This past Sunday, the New York Times responded to the horrific execution of Ken Biros by the State of Ohio last week.  Yes, where Biros was killed in the same way that your vet euthanizes dogs and cats.  Yes, where Ohio ran ahead and used a new method of execution that hasn’t been vetted, allowing Biros to be a human guinea pig. In a succinct, well-written opinion piece, the New York Times shares in the horror of what Ohio has done.  From its offices in Manhattan, the Times states it plainly:  “There is no Humane Execution.”  Of course, the editorial has its critics.  At Sentencing Law & Policy, for example, the New York Times piece is challenged — most interestingly, for its suggestion that the Texas case of Cameron Todd Williamham is a fluke:  

“Finally, as serious students of the death penalty know, the Willingham case is the closest we’ve gotten to a clear showing an innocent person may have been executed; to suggest that a large number of innocent people have quite likely been put to death is especially misguided.”

Really?  Currently on Death Row, a number of men set waiting to be executed, and the Innocence Project is monitoring this list.  Surely we’re not to wait until they are killed before we have enough justification to stop capital punishment in this country.  From our post dated 09/11/09, here are the names of the innocent setting on Death Row per the Innocence Project as of that day – visit our earlier post for links to each man’s individual story, as told by the IP: Kirk Bloodsworth Rolando Cruz Alejandro Hernandez Verneal Jimerson Dennis Williams Robert Miller Ron Williamson Ronald Jones Earl Washington Frank Lee Smith Charles Irvin Fain Ray Krone Nicholas Yarris Ryan Matthews Curtis McCarty Kennedy Brewer Michael Blair

Most Florida criminal defense attorneys who undertake the tremendous responsibility of representing defendants facing the death penalty probably cannot remember what life was like in this country in 1963. Few were practicing law back then. Many were yet to be born.

Nevertheless, the year 1963 is a critical milestone for the Florida capital defense bar because it was in 1963 that the United States Supreme Court brought us Gideon v. Wainwright, 372 U.S. 335 (1963) – and with Gideon, everything changed.

Before we consider the necessary changes that must be made in the representation of indigent defendants facing capital punishment in Florida – and we will — it is important to look back to the status quo as it existed pre-Gideon.

Gideon did not create the indigent’s right to counsel in death penalty cases. Their right to legal representation was created much earlier by the U.S. Supreme Court in Powell v. Alabama, 287 U.S. 45 (1932). It was only a few years later that the High Court expanded this right to legal counsel for indigents facing felony charges in federal courts. Johnson v. Zerbst, 304 U.S. 458 (1938).

What makes Gideon so powerful and worthy of our consideration today is that this single Supreme Court opinion recognized an indigent defendant’s legal right to counsel when accused of state felonies. Gideon, 372 U.S. at 342. Suddenly, the Sixth Amendment right to the assistance of counsel was found to be essential to a fair trial; consequently, there was to be no distinction between the duty to provide indigents with legal representation in either state or federal courts. If you were poor and facing a felony charge in this country under either state or federal law, you were legally entitled to a lawyer provided to you by the government since you could not afford to hire your own counsel.

Curious by its absence was any instruction in Gideon on the means or methods by which the individual states were to accomplish this task. Each state was left to its own devices in how Gideon’s mandate was to be accomplished, and many looked to Florida – since Gideon v. Wainwright originated in our state.

Background of Gideon v. Wainwright

In 1961, Clarence Earl Gideon was convicted for breaking and entering a Panama City, Florida pool hall (with the intent to commit petty larceny) by a Florida jury and sentenced to five years incarceration in the Florida State Prison. Although Mr. Gideon asked the trial judge to provide him with an attorney, the judge declined, explaining that under Florida law only defendants facing capital offenses were entitled to appointed counsel. Mr. Gideon, therefore, represented himself.

He continued to do so after his conviction. Taking advantage of the prison library, Mr. Gideon handwrote in pencil his petition to the United States Supreme Court, as he sued Louie Wainwright as the Secretary to the Florida Department of Corrections. Gideon argued that his Sixth Amendment right to counsel applied to his situation through the Fourteenth Amendment. His constitutional rights had been violated.

Once his pleas reached the High Court, Mr. Gideon was no longer without counsel. The renowned advocate Abe Fortas, later to take his own place as a United States Supreme Court Justice, undertook the representation of the convicted pool hall burglar.

The Gideon Opinion

After hearing oral argument, an opinion was issued in mid-1963 written by Justice Hugo Black who was joined by Chief Justice Earl Warren as well as Justices Brennan, Stewart, White, and Goldberg. Douglas, Clark, and Harlan concurred. No one dissented.

In Gideon, not only did the Court strengthen its support of the Powell decision, but it overruled Betts v. Brady, a prior decision that found the selective application of the right to counsel was legally acceptable in certain situations. Clark pointed out that there is no Constitutional distinction between capital and non-capital charges. Harlan wrote to point out that merely the charge of a serious crime created the special circumstances that call for legal representation at trial.

Now, the law of the land was that the right to have legal representation was to be considered a fundamental constitutional right and therefore, worthy of the necessary procedural safeguards imposed for due process of law.

The Aftermath for Clarence Gideon

After his case was returned to the Florida Supreme Court, the State of Florida tried Mr. Gideon a second time. In his second trial he was represented by appointed counsel, and summarily acquitted.

The Aftermath for the State of Florida, the Criminal Defense Bar, and Indigents Today

No one in this country was considered to have the legal right to an attorney until the early 1930s, when defendants in federal court facing the death penalty were granted that right by the U.S. Supreme Court. For the next thirty-odd years, no one charged with a serious crime by any state this country was considered to have a right to an attorney provided to him by that state – even if he was facing life imprisonment. Gideon v. Wainwright changed all that.

Today, almost a half century later, the result of Gideon has been a consistent neglect of the needed infrastructure for indigent criminal defense in Florida, and across the country. Efforts to have effective legislation passed or broadly based executive policies instituted have been frustratingly unsuccessful.

Since the 1980s, it has become increasing clear that there is simply an incongruity between the needs of appointed counsel to mount a thorough and satisfactory defense and the limited budgetary revenues of state and local governments. Bottom line, Gideon (and its progeny) has proven to be more expensive directive than the state governments have been willing to accept.

Death Row inmate Romell Broom was setting in the courtroom this week as his attorneys stood ready for an evidentiary hearing that would take a couple of days in front of Federal District Judge Gregory Frost.  Romell Broom sat there, ready to testify. Think of it — Broom left his small Death Row cell to set in that public courtroom, look out at all those faces and tell about the pain and suffering he experienced on that gurney as his executioners spent over two hours trying to find a vein in which a needle could be inserted.  We’ve posted about this earlier – including the media reports that Broom was "sobbing in pain" that day.  The hearing was based upon Broom’s motion.  Romell Broom is seeking to stop his scheduled execution by Ohio by arguing that it is unconstitutional for the State of Ohio to try and kill him a second time after its horrific failure to execute him earlier this year by lethal injection.  Judge Frost doesn’t hold a evidentiary hearing  Surprising some, Judge Frost took the bench and soon thereafter advised everyone that he wouldn’t be hearing testimony in the Broom matter.  Nope.  According to Judge Frost, he’s really able to decide only a narrow question of the law.  No fact-finding is needed, so no testimony would be taken.  Attorneys were asked to file their arguments addressing the issue, and the Judge would rule based upon the paper.  Judge Frost did give everyone a big hint — he’s stated that he doesn’t see how Broom can circumvent the decision made by the Sixth Circuit Court of Appeals and denied review by the United States Supreme Court earlier this week in the Biros case.  Ken Biros died as a guinea pig to the new Ohio single-drug injection method.  What is Judge Frost Going to Decide? All that Judge Frost is going to answer is the limited question of whether or not the State of Ohio, after it has failed to execute an inmate, has the right under law to try again.  And while it is critical to consider the pain and suffering that Romell Broom experienced on that gurney that day, Frost is saying that he’s not hearing anything on pain because of the federal appellate court ruling Monday in Kenneth Biros’s case. On Monday, Biros unsuccessfully argued that the method of execution Ohio would be using hadn’t been vetted and Ohio couldn’t show that the execution method couldn’t cause severe pain.  Severe pain during an execution violates the prohibition of cruel and unusual punishment of the U.S. Constitution.  The appellate court specifically stated that Biros had provided no evidence on pain.  Arguing about the pain that might occur during an untested method of execution seems easily distinguishable from an argument concerning the two bites at the apple situation facing Broom.  Yet Judge Frost is moving forward without any evidence on pain — there was no evidence on pain in the Biros appellate record and he’s prohibiting having Romell Broom take the stand in the present case.  Given this factual vacuum and the precedent of Louisiana v. Resweber, 329 US 459 (1946), where the failure of an electric chair during an initial execution did not prevent the second execution from proceeding, what Judge Frost is going to rule probably isn’t that hard to predict regardless of whether your perspective is based upon double jeopardy, due process, or cruel and unusual punishment.

All this morning, there have been almost minute by minute updates on the web regarding whether or not the appellate attorneys feverishly fighting to stop this morning’s execution of Kenneth Biros by the State of Ohio will be successful.  Biros’ attorneys are literally banging on the doors of the United States Supreme Court, asking that the highest court in the land act immediately to stay the execution of Ken Biros — who is set to die this morning  (the execution is scheduled for 11 am) unless something BIG happens.  And this needs to be stopped.  We’ve already written here about all the reasons why. The State of Ohio is about to execute a man in the same way that the vet down the street “executes” pets everyday – by a single, massive injection of a drug.  As we’ve posted about before, no one knows how a human being will react to this procedure.  It hasn’t been scrunitized in the standard legal way — Ohio is allowing Biros to be a guinea pig.  Will this be cruel and unusual?  We don’t know. The New York Times legal blog has periodic updates.  A local TV station in Ohio has a reporter at the prison.  The Tribune Chronicle in Lucasville is posting almost minute by minute events as they transpire.    At 9:20 am, prison officials announced that the execution might be delayed – Ohio would wait until the United States Supreme Court ruled on the defense attorneys’ last minute request.  At 10:00 am, it was announced that the United States Supreme Court will not stop the killing of Kenneth Biros by an unvetted execution method.  Ken Biros will die today.  And the horror exists — if this single injection method is later shown to be legally unacceptable as a method of executing humans, there will be no way to help Mr. Biros.   May God have mercy on us all.

In yesterday’s New York Times, Professor Linda Greenhouse gives us a thought-provoking analysis of the “selective empathy” of the current U.S. Supreme Court as she compares the recent decisions in Porter v. McCollum (Porter lives) and Bobby v. Van Hook (VanHook dies).  After discussing in detail both opinions, Greenhouse concludes:

Setting the Porter and the Van Hook cases side by side, what strikes me is how similarly horrific the two men’s childhoods were — indeed, how common such childhoods were among the hundreds of death-row inmates whose appeals I have read over the years and, I have to assume, among the 3,300 people on death row today. It is fanciful to suppose that each of these defendants had lawyers who made the effort to dig up the details and offer these sorry life stories to the jurors who would weigh their fate.

I don’t make that observation to excuse the crimes of those on death row, but only to underscore the anomaly of the mercy the court bestowed this week on one of that number. Am I glad that a hapless 77-year-old man won’t be put to death by the State of Florida? Yes, I am. Am I concerned about a Supreme Court that dispenses empathy so selectively? Also yes.

Those who represent defendants facing prosecutors arguing in courtrooms that the accused should die at the hands of the state undoubtedly understand Professor Greenhouse’s acknowledgement that most folk setting on Death Row in this country have horrific personal histories.

The tragedy of Death Row goes far beyond the underlying crime and the suffering of the victim and the victim’s loved ones – there’s also the path woven through the past by the defendant to that fateful day when a crime was committed, a path with its own pain and shocking trauma. Porter’s case typifies this, as does Van Hook’s – and each of the Supreme Court opinions provide the details.

Comparing Porter and VanHook From a Criminal Defense Practitioner’s Perspective

However, both these unanimous, per curiam decisions have more to tell us, the legal practitioners who have devoted our lives to the defense of individuals charged with capital crimes and facing the death penalty. In both opinions, the quality of the underlying representation of Van Hook and Porter were at issue. Both alleged ineffective assistance of counsel — and it was upon this appellate point that the two cases reached the high court.

From this perspective, we must read Porter and Van Horn side by side without a focus upon the underlying facts of the crimes and instead ask ourselves if the minimally acceptable standard of representation was provided in each case. Without emotion. Lawyer to lawyer.

When this is done, and the examples provided by the Justices are considered (and they do give examples), then a disparity can be seen. A disparity that explains the different results in Porter and Van Horn in a way that a comparison of the crimes and the two condemned men cannot.  And it also explains how both opinions could have unanimous, per curiam results. 

Viewed in this way, Porter and Van Horn remind the criminal defense bar that each and every time a defense attorney undertakes the representation of a defendant in a case where the prosecutor is zealous to pursue the death penalty, there is nothing more important than what that defense lawyer does.

We, the attorneys defending against death, stand in the gap between life and death by our own level of care and attention to detail in the work that we do. Our focus cannot be upon the horror of our client’s background (though we sympathize) nor with any public repulsion of the crime at issue and their sometimes disgust with us, as counsel, for defending our clientele.

Our focus must always be upon doing the absolute best job that we can in the defense of each and every case. It is our duty to review our own efforts to insure we are providing “effective assistance of counsel” long before any appellate court begins its review of any ineffectiveness.

Perhaps discussion of the November 30, 2009, opinion by the United States Supreme Court in Porter v. McCollum (08-10537) is best begun by reading the first paragraph of the opinion itself: 

Petititioner George Porter is a veteran who was both wounded and decorated for his active participation in two major engagements during the Korean War; his combat service unfortunately left him a traumatized, changed man.  His commanding officer’s moving description of those two battles was only a fraction of the mitigating evidence that his counsel failed to discover or present during the penalty phase of his trial in 1988.

Of note, the opinion is short by Supreme Court standards (only 15 pages), it is also unsigned and per curiam. 

1.  It’s a per curiam decision for the United States Supreme Court.  What’s that telling us?

That this opinion is per curiam alone is worth some pondering.  Usually, the High Court has lots of paper with its results — various justices writing their own explanations for the position they have taken on a case.  Here, there is just fifteen pages whose words speak for the entirety.  Consider Bush v. Gore, 531 U.S. 98  (2000), another per curiam opinion of the U.S. Supreme Court in a Florida case: it still had dissenting opinions. 

That Porter is per curiam is telling.  It’s powerful.  PTSD in combat veterans is a mitigating factor that must be considered and respected by the states in death penalty cases. 

2.  Is Porter limited to its four corners?  The opinion doesn’t read that way.

There are those that will argue that the Porter case is limited to the facts surrounding the crime for which George Porter, Jr. was convicted and it should not be considered as having a bigger impact.  Prosecutors will undoubtedly argue that the Porter case turned mainly on the specific facts involved in the trying of the defendant for the murder of his ex-girlfriend and her current boyfriend, and the actions (or lack thereof) by both the prosecution and the defense in that trial.  And it is true that the appellate arguments advanced by Porter are hinged upon ineffective assistance of counsel.

However, reading the opinion in its entirety, the Supreme Court appears to nip that challenge in the bud by its discussion of post traumatic stress disorder arising from combat.  Not only does the opinion point out that a medical expert testified that Porter’s symptoms “…would ‘easily’ warrant a diagnosis …” of PTSD, the opinion also references testimony given by Veterans Affairs Secretary Eric  Shinseki, where Mr. Shinseki testified that nearly 25% of Iraq and Afghanistan veterans seeking V.A. medical treatment were diagnosed with post-traumatic stress disorder (PTSD).  Consider these words from the opinion:

Our Nation has a long tradition of according leniency to veterans in recognition of their service, especially for those who fought on the front lines as Porter did.  … The relevance of Porter’s extensive combat experience is not only that he served honorably under extreme hardship and gruesome conditions, but also that the jury might find mitigating the intense stress and mental and emotional toll that combat took on Porter.

The opinion doesn’t limit itself to discussion of the circumstances of Porter’s defense representation at trial, nor to Porter’s own Korean combat trauma.  Its application simply cannot be wedged into a narrow application to George Porter’s particular circumstance. 

3.  What happens now?

 First: George Porter, Jr. receives a new sentencing hearing, based upon an unanimous United States Supreme Court decision and while his conviction stands, the sentence of death does not.  Mr. Porter will not be executed by the State of Florida now. 

Second: Across the country criminal defense attorneys representing clients facing the death penalty must take heed that PTSD (at least for combat veterans) is a valid mitigating factor for which evidence must be investigated and fully presented as a legally recognized defense to the state’s desire for capital punishment. 

The real debate is whether (or when) the Porter PTSD defense can be applied not only to combat veterans but to all those who suffer from severe, disabling post traumatic stress disorder arising from life-threatening events (e.g. victims of kidnapping, torture, rape, etc.).

On Monday, over 1000 cities around the world will participate in “World Day of Cities for Life,” which honors the first time that the death penalty was abolished by a government — on November 30, 1786, by the Grand Duchy of Tuscany.  Organized by the Catholic Community of Sant’Egidio of Rome, participation is growing steadily: in 2005, only 300 cities worldwide were participants and now, four years later, the total exceeds 1150. 

Cities for Life Day involves each community flooding lights upon a local monument that in some way symbolizes the effort to abolish the death penalty.  For example, in Rome the Colosseum is illuminated; in Barcelona they are lighting up the Cathedral Square.  Continue Reading November 30 is World Day of Cities for Life – is Your City Participating?

Today, the Kentucky Supreme Court issued a ruling that no one is going to be executed in the State of Kentucky until things are done by the book regarding the lethal injection killing method.  The high court set no deadline on when capital punishment might resume in Kentucky, either.  Its formal opinion is already published online at the court’s official web site.

The story starts with Ralph Baze

Ralph Baze sits on Kentucky’s Death Row after being convicted and sentenced to death by lethal injection for the murder of Sheriff Steve Bennett and Deputy Arthur Briscoe of Powell County, Kentucky, back in 1992 while the lawmen were trying to arrest him.  (Baze unsuccessfully urged self-defense.)   After his conviction, Baze joined with fellow Death Row inmate Thomas Clyde Bowling, Jr. in a constitutional fight.

Baze and Bowling both argued by appeal that execution of someone with the three drug “cocktail” established by Kentucky law (and used here in Florida, as described in our earlier series) constitutes cruel and unusual punishment and is therefore unconstitutional under the 8th Amendment. 

Baze v. Rees (Baze’s appeal) was heard by the United States Supreme Court, and in April 2008, that court ruled that the three drug cocktail did not violate the constitution.  Ginsburg and Souter dissented.

Baze did not stop there.  He then urged a state appeal (joining with Bowling) challenging state procedure, and the Kentucky Supreme Court has heard him. 

What the Kentucky Supreme Court Ruled Today

In today’s opinion, the state high court has found that the legal steps that are taken when Kentucky puts a condemned man (or woman) to death through the use of its three drug cocktail have to be specified — spelled out — in a state regulation.  

Writing for the majority, Justice Abramson states, “”[t]his court cannot ignore the publication and public hearing requirements set forth in Kentucky statutes.”  The opinion then orders the Kentucky Department of Corrections “…to adopt as an administrative regulation all portions of the protocol implementing the lethal injection statute….” 

This will take time.  An adminstrative regulation doesn’t just get voted upon by some group — due process requires much more than that.  What the Kentucky Supreme Court has done is to require the agency to write a regulation and then formally debut it as proposed law.  Then, the public gets a say in the matter as there is a set amount of time for public contributions on the language of the proposed regulation.  Things are discussed, edits may happen.  And only then is the proposal taken to Kentucky’s Administrative Regulation Review Subcommittee, an arm of the state legislature that votes to adopt/reject the proposal.

Last week, the State of Ohio announced that it was changing its method of execution from a lethal injection involving three drugs (sodium thiopental, pancuronium bromide and potassium chloride) to a single injection of the drug sodium thiopental. 

Ohio changes to a single-drug form of execution after its failed execution of Romell Broom on September 15, 2009

You’ll recall the travesty of Mr. Broom’s attempted capital punishment — as we described here, Romell Broom suffered for two and one-half hours on the gurney that day:

Romell Broom was sentenced to die for the rape and murder of Tryna Middleton by the State of Ohio and last Tuesday, Mr. Broom was strapped to a gurney and his execution by lethal injection began. 

The 2+ Hour Failed Execution

Except they couldn’t find a vein in which to insert the needle.  They tried his arms.  They tried his legs.  Broom lay there, tied to the table by long leather straps covering the length of his body.  Imagine this being done to you.

Broom lay there for OVER TWO HOURS while lab techs tried to kill him.  They failed.  Broom went back to his Death Row cell, and his execution was “rescheduled.”  The Governor of the State of Ohio was contacted about the problem and he ordered a one week “postponement.”

According to the New York Times, Broom “sobbed with pain”.  And afterwards, not only did Ohio Governor Strickland order that Romell Broom’s execution be stopped, but the Ohio federal court issued a stay of his execution after hearing Broom’s attorneys argue that a second try at executing Broom would be unconstitutionally cruel and unusual.  

The Consequences of Ohio’s New Single Drug Execution Method

Proponents are arguing that this single, massive dose of sodium thiopental is merciful and that it’s going to be the NextBigThing for death penalty proponents, since its success will hamper constitutional arguments against execution by lethal injection under the three-drug approach. 

And those are serious and substantive arguments, as we’ve outlined here in a three-part series of articles.  No one can truly say that a paralyzed person, laying on that gurney, isn’t suffering because they are incapable of communicating what they are experiencing.  The “drug cocktail” is simply horrific.

Ohio is so confident in its new execution method — the same type of killing method that vets use on dogs and cats — that it’s planning on having the new protocol in place by the end of this month, and there’s talk that Ohio will want to try out its new One-Drug Injection procedure on Kenneth Biros, who is scheduled for execution on December 8, 2009, subject to a temporary stay. 

What has yet to be determined, however, is how this massive dose of this single drug will truly work on a human being.  What works on dogs and cats might not be as merciful, fast, and painfree on humans.  We simply don’t know, and undoubtedly there will be medical testimony with the appropriate medical experts providing their opinions on this procedure before Ken Bios or anyone else is subject to Ohio’s new killing option.  Or there should be.

And, what about if the Ohio one drug option doesn’t work as swiftly and cleanly as its proponents suggest it will?  Well, they’ve got a backup — two more drugs that would then be injected into the condemned, there on the gurney:  the executor will shoot in massive amounts of  hydromorphone and midalzolam.   

None of This Makes a Bit of Difference in the Broom Situation

With Ohio’s big announcement, death penalty proponents are gleefully rubbing their hands together at the thought that the remaining 35 states using lethal injection as their primary execution method can now circumvent all number of death penalty appeals based upon the cruel and inhuman nature of the three-drug cocktail, just by adopting the Ohio One Drug method. 

Well, it’s not as simple as that.  First, this method needs to be vetted by medical experts before a condemned person is used as a guinea pig here, nevermind those back-up syringes filled with hydromophone and midazolam. 

Second, has no one stopped to think that the answer is more complex than this?  Romell Broom suffered great agony on September 15th not because of the type of drug used upon him, or the number of drugs selected to be injected into his body, but because they could never find a way to successfully insert the needle.

Two Points to Ponder

So, point one, the Ohio One Drug “innovation” doesn’t resolve the Romell Broom travesty and it’s fascinating to watch Death Penalty proponents distract themselves from the cruelty of that day in their excitement over this new find. 

Point two:  is anyone out there thinking that executing men and women in the same way that that vets euthanize animals (even if they are beloved pets) is just plain wrong?  When did we forget about human dignity?

People wonder why I am so adamently opposed to the death penalty, and then stories like this appear in the media and I, in turn, wonder how anyone can support capital punishment. 

Sam Milsap’s Mea Culpa

Sam Milsap is a seasoned criminal lawyer with over 30 years experience, and for a long while he served as the head District Attorney of Bexar County, Texas (better known to most of us as the location of the city of San Antonio).  Last week, Mr. Milsap was a guest speaker in Topeka, Kansas, where the annual meeting of the Kansas Coalition Against the Death Penalty was being held.  And during his speech to this formidable group, Sam Milsap did a brave thing.  He admitted he was wrong.

Milsap explained from the podium that back in the early 1990s, he was in charge of prosecuting a young man named Ruben Montoya Cantu.  In his zeal to win — something that every criminal defense attorney recognizes in ambitious, driven DAs — Sam Milsap charged ahead in his case, and with only the testimony of one single eyewitness, he obtained a guilty verdict and a sentence of death for Mr. Cantu in the murder of Pedro Gomez. 

That’s right.  No physical evidence.  None.  No admission of guilt from Cantu.  None.  Only the finger-pointing from one man — Juan Moreno, who had been shot alongside Gomez as they were being robbed.   (Nevermind that the co-defendant said that 17 year old Ruben Cantu wasn’t there at the time.)

Much has been written about the weakness of eyewitness testimony, so it should come as a surprise to no one when years later, Moreno changed his mind.  That’s right:  the eyewitness recanted.

Or, as Milsap so eloquently described it, ” ‘ 20 years later, my star witness says, ‘ I lied.'”

The Danger of Zealous Prosecutors in Death Penalty Cases

Sam Milsap must be given his due for not hanging out a “gone fishing” sign, but instead using his time and energy to do things like appear at the KCADP national conference to tell the story of how his vigorous efforts put a 17 year old to death by lethal execution in Texas.  That is a good thing, and every district attorney in the country should hear what Sam Milsap has to say.

Meanwhile, all of us must be aware of the temptations of prosecutors everywhere — to win their case.  To acheive a personal victory, to pursue a reputation as an advocate as well as doing the job that is assigned to them.  In our criminal justice system, prosecutors have the role of proving up a case against a criminal defendant — and if capital punishment is on the table, it’s their job to try and prove its applicability in certain cases.

As Sam Milsap’s story teaches, the danger here is that when a prosecutor makes a serious mistake, and the death penalty is involved, the consequences are too high.  That teenager in San Antonio is dead today, and no one can fix that — although, from the sound of Mr. Milsap’s speech last weekend, no one would like the opportunity to do so more than he.