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Death by misadventure: the death penalty in America

By Kirsten Edwards - posted Thursday, 20 January 2000


Juries

To sit as a juror in a capital case jurors need to be "death qualified". What this means is that if a juror expresses doubts or reservations about the death penalty they might be struck from the jury on the basis that their feelings might "substantially impair their ability to be impartial". But jurors are almost never struck for being too enthusiastic about the death penalty. A juror who vehemently asserts that all homicides deserve death will be asked if they can "set their feelings aside" and "consider" the option of life without parole. If they reply "well sure, I’ll consider it" – they are "death qualified".

Most states have a bifurcated system. This means jurors first decide if the defendant is guilty or innocent (the guilt phase) and then they hear evidence to decide if they will sentence to death or grant life without parole. The same jurors decide both phases and the vast majority of jury selection focuses on the question " ‘if’ the defendant is convicted what penalty is deserved?" It is not surprising that studies have shown that this system leads to a presumption of guilt in the mind of the juror by the time trial begins. Death qualified jurors convict at a much higher rate than other juries. Jurors who try to resist convicting, or imposing death, often report later that their fellow jurors told them they had promised the prosecutor during jury selection that they would impose the death penalty ("hold-out jurors" also report general bullying, intimidation and harassment, especially women and african-american jurors).

So who can sit on a jury? Lawyers can’t, police officers can. In cases upheld on appeal jurors have been friends or colleagues with the victim’s mother, in one case a juror attended the victim’s funeral. For many years in Texas (the mistake-free state) blacks were automatically struck by prosecutors from jury pools according to official policy. The Supreme Court now prohibits this. If you can establish that jurors are being struck on racial grounds the prosecutor must provide a ‘race-neutral’ explanation for their conduct. Establishing racial prejudice is hard unless every single black potential juror is challenged, for example if all black jurors are struck except two police officers who enthusiastically support the death penalty, the case may not be made out. If you can convince a judge of racial bias the prosecutor must merely explain. Acceptable race-neutral explanations have included "the juror had a beard" "the juror was divorced" "the juror looked dumb" "the juror went to x college" (a predominantly black university) and "the juror is a mason" (the juror was a brick mason). As a result of this stringent standard many black defendants will have their fate decided by all white jurors (for example in 35 death penalty sentences in Illinois).

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What is the significance of black defendant having an all-white jury? A study of DNA exonerations reveals that black men are considerably more likely to be wrongfully convicted than whites, especially when they have all-white juries. As a general rule of psychology people are far less likely to convict or sentence to death someone they identify with and they attach more credibility to witness evidence from 'their peers'. This may explain the story of Calvin Johnson - a man exonerated of serial rape convictions by DNA evidence. Johnson was tried for two rapes - one by an all white jury, one by a jury of mixed race. His main defense was an alibi - 3 black witnesses (one of which, his father, was also a lawyer) who testified that he was with them at the time of the crimes. Eyewitnesses had also described a clean-shaven assailant but Johnson had a beard. Johnson was acquitted by the mixed race jury but convicted by the all-white jury.

Judges

So what are the judges thinking? They are thinking of their next election, unlike Australia American state judges are elected to the bench. In a number of states judges will not just promise the standard "tough on crime" platform but actually say "vote for me, I sentenced 80 people to death". In one television advertisement I have seen here the announcer proudly tells us Judge Smith "looked the defendant in the eye and sentenced him to death without blinking" (who said justice needed to be blind?). Appeal judges will also campaign, sometimes solely, on the basis of how many death convictions they have affirmed – not their fairness, impartiality, wisdom – how many people they agreed to execute. Recently a sitting appeals judge wrote an open letter to support the efforts of a former clerk to become elected to the bench saying "he helped me on all the 39 death penalty convictions which I affirmed". If judges refuse to affirm convictions, even if bound by Supreme Court precedent, they can be hounded out of office. This occurred to a female judge in (you guessed it) Texas.

Most judges campaign for office with the support of the local DA (prosecutor). Imagine being a capital defendant and discovering the prosecutor and judge are the two you saw photographed arm in arm in a glossy campaign leaflet trumpeting the number of death sentences the judge has given. Perhaps because of the need for prosecutorial support in elections a lot of judges are former prosecutors (two thirds of criminal judges in Texas are former prosecutors). The prosecution mindset often follows them to a bench. In Cook County (where seven of Illinois’ innocents were sentenced to death) a judge and former prosecutor once asked "what could DNA evidence possible prove?" In one Alabama case a DA prosecuted a case, ran for the bench on a campaign that boasted achieving a death sentence on the case and then presided over the same defendant’s appeal! She refused a defense motion to recuse herself and denied there was any potential for bias.

Appeals: US Supreme Court

A number of Supreme Court decisions have been mentioned already. I limit discussion to two. In Jacobs v Scott a Texan man was convicted of executing a kidnapping victim. He was sentenced to death. A few years later the same prosecutors tried his sister for the same crime. They said that the sister had acted alone, that she was the sole person who fired the gun, that the allegation that Mr Jacobs fired the gun was mistaken and that his confession was false to protect his sister. The sister was convicted. Mr Jacobs then appealed to the Supreme Court saying essentially "you can’t convict us of the same crime if only one person did it". His attempt to get a hearing was denied by the Supreme Court and he was executed.

Case 2, Herrera. Mr Herrera was convicted of a crime on the basis of some reasonably shaky identification evidence. He asked the Supreme Court to review his death sentence on the basis of actual innocence – a signed confession from his brother, and a corroborating affidavit from a witness. Herrera never really got his day in court as the Surpeme Court found that actual innocence was not a ground for review, as Justice Scalia put it: "there is no basis in text, tradition or even traditional practice (if that were enough) for finding in the Constitution a right to demand judicial consideration of newly discovered evidence of innocence brought forward after conviction". A major factor in the decision was the courts reluctance to review all the cases that might be brought up, the Chief Justice stated: "few rulings would be more disruptive of our federal system that to provide for federal habeas review of free-standing claims of actual innocence". They preferred to keep the original "fair trial" as the "main event". The court did leave open the possibility of entertaining a "truly persuasive claim of innocence" but felt the standard would have to be "extraordinarily high". A couple of affidavits (even a signed confession) was "way below" that standard. The court recommended innocent people approach governors for clemency.

Clemency: State Governors

The Supreme Court regularly justifies its failure to overturn convictions, even appeals of actual innocence, because of the existence of a ‘fail-safe’: executive clemency. There was a time when a plea for executive clemency or mercy was a meaningful exercise and around 25% of clemency pleas were upheld by state Governors who commuted the death sentences to life imprisonment. Now Governors campaign to seem ‘tough on crime’, George Bush Jr boasts his execution numbers for his run for President. Bush, the compassionate conservative, says "no" to battered women but "yes" to serial killers. Seriously, a man who has succeeded in a clemency appeal to George Jr is a serial killer, Henry Lucas. He had killed a number of people but had actually wrongfully confessed to the one he was going to be executed for. George thought it would be poor form to kill a man who was actually innocent of that particular crime. But I wouldn’t put my money on Henry Lucas lasting the Presidential campaign.

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Other clemency grants are completely random. In Missouri a personal visit from the Pope to the Governor lead to a murderer of 3 people receiving a commuted sentence. The man due to die the following week, for a less serious crime, missed out. Jaturun Siripongs was also unlucky, he had an appeal for mercy from the wife of one of the victims, a personal plea from the Cardinal of LA and some evidence of actual innocence. But he was the first scheduled execution of a new Governor of California, Gray Davis. Allowing clemency on your first execution is bad politics in California. Gary Siripongs is now dead and Gray Davis is still the Governor. Not that clemency grants means freedom, in one state a man with a strong claim of innocence was granted clemency – life without parole.

The Federal Executive and Legislation: President Bill Clinton

Bill Clinton set the tone for his Presidency when he flew into Arkansas to personally deny clemency and ensure the execution of Ricky Ray Rector. Rector had shot himself after murdering a man and a police officer. His life was saved but he sustained brain damage and part of his frontal lobe was removed, akin to a lobotomy. Despite being mentally retarded it was found that he was not too retarded to be executed, ie he knew that he was being executed and why. It emerged after the execution that Rector had left the dessert portion of his last meal, he had told guards he wanted to save it for later.

Clinton helped enact the Anti-Terrorism and Effective Law Enforcement Act (a cunning title as any opponents would seem ‘pro-terrorism’). The Act greatly restricts the ability of any defendant to receive post-conviction review. For example any evidence of innocence must not have been discoverable at trial, a defendant would be barred from appeal if the evidence was available but an incompetent lawyer did not discover it. The Act provides so many bars and time limits that had it been enacted earlier 75 of the 85 exonerated people from death row would still be executed today. The mind boggles at what George Bush Jr will enact if he is elected to office.

Conclusion: The final player - The American Public

I have already mentioned that at least 75% of the public support the death penalty. In a recent opinion poll 91% of American people agreed that innocent people have and will continue to die under a death penalty regime. 75% of those surveyed also believe that people who are sentenced to die but who are "actually innocent" should have an opportunity to prove their innocence. Hmm might like to have a word to the remaining 25% there. On reflection I probably wouldn’t. If a bill of rights was introduced today it probably would be laughed out of Congress as ‘UN dictated soft on crime nonsense’. The first 10 amendments are regularly dismissed today as "meaningless technicalities" – except the right to bear arms of course.

But then what can the public do, what should they do? They have made it clear the death penalty is here to stay. Well there are two ways they can go really. One is support moratoriums and carefully examine death row cases to ensure that innocent people are not dying at the hands of the state. The other way to go is to support a Presidential candidate running on his record that his state kills more defendants than any other, does not fund public defense and refuses to support moratoriums as he claims that Texas has never made a mistake. Time will tell.

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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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