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May 28, 2007

A (justifiable?) rant against lengthy death penalty appeals

Writing in the Houston Chronicle, Tom Kennedy has this lengthy opinion piece complaining about lengthy delays in the appeals of defendants convicted of killing cops.  Here is a taste:

We need to ask ourselves if the good guys are still winning the criminal justice game, especially when cop killers are involved....  Currently there are 10 men sentenced to Texas' death row for killing nine Houston police officers. They have resided there an average of 12 1/2 years and counting since none is scheduled to pay the ultimate price in 2007....

Take death row resident Carl Wayne Buntion, 67, for example. This lifelong criminal enjoys writing poems and tending to his Web site, while Officer James Irby, the HPD officer Buntion killed on a hot summer day in 1990, never lived long enough to learn about the Internet.

This is not half bad punishment when you consider that after 17 years of life Buntion seeks pen pals and monetary contributions, as do his death row colleagues.  Meanwhile, the good guys' appellate attorneys in the office of District Attorney Chuck Rosenthal grow frustrated with the large number of years that elapse as death penalty inmates exhaust their appeals.

Arthur L. Williams may yet establish the longevity record.  In 1983, Williams received the prospects of a lethal injection for the senseless killing of Officer Daryl W. Shirley. Williams used a pistol on Shirley while scuffling with the officer as he tried to serve a warrant at Williams' apartment complex on April 28, 1982. 

The system has allowed Williams to live at least a quarter of a century longer than Shirley, the divorced father of two sons, both of whom became law enforcement officers.  Williams can look forward to many more years.  He is in the midst of his second round of state appeals, still an untold number of years away from graduation to the federal appellate level.  Williams' Web site quotes him as saying he is struggling "for justice and freedom in the courts for killing an undercover cop in Houston (a case of self-defense!)."...

As in the old fable, the tortoise is winning the race in the guise of a cop killer on death row.  He has pen pals and Web sites while honest citizens and the surviving families of dead officers have only memories and gravesites.

May 28, 2007 at 08:30 PM | Permalink


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One of the big problem's is the Supreme Court's annually revised death penalty "jurisprudence".

Also, federal habeas corpus is supposed to be an extraordinary remedy, one for a person whom the government has seriously wronged--a lot of these ticky-tack violations are not that.

But so long as many judges, including members of the US Supreme Court, favor murderers over the law, this will be part of our death penalty system.

Posted by: federalist | May 28, 2007 8:52:07 PM

Tom Kennedy is a whiner better suited to the former East Germany than to East Texas.

Texas kills 'em faster than anyone else. Last time I checked the average mean time from conviction to execution date in Texas was about half that of the national average. On top of that, the average length of time from conviction to execution in Texas is about a year less than the average time nationally of conviction to exoneration for those wrongfully convicted.

That Texas has killed the wrongfully convicted is clear. What is shocking is that Texas's zeal to enforce Felix "Iron Felix" Dzerzhinsky's maxim of it s"better to execute ten innocent men than to leave one guilty man alive" is more roundly criticized by people like "federalist" who at least ostensibly claim to support basic concepts of human decency.

Ben Franklin noted in 1780, "That it is better 100 guilty Persons should escape than that one innocent Person should suffer, is a maxim that has been long and generally approve." Tom Kennedy posits Franklin should have said "Kill'em all, let god sort 'em out."

Posted by: karl | May 28, 2007 9:23:32 PM

Since when do inmates have access to the interest (much less their own website)?

Posted by: | May 28, 2007 10:07:46 PM

Karl: "That Texas has killed the wrongfully convicted is clear." Cite please - curious about this claim.

Posted by: | May 28, 2007 10:09:30 PM


I am specifically referring to the killings of Cameron Todd Willingham, Carlos DeLuna, and Ruben Cantu, all of Texas, set out in "Life and Death of America's Death Penalty," http://www.innocentandexecuted.org/. That isn't even mentioning, the highly questionable executions of Graham, Spence & others.

- k

(I should note there was a pretty horrid typo in my earlier post, the IS in the second paragraph should have been "isn't.")

Posted by: karl | May 28, 2007 10:18:43 PM

Tell you what, Karl, when you say that Kevin Cooper is guilty and that the process is being abused, then maybe we can take seriously your accusations about the Texas death penalty.

Perhaps if the system didn't have to weed out all of the knowingly false claims of innocence, people like Kirk Bloodworth would have gotten someone to look at his case sooner.

I don't want an innocent man convicted, let alone executed. And I would think that you guys on the abolitionist side would be screaming about garbage claims like Cooper's (or Tookie's for that matter) to focus attention on people like Bloodworth. Of course, I would be wrong.

Like I said, when you can say, yeah "Mumia did it" and yeah "So did Kevin Cooper", then maybe we can take your rants about the Texas justice system seriously.

And Gary Graham did it too. And by the way, so did Timothy Hennis, a member of the "exonerated" list.

Posted by: federalist | May 29, 2007 1:02:12 AM

1) Considering that most (if not all) of the people on death row are proceeding under “statutory” habeas provisions which explain how “routine” petitioner are handled, Federalist’s claims that habeas is reserved for “extraordinary” government behavior are somewhat problematic. Secondly, Federalist’s claims that these people are proceeding under “ticky-tacky” constitutional theories go to the substance of their claims, which would be dealt with by the courts.
2) The claim that justices favor “murderers” over the law seems a tad political. Considering that people, at best, spend the rest of their lives in jail, is hardly “favoring” them. I don’t think it is wrong for Federalist to tell non-lawyers things like this, but when talking to lawyers he need to cite to specific errors. Otherwise lawyers might think he is a non-lawyer and laugh at him.
3) I am suspicious about the claim that someone on death row maintains his own website. Likely, a 3d-party maintains it on his behalf based on requests made at isolating visiting days. I think that Kennedy might have lied about that in order to prove some political point.

Whether or not someone “did it” is almost impossible to prove to an absolute certainty. Moreover, “did it” (even to a “legal” standard) does not constitute all the elements of guilt, yet alone grounds to allow state employees to kill someone.

Instead, we allow state employees to kill people under much lower standards (something like 90%, it would seem), because we just can’t think of a better procedure.

The problem with letting state employees kill people with only 90% probabilities is that there remains some doubt, and more questions about the procedure still need to be resolved. Hence, appeals and collateral attacks.

Personally, I wish that people like Federalist would just state what their acceptable error rate is. Is it 1%, 10%, 20%? This way, states could brag that they only execute, people only have a 15% chance of being “wrongfully” convicted. Also, a judge or jury could tell people in good conscience that their claims might be valid, but 15% of the people unjustly killed by state employees need to die in order for justice to be preserved.

This seems a lot more defensible then saying, again and again, that judges are at fault.

Posted by: S.cotus | May 29, 2007 8:54:50 AM

Where to begin.

1) just because murderers would still spend a good deal of time in jail does not mean that twisting the law to get them out of death sentences isn't favoring them.

2) The delays, for the most part, have to do with penalty phase. So the acceptable error rate is not a pertinent question. But if you must know, I am not a big fan of infallibility. The entire justice system should be open to innocence claims. (The problem of course is weeding out the bogus ones.)

Posted by: federalist | May 29, 2007 10:27:49 AM

In general, most defendants need to raise issues below. If they are so trivial, they will, indeed, be considered harmless error.

It is fairly easy to tell what a “bogus” claim is. In your world, criminal defendants raise them. If you were a lawyer, the party opposing you would raise them.

I am not sure whether most “delays” the process of putting people to death are due to challenges to the penalty or to the underlying conviction. So, some specifics are needed about this.

But, since these claims have been accepted by the courts, it seems that they are colorable. (Since you are unable to show how any courts make errors, rather you rely on newspapers or non-legal sources, rather than specifically demonstrating the error using the texts of the error and the authority, you don’t have any credibility in that area.) Where you do have credibility, is in choosing whether 10% or 20% is an acceptable error rate.

Posted by: S.cotus | May 29, 2007 10:35:35 AM

How long must we labor under the oppression of this tax lawyer? How long will he or she continue to blast us into submission with barely coherent comments so far outside his or her area of expertise?

How long, oh Lord? How long?

Posted by: A lowly practitioner | May 30, 2007 4:45:20 PM

Lowly, Do you disagree with the substance of any of my remarks? Rather than contribute to the discussion, you just insulted me.

At least Federalist tries.

Posted by: S.cotus | May 31, 2007 11:35:22 AM

Why should these "cop-killers" be given so many
YEARS to live till their death date for execution? Our love ones were SNUFF suddently from their lives and ours!And these killers will
die peacefully compare to the horror of the death's of our officers.We only have our memories-while the immates have still many more years to live.

Posted by: friends of Fallen Officer Clark | Sep 2, 2007 2:26:23 PM

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