Muzings From The Edge: Is Capital Punishment A Capital Crime?

Tens, or Hundreds of thousands or even millions of people in America were hanging on the words of news anchors all over the country as well as the mainstream media as the fate of Troy Davis was being deliberated. At 11:08 PM Wednesday evening the wondering stopped and the debate began. Some were likely saying, “He got what he deserved.”, while others were asking “Was this the right thing to do.?” In either case they were focused in the wrong place and asking the wrong question.

The question that every American should be asking is should the government be killing its own citizens under any circumstances. A number of folks will immediately say yes without actually thinking about their response. What many fail to take into account is all of the victims of a capital murder situation. In the end there are no winners. The family of the initial victim or victims is left with a hole in their lives that cannot be refilled with all of the executions in the world. Then, when the offender is executed, the is his or her family who is left with a hole in their lives, through no fault of their own, that can never be refilled and the shame of having a family member executed.

Another forgotten group are the correctional personnel who are charged with the responsibility of killing the inmate. Dr. Allen Ault noted in an interview on MSNBC’s “The Last Word” that knowing that they are killing someone, especially when there is some doubt about their guilt, takes a heavy toll on the correctional personnel. Dr. Ault also noted that this murder was the most planned and premeditated murder known in history with a manual of instructions about one and one half inches thick.

Two years ago the Tea Party and Sarah Palin were screaming about “death panels” being used by the government. Others have lamented in the past that killers do not deserve to live. Again, they are not thinking about the real issues regarding when does the government have the right to kill its citizens.

In the last twenty two years I have worked on more 50 capital murder cases with defense attorneys and have, therefore, been in close contact with more than 50 people faced with being sentenced to death. During those years I have stood beside four defendants as they were told that the state was going to kill them. I will not profess their innocence because in their trials 12 people made the decision that they were guilty of that crime and the same 12 recommend that they be put to death. I will say that their guilt was not to an absolute certainty, a capital crime under the definitions used by the State of Alabama.  I will only say that those twelve people believe that they those standards were met. Twelve different people might have saw it differently. That is something that most people do not understand.

Prior to trial process there is an initial unfairness in our current system which is based on the quality of legal representation which is based upon the amount of money defendants have available for legal counsel. The vast majority of criminal defendants are represented by public defenders and/or appointed counsels who have limited resources on which they can depend. Most of them do the best they can but without the resources of investigators or experts such as the state has at its disposal it is hardly a fair adversarial process.

In Alabama attorneys in capital cases are generally allowed one investigator and one mitigation specialist and in some case a mental health expert. That pales in the face of the resources of the office of a District Attorney and its investigators, the law enforcement agencies and their investigators, lab technicians, and crime scene experts, and the state crime lab experts. So, even at the time when the defendant is supposedly considered an innocent person, the scales of justice are already tilted away from the accused.

I insert the word “supposedly” because how many of you have picked up a newspaper and saw that someone was arrested and said to yourself, “I wonder what he did?”. Not, “I wonder what he is accused of doing.” That is the same thing that many potential jurors think when they enter the courtroom for jury selection. So much for the presumption of innocence.

At this point in the case the defendant’s fate rests with the luck of the draw as far as juror selection is concerned. In a typical capital case, even in a small county there may be as many as two hundred people called for jury duty. At the outset there will be people who will have various excuse for why they should not be compelled to be on the jury. Some for work related reasons, some for family hardship reasons, and some for health reasons.

It is in the sole discretion of the judge as to who stays and who goes home. Then any potential jurors who know the defendant, attorneys, witnesses, law enforcement officers, or other justice system officials may be dismissed at the discretion of the judge. After that jurors are questioned about their opinions about various things including law enforcement, crime and criminals, and the death penalty. Anyone who is morally opposed to the death penalty under any circumstances are removed under a procedure called “death qualifying” the jury.

Similarly jurors must be willing to consider mitigating details before recommending death if the accused is convicted. This is a daunting process for the attorneys and only the most experienced have any chance of doing a creditable job at jury selection. Even that, however, is affected by which jurors are left to select from once all of the various dismissals have taken place. There is a somewhat morbid joke among attorneys that “a person’s life is in the hand of twelve people who were not bright enough to get off jury duty.”

While I do not mean to disparage those who see jury duty as their civic responsibility and do the best they can do, often times juries are not the best and the brightest that society has to offer. In fact, the attorneys are not actually picking the jurors they want on the jury, rather each side is picking jurors they want off the jury in a process known as “striking”. Each side strikes a juror they like least until they arrive at 14, and then they each strike one more as alternates in the event they lose a juror or two along the way. The defendant is then left to be judged by twelve people who do not know him or her and may not have known the judge or otherwise gotten a favorable dismissal ruling, especially in the smaller, more rural counties.

With the final selection process to get down to the final twelve it is, more or less, a crap shoot as to ends up on the jury. Most studies of scientific jury process indicate that at best they can impact the decision process no more than 10% of the time. After that, it is left to the skill of the attorneys and their decisions and the effect on those jurors that may impact on the life of the defendant.

These are a few of the things that, all else being equal, contribute to the uncertainty to a capital murder trial. In my mind, this alone should disqualify any trial from being used to determine if a state could kill someone or not. It is just the luck of the draw, and not necessarily just the evidence. In the Troy Davis case a different twelve people could have just as easily found him guilty but not imposed the death penalty.

Happy

0 0 %

Sad

0 0 %

Excited

0 0 %

Sleepy

0 0 %

Angry

0 0 %

Surprise

0 0 %