, you can go look up my cases and see how many times I pressured innocents to confess. Happy hunting.

P.P.S. Still hiding from Allen v. Woodford? My, my, my. Do you also refuse to discuss adverse authority in your briefs?

Posted by: Bill Otis | Jul 25, 2012 2:39:43 PM

Tim Holloway --

I guess my first point would be that the burden of proof rests on the side making the claim. The abolitionist side claims that we have been executing innocent people post-Gregg, and therefore has the burden.

My second point would be that the burden is not discharged by the essays and "studies" done by those with a pre-existing viewpoint, submitted (most frequently) to those having the same viewpoint, and then -- guess what -- found to be "authoritative." But they are not authoritative -- they're advocacy.

This was wonderfully illustrated in the Troy Davis case, where abolitionist types gave grossly slanted accounts of recantations and some other (in their view) questionable evidence, and deliberately omitted the ton of evidence set out in the district court's massive opinion, which found no serious reason to question Davis's guilt. There is still the lingering echo, in abolitionist lore, that Davis was innocent -- and it's still there because the definitive district court opinion (and the refusal of all nine Justices to second-guess it) just gets walked past.

This is why I continue to want to see a NEUTRAL source declare that we've been executing innocents. Even the ABA, which is anything but neutral, makes no such claim.

Lastly for now (I have to go watch Nancy Grace, then torture a few more defendants into confessing), the fact that the government fails to provide exculpatory evidence does not mean that a convicted defendant didn't do it. It raises questions about the conviction, you bet, and impeaches the character and professionalism of the prosecutor, but that is different.

Indeed, even an outright acquittal doesn't mean the defendant didn't do it, as the Casey Anthony and (even more) the OJ cases show.

Personally, I always espoused an open file policy. The reason for this was what I've been saying all along: I believe in truthcentric lawyering. I did not regard it as a game, and I would prefer that no practicioner so regard it. This is why CCDC is going to be looking for 10,000 years to find a case where I was hiding the ball or pulling a fast one. But there was a second reason supporting open file discovery as well: We had the occasional aggressive and beligerent defense lawyer, and when he saw what was in the file -- in other words, what his client had actually been up to -- his behavior tended to improve quite a bit.

Posted by: Bill Otis | Jul 25, 2012 3:04:52 PM

Mr. Bill:

"I guess my first point would be that the burden of proof rests on the side making the claim. The abolitionist side claims that we have been executing innocent people post-Gregg, and therefore has the burden.

"My second point would be that the burden is not discharged by the essays and "studies" done by those with a pre-existing viewpoint, submitted (most frequently) to those having the same viewpoint, and then -- guess what -- found to be "authoritative." But they are not authoritative -- they're advocacy."

-----

Illinois Govenor George Ryan's Commission on Capital Punishment

On May 4th, 2000 Illinois Governor George Ryan created the Commission to study Illinois' Capital Punishment law.

As a response to the phenomena in Illinois of individuals being exonerated of their crimes while serving time on Illinois' death row former Governor George Ryan created this Commission to study the capital punishment system in Illinois.

As support the Commission's work Governor Ryan commissioned an academic study be completed to provide reliable evidence for the Commission to us in support of their work. The study titled "Race, Region, and Death Sentencing in Illinois 1988-1997" can be viewed or downloaded below. Also available is the Commission's final report, appendixes, and recommendations.

-----

As to my own affirmative argument, as if exposing Mr. Bill's illogical arguments is not an argument, is merely the corollary.

The execution of the innocent of a capital offense is never acceptable.

The killing of the 100% of death penalty eligible defendants because a minority will go on to kill again is untenable because only 1.2% of those who had served time for homicide were arrested for homicide. So that is punishing 100% for the sins of 1.2%.

Killing to condemn killing is an untenable contradiction.

Posted by: George | Jul 25, 2012 4:44:13 PM

1. Ryan's study does not even purport to find that Illinois (or any other state) executed an innocent person post-Gregg.

2. Ryan is not the most credible source to cite, being a thoroughly corrupt and deceitful man in the mold of persons who have held his office, and, like them, having gone to the slammer.

3. By executing persons who have committed aggravated murder or murders, we are not "punishing 100% for the sins of 1.2%." We are giving killers the punishment they have earned, with the extra bonus that said punishment does more than LWOP has done or could do to prevent them from killing again.

Posted by: Bill Otis | Jul 25, 2012 6:09:17 PM

1. So I violated the letter of your post-Gregg law? Tough. You never had jurisdiction over me anyway.

2. Are you saying the 14 member commission is thoroughly corrupt and deceitful? Didn't think so, not while using your real name. So the commission study stands.

3. You keep claiming the 1.2% outlier cases are determinative. People should know of the extremely low recidivism rate for murder because of those like you who tout the outlier cases as proof of nothing really.

Killing to condemn killing is an untenable contradiction.

Posted by: George | Jul 25, 2012 6:58:16 PM

"So I violated the letter of your post-Gregg law? Tough. You never had jurisdiction over me anyway."

Gosh, George, you are so MACHO. I mean, you can sit at that keyboard and type, quite manfully I'm sure, "Tough." Or maybe we should make that, "TOUGH." We wouldn't want to miss how you can throw your weight around here, George.

It's true you don't have what it takes to tell us your real name or what you do or any of that good stuff (contrary to Doug's standing request), but, hey, look, it's clear how superior you are. Your wildly original "arguments" ("Killing to condemn killing is an untenable contradiction") have done so much to bring the courts and the public over.......I mean, you have brought them over, haven't you?

P.S. If you ever become interested in a serious discussion, the post-Gregg period is the only one that counts in analyzing present death penalty realities. But if you want to go back to Huey Long or Charlemagne or whatever, heck, don't let me stop you. I'm sure you won't.

Posted by: Bill Otis | Jul 25, 2012 11:52:21 PM

Once again Mr. Bill only has ad hominem arguments left and I win.

If you ever become interested in serious discussion, Mr. Bill, perhaps you'll cite case law that found a dead person has standing to file a habeas corpus because he/she was wrongly executed. Or maybe your argument is that the government would do so on its own so we can at last have proof there was a wrongful execution "post-Gregg." (Caution, that is a link to Grits and it will probably hurt your head.)

P.S. Thanks for the motivation to find the Wrongful Convictions Blog.

Posted by: George | Jul 26, 2012 2:30:07 AM

Bill can dish it out, but he can't take it. He complains about others making ad hominem attacks against him, yet he constantly resorts to ad hominem attacks. He is like Nancy Grace during the early phases of the Duke lacrosse case. He won't talk about things like the Norfolk Four case and the WM3 case. Instead, he just sits around, with his panties in a twist, exalting the death penalty and the drug war. Facts are optional in Bill world. (Oh, and anonymity is just so frustrating; it makes Bill's head explode.)

Posted by: Calif. Capital Defense Counsel | Jul 26, 2012 8:46:26 AM

CCDC --

If you didn't exist, I'd have to make you up. Well, actually, no. If I made you up, no one would believe it.

Allen v. Woodford still awaits your trenchant analysis. I have a feeling it'll be waiting a long time.

Posted by: Bill Otis | Jul 26, 2012 10:09:38 AM

George --

"If you ever become interested in serious discussion, Mr. Bill, perhaps you'll cite case law that found a dead person has standing to file a habeas corpus because he/she was wrongly executed."

Wrongful death suits are filed all the time by the decedent's estate or relatives. I guess there's a chance that, because you don't know any law, you didn't know that.

Not that such a suit is the only means by which a neutral body might determine that an innocent person had been executed (contrary to what you tacitly pretend). Legislative or executive branch commissions could do the same.

And not that any of this makes all that much difference. You just don't get it: If Side X makes a claim (like "we're executing innocent people"), it's up to Side X to furnish the proof. In so doing, Side X should be mindful that (1) difficulty in furnishing proof is not proof (and is instead a reason to be more circumspect in making its claim); and (2) "proof" satisfactory to Side X and its predetermined allies, but not to neutral people, is not "proof" in any realistic sense.

Posted by: Bill Otis | Jul 26, 2012 10:23:23 AM

Bill -- Killing is wrong. Even though there are really bad guys out there, like this Allen guy you're infatuated with, and like George W. Bush and Barack Obama (who are both culpable of many murders), the death penalty is not a moral or just response to wrongful killing. Among other things, you and your fellow government toadies and members of government lack sufficient competence to be entrusted with making systematic life and death decisions.

Are you able to understand that? Are you able to understand that it is people like you who bring about the tragedies of cases like the WM3 and Norfolk Four cases? Do you remember when you and Nancy Grace had convicted the innocent Duke lacrosse players in your crazed, statist "brains" and in the press, before your buddy, Nyfong, was exposed? If you come to terms with your own incompetence and recognize your fool hearted subservience to government, you may be able to begin understanding where you have gone astray.

Posted by: Calif. Capital Defense Counsel | Jul 26, 2012 12:04:32 PM

Here is another example of a case where there was a wrongful conviction, with new evidence that indicates innocence, yet there would have been no one to sue for wrongful death had these defendants been executed. Are they innocent beyond all doubt? The prosecution does not think so, but how can that be proven. The decision came out today.

http://www.freep.com/article/20120726/NEWS01/120726017/Thomas-Highers-Raymond-Highers-conviction-overturned?odyssey=tab|topnews|text|FRONTPAGE

Posted by: Tim Holloway | Jul 26, 2012 2:00:15 PM

CCDC --

"Killing is wrong."

Sometimes, sure. Sometimes it's right. Sometimes it's heroic.

"Even though there are really bad guys out there, like this Allen guy you're infatuated with..."

You can rebut Allen v. Woodford any time you care to -- or attempt to rebut it, anyway. That's what lawyers do, ya know.

"...and like George W. Bush and Barack Obama (who are both culpable of many murders)..."

Do you have any grasp of how off-the-wall you paint yourself every time you say stuff like that?

"..the death penalty is not a moral or just response to wrongful killing."

Yes, I know that's what you think, but just repeating it over and over does not provide a reason for anyone else to think it.

"Among other things, you and your fellow government toadies and members of government..."

I haven't been in the USAO for 13 years. I teach law now.

"...lack sufficient competence to be entrusted with making systematic life and death decisions."

The jury makes those decisions, not the government. As for competence, I'll compare my record in court to yours anytime. Wanna start today?

"Do you remember when you and Nancy Grace had convicted the innocent Duke lacrosse players in your crazed, statist 'brains' and in the press, before your buddy, Nyfong, was exposed?"

That statement contains two outright lies, not this this is new for you. I never drew a conclusion of guilt, unlike the leftist Gang of 88 on the Duke faculty. And Nifong is not my buddy. I've never met him, don't care to, hope he gets disbarred, and am happy to leave him where history found him, to wit, seeking to suck up to the sizable race-huckstering wing of the Democratic Party.

"If you come to terms with your own incompetence and recognize your fool hearted subservience to government, you may be able to begin understanding where you have gone astray."

Yes, O Master!!! How else may I serve Your (Self) Righteousness?

Posted by: Bill Otis | Jul 26, 2012 2:37:59 PM

Tim Holloway --

Neither I nor any other sane person has disputed that there are erroneous convictions, including erroneous murder convictions. The question on the table is whether an innocent person has been executed post-Gregg, and today's decision does not change the facts on that score.

Posted by: Bill Otis | Jul 26, 2012 2:44:57 PM

Good news! If a family member of the wrongly executed sues for wrongful death and the government claims immunity, just say Bill Otis said it was okay. *

When the government claims there is no evidence of a wrongful execution, just say that Bill Otis says the government destroying the evidence was proof of a guilty conscience on the part of the government.

When the government argues there is no precedent for a family member to sue the state for a wrongful execution, just cite this blog and Bill Otis' posts as precedent.

Families across the nation can thank Bill Otis for the permission to sue for wrongful death.

* These new laws are limited to post-Gregg cases pursuant to BO 187, enacted Jul 24, 2012 7:55:49 AM.

Posted by: George | Jul 26, 2012 3:28:48 PM

Bill,
With regard to the case in the Detroit Free Press today, the point I was making is that: (A) had there been an execution in that case there would be no legal process by which the conviction could be overturned or by which a civil judgment could have indicated the original conviction was wrong; AND (this is important) (B) if there had been an execution, it would have went into the post-Gregg category of cases by which no one could prove an innocent person had been convicted. Perhaps it still will not be proven, in the sense of the defendants meeting a burden of proof of their innocence, by further proceedings. There is likely to be no proceeding where this would possibly occur.
Also, a good part of the question related to this discussion should be how much confidence do we have in the system as not having executed an innocent person, regardless of whether we can conclusively prove someone's innocence. What is the confidence level? That seems like a very good goal, correct? We have that goal in many or perhaps nearly every professional undertaking in this country. We try to do this in nearly all important matters. While we may not be able to have mathematical calculations regarding this in relation to the criminal justice system (as for example, in the same way they do with engineering and science), we should be thinking in those terms.

Also, in relation to the following, everyone should have concerns about the following being stated by CCDC if it cannot be backed up. If Bill said the following about the lacrosse players on this blog, I would think you can find in it in the archives, correct? If he stated somewhere else on the internet, I would also think that you should be able to find it. I know Bill drowns puppies on a regular basis (although it should be obvious, I will point this out as a joke), but if you have things to attribute to him --- like saying he concluded the lacrosse players were guilty (and implying he did this quickly), do us all a favor and be able to back it up. He is claiming it is an outright lie. This is not just a Bill Otis issue. It is an issue in terms of trying to maintain the integrity of statements on this blog.

THIS IS WHAT I AM REFERRING TO, WITH BILL'S RESPONSE FOLLOWING IT (I AM PRIMARILY REFERRING TO THE STATEMENT REGARDING CONCLUSION OF GUILT, I.E., DON'T MAKE HIM OUT TO BE SOMETHING HE IS NOT IN TERMS OF JUMPING ON A BANDWAGON OF GUILT):

"Do you remember when you and Nancy Grace had convicted the innocent Duke lacrosse players in your crazed, statist 'brains' and in the press, before your buddy, Nyfong, was exposed?"


That statement contains two outright lies, not this this is new for you. I never drew a conclusion of guilt, unlike the leftist Gang of 88 on the Duke faculty. And Nifong is not my buddy. I've never met him, don't care to, hope he gets disbarred, and am happy to leave him where history found him, to wit, seeking to suck up to the sizable race-huckstering wing of the Democratic Party.

Posted by: Tim Holloway | Jul 26, 2012 3:38:22 PM

Hey George --

Go win your case in court and stop complaining to me when you won't or can't.

Meanwhile, maybe you can help out CCDC in showing us why Allen v. Woodford was wrongly decided, or in providing the evidence for his claims that I ever thought the Duke rape defendants were guilty or am buddies with Democratic pol Mike Nifong.

Posted by: Bill Otis | Jul 26, 2012 3:46:47 PM

Is Bill incapable of typing "WM3" and "Norfolk Four"?

He seems to re-type everything else.

Why is he scared to even mention those terms?

Posted by: Calif. Capital Defense Counsel | Jul 26, 2012 4:00:06 PM

Tim Holloway --

It's quite true that, IF there is an execution, today or any other day, of a person the courts have determined to be factually innocent, then my claim (echoing Scalia's discussion in his concurrence in Kansas v. Marsh) that we haven't done so will become false. The problem is with the "IF."

(IF spaceships with people from Mars land on earth tomorrow, my claim that there are no people on Mars will similarly become false).

As to provability and degree of confidence, let me say a couple of things.

First, no side in a debate should loudly and indignantly assert X unless they can prove X, and not just to their own satisfaction.

Second, abolitionists seem to be schizophrenic on this point. There was a case in Texas about two years ago in which abolitionists were claiming quite directly that they were going to PROVE IN COURT that an innocent person had been executed. (I think the name of the Texas procedure is a court of inquiry).

Indeed, now that I go to my files, none other than the DPIC made this claim, and had this headline: "Texas Judge Opens Court of Inquiry on Execution of a Possibly Innocent Man." The DPIC entry is here: http://www.deathpenaltyinfo.org/texas-judge-opens-court-inquiry-execution-possibly-innocent-man

It just won't do for abolitionists to assert both that (1) they can and will go to court to prove an innocent man was executed and then, when the effort implodes, also claim (2) it's impossible to do what they loudly told us they were doing.

Third, the imposition of the DP in the USA is the most heavily litigated criminal sanction in the world, ever, and under the most exacting standards. Yes, it is possible that at some point an innocent person will be executed. But with the extent of review being what it is now -- and average of 11 or 12 years, state and federal -- and with the number of hurdles the state must surmount, and with with all the failsafe mechanisms being set against execution, the idea that, well, golly, it JUST MUST HAVE HAPPENED seems far-fetched to me.

Others may differ. But differences are not proof, nor are they indicia of a degree of insecurity sufficient in my view so boldly to indict the system as a killer of innocents.

Lastly, I very much appreciate your final point regarding the integrity of statements on this blog. It is no mere coincidence that CCDC does not quote me on the assertion he says I made. That's because he can't. I never made it, or implied it, and I don't believe it.

For the blog snoozingly to tolerate outright lies from one commenter about what an opposing commenter has said vastly and unnecessarily diminishes the value (and enjoyability) of the site. We saw, for example in the discussion of appeal waivers, how good this blog can be at its best. There is no good reason intentionally and snearingly to take it down from its best. I thank you for pointing this out, and I hope others are listening.

Posted by: Bill Otis | Jul 26, 2012 4:33:52 PM

CCDC --

"Why is he scared to even mention those terms?"

Let's debate it live and in person at a law school, OK? Then you can see how "scared" I am. The topic will be: "Resolved: The Death Penalty Should Be Abolished." You can bring up those cases as Exhibit A. Ready to go?

After accusing me of professional incompetence, you didn't want to compare litigation records. Now why would that be? Well, whatever. Maybe you'll be more willing to debate. Since I'm "scared," you should run me right out of the auditorium. Don't you relish the opportunity?

In the meantime, however, maybe you could quote me in saying, ever, that the Duke lacrosse players were guilty -- or, if you won't do that, retract your lies about my position.

Posted by: Bill Otis | Jul 26, 2012 4:43:48 PM

Bill Otis = Nancy Grace. http://crooksandliars.com/2007/04/14/the-daily-show-will-nancy-grace-apologize-to-duke-lacrosse-players

Posted by: Calif. Capital Defense Counsel | Jul 26, 2012 10:14:14 PM

CCDC --

You are a 100% liar.

In addition to your false post immediately above, this was your statement to me 12 hours ago:

"Do you remember when you and Nancy Grace had convicted the innocent Duke lacrosse players in your crazed, statist "brains" and in the press, before your buddy, Nyfong, was exposed?"

The following is what I actually said about the Duke lacrosse case, months ago in response to Erika:

Erika says, "I've never heard of a truly false rape allegation."

I guess she was living in a cave when a drunken stripper made a 100% false rape allegation against several members of the Duke lacrosse team.

And it was not just that the stripper picked out the wrong guys. It was that there was no rape at all, and nothing approaching a rape. The whole thing was a hoax. Once started, it was carried forward by a hateful bunch of feminist/Leftist Duke academics calling themselves the Gang of 88, and by a corrupt Democratic prosecutor named Mike Nifong. Nifong was in a tough primary battle for his job as Durham D.A., and wanted to exploit the racial angle in the case to motivate what he hoped would be his black base.

It became probably the most notorious case of prosecutorial misconduct in years. As I say, the whole thing was a hoax. The drunken stripper was never touched, much less raped.

But Erika claims she "never heard of a truly false rape allegation."

P.S. The whole thing is brilliantly exposed in the book "Presumed Guilty" by Stuart Taylor (of the National Journal) and K.C. Johnson. ###

I said all that six months ago, here:
Bill Otis | Jan 30, 2012 2:03:38 PM

As I said, CCDC, you're a 100% liar. If you had a grain of decency, you'd apologize. You don't and you won't. But no matter. You have shown your degree of "integrity," and proved your "value" as a commenter.

Posted by: Bill Otis | Jul 27, 2012 12:24:06 AM

Dear Bill,

please leave me out of this :P

love,

Erika :)

p.s., I still maintain that somebody did in fact rape the accuser in the Duke lacrosse case. It obviously wasn't the players, but its hard - if not impossible to fake the physical evidence including injuries and having semen from multiple men inside of her panties. I suspect that her actual attacker is known to her - quite possibly her pimp - and she has never identified her real attacker out of fear.

Posted by: Erika | Jul 27, 2012 1:49:55 PM

Erika --

You're "in it" only in the sense that my position on Nifong and the Duke lacorsse case was most clearly spelled out in a post I wrote in response to you. Otherwise, sure, you have nothing to do with CCDC's lying about that position.

However, now that you're on-line, let me ask you this: Do you think it is acceptable for one commenter to fabricate the position of an opposing commenter?

P.S. What you said back in January was that you never heard of a truly false rape accusation. Now, as you all but acknowledge, you have heard of one. The multiple rape accusations against members of the lacrosse team were truly false, and they were the only rape accusations she made.

Posted by: Bill Otis | Jul 27, 2012 3:47:33 PM

CCDC --

After saying again and again in your most recent posts (at least seven in the last three days) that I took the same position on the Duke lacrosse case that Nancy Grace did, I see you have suddenly gone silent now that you've been exposed as a liar.

My, my.

Posted by: Bill Otis | Jul 28, 2012 7:44:24 AM

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