Technological Advances and the Death Penalty: Evidence Changes Over Time as Science Exonerates Defendants, but Capital Punishment Can Mean Justice Comes Too Late

Our system of justice is built on the belief that it's better to let a guilty man go free than to imprison - or kill - an innocent man for a crime he did not commit.  That's why there are all those procedural hurdles from the beginning of an investigation all the way through that last minute request for stay of execution.

This dedication to protecting the innocent threads through the controversy surrounding Texas Chief Justice Sharon Keller and her infamous "the clerk's office closes at 5:00" phone call.   It's why the DNA revelations of Israel's Dan Frumkin are reverberating around the world.   It's why the Innocence Project exists.  

It would seem self-evident that the continued revelations from our scientific community, particularly the new DNA warning by Frumkin, would obviously balance against any continued use of capital punishment, given the fragility of reliablity of prosecution evidence over time. 

Wouldn't it?  This seems obvious from the defense counsel's perspective.   This seems to be what our system of justice and the parameters of due process require. 

Maybe it takes something that hits home, touches people's hearts for this truth to become self-evident.  Sometimes there is the one case that really hits home with a lawyer -- and in The Huffington Post today, Cy Vance (a veteran criminal lawyer currently running for District Attorney of Manhattan) gives us an eloquent piece on the case of Cameron Todd Willingham.

Willingham may well have been another innocent man executed by the State, whose innocence was revealed after his death due to scientific advances that gave more details to the evidence found at the scene of the crime.  Willingham's case is particularly poignant because he was convicted and killed for the death by fire of his own children.  Now, arson experts are saying that this was never an arson case, the fire was not intentionally set. 

I highly recommend you take the time to read what Cy Vance has voiced about the Cameron Todd Willingham case, as well as the death penalty overall.  It's worth your time.  And it really demonstrates, concretely, that continued technological advances is one of the biggest argument against the death penalty.

In Texas Justice Keller's Trial, What if the US Supreme Court had ruled the other way?

The San Antonio Express-News has provided a video containing snippets from the closing arguments in the trial of Sharon Keller, Chief Justice of the Texas Court of Criminal Appeals (the highest criminal court in that state).   It bears viewing, and it's only 2:24 minutes long.

Listening to it, you'll hear an attorney's deep voice talking about the death penalty and how capital punishment depends upon a public trust that there will not be a erroneous death sentence.

As you'll recall (we've posted the details of Justice Keller's trial here and the short video gives a synopsis as well), Justice Keller is being challenged for denying the attorneys for Death Row inmate Michael Richard the ability to file a motion to stay execution on the day he was scheduled to die  - they were running late, and Justice Keller admits to telling her clerk to respond that "the clerk's office closes at 5."  The motion to stay execution didn't get filed on time, and Mr. Richard was executed by lethal injection at 6 pm that day.

Mind you, that same morning -- the very same morning -- the US Supreme Court had granted writ in a Kentucky case which put lethal injection as a method of execution under scrutiny.  Keller's supporters point out that six months later, the Supreme Court decided that this method was not "cruel and unusual" and accordingly, Richard would have been executed anyway.

Here's the question that I'm not seeing: what if the US Supreme Court has RULED THE OTHER WAY in the Kentucky case?  Then, would we have a very clear example of the erroneous execution that is referenced in the closing arguments of Justice Keller's trial?

Last week, John Marek was Executed by the State of Florida

John Marek died last Wednesday due to lethal injection at the hands of the State of Florida.  His hard-working defense attorney -- who had filed last minute appeals to the Supreme Court trying to keep Marek alive -- didn't go to watch.  Who can blame him. 

It was only a couple of weeks ago that we posted on the eleventh hour efforts to save Marek's life.   There was evidence that he wasn't the killer in this case.  There were procedural concerns regarding recusal of a lower court judge.  There is always the bigger picture -- the controversy over the constitutionality of the death penalty as well as the all-too-often forgotten concept of mercy. 

No matter.  There was no reconsideration of Marek's case by any of the powers that be and the sentence of punishment by death was carried out.   On August 19, 2009, the U.S. Supreme Court denied Marek's application for a stay of execution so they could consider his legal arguments.   And, minutes before the execution, it was confirmed that the Governor of Florida would not come forward to stop things. 

John Marek's Death was not obviously horrific, as other lethal injection executions have been.

It is reported that John Marek did not twitch or convulse or otherwise evidence any improprieties during the 13 minutes it took him to die.  Of course, we've already discussed how the Florida drug combo actually paralyzes the body, so observers wouldn't know if Marek was alive and aware for most of those 13 minutes but unable to move or speak ... or if he was in pain.  Many argue that the lethal injection method of killing someone is easier on the observers but may be very cruel to the dying inmate. 

Marek's Last Meal and Last Words

John Marek had a lettuce, tomato, and bacon sandwich (mayo, wheat bread) with onion rings and french fries -- and a Dr. Pepper -- for his last meal.   His last words were of his Christian faith, as he spoke "Jesus remember us sinners," followed by the Lord's Prayer --- and it is always ironic to remember that Christ, too, suffered execution by the government those many years ago. 

Marek lived in a small Death Row cell for 26 years. 

May he, and his loved ones, and the loved ones of murder victim Adela Marie Simmons, -- and that hard-working defense attorney who tried so hard and so well -- all find peace. 

Scientists Reveal DNA Evidence Can Be Faked - And It's Not Hard to Do: the implications upon Florida criminal defense

Pretty soon, looks like we're all going to know the name Dan Frumkin. Who's he?

Dan Frumkin is the author of an article in the respected journal Forensic Science International: Genetics where he writes that DNA evidence can be created in a lab - TOTALLY FABRICATED - and he warns that the real possibility of DNA evidence being faked is not being sufficiently recognized in today's world, where everyone has been considering DNA evidence as being rock-solid, dependable proof of guilt or innocence.

Together with his team of forensic scientists, working in laboratories located in Tel Aviv, Israel, Dan Frumkin has backed up his warnings with concrete demonstrations of what can be done: not only can someone's blood and saliva samples be twisted into a replica of someone else's (think anonymous donor samples altered into that of pending criminal defendant), but even more terrifying, a mere review of a DNA file on a computerized database gives these scientists sufficient information to create DNA evidence that replicates that file - without ever touching any human blood or saliva at all.

They went further.  They also demonstrated how this bogus DNA can easily be planted at crime scenes -- either on human tissue or on inanimate, touched surfaces.   They actually did all this --- and then Frumkin wrote this paper to warn the world that DNA evidence isn't nearly as reliable as universally assumed.

How hard is this to do?

Not hard at all. According to Dan Frumnkin, any Average Joe with some basic science know-how under his or her belt and access to some simple lab equipment can cook up "practically unlimited amounts" of phony DNA.

Now, let's add the phrase "prosecutorial misconduct" to the mix.

Long ago, the United States Supreme Court was confronted with overzealous prosecutors monkeying with cases to get a conviction, and warned us all that prosecutors should "prosecute with eagerness and vigor" but may not use "improper methods calculated to produce a wrongful conviction." Berger v. United States, 295 U.S. 78 (1935).

That warning didn't stop things.  There are countless cases of prosecutorial misconduct on file in this country today -- fingerprints mysteriously placed at crime scenes, guns or weapons dropped by bodies, documents gone missing from a file, the list of examples is endless.   In fact, studies on the impact of prosecutorial misconduct reveal that Florida topped the list of states with prosecutorial misconduct: in Florida, 44% of cases appealled with a claim of prosecutorial misconduct were overturned.  That's almost HALF. 

The potential implications of this Israeli study -- and warning --  by Dan Frumkin upon criminal defense in the State of Florida is mindboggling to consider.  What will we do to insure that there hasn't been a frame-up?  Will the Innocence Project arguments be tainted now? 

What's the impact upon people like David Eugene Johnston, setting on Florida's Death Row while the Florida Supreme Court awaits DNA test results from a North Carolina lab?  Johnston was scheduled to be executed in May.  DNA testing may save his life - but will the State use Frumkin to muddy the waters?

AEDPA, the Power of Judicial Dissents, and the Reality of Troy Davis

This week, the New York Times reports that dissents are increasing in federal cases, based in large part upon judicial frustration with the Antiterrorism and Effective Death Penalty Act of 1996.   According to their investigation and research, this single statute has been the basis of 6 -24 dissents per year in federal death penalty appeals. 

What is the Antiterrorism and Effective Death Penalty Act of 1996?

The Antiterrorism and Effective Death Penalty Act of 1996 is a federal law that was passed by Congress in response to concerns that Death Row inmates were taking advantage of loopholes in the appeals process.  What AEDPA does to correct this concern is to put boundaries on what the federal appellate court justices can take into consideration when called upon to review a death penalty appeal.  The federal appellate courts must limit their review in state court cases where the death penalty has been imposed to certain specific areas. 

Specifically, AEDPA allows federal judges to grant relief in a death penalty case only if  the state court decision is found to be:

  1. contrary to, or involved an unreasonable application of clearly established federal law as determined by the Supreme Court of the United States; or

  2. based on an unreasonable determination of the facts in light of the evidence presented in the state court proceeding.

AEDPA does other things as well.  It bars certain habeas corpus petitions.  It cuts off the power of the U.S. Supreme Court from reviewing lower  federal court decisions denying an inmate permission to file a habeas corpus petition in certain circumstances.  It establishes specific review provisions in death penalty cases arising out of states that have set standards for performance (e.g., "death penalty qualified") on attorneys involved in representations at the penalty phase of a death case (the sentencing trial).   These are a few examples of the powerful impact AEDPA imposes upon capital punishment review nationally.

What's the Impact of All These Judicial Dissents?

Dissenting opinions ("Dissents") from justices of the U.S. Supreme Court are commonplace today -- sometimes short, sometimes long, they're always there to give further explanation as to the reasoning of the particular justice.  We've come to expect them, particularly on the big issues. 

Justice William O. Douglas loved dissenting opinions, for example, and wrote 486 of them (he also dissenting in another 309 cases, but didn't bother to write an opinion for them).  And, of particular import here, Justices Thurgood Marshall and William Brennan, Jr. became famous for their dissenting opinions in death penalty cases.   Both were adamently opposed to capital punishment, and used the opportunity offered by the dissenting opinion to offer eloquent and persuasive arguments against its legality.

And it's true that dissents can be used to persuade others.  Marshall and Brennan saw the power in dissenting, and the New York Times article points to the power of the growing number of federal appellate judges who are opposing the AEDPA via the tool of a dissenting opinion.  

Dissents are power, they give judicial voice to perceive injustice and persuade an alternative viewpoint, sometimes offering a solution or optional outcome. 

Bringing the Case Home -- This is Life or Death For Troy Davis

Earlier, we posted about Troy Davis and how Mr. Davis may well be an innocent man executed by the State of Georgia.  Right now, a second habeaspetition sits before the United States Supreme Court -- with an Eleventh Circuit Opinion denying Mr. Davis's requests and amici curaie supporting him growing by the day as well as a swelling public outcry by the likes of Pope Benedict, Georgia Governor Sonny Perdue, Rev. Al Sharpton, and former U.S. President Jimmy Carter.  

Dissent in Davis's case before the 11th Circuit

The Eleventh Circuit voted against Davis 2-1.  The majority opinion is based upon two AEDPA requirements, which were found not to be met by Davis.  Since Davis failed to meet these "gatekeeping requirements," his petition was rejected, preventing Troy Davis from getting that new trial. 

Rosemary Barkett filed a dissent.  In her opinion, Judge Barkett wrote:

 "[t]he majority takes the position that we cannot permit Davis to bring his evidence before the district court because our discretion to do so is constrained by AEDPA.  But AEDPA cannot possibly be applied when to do so would offend the Constitution and the fundamental concept of justice that an innocent man should not be executed."

The U.S. Supreme Court Has Davis's Life and the future of the AEDPA in its hands

How the U.S. Supreme Court decides to handle AEDPA in Mr. Davis's situation will determine whether or not Troy Davis dies.    Surely Judge Rosemary Barkett felt the importance of her words as she wrote her dissenting opinion -- but we don't know yet how persuasive Judge Barkett has been. 

The Supreme Court may well choose form over substance and let Troy Davis die rather than upset the apple cart of the AEDPA.  And, no matter how powerful a dissent from a United States Supreme Court Justice may be, it will be of cold comfort to Davis's family and friends if the High Court fails to grant Davis' request in its majority opinion.

This week's Justin Heyne Case Demonstrates the Two Trials Involved in a Death Penalty Case

Yesterday, the jury came back in the murder trial of Justin Heyne.  The 12 jurors found Heyne guilty of the March 2006 murder of his roommates, Sarah Buckowski and Benjamin Hamilton and their 5-year-old daughter, Ivory. 

The verdict was read to a packed courtroom.  Mr. Heyne stood to hear his fate in a dark blue suit, his defense attorney at his side.  His family and the families of the victims all sat in the pews, witnessing the court clerk reading the jury's decision for each of the three crimes -- everyone hearing "guilty"  three times over.

That was the end of the first trial.

In every death penalty case, there are two trials.  Justin Heyne would have had nothing more to try if the jury had found him innocent.  However, because three guilty verdicts were read, there is now the matter of sentencing.  And with that, a sentencing trial to determine what a fair sentence should be.

The first trial took one week.  (It already took a week to pick the jury.)  Now, on Wednesday morning, that same jury resumes its position in the jury box of a Brevard County courtroom as the second trial begins.

The sentencing trial (the "penalty phase")

In the sentencing trial, more documentary evidence and witness testimony will be provided to the jury.  Aggravating factors and mitigating circumstances will be addressed, as the defense attorneys argue that Heyne should not die by lethal injection but instead serve three mandatory sentences of life in prison without parole. 

Whether the State of Florida should kill Justin Heyne is being decided in this second trial.

And, the jury doesn't decide this all alone.  The twelve jurors vote on a "recommendation" (it doesn't have to be unanimous) and this recommendation is taken into consideration by the trial court judge.  It is the judge who makes the ultimate decision. 

As we've discussed earlier, the Florida statutes list the aggravating factors that the prosecutor can prove with proper evidence to argue for capital punishment.  Florida law also lists the mitigating factors that the defense can use to fight for Heyne to live. 

The Grandmother Doesn't Want the Death Penalty

Something the jury may not hear (unless the defense provides it to them) is the position of Juanita Perez, the mother of Benjamin Hamilton and grandmother of  Ivory.  Perez doesn't want Heyne to die.

In fact, for many months now, Juanita Perez pushed the State Attorney to accept Heyne's offer to plead guilty to all three murders in exchange for three life sentences.   Why?  Juanita Perez understands the lengthy appellate process that will insue after the sentencing phase is completed in this case, and she doesn't want her family to have to live through those years and years of appeals. 

However, this mitigating factor -- the desires of the victims' mother and grandmother for closure -- has been ignored by the State, and they're fighting for Justin Heyne to die.   Sure, the prosecutor is using the standard response: the crime was heinous (a child was killed), other relatives aren't as strident as Mrs. Perez here, etc., etc.

Still, one has to wonder why the prosecutors are pushing for death when Ivory's own grandmother isn't wanting Justin to die for Ivory's murder.  It's up to the defense team to bring this very important circumstance to bear in the sentencing determination.   Just one more example of how important every due process step of a death penalty case can be, and how important qualified death penalty counsel are in a capital punishment case. 

Today John Marek Appeals to US Supreme Court, Scheduled to Die in 12 Days

John Marek's attorneys are fighting hard to stop the State of Florida  from killing their client.

Today, they filed an appeal with the highest court in the land, the United States Supreme Court, to try and stop the execution of John Richard Marek.  With the Florida Supreme Court ruling that it will not hear anything further in this case, Marek is left with only the U.S. Supreme Court and the Governor of Florida between him and an otherwise certain execution.  (Read docket notice of Marek's Motion to Stay Execution here -- Justice Thomas is assigned to this request. )

What arguments can Marek possibly make to the U.S. Supreme Court now -- over 25 years after the crime occurred for which he was convicted, and within two weeks of his scheduled execution?  Lots of people don't understand the importance of the appellate process in death penalty matters, but Marek's case gives us some idea of how vital appeals can be.  When the government is about to kill one of its own citizens, then the courts must insure that the government is not violating any legal rights in doing so. 

And it appears that Marek has some valid legal arguments to make, such as:   

Evidence that Marek Was Not the Killer

It is not contested at this point that Marek was present at the scene where Adella Simmons was murdered one night on Dania Beach, back in 1983.  However, there is evidence that Marek did not kill the woman that he and his buddy, Ray Wigley, picked up on the Turnpike where her car had broken down. 

The evidence comes from Wigley himself.  Seems he admitted to killing the woman to several folk while he was incarcerated.  Those inmates have come forward with testimony that Ray Wigley -- who was not sentenced to death, as Marek was -- told people on several occasions that he murdered Ms. Simmons, not his pal Marek.  Wigley himself cannot testify.  Wigley is dead.

Past Appellate Arguments Regarding Recusal of Trial Court Judge 

Part of Marek's earlier arguments have been based upon the issue of when a judge should recuse himself.  (For those interested, the Reply Brief filed by Marek's counsel before the Florida Supreme Court is online for viewing.)  This is an issue recently addressed by the US Supreme Court. 

In a far-reaching decision released this past March,  Caperton v. A.T. Massey Coal Co. [08-22] (5-4 opinion),  the high court recognizes that due process is violated when someone is before a trial court judge has "...had a significant and disproportionate influence in placing the judge on the case by raising funds or directing the judge's election campaign when the case was pending or imminent...." and that judge does not recuse himself (withdraw from presiding over the matter).  Caperton has been criticized for not giving enough direction on when a trial judge should and should not recuse himself (as the dissents themselves discuss), therefore judicial recusal is a topic in Marek's appeal which may be of interest to the Justices. 

What is Before the US Supreme Court Right Now Regarding John Marek

First things first.  Justice Thomas is overseeing the Motion to Stay Execution.  Of course, halting the killing scheduled in 12 days is the first priority.  Afterwards, the Petition for Writ of Certiorari and Motion for Leave to Proceed In Forma Pauperis will be heard.  The deadline for the State of Florida to respond is September 7, 2009.   As of this posting, briefing was not available for review.

The High Cost of the Death Penalty: Capital Punishment is Very Expensive

In these economic times, there has been significant media coverage of various states considering the banning of the death penalty -- not on moral grounds or arguments about its ineffectiveness in crime prevention, but on the simple argument that it costs too much.   That's right:  it is cheaper to keep someone incarcerated for the rest of their lives than it is to kill them, ending their life on a set calendar date. 

How can this be?  How is the death penalty so costly?

First, asAmnestyUSA points out, there are the trial costs.  When a prosecutor decides to seek the death penalty, the cost of litigation skyrockets.  Discovery -- investigation of the crime -- becomes more intensive and therefore, more expensive.  There is a heavier motion practice in a death penalty case.  And, remember, once the death penalty is on the table, attorneys are preparing for not one but two trials -- first, the conviction phase (deciding guilt or innocence) and then the penalty phase (determining the sentence). 

That second trial, the sentencing phase of the case, can be extensive in preparation and presentation.  Aggravating circumstances must be presented to the factfinder with evidence that is authenticated and admissible.  Mitigating factors must likewise be provided to the jury.  Often, expert testimony will be provided by several leaders in their fields (scientific or forensic experts, mental health experts, etc.).  Death cannot be imposed upon someone who has been found guilty of a capital crime without all due process efforts being exhausted.

Second, there are the appeals that must follow any complicated capital punishment case.  Post-conviction proceedings will be filed.  These will take time.  Appellate courts will grade the papers of the trial court to insure that the law has been followed.   One growing concern is insuring that the defendant had effective assistance of counsel during the conviction phase.  Sometimes, appellate courts will be asked to consider the revelation of new evidence or the reconsideration of old evidence based upon new technology (such as new DNA testing procedures).   The appellate process in death penalty cases is time consuming and expensive, as well.

What kind of numbers are we talking about here, in terms of cost?

The Death Penalty Information Center has compiled a list of studies done regarding various states in the country, and how much they might save annually if they banned capital punishment.  According to the DPIC, Florida would save $51,000,000 each year and California would save a whopping $125,500,000 each year.

That's annually.   Which means - using the DPIC numbers -- that over a five year period, Florida would save $255,000,000 -- that's a quarter of a billion dollars -- and California would save an astounding $627,500,000 during the same five years.  

Surely this practical, basic argument merits serious consideration by even the most ardent supporter of capital punishment.   Especially for a state that is currently handing out IOUs ....

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