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Death by misadventure: the death penalty in America

By Kirsten Edwards - posted Thursday, 20 January 2000


Even when police are not outright corrupt they still employ questionable strategies like the frequent use of the ‘jail house snitch’, prisoners who claim to have heard confessions by cell-mates and who testify in return for reduced jail time. The problem is that many snitches are pathological liars who rifle through court papers to pretend they know intimate details of the crime which they then claim to have heard during a confession. 46 convictions in Illinois are being reviewed because of the use of pathologically lying snitches, some whom now admit to fabricating a number of confessions for reduced time. In California one snitch has also admitted to inventing dozens of confessions.

An event in my hometown has made me realize how vulnerable we all are to wrongful prosecution and even death. A murdered grad student was found near my home. A Professor, her academic advisor, who also lives in my neighborhood, has been named chief suspect by police and has been suspended by the University. There is no real evidence against this man, physical or circumstantial. There had been tension about a paper she had been writing and she complained about him to friends, as have I about my academic advisors who supervise my papers. He lived near where her body was found, as do I and my academic advisor and almost all the university faculty. This man’s life has been ruined by police in my town (police who have also charged 3 people in succession for another murder – all unsuccessfully) for doing nothing but his job. He is begging for a trial to clear his name, I hope the jury pays more heed to the presumption of innocence that most do.

The Fair Trial: Prosecutors

Prosecutors, who are usually elected, have vast discretion to decide whether or not to request the death penalty or plead out the case (accept a guilty plea for a lesser sentence). The inclination to seek the death penalty varies from prosecutor to prosecutor in different regions. So in New York city prosecutors have all but ruled out ever seeking the death penalty. In some counties in Texas the prosecutor will seek the death penalty on every single homicide. The variation is so dramatic that in once case a defendant committed a crime in a parking lot that was on the border of two counties – the prosecutor of one county always sought death, the other almost never. The hearing to determine where in the parking lot the crime was committed, to decide which county would prosecute, became an issue of life and death.

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How is the decision to seek death or not reached? Prosecutors say they weigh the seriousness of the offense, the criminal history of the defendant and the wishes of the family. Statistics reveal that it is a far simpler equation – if the victim is white and the defendant is black the death penalty is much more likely to be sought. In fact in Alabama, where a prosecutor claimed he was guided by families wishes it was discovered that no family of a black victim had ever been consulted – not one. The black families discovered their cases had been plead out when news of the plea was broadcast on television. But then prosecutors are not always the most black-friendly bunch. In a case just this year a prosecutor commented that a defendants claim of mental deficiency was not a valid medical complaint but just "niggeritis". The comment attracted no media attention in the land where it is often claimed political correctness has "gone too far".

Atrocious prosecutorial conduct goes beyond racial slurs. In Illinois ten percent of death penalty conviction have been reversed and sent for retrial because prosecutors withheld evidence showing innocence or knowingly told false information. Nationwide 381 homicide convictions have been overturned due to prosecutors lying or concealing exculpatory evidence. Some prosecutors, like Robert Macy in Oklahoma, will get reprimanded up to ten times a year by judges for misconduct but use the publicity to boast their ‘tough on crime’ election platform. Johnny Holmes in Texas has sought death more than any other prosecutor. But you will be hard pressed to find a judge who has criticized Johnny Holmes in the mistake-free state, they wouldn’t dare, he is known to make calls to George Dubya Bush and have judges removed if he doesn’t like their decisions or attitude.

Having a prosecutor against the death penalty doesn't guarantee that it will not be sought if you make the mistake of shooting a white person (always bet on black). In Washington DC and in the Bronx hundreds of black people get murdered every year but the Prosecutors there are against invoking the death penalty. But the shooting of two white people in a fancy suburb of Washington and the shooting of a white police officer in the

Bronx prompted the Governor of New York and the Justice Department respectively to override the recommendations of the prosecutors and demand the death penalty.

Defense lawyers

Anyone on earth (and martians with television reception) know the line "you have the right to remain silent…you have the right to an attorney, if you can not afford a lawyer one will be appointed for you by the court". In fact defendants in felony cases were routinely denied counsel by state courts until 1963 when the US Supreme Court boldly found the term "right to counsel" in the US Constitution meant just that, at least for felonies. But no one ever said you had a right to good counsel or as the US Supreme Court puts it "there is no right to a meaningful attorney-client relationship". In appeal cases there is no right to an attorney at all. You may be blind, deaf, illiterate, schizophrenic or too mentally retarded to understand court procedure, but it doesn't matter, you are required to file your appeals in the correct form and to make the appeal dates or you lose any right to appeal on any grounds, including actual innocence.

Everyone knows if you pay peanuts you get monkeys. Public defender funding has been slashed and the federal resource centers that used help them have been abolished by Bill Clinton. Volunteer resource centers still exist but they battle death threats, bomb scares and abuse. Under paid and over worked, public defenders rarely have time to prepare cases, discuss strategy or examine evidence and witnesses. Forget about the team of lawyers, DNA experts, investigators and psychiatrists that wealthy people like OJ Simpson can afford (and the Prosecution can afford with the resources of the state). In fact it is not unknown for attorneys to still be reading the defendant' file at trial. Counties without public defenders might tender out all legal defense work to an attorney who offers the lowest bid or use the judge (or even the local sheriff) to appoint counsel. Court appointed attorneys get paid at about a tenth of the normal fee for a capital case. They will have two things in common – a lackluster practice which allows them to loiter at the courthouse looking for clients (a number will get a death eligible defendant for their first ever trial) and a determination to keep on side with the appointing judge to ensure they get as many appointments as possible.

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The quality of a lawyer is incredibly significant as any appeal based on the conduct of the trail – such as how the jury was selected, what lawyers or witnesses said to the jury, how spectators behaved in the courtroom – must be objected to at the time to be a valid appeal ground. If the lawyer doesn’t object because he or she is not listening or doesn’t realize an important issue (or is asleep or drunk) – tough, no appeal. The same goes for appeal deadlines. If your lawyer misses deadline by a day or an hour– bad luck, off to the gas chamber. Now there is supposed to be an appeal ground of ineffective counsel (only at trial). But in reality counsel for capital crimes can be as bad as humanly possible without being deemed "legally ineffective".

Lawyers have slept through trials or turned up day after day drunk as a skunk - one lawyer shared a cell with his client when he was arrested for his drunken behavior during trial, the client got sentenced to death. Think the Simpson’s Lionel Hutz is a fictional character? An attorney in Kentucky listed his work address as "Kelly’ Keg", the local bar, and arrived at trial both very late and very drunk. This conduct, and the bags of stolen property found in his home, were not enough to overturn his client’s conviction. In Texas 75 year old Joe Cannon has more former clients on death row that almost any attorney. Cannon boasts of going through trials like greased lightning and not bothering with time wasting issues like library research, taking notes, interviewing witnesses or cross-examination. He defends his practice of sleeping through trials as "an afternoon nap" for an old man. Cannon has never been held ineffective, even when he managed to convince a jury his client had a more serious role in the crime than the one he was charged with or forgot to mention a relevant defense (thus barring future lawyers from ever mentioning the issue in appeal). That client is now dead. At least he didn’t call his own client "nigger" like a number of Texas attorneys. Or, like a couple of Texas defenders, refuse to present volunteered family testimony. In those cases (including one involving a battered woman) appeals failed even after jurors admitted that they never would have invoked the death sentence if they had heard the testimony. One of my favorite stories is about two appointed lawyers found that their client had left his last job without collecting his pay check. This was strong evidence of mental incompetence - everyone picks up their pay check unless something is serious wrong. Did the lawyers present the check as mitigating evidence? No they cashed it and spent it!

These aren’t isolated examples. In 33 death penalty cases in Illinois defendants had lawyers that were later disbarred for misconduct, or in one case a lawyer who had finished suspension 10 days before. A quarter of the exonerated death row inmates had lawyers that were later disbarred for misconduct Other bar associations have decided to cease disciplining lawyers for misconduct during criminal trials. Unsurprisingly defendants with court appointed counsel get convicted and get sentenced to death at a far higher rate than those with private lawyer. Middle and upper class people do commit capital crime but you won’t find too many on death row.

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This article was edited and added to on the 18th May, 2000, subsequent to its first publication here.



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About the Author

Kirsten Edwards is a Fulbright Scholar currently researching and teaching law at an American university. She also works as a volunteer lawyer at a soup kitchen and a domestic violence service and as a law teacher at a juvenile detention centre but all the community service in the world can’t seem to get her a boyfriend.

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