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October 21, 2012

Kentucky Commission on Human Rights urges state abolition of death penalty

As reported in this local article, headlined "Human Rights Commission passes resolution to abolish death penalty in Kentucky," last week a state civil rights commission formally called for repeal of Kentucky's death penalty. Here are the details:

Arguing that capital punishment is often applied unfairly against minorities and the poor, the Kentucky Commission on Human Rights board has passed a resolution opposing the death penalty in Kentucky.

The commissioners, at a meeting Wednesday in Lexington, urged the Kentucky General Assembly to repeal the law that allows the use of the death penalty in murder convictions. The commission also urged Gov. Steve Beshear to sign any such law brought before him. The resolution unanimously passed by the commissioners will be submitted to Beshear and to each state legislator.

As of April 1, Kentucky had 35 inmates on death row at the Kentucky State Penitentiary in Eddyville, according to the NAACP Legal Defense and Educational Fund. Marco Allen Chapman was the last Kentucky inmate executed, by lethal injection in 2008....

The commission resolution read: “Since 1976, when Kentucky reinstated the death penalty, 50 of the 78 people sentenced to death have had their death sentence or conviction overturned, due to misconduct or serious errors that occurred during their trial. This represents an unacceptable error rate of more than 60 percent.”

The resolution said statistics show “the death penalty is disproportionately imposed on minorities and the poor. African Americans constitute 12 percent of the U.S. population, but represent 42 percent of prisoners on death row.” It cited figures from Amnesty International that more than 20 percent of black defendants executed since 1976 were convicted by all-white juries.

A press release from the Kentucky Commission on Human Rights concerning this resolution is available at this link.  I find notable, and somewhat troubling, that this resolution cites national statistics on race and the application of the death penalty, but fails to discuss Kentucky's statistics.

I suspect the failure to discuss Kentucky's racial data in the application of the death penalty is a result of the fact that vast majority of murderers on Kentucky's death row are white.  Indeed, based on the pictures on this page of the 34 Kentucky death row defendants from the state Department of Corrections, it appears that 29 are white (85%) which is spot on with the percentages of white in Kentucky's general population.  (Of course, the proper statistical comparision is death sentences as compared to capital murderers, but those are hard numbers to find without serious research.  Then again, one would hope a state commission might do this kind of research before passing a resolution on a topic of great importance.)

October 21, 2012 at 03:47 PM | Permalink

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Comments

Doug,

Agreed that the statistics you quote are meaningless, both because they are national statistics and because they rely on the raw numbers and not on any kind of sophisticated statistical analysis. However, the press release also refers to a number of studies by Thomas Keil and Gennaro Vito that are Kentucky-specific and do engage in sophisticated statistical analyses: "Additionally, numerous empirical studies, including one commissioned by the Kentucky General Assembly, have shown that the Commonwealth is more likely to seek the death penalty when the offender is black and the victim is white, and that a death sentence is more likely to be imposed on black offenders convicted of killing a white victim."

And, yes, the number of death-eligible defendants, and their racial identity and that of their victims, is an extraordinarily difficult number to ascertain in Kentucky.

P.S. Happy Birthday!

Posted by: Michael J.Z. Mannheimer | Oct 21, 2012 8:57:22 PM

I would imagine the only number kentucky looked at was this

"Since 1976, when Kentucky reinstated the death penalty, 50 of the 78 people sentenced to death have had their death sentence or conviction overturned, due to misconduct or serious errors that occurred during their trial."

that is 605 of all death sentences in 36 years .....60% got tossed becasue of missconduct or major error..i.e Crime during their trial.

That % sucks in a capital crime system. It basicaly shows that in kentucky over 50% of the the state either wants to kill the wrong person...ie an innocent! or just doesnt' kill how they get a conviction as long as they get one.

Neither results should bring anything but a death penalty for the ones in charge.

Posted by: rodsmith | Oct 22, 2012 12:17:51 AM

sorry that was supposed to be 60% not 605 LOL

Posted by: rodsmith | Oct 22, 2012 12:18:32 AM

The statistics show discrimination and under valuation of black murder victims, not of discrimination against black murderers. This is self evident but eludes the lawyers on this Commission.

Posted by: Supremacy Claus | Oct 22, 2012 6:35:27 AM

The OP's point is noted, but it is also noted that the press release notes (other than what rodsmith said): "Additionally, numerous empirical studies, including one commissioned by the Kentucky General Assembly, have shown that the Commonwealth is more likely to seek the death penalty when the offender is black and the victim is white, and that a death sentence is more likely to be imposed on black offenders convicted of killing a white victim." This is state specific.

Posted by: Joe | Oct 22, 2012 9:45:49 AM

Hello little boys.

Posted by: anon | Oct 22, 2012 10:09:17 AM

Around 50% of murders in the United States are committed by blacks. So, the fact that blacks comprise 42% of death rows likely means that blacks, if anything, are underrepresented on death rows. It's not hard to imagine why since many cities that are heavily black or outright majority black have DAs who rarely or never request the death penalty (some, of course, are in states without capital punishment). Examples of such cities are Washington, D.C., New York, Oakland, Newark, Baltimore (City), Portsmouth, Va., Norfolk, Va., Detroit, East St. Louis, Chicago, Gary, Ind., Flint, St. Louis (City), etc.

Posted by: alpino | Oct 22, 2012 11:14:09 AM

"Since 1976, when Kentucky reinstated the death penalty, 50 of the 78 people sentenced to death have had their death sentence or conviction overturned, due to misconduct or serious errors that occurred during their trial."

Notice anything missing?

Right! What's missing is any assertion that they had the wrong guy.

Notice anything else missing? Right again -- even the claim that Kentucky has executed an innocent person.

Anything else? Right again! The cliam of "misconduct" is designed to get you to think that it's government misconduct, but it isn't. By far the most frequent claim of misconduct in capital cases is IAC, e.g., that defense counsel was asleep, drunk, too lazy to find mitigation evidence, etc. -- we've seen it many times right on this blog.

Finally, as alpino notes, the real reason blacks disproportionately get the DP is that they commit a disproportionate number of capital-eligible murders.

I must concede, though, that the article does make a persuasive case for one sort of abolition, to wit, the abolition of the Human Rights Commission.

Posted by: Bill Otis | Oct 22, 2012 11:54:32 AM

disparities in sentencing are “an inevitable part of our criminal justice system.”

Reflections on the "Inevitability" of Racial Discrimination
http://scholarlycommons.law.wlu.edu/cgi/viewcontent.cgi?article=1593&context=wlulr


AMR 51/046/2003 Death by discrimination - the continuing role of race in capital cases
http://www.amnesty.org/en/library/info/AMR51/046/2003
http://www.amnesty.org/en/library/asset/AMR51/046/2003/en/bd8584ef-d712-11dd-b0cc-1f0860013475/amr510462003en.pdf

Posted by: Claudio GiustiI | Oct 22, 2012 12:56:16 PM

Joe, so what? That quote is slimy anyway. First of all, the issue is not what "Commonwealth" attorneys do--it's what the local jurisdictions within the Commonwealth do, since decisions on the death penalty by prosecutors are independent variables. It is therefore silly to talk about this as a matter of what the Kentucky prosecutors do. If the race of the victim is not independent of the county, then other things may explain the alleged disparities. For example, if an urban area is loath to use the death penalty on a per murder basis, then if minority victims are concentrated in that area, that will skew the results.

The racial particulars of the crime, e.g., white on black etc. are also susceptible to skewing. Interracial murders may be more likely to be death eligible, and there are very few white on black murderers.

Not surprising that you'd want to defend this statement by cherry-picking something someone else said about it. How about dealing with the substance?

Posted by: federalist | Oct 22, 2012 2:36:05 PM

Goo goo Gaa gaa

Waaaaaaaaaaaaaahhhhhh

Posted by: anon | Oct 22, 2012 3:32:58 PM

federalist, I'll repeat myself.

The OP said: "this resolution cites national statistics on race and the application of the death penalty, but fails to discuss Kentucky's statistics" ... I looked into it, and it did just that. It did not "fail" in that way. It did "discuss" race as applied to the state.

Pointing out how blog posts, especially when the comment notes the post is good as a whole, miss something, I'm trying not to be patronizing here, is sorta a normal thing blog comments do. For this, I get a "so what" and yet another jibe, this time about me "not surprisingly" (I'm sorry if this was not meant to be insulting) I 'cherry-pick.' By noting the OP seems to have missed something.

Also, apparently, if you don't use "slimy" or "disgusting" or some such word every other time or so, you feel bad.

As to Bill Otis, being the "wrong guy" is not the only reason a case falls apart. As to the defense, that's the state's obligation too -- there is a constitutional right to adequate counsel. If it is not provided, the state is at fault too. I realize it is 'trite' to note due process entails more than being the wrong guy or not, but apparently it is worth repeating since that not being the reason the sentence was thrown out is deemed so notable.

Finally, studies have determined even taking into consideration number of murders, race of the victim is disproportionately a factor in death penalty application. federalist notes such things can be "skewered," but such is the case either way. When harsh punishments are justified, things are offered that might be "skewered." So, we have to do the best we can. Not being an expert of statistics here, I won't conclude the result here.

Posted by: Joe | Oct 22, 2012 4:22:12 PM

Yes, Joe, you do get a "so what?" While I applaud your diligence, you quote the slimy statement. And yes, it's slimy. If murders of black people tend to be concentrated in jurisdictions that are less friendly to capital punishment, then statewide stats are necessarily going to be skewed, and we know that's the case. With respect to B/W murders, once again, that has to be a jurisdiction by jurisdiction view. Additionally, B/W murders are more likely than W/W murders to be stranger cases--which probably ups the likelihood of a death sentence.

You mention studies---my guess is that the ones you looked at are seriously flawed. One study, in Maryland, when irrelevant factors (i.e., geography) were teased out, showed that there was no race of the victim discrimination.

In any event, your response post is pretty whiny. You and I both know that you use lame rhetoric devices to "win" arguments, not on substance, but with little debating points. It's tiresome, and you usually contribute little to the conversation--tut-tutting about due process with lead-ins like "it bears repeating" are really just annoying.

As I recall from a previous post, you took a shot at me because I vehemently disagree with the Maples nonsense. Fair enough. I just wish you had the balls (as little as it takes in a blog post) to take me on, rather than hiding behind a 7-2 vote.

By the by, I wish, when you were going to quote me that you would do so accurately. I said "skewed," not "skewered." The words have different meanings.

Posted by: federalist | Oct 22, 2012 5:35:35 PM

Joe --

1. A principal, probably the principal, moral driver of abolitionism is that we might execute the wrong guy. That the Human Rights Commission does not even purport to show that the state has executed the wrong guy is therefore a significant weakness in its argument, and one you neither remedy nor claim to remedy.

2. It is dishonest for the Commission to imply that there has been such an execution by saying that capital convictions were overturned due to "serious errors." The error that unsuspecting readers would first think of is that the state got the wrong guy. The Commission (and, with all respect, you) full well know that when you use this intentionally vague way of phrasing things. It's too obvious for argument that the Commission isn't going to get anything like the same traction if it says, e.g., that convictions have been overturned because of serious violations of the extrinsic evidence rule.

3. Federalist rightly points to the Maryland race-of-the-victim study, but I will go further. I have no interest in the race of the victim, or the killer. Whether it's Timothy McVeigh (killer of numerous whites and blacks) or Troy Davis (killer of a white who was attempting to aid a black), the question is not who is black and who is white, since race has no moral significance, and the obsession with race is just that -- an obsession (and a diversion, while we're at it). The question is (a) do we have the right guy, and (b) is the killing(s) so depraved, in terms of sadism, heartlessness, pre-planning, terrorist motivation or what have you, that a normal person would think mere incarceration inadequate.

By 2-1, the public's answer to that is YES, which is why, incidentally, Prop 34 is going down.

P.S. My bet on the latter is still available. Are we on?

Posted by: Bill Otis | Oct 22, 2012 6:29:59 PM

federalist and otis, don't get your skivies up in the air try switching to disposable diapers they're easier to change and they're also available in bio-degradable form too

Posted by: eco-friendly | Oct 22, 2012 8:01:22 PM

eco-friendly, make sure you use those diapers over your head---when you have you know what for brains, it may leak from your ears---it's also associated with another malady: diarrhea of the mouth.

Posted by: federalist | Oct 22, 2012 8:10:59 PM

Before any more liberals go moaning about the uncivil and impolite things conservatives supposedly say on this blog, I'll be waiting for their condemnation of complete jerks like eco-friendly.

My guess is I'll be waiting a long time. But time will tell.

Posted by: Bill Otis | Oct 22, 2012 9:04:36 PM

Bill, greetings.

Bill, greetings!. I agree that most reversals come about because of IAC claims. However, as you know, a substantial number also come about because of prosecutorial misconduct. The fact that the defendants in those cases may actually be guilty is irrelevant because, as you surely agree, “even those guilty of the most heinous offenses are entitled to a fair trial,” Screws v. United States 325 U.S. 91, 107(1945), and "the constitutional rights of criminal defendants are granted to the innocent and the guilty alike.” Kimmelman Morrison, 477 U. S. 365, 380 (1986). I’ve listed the cases before that involve Brady and Napue misconduct. Regretfully, the list just keeps getting longer. Here again are just those cases that I’ve found just from 2010-2012.

Smith v. Cain, 132 S.Ct. 627 (2012) (where the eyewit¬ness’s testimony was the only evidence linking Smith to the crime the State’s suppression of his inconsistent statements violat¬ed Brady so first degree murder conviction vacated. ); In re Stenson, 174 Wash.2d 474, 276 P.3d 286 (Wash.,2012) (murder conviction and death sentence vacated because state suppressed FBI files relating to forensic evidence that was favorable to the defense); In re Bacigalupo, 55 Cal.4th 312 (2012) (death sentence vacated where prosecutor suppressed favorable evidence it received from informant that supported defendant’s claim that he committed murder because of threats against his family when “prosecution argued during penalty phase that there was “no evidence of duress whatsoever and that greed was defendant's sole motive”); Wolfe v. Clarke, 691 F.3d 410 (4th Cir. 2012) (murder conviction and death sentence vacated where state suppressed police report establishing motive not only for government witness to implicate someone else, but to point the finger specifically at petitioner) ; U.S. v. Mahaffy, 693 F.3d 113 (2d Cir. 2012) (vacating conviction for conspiracy to disclose confidential information relating to securities because “ government's failure to disclose portions of the transcripts [that contradicted the testimony of its key witnesses] violated Brady”); Phillips v. Ornoski, 673 F.3d 1168 (9th Cir. 2012) (death penalty vacated because the prosecutor’s deceit regarding the immunity given to a key witness violated Brady and Napue. ); Tuma v. Com., 60 Va.App. 273, 726 S.E.2d 365 (Va.App.,2012) (conviction for sex abuse reversed because of Brady error in prosecutor’s failure to disclose audio recording of five-year-old victim's interview with county social services where her testimony was the only evidence linking defendant to alleged offenses, and there was no physical evidence implicating defendant); State v. Hollin, 970 N.E.2d 147, 149 (Ind.,2012) (burglary conviction reversed because of state's Brady violation: failure to disclose pending criminal matters against alleged accomplice and fact that accomplice had changed his pretrial account of alleged burglary only after being charged with a new felony) ; Ex Parte Wyatt, 2012 WL 1647004, 1 (Tex.Crim.App., 2012) (rape conviction and 99-year sentence vacated because state suppressed evidence that would have supported the defense's theory of mis-identification including fact that the complainant had viewed a live lineup and had not identified Applicant in that lineup); Guzman v. Dept. of Corrections, 663 F.3d 1336 (11th Cir. 2011) (state violated Giglio when its key witness and its lead investigator testified falsely about the existence of a deal between the state and Cronin); U.S. v. Freeman, 650 F.3d 673 (7th Cir. 2011) (mistrial proper where government knew, or should have known witness presented false testimony); Texas v. Morton (Williamson County, Texas No. 86-452-K26) (2011) (just google “Michael Morton”) (Michael Morton exonerated by DNA evidence after 25 years in prison in case in which prosecutors hid Brady evidence); LaCaze v. Leger, 645 F.3d 728 (5th Cir. 2011) (second degree murder conviction and 40-year sentence vacated because prosecution hid from defense and the court that it gave assurance it to its key witness that his son would not be prosecuted for driving him the murder scene); Sivak v. Hardison 658 F.3d 898 (9th Cir. 2011) (prosecutor’s failure to correct informant’s false testimony that he had no deal with prosecution requires vacating of death sentence); Lambert v. Beard, 633 F.3d 126 (3rd Cir. 2011) (murder conviction vacated under Brady where prosecution failed to disclose inconsistent statement of its critical witness that named a person other than the defendant as the killer); U.S. v. Kohring 637 F.3d 895 (9th Cir. 2011) (withheld evidence that key government witness had allegedly sexually exploited minors was material for purposes of defendant's Brady/Giglio claim warranting reversal of conviction); Johnson v. Florida 44 So.3d 51 (2010) (“The reversal of the death sentences in this case is directly attributable to the misconduct of the original prosecutor. He knowingly presented false testimony and misleading argument to the court…”); William v. Ryan 623 F.3d 1258 (9th Cir. 2010) (case remanded for evidentiary hearing on whether defendant prejudiced where prosecutor suppressed evidence suggesting an alternate person was the perpetrator which is "classic Brady material."); Stanley v. Schriro 598 F.3d 612 (9th Cir. 2010) (conviction vacated for Brady violation, citing study noting that noting that from 1989 through 2003 exonerated individuals spent more than 3,400 years in prison for crimes for which they should never have been convicted “not to imply that Stanley is innocent, but to emphasize that it is never too late to correct an injustice.”); State ex rel. Engel v. Dormire, 304 S.W. 3d 120 ( Mo. 2010) (kidnapping conviction reversed where state failed to disclose letter suggesting that a prosecution witness had been paid for his testimony); Valdovinos v. McGrath, 598 F.3d 568 (9th Cir. 2010) (murder conviction vacated because "a pattern of non-disclosure permeated the proceedings against [petitioner]" which deprived petitioner of due process.); Robinson v. Mills, 592 F.3d 730 (6th Cir. 2010) (murder conviction vacated where prosecution suppressed material impeachment information concerning its key witness, Sims; namely that that Sims had worked as a paid informant for at least three local and state law enforcement agencies in multiple cases); U.S. v. Johnson 592 F.3d 164 (C.A.D.C.,2010) (conviction for possessing heroin with intent to distribute vacated because of government's failure to disclose evidence that heroin found in defendant's bedroom was actually owned by his cousin).


Posted by: Michael Levine | Oct 23, 2012 12:20:40 AM

the problem bill and fed is simple. I dont' care about the racial part, or who messed up and who didn't

What i'm looking at is this basic number

“Since 1976, when Kentucky reinstated the death penalty, 50 of the 78 people sentenced to death have had their death sentence or conviction overturned, due to misconduct or serious errors that occurred during their trial. This represents an unacceptable error rate of more than 60 percent.”

out of 78 death sentences the state had 50 of them tossed for whatever reason. DA crimes, IAC, factual innocnet...Whatever.

What i'm looking at is the same thing you know in your hearts. If 1/2 the time you did you job you fucked it up you could kiss your job good bye. This is worse...60% is sad.

As far as IAC goes will if the defense attorney is screwing up in court then maybe the Judge and DA should get off the old ass and say something in court. Put the shit on the record. If the fool is going to sleep in court. Then the DA should walk over to thier table and slap the retard in the back of the head!

you look at thise IAC claims and think it's a game. Sad thing is i agree it is a game. We just disagree as to who is playing the game. I lean toward the DA who thinks "oh goodie! i've got a total fuckup on the other side. This is gonna be a slam dunk!" Not that most are not one anyway since the majority of judges are former DA's themselves so teng to bend into pretzels to favor the state. Unfortunately not all of them end up buried in prison. We do find out about the ocasional one.

Posted by: rodsmith | Oct 23, 2012 12:50:36 AM

Interested to see if they get rid of the death penalty and if so seeing if other people in other states try to stop it there as well.

Posted by: Marc | Oct 23, 2012 1:46:43 PM

"...---it's also associated with another malady: diarrhea of the mouth."

and

"I'll be waiting for their condemnation of complete jerks like eco-friendly."

still waiting I see...you both sound grumpy maybe the real problem is your pants are too tight try going up a size or two

Posted by: eco-friendly | Oct 23, 2012 6:18:54 PM

eco-friendly --

"you both sound grumpy maybe the real problem is your pants are too tight try going up a size or two"

And you sound like you have an excessive interest in other people's pants. Do you have a problem you'd like to tell us about?

P.S. Care to sign your name to this stuff? Guess not. And why would that be?

P.P.S. Care to make an argument about the subject of Doug's post here? Or is legal argument not really your thing?

Posted by: Bill Otis | Oct 23, 2012 7:16:30 PM

I am not suitably informed on the issue of how race is utilized, if at all, in the Kentucky capital sentencing regime, but it should be clear to anybody at this late day that while we might wish race had no moral significance in the USA, it is way too late in the day to claim that it is so. And if race today is merely an obsession, how is that different that at any prior time in the country's history?

As for prosecutors claiming they got the right guy, well, prosecutors said that for 25-years about Michael Morton, to name just one sad example, but you know what - those prosecutors were wrong.

Posted by: C | Oct 24, 2012 9:26:14 AM

C --

"...while we might wish race had no moral significance in the USA, it is way too late in the day to claim that it is so."

OK then, could you explain what moral significance race has?

"And if race today is merely an obsession, how is that different that at any prior time in the country's history?"

If race was historically an obsession, that is hardly a reason that it should continue to be. Indeed, it is a reason for the opposite.

Finally, one can always point to one case or another in which there was error. But that commonplace was known when the Framers explicitly acknowledged capital punishment, and when the SCOTUS approved it, as in Gregg and Baze. Nor does the general fact of error show that any innocent person has been executed in Kentucky in the post-Gregg era. To the extent the KHRC implies that trial error resulted in an innocent Kentuckian's being executed, it is being deceitful.


Posted by: Bill Otis | Oct 24, 2012 10:09:00 AM

eco-friendly, I'm a liberal, and I find your marks offensive. Try another list.

Posted by: onlooker | Oct 24, 2012 1:29:31 PM

Bill

I appreciate the response and questions.

Race has the only the moral significance that the broader body politic assigns to it. Now, you and I may, and apparently do agree that race should have no moral significance, but that belief does not make it so. Likewise, you and I may agree, and apparently do agree, that our centuries old national obsession with race is to our collective detriment, however, we are not going to be able to justly travel beyond that obsession by now wishing it away or pretending that neither it nor its present-day consequences do not exist.

As to your final point, it is well taken as far as it goes, though I have neither found nor read any KHRC report and cannot comment or whether or not the KHRC actually implies what you suggest. That said, while we can agree that the justice system is subject to human error, merely acknowledging this fact is no excuse for standing idly by and accepting the received error rate, nor is the acknowledgement a reason to stand idly by in the face of known examples of wrongful convictions obtained due to government misconduct or malfeasance.

Furthermore, if there are no post-Gregg examples of wrongful execution (and what procedures are in place to review convictions post-execution anyway?), we can thank for that fact the lengthy post-conviction procedures in place that have identified persons that have spent a decade or more on death row before being found to be the "wrong guy" after all (despite government's unwavering assurances to the contrary all along the way).

My impression, correct me if I am wrong, is that you are not fan of these post-conviction and post-appellate procedures. Therefore, my question has to be knowing that these procedures have literally saved innocent lives and contribute to whatever legitimacy the capital punishment regime presently enjoys, why would any death penalty advocate seek to eliminate or substantially reduce those procedures?

Posted by: C | Oct 24, 2012 2:58:57 PM

C, the answer is easy, flyspecking all capital cases is a waste of finite resources. If you want more resources devoted to the SODDI claims of criminals, then we shouldn't be wasting our time allowing scorched earth litigation for cases where guilt is certain.

The Ferguson stay, by the way, shows that federal courts, and this includes the Supreme Court, need to be out of the state death sentence business.

Posted by: federalist | Oct 24, 2012 11:22:33 PM

Well fed maybe if the state would stop screwing them up. They wouldn't need to keep getting involved.

60% failure rate is a major screwup.

Posted by: rodsmith | Oct 25, 2012 3:26:22 AM

Federalist - I don't know what you mean by "cases where guilt is certain." Weren't we told the case for guilt in Michael Morton's case was certain? Weren't we told the case for guilt in Kennedy Brewer's case was certain? I could, you know, go on.

Posted by: C | Oct 25, 2012 8:43:39 AM

C, in the vast majority of these cases, there is zero doubt about the guilt of the accused. If you want to waste scarce resources for flyspecking these cases, say so. Pointing to a few isolated mistakes doesn't change the fact that endless capital punishment litigation unrelated to guilt crowds out resources that could be allocated elsewhere.

Posted by: federalist | Oct 25, 2012 9:46:01 AM

Federalist - You assume too much. Before Michael Morton was exonerated and the prosecutorial misconduct (Brady violations) exposed, how much doubt did you have that his conviction was just? Before Kennedy Brewer was exonerated after government misconduct and (known) junk science was shown, did you have any doubt that his conviction was true? You see, this is my point.

Flyspecking means, "a small, insignificant spot." Federalist, you may think incarcerating and executing innocents is an insignificant thing, but I will reserve that judgment until I hear the opinion of Morton, Kennedy, their family and others similarly situated. You have been a dedicated voice of crime victims in this forum, Federalist. What a shame that voice does not extend to the victims of government misconduct.

Posted by: C | Oct 25, 2012 10:58:27 AM

Federalist, you are overlooking Levine's point above: " The fact that the defendants i guilty is irrelevant because, as you surely agree, “even those guilty of the most heinous offenses are entitled to a fair trial,” Screws v. United States 325 U.S. 91, 107(1945), and "the constitutional rights of criminal defendants are granted to the innocent and the guilty alike.” Kimmelman Morrison, 477 U. S. 365, 380 (1986). Do not the cases listed by Levine trouble you at all or give you pause? You call it "fly-specking." The courts call it due process--particularly when lie and death are at stake.

Posted by: anon1 | Oct 25, 2012 11:00:32 AM

onlooker --

I appreciate your comment. There should be many more like it.

Posted by: Bill Otis | Oct 25, 2012 5:18:02 PM

anon, I am not overlooking anything--I thought the point was that by insisting on super-duper due process for all death cases we serendipitously wind up figuring out that people on the row are innocent, the argument being, of course, that we should keep this super-duper due process for all death row inmates. I have addressed that issue.

You, on the other hand, have not addressed mine--namely the waste of resources flyspecking some of these death cases causes.

Posted by: federalist | Oct 25, 2012 5:42:06 PM

C --

1. Race has all matter of statistical significance, but no moral significance. The idea that one's behavior or character can be assessed by looking at skin color is less immoral (although that too) than just bizarre. Because it has no moral significance, it has no place in sentencing in individual cases.

2. "...merely acknowledging [the inevitability of error] is no excuse for standing idly by and accepting the received error rate, nor is the acknowledgement a reason to stand idly by in the face of known examples of wrongful convictions obtained due to government misconduct or malfeasance."

I agree. This is why I have been a consistent advocate of, e.g., higher salaries for defense counsel, and of videotaping police interviews. Even more important, it's why I've also been an advocate of changing the rules of ethics to make the lawyer's first duty of loyalty a duty to the truth. As long as a segment of the bar thinks truth comes in second place, the system is going to be prone to slick practice and gaming.

If my honesty-first model were adopted, there would be less need for these years and years of post-conviction proceedings, since the original adjudication would have been undertaken with a more serious devotion, FROM ALL COUNSEL, toward being straightforward, candid and forthcoming.

Consider: Would we achieve a better, quicker system if automatic disbarment were the punishment for both the prosecutor who hides the evidence, and the defense lawyer who engineers an intentionally misleading or diversionary defense?

Posted by: Bill Otis | Oct 26, 2012 3:01:12 AM

Bill:

You begin with a faulty premise. Model Rule 3.3(a)(3) reads, "A lawyer shall not knowingly ... offer evidence that the lawyer knows to be false." Readers may recall the news story earlier this year where a drug prosecutor in Michigan was disbarred for soliciting false testimony. See also, Nix v. Whiteside, 475 U.S. 157, 106 S. Ct. 988 (1986)(describing defense counsel's duty when faced with client that threatened to perjure himself). Your suggestion that lawyers have no existing duty to the truth is either borne of ignorance of basis legal ethics or is deliberately misleading.


Posted by: C | Oct 26, 2012 10:25:53 AM

Bill:

Is there a third possibility? There is no edit function here and noting the hour of your post, I will leave open the possibility that you meant something different that what you seemingly wrote. I am not aware of a "segment of the bar [that] thinks truth comes in second place" and further, I am not aware of any hierachy among the ethical rules -- lawyers are supposed to follow them all contemporaneously, not in some order. So if you are aware of the lawyer's duty to not knowingly ... offer evidence that the lawyer knows to be false, and if you do not intend in your post to suggest otherwise, please clarify.

Posted by: C | Oct 26, 2012 10:33:15 AM

Bill, while I'm at it, another question: Whose truth?

Your post seems to suggest that there is some "objective" truth known or established prior to trial, and that the defense bar seeks to hide or conceal that truth from the judge and jury. This is not, I suggest, how trials work.

All that the jury has in a criminal case is some prosecution theory of what happened, maybe some defense theory of what happened (the defendant need not testify nor present evidence at all to obtain an acquittal under our Constitutional system), and some evidence proffered by someone. Any witness that testifies is subject to cross-examination to seek alternative explanations, correctness of memory, credibility, and a host of other factors that goes into the truth-seeking process. So when you say the attorney's duty should be to the "truth" beyond what is already required by the rules of professional conduct, are you saying the defense attorney's duty should be first to the prosecution's theory of the case? If not, toward whose "truth" does the attorney owe this new duty?

You use the term "diversionary defense." What does that mean? Is a "diversionary defense" any defense contrary to the prosecution's case theory? Any defense not believed by the jury? Any cross-examination that posits an alternative explanation, faulty recollection or diminished credibility of the witness offering the testimony? I am interested to know what you mean when you refer to a prohibited "diversionary defense."

Posted by: C | Oct 26, 2012 11:01:21 AM

C --

No one "owns" the truth. That is far different from saying, however, that there is no objective truth. There certainly is.

Here's one: OJ did it. I know it's neat to go back and forth about how the criminal jury acquitted him and the civil jury found him "responsible," and lawyers have all manner of fun doing that sort of thing.

But he still did it. To attempt to lead the jury -- any jury -- to some other conclusion is dishonest. I agree that his lawyers' attempting to so mislead the jury is acceptable, indeed required, by the canons of ethics. We disagree however, about what follows from that. To me, what follows from that is that the canons of ethics need reform.

Posted by: Bill Otis | Oct 26, 2012 9:55:23 PM

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