Yay on death penalty, nay on system

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    Up to last week, 134 people had been put to death in the state of Texas during the Governorship of George W. Bush, and none of them seemed to cause much of a ruckus. The latest, Gary Graham, number 135, died last week from lethal injection, but this time, something was very different.

    In a country where a significant majority of the population supports the death penalty something was changing, and for the first time in several decades people weren’t so sure. A majority, in fact, according to surveys, may actually be in favor of a moratorium while the death penalty is being investigated.

    What happened and why now?

    It probably started simply enough with a U.S. Supreme Court consensus that death penalty appeals were taking too long and they took steps to speed up the assembly line. Suddenly, there was a long line waiting to die, particularly in states like Texas, Florida and Virginia, and with it some basic questions. How come some states had so many waiting to die and in others so few? How come those on death row were disproportionally minority, poor and frequently stupid?

    Even among the supporters of the death penalty, myself included, no one wants to see an innocent person die, or someone railroaded without a fair trial, on bad evidence, or in a rigged trial.

    Still, even though many of us were uneasy, most of us believed the system worked, and there were judicial checks and balances built into it.

    Then along came DNA evidence, and, although it mostly was a factor in rape cases, a sizable enough group of convicted men were being exonerated and freed and we all began to wonder if the system was as airtight as we were led to believe.

    After that, there were the Innocence projects. One in Chicago and one in New York and some of their results shocked people.

    Recently, a local Malibu lawyer Ron Stackler, who comes from Chicago and was familiar with the project, spoke to the Malibu Bar Association about the survey results in Illinois, which were scary.

    How scary? Scary enough that in January a very gutsy Republican Governor decided to declare a moratorium on the death penalty in Illinois, because, since 1977 when the death penalty was reinstated in Illinois, 12 men have died and another 13, originally scheduled to die, have been exonerated. Apparently, the judicial process in death penalty cases didn’t seem to work much better then a coin flip.

    Here is what they found:

    Of the 285 on death row, 33 convicted had attorneys who were involved in disciplinary actions, before or after, of either disbarment or suspensions

    Of the 285 on death row, 46 cases included jail house informants–by any measure the least reliable of evidence (prisoners promised lighter sentences for testifying against the defendants).

    Of the 285 on death row 20 were convicted in part on dubious expert scientific testimony based upon hair found on the victim supposedly connected to the defendant.

    Of the 285 cases on death row 35 were instances where the defendant was black and the jury all white even in cities, such as Chicago, where 50 percent of the population is black, indicating that potential black jurors were being excluded.

    In 140 of the 285 cases there was either an outright reversal or a new trial granted.

    The Governor of Illinois finally decided he had enough and stopped the executions.

    Because of the upcoming presidential election, the Chicago Tribune began to look at the Texas’ death row and ask the same questions. They found pretty much the same thing as they found in Illinois plus another little local Texas wrinkle. Apparently, many counties in Texas have no public defender so the local judge appoints the attorney which makes it something of a patronage situation. The pay is generally terrible and as in Graham’s case the trial took only three days. In California it takes three days to try a traffic ticket, which will give you some sense of perspective. It’s not clear to me who appoints appellate council but if it follows the same system it’s a cinch that the appeals lawyer is not going to be any more competent than the trial lawyer so whatever chance there was of correcting trial mistakes on appeal is pretty much gone.

    None of us want to see murders go free.

    But if the system is set up in way that for all practical purposes it’s rigged, it’s a double crime. Not only are we convicting an innocent man but also somewhere out there a murderer is walking around free.

    There are 16 or so executions scheduled in Texas between now and November and as we get the pressure is going to build.

    In my mind, it’s time for a moratorium on the death penalty and then a good, hard, careful look.