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December 17, 2016

"Prosecutorial Misconduct: The Best Defense Is a Good Defense"

A helpful reader altered me to this recent on-line law review essay in which LawProf Fredrick Vars responds to a notable law review article by LawProf Michael Perlin.  These first two paragraphs from the essay should whet the appetite for those who may be eager to consume both writings:

In “Merchants and Thieves, Hungry for Power”: Prosecutorial Misconduct and Passive Judicial Complicity in Death Penalty Trials of Defendants with Mental Disabilities, Professor Michael L. Perlin persuasively argues that prosecutorial misconduct leads many people with mental disabilities to be sentenced to death and executed.  Toward the end of his article, he compiles over a dozen previously-proposed reforms aimed at improving prosecutorial practice.  As explained below, I am not optimistic about the prospects of these reforms, either to be adopted or to be highly effective.  I think more could be accomplished by directing resources and training to the other side of the equation — public defenders.  A smaller number of counties each year account for the majority of death sentences and executions.  We need to better equip front-line public defenders in those counties to identify and counter prosecutorial misconduct, and, more broadly, to provide competent representation in capital cases, particularly those involving mental disabilities.that engages.

Perlin is optimistic that recent death row exonerations will be a turning point in the battle against prosecutorial misconduct in capital cases involving defendants with mental disabilities.  He hopes that one particularly egregious case, in which no one questioned the defendants’ guilt, will be a watershed like the Birmingham church bombings, the most notorious of which took place just a few minutes from my home.  I share Perlin’s hope but not his optimism.  The bombing helped push forward the civil rights movement because everyone could empathize with the four little girls dressed in their Sunday best. Dr. Martin Luther King, Jr. quite credibly described the bombing as “one of the most vicious and tragic crimes ever perpetrated against humanity.”  Mentally disabled death row inmates, even the innocent ones, live on the other side of a divide wider even than race in the 1960s. Few of us can identify closely with exonerated inmates. As a result, only the accumulation of exonerations, not one signature event, reveals the flaws in the process and shifts public opinion gradually against the death penalty.

December 17, 2016 at 10:56 AM | Permalink


Mental illness makes the murderer far more dangerous than a paid assassin. The death penalty should be fast tracked in the case of the mentally ill. Such acceleration will protect future victims, most of whom will have done nothing to provoke the murderer.

The assumption that mental illness reduces culpability is a form of denial. This denial is more morally reprehensible than most denial. A Holocaust denier sincerely hates Jews. A lawyer denying the reality that mental illness is an aggravating factor is generating procedure and lawyer income.

Posted by: David Behar | Dec 17, 2016 1:21:41 PM

David Behar writes: "Mental illness makes the murderer far more dangerous than a paid assassin. The death penalty should be fast tracked in the case of the mentally ill." That quotation could come right from Mein Kampf; in fact, I think it does.

Posted by: anon | Dec 17, 2016 2:43:29 PM

Anon. Paranoid schizophrenics kill 2000 people a year in the US. Around the world, 10% of the murders are committed by them. Part of the disorder is to believe there is nothing wrong with oneself, but only with others. So, proposed treatments are refused, defeated, secretly nixed. Nearly all rampage killers have that disorder. Many serial killers do. All believe sincerely they are defending themselves against imaginary oppressors and certain doom at their hands. They are high function, and can appear rational, mannerly and smooth. They have jobs, families, and money.

The mentally ill defendant should be given an opportunity for treatment. If they become normal or improved, they are no longer dangerous. Andrea Yates killed her 5 children, as they begged for their lives. She is a normal nurse when treated. Her doctor took her off her tranquilizer in fear of tort litigation for a side effect. She is really a victim of the tort plaintiff bar. Their leadership really killed those children. I would not support the death penalty for Andrea Yates. With supervision, she could even return to productive civilian life, potentially.

When you call people Nazis, you come off as desperate and stupid. I am sure you are neither. I suggest you apologize to me, and try to make a point of fact or of logic.

Posted by: David Behar | Dec 17, 2016 4:14:48 PM

Anon. Do you believe 9/11 was a CIA/Mossad operation, and that the out buildings were destroyed in a timed detonation, as might happen in a planned demolition? Answer the question.

Posted by: David Behar | Dec 17, 2016 4:21:11 PM

Mr Behar, you assert that paranoid schizophrenics kill 2000 people per years. You may be right, but please cite your source. It is certainly true that paranoid schizophrenics are much more likely to engage in violent acts than others, but studies I have seen suggest that the murder rate for paranoid schozophrenics is not particularly high. Here's just one source I found:

"Crime and Schizophrenia - Recent Stories

There have been two news stories this past week related to the incidence of crime by people who have schizophrenia. A new study out of Australia sounds like one of the most comprehensive I've seen - covers a 25 year period during which the researchers monitored 2800 people who had schizophrenia and compared the results to a similar number who didn't have schizophrenia. The conclusion of the study was that:

"People with schizophrenia are three to five times more likely to commit crimes than those without the mental illness, the largest study yet of the link has found.

The Australian study also found that 8.2 per cent of the schizophrenic group had been convicted of a violent offence - a rate 4.5 times the 1.8 per cent of the other group.

Dr Simpson said both studies showed that violence by people with severe mental illnesses was an issue. "As a contribution to total societal risk, people with schizophrenia, although slightly higher risk, do not present a major or overwhelming risk. Less than 0.2 per cent of the people with schizophrenia committed homicide over a 13-year period."

Posted by: Dave from Texas | Dec 17, 2016 8:08:45 PM

Mr Behar, you write, "The death penalty should be fast tracked in the case of the mentally ill."
Do you suggest we just skip the trial and appeals altogether and just proceed immediately to execution?

Posted by: Emily | Dec 17, 2016 8:11:07 PM

Best means, cheapest for the tax payer, and safest for future victims.

The best outcome for everyone is for the person to commit suicide on the spot. The next best outcome is to be killed by the police at the scene. Next best is for a violent mental patient to accept treatment and to return to high function (never happens). That leaves captured paranoid schizophrenic people. They should get a trial to determine the fact of the crime, and their factual guilt. That verdict should be reviewed by expert investigators, not by judges ruling on legal loopholes. Expert investigators know the limits of evidence. For example, they discount all witness testimony not confirmed by physical evidence. They personally investigate the way of doing business by labs determining DNA matches. Video recordings are good once reviewed completely and not edited. When we say witness testimony, we should include confessions. A quarter of the exonorated had falsely confessed. Witness testimony should be considered false memories implanted by the police until proven otherwise.

Once factual guilt is confirmed, all constitutional challenges are pretextual subversions of criminal justice. They are phony lawyer excuses. They are lawyer fraud, and insurrection and against the constitution. Those lawyers promoting or allowing such fraud should be crushed. If not impeached, they should be arrested and tried for sedition and insurrection. They are also arguing in bad faith, and are making $billions a year for worthless work.

Once factual guilt is confirmed by expert investigators, the defendant should be executed on the spot. It does not matter how. Shoot the person in the head at close range. Electrocution causes death at the speed of electricity in the brain, a bit slower than the speed of light.

The death penalty defense bar and all judges ruling in their favor should be visited by direct action groups of families of murder victims and beaten with sticks. They are the mortal enemies of future victims. As they have no human consideration for victims, so none should be shown to them.

The lawyer system of today is the worst. Expensive to the taxpayer, and deadly to future victims.

Posted by: David Behar | Dec 17, 2016 9:17:19 PM

Dave. Those studies refer to schizophrenia, all types. The majority of their crimes are nuisance crimes. They end up in jail, with bail of $1, for making noise on a bus. Yet, families do not get them out. They know, they will receive treatment and be safer than on the street. As a result, a full third of jail beds across the nation, are filled by people with severe mental illness, that once filled the now closed state mental hospitals.

I am referring to the type of schizophrenia called paranoid. They are high functioning, work, marry, have families, and completely different from the other schizophrenics who are very apathetic and unable to even care for themselves. The Unabomber was admitted to Harvard at age 16. When people say, he was quiet and a loner, they are referring to this condition.

Alcohol is, of course, a factor not in 5-10% of murders, but in 50% of murders.

Here is a review of reviews.


Posted by: David Behar | Dec 17, 2016 9:34:16 PM

I'd like to return to the topic of Doug's post and note that regularizing charging decisions could produce less arbitrary outcomes in the administration of the death penalty, especially if the charging decision is undertaken with substantial input from defense counsel. For example, the federal system presumes that a well funded defense will make presentation to the decision-makers before a federal defendant is charged capitally, often a critical juncture in the case. Adding such a step in states would employ strategies promoted by both authors and might reduce the risk identified by them.

Posted by: John | Dec 20, 2016 1:08:39 AM

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