New York Times publishes debate on death penalty

Six experts debate the death penalty in today’s issue of the New York Times. The fact that the death penalty has reached this level of civil, open, public conversation gives me great hope for the future.

What It Means If the Death Penalty is Dying, NYT, 4/7/14

  • “Rare and Decreasing” by Richard C. Dieter, Death Penalty Information Center
  • “Punishment Needs to Be Punishment” by Robert Blecker, Author, “The Death of Punishment”
  • “No Justice for Victims of Color” by Khalilah L. Brown-Dean, Political Scientist
  • “Of Course It’s Cruel and Unusual” by Kirk Noble Bloodsworth, Witness to Innocence
  • “Claims of Racial Disparity Are Misleading” by John McAdams, Political Scientist
  • “The Most ‘Unusual’ It’s Ever Been” by Paul Butler, Law Professor and Former Prosecutor

Comment on 4/6/14 Death Row Stories episode by Richard Kiger

Tonight’s episode of the series questioning how some people ended up on death row was about a man named John Thompson who was convicted of murder in 1985. The treatment of his connection to the murder of a young man was a little on the thin side. That’s not the point. The problem examined, once again, was government misconduct. In this case, Thompson was convicted of two crimes, one involving a car-jacking with people in the car and the other a murder. It was important to the prosecution case to go to trial first on the car-jacking and get a conviction because that conviction could then be used against Thompson in the murder trial, to show that he had a record. The conviction effectively prevented Thompson from taking the witness stand in his own behalf because the conviction could be used against him. As I remember the description of Thompson, he did not have a record otherwise.

There was evidence collected at the scene of the car-jacking indicating that the person responsible was injured and his blood ended up on the clothing of the victims. The clothing disappeared and the blood test performed on it was not revealed to the defense. When this aspect of the case was investigated years later, it turned out that the presumed criminal had a different blood type from Thompson. If the police theory is correct that the blood on the victim’s clothing was that of the car jacker, this would exonerate Thompson. The government’s explanation of its treatment of evidence is not credible, leaving one to infer that it was not in the prosecution’s interest to tell the defense it had good reason to believe Thompson was innocent. Of course, this is not what was said, but that is, I suggest, a reasonable interpretation of the evidence set forth in the show. There was also a question of the reliability of eyewitness testimony.

The murder case was built upon the car jacking case, so its foundation was shaky at best. It turns out that the star witness was paid $10,000 to testify against Thompson. There was a reduced sentence deal in this trial also. None of this was revealed until Thompson had been in jail for many years. Eventually, the convictions were vacated and after some indecision on the part of the prosecution, Thompson had a new trial on the murder charge and was not convicted. Because he was, for all intents and purposes framed by the government, as presented in this show, he sued the authorities involved and received a judgement of $14,000,000. This was appealed and reversed in a decision by the United States Supreme Court. The 5-4 decision was written by Justice Thomas.

What I’ve said up to now raises many questions. Here are a few that jump out.

Who has $10,000 to buy a witness’s testimony? We’re all familiar with plea deals, but who has that kind of money to give someone? That is, where did it come from? If the government itself, where does the paper trail lead and why were we not told that someone has been prosecuted? I assume we were not told about a prosecution because no one was prosecuted. Surely, this is not a legitimate governmental use of public money, so what about a prosecution of any government officials involved in this transfer of funds? If it was private money, wouldn’t that qualify as corruption, obstruction of justice, if you will? Suborning perjury? Maybe misprision of a felony (perjury)? Again, where’s the prosecution? Surely, even in Louisiana this must be wrong, mustn’t it?

Also, supposedly one of the goals of any justice system is to punish those who commit crimes, especially violent crimes with victims. Does anyone care that an innocent person was convicted and lost many years of his life in a jail cell instead of being with his family, and the person who committed the crime was free to commit more crimes if he chose? The law enforcement personnel in these shows never seem to care about these things, and I don’t have the impression (I may be wrong) that the show is trying to paint them in a bad light in these instances.

Next, why should we respect the rulings of the United States Supreme Court? That’s not a rhetorical question. Brady v. Maryland was decided in 1963. The murder case under discussion was tried in1985. That’s over two decades when lawyers are supposed to know that exculpatory or potentially exculpatory evidence has to be revealed to the defense. Put aside for the moment the payment of money to suborn perjury and just look at the Brady material. Maybe there is an important decision to be made at times as to whether evidence is exculpatory. I don’t think that was the case here or in some of the other shows we have seen in this series. No one gives a damn about complying with the ruling in Brady, apparently, and it seems as though we hear next to nothing about this attitude. Why should ordinary members of the public respect the rulings of the United States Supreme Court when it is obvious that there are law enforcement personnel, some of them lawyers, who must not respect the rulings because they do not obey them.

There is a part of this evening’s show that strikes me as poorly handled or perhaps just disingenuous. Prosecutors were asked about the guidance they received in the office for situations such as those involving Brady material. They said that there was no intention to share anything more than could not be avoided and handbooks were incorrect in setting forth standards. Well, so what? Handbooks are there for the use of those who need guidance in such matters. We are talking about lawyers, I assume members of the Bar in Louisiana, who ought to know what the Supreme Court has said about the conduct of the cases they handle. It is pathetic to hear Harry Connick, Sr. say that he hasn’t opened a law book since law school. That by itself probably tells you everything you need to know about the justice system in New Orleans if not all of Louisiana. What about the younger prosecutors who came into the office as the years passed? Should we really believe they knew nothing of something covered in basic criminal procedure courses in law school? For that matter, if I remember correctly, Connick was the DA from about 1972 to 2003, so it is not clear from this information when he was graduated from law school (or where he went to school, not that the school should make a difference as long as it was an ABA accredited school), but is it too much to ask that he be familiar with a critical element of law enforcement that had been the law of the land for about 10 years when he became DA? In other words, it sounds like he was never worthy of the job from the time he took office until he left. That statement is based on his words, and is not merely a personal opinion on my part.

A well-known retired Superior Court judge in Delaware told the lawyers in a case he was hearing before his retirement that he kept up with changes in the law by reading Readers Digest. I was told that by one of the lawyers in the pretrial conference who heard him say it. I do not practice criminal law, but I have been a faithful watcher of Law & Order for many years.

You see, there really are ways to find out about developments in the law that took place in the ancient days of 1963.

Aside from an innocent person or someone wrongfully convicted going free occasionally, is there ever any reason to pay attention to Brady? For most of us, that is a rhetorical question and the answer is that we have a personal code of ethics that demands we try to do our jobs properly. By now, we all know of too many instances when Brady material is not made available to the defense, and so we must conclude that there are prosecutors who do not intend to obey the law. How can we respect the law when we know there are people entrusted with its enforcement who do not obey the law? To be vulgar about it, is there ever an episode of the new Hawaii 50 where the perp should not go free because of egregious police misconduct in handling the case?

Something I wonder about a lot is the Wong Sun doctrine. This is sometimes referred to on tv shows as the “fruit of the poisoned tree” doctrine. Briefly, if you break the law to gain evidence and this results in finding evidence of criminal conduct on the part of the person being investigated, it cannot be used against that person because of the way the evidence was obtained. It makes sense and it seems right, but does anyone really abide by it?

Step back from these situations and look at the big picture. There are a lot, a very large number, of police officers and prosecutors who are dedicated to doing their jobs lawfully and well, and they deserve the respect and gratitude of all citizens. The people in law enforcement who do not obey the law stand out from the others because their behavior is so unacceptable and offensive. I really do not believe they are in the majority. The problem is, how are we to know who is a bad apple? Eventually, it will come out, but knowing that it may take a long time, perhaps years or even decades, how can we afford to have a death penalty that may lead to the executions of innocent people? It’s bad enough that an innocent person may spend years in jail, but there can be release and perhaps even a monetary reward that will never make amends. You can’t say that with the death penalty.

The 5-4 decision to prevent Thompson from receiving compensation for his years in jail may be rightly decided. I haven’t had a chance to read it and so I don’t have an opinion. As presented in this show, it is unsupportable. My own bias may come into play here. I’ve never had a good opinion of the author. As you may recall, when Justice O’Connor was still on the Court he took a position that there was nothing wrong with prison guards beating up prisoners. Justice O’Connor and others wrote that this behavior could be described as “cruel and unusual punishment.” There’s no way we can get more information out of one of the people responsible for putting him on the Court, the one who advocated the single bullet theory unless he left diaries or letters that have yet to see the light of day. There is, of course, someone still alive who had a role in this appointment, but how can you know what to believe when he talks about his career? That’s rhetorical, too.

Perhaps the big lesson we can take from the cases aired on this show is that government misconduct that can lead to the imprisonment or even deaths of persons charged with crimes they did not commit is not restricted to one geographic area. It does, however, appear to happen a lot to those unable to afford a good defense. Thompson, tonight, did not even know his own blood type, which strikes me as evidence of socioeconomic disadvantage during most or all of his life. Would someone differently situated have ended up on death row? That’s a fair question and I’m not sure there is a really good answer, although I suspect the correct answer is “no”. Is there any wonder that many people distrust law enforcement? That is not healthy for any segment of society.

This show is now on hiatus, returning in the summer with new episodes. It will be interesting to see if it continues to present thought provoking stories.

LOBBY DAY with IMAC on Tuesday, 4/8 in Dover.

Join the Interdenominational Ministers Action Council (IMAC) for a rally and lobby day Tuesday April 8th in Dover.

Rev. Beamen will lead a delegation of IMAC members and others who want to see the death penalty repealed in our state. Please join IMAC and the DE Repeal Project on this important lobby day.

TIME: Tuesday, April 8th — 11:45am to 2pm (stay longer if you are able)

GATHER at Wesley United Methodist Church — 209 South State Street, Dover, DE 19901.

RSVP to Abe Bonowitz at abe@abolition.org or 800-973-6548

PLAN:

  • There will be light snacks and we will receive a brief update on the campaign at Wesley United Methodist Church.
  • We will then march together the short distance from the church to Legislative Hall where we will pray together before entering the building. BE SURE TO BRING A PHOTO ID to get through security.
  • We will visit legislative leaders and then be present together as a group inside Legislative Hall as legislators and others enter the House Chamber.
  • Bring a friend, your photo ID, and wear comfortable shoes. The Delaware Repeal Project will provide materials to hand to our legislators.

Comment on CNN’s 3/30/14 Death Row Stories

Comment on CNN’s Death Row Stories from Richard Kiger

Tonight (Duckett [the death row inmate]) is interesting if only because it suggests that some on death row may be there for a good reason. The prosecutor this time did not seem to be as irresponsible as in earlier episodes. Actually, he was pretty decent. There are still problems with Brady material, questionable evidence from a lab (the FBI), unreliable witnesses, what is probably poor training of officers with respect to gathering evidence, and credibility issues.

I am a little surprised that Frank [the investigator] went to Edna Buchanan [the journalist] when he did and that she published without checking things out more carefully. It’s understandable she feels burned and his credibility is now at issue, at least in terms of his judgment and procedural skills. It also troubles me that the defendant seemed, to me, a little cavalier about the situation during the interview.

The allegedly related case in the neighboring county is interesting also. The evidence of misconduct seems pretty thin in terms of what we were told. Can his wife testify against him? I don’t know. There may be a disqualification here because they were married at the time. On the other hand, it does not appear that he told her anything, but, rather, that she observed something, that is, he came home with tangible items that she saw and this made her wonder what he had done. That could be a critical distinction. If she can testify, it remains a good question whether she has a motive to get rid of him, and we don’t know based on what we have been told.

The defense lawyer was a poor choice, it seems. It sounds as though he didn’t do much of anything. On the other hand, what did he have to work with, that is, did he have the resources to conduct discovery and perhaps hire a private detective (something hinted at by the woman who recanted and then un-recanted). Mounting a defense to a case is very expensive; all litigation is expensive. This is one of the problems with a public defender as the defense lawyer: you may be getting a dedicated advocate who is very experienced and knowledgeable, but who is hamstrung by lack of resources to do these very things. Some public defenders are not much, but many are very good lawyers who do their best and work for justice for their clients. I am not knocking PDs, but pointing out that the system does not always allow them to do the kind of job they would like to do.

When you put all these issues side by side, the case against Duckett seems pretty weak and it is natural to wonder if there was a miscarriage of justice. Frank’s misgivings about his innocence are problematic. As individuals, we are all entitled to our opinions as to whether someone is guilty. That’s not the point in a trial. The point is, did the government carry its burden to play by the rules and so present the jury with the evidence it needed to decide if the defendant was guilty beyond a reasonable doubt. I think we are entitled in this case, as presented, to conclude that the system was flawed and so Duckett should not have been convicted. Whether he is guilty of some other crime is irrelevant to this crime.

This brings up another issue. If there is a case against him in the other matter, why does prosecution in that case depend on whether he is set free in the case that was tried to the audience tonight? The answer, of course, is money, but that is cold comfort to the family of the girl who was killed. Is it not cruelly inconsistent to say that the family of the one girl deserve closure, but the family of the other girl can wait another 26 years before they get the same closure? That just doesn’t wash.

All in all, this is an interesting episode because the person on death row appears to deserve to be there, but not for the crime that brought him there. I take that to be the point of tonight’s episode, but if so, the presentation may have been a little subtle for the point that needs to be made. We remain where we have been, presented with a flawed system that is untrustworthy when it comes to convicting people for crimes they are alleged to have committed. I am not ignoring or minimizing the importance of many other reasons to abolish the death penalty, but merely trying to focus on the issue presented.

Interdenominational Ministers Action Council calls for repeal of Delaware’s death penalty

ImageRev. Lawrence Michael Livingston outlines IMAC’s support of Senate Bill 19, the bill calling for repeal of Delaware’s death penalty. He cites bias, harm to families, risk of executing an innocent, and morality as reasons Delaware legislators should repeal the death penalty and replace it with life without parole. Check out the article that appeared 3/30/14 in the News Journal.

Gov. Bill Richardson Press Conference Remarks

Governor Bill Richardson, the former Governor of New Mexico, came to Delaware to advocate for Senate Bill 19, the bill to repeal the death penalty. The following are his remarks from a press conference at Legislative Hall in Dover, DE on March 27, 2014.

GOV. BILL RICHARDSON PRESS CONFERENCE REMARKS
March 27, 2014

I am honored to be here in Dover today, capital of our country’s “First State.”

It’s my first visit to your beautiful Legislative Hall and while it is physically smaller than our “Round House” in Santa Fe, the issue before you—life or death—is as big and as important as it gets.

I am here to support the effort to repeal Delaware’s death penalty, Senate Bill 19.

I’d like to thank the bill’s sponsors for hosting me today:  Sen. Karen Peterson (D) and House prime sponsors, Rep. Darryl Scott (D) and Rep. Joe Miro (R), as well their other 11 House co-sponsors, many of whom are here with us today.

That’s 13 House sponsors, Democrats and Republicans, out of 21 votes needed for House passage.

I commend these sponsors for their work.

As many of you know, just over five years ago I signed into law the repeal of the death penalty in New Mexico.

Throughout my adult life, I had been a firm believer in the death penalty as a just punishment–albeit, only in very rare instances and only for the most heinous crimes.

But during my two terms as Governor of New Mexico, I started to challenge my own thinking on the death penalty.

The issue became more real to me because I knew the day would come when one of two things might happen: I would either have to take action on legislation to repeal the death penalty, or more daunting, I might have to sign someone’s death warrant.

The prospect of either decision was extremely troubling. But I was elected by the people of New Mexico to make just that type of decision.

In the past, I had believed that the death penalty served as a deterrent to some who might consider murdering a law enforcement officer, a corrections officer, or a witness to a crime. But people continued to commit such terrible crimes even in the face of the death penalty.

Let’s be candid here — there are decent, responsible people of good conscience on each side of this vitally important public policy issue. And yes, they disagree strongly.

However, what we cannot disagree upon is the finality of this ultimate punishment. Once a human being is executed, that act cannot be reversed.

Regardless of my personal opinion about the death penalty, I did not at that time nor do I at this time have supreme confidence in the infallibility of our criminal justice system as the final arbiter of who lives and who dies.

If the state—in this case, Delaware—is going to take upon itself this awesome responsibility—life or death—then the system to impose the death penalty must be perfect and can never, ever be wrong.

But the reality is that our system is not perfect—far from it. In fact, the system is inherently defective. DNA testing conclusively has proven that. In some cases, new evidence is brought to bear years after a verdict has been rendered. Witnesses recant their testimony.

The fact is that innocent people have been put on death rows and put to death all across the country.

It also bothers me greatly that minorities are overrepresented in the prison population across our country and on death row.

According to the NAACP’s Legal Defense Fund, Delaware has the highest minority population on death row of any state, at 78%.

Furthermore, a study out of Cornell University found that in Delaware, a black defendant who kills a white victim is more than 6 times as likely to receive a death sentence than a black defendant who kills a black victim.

While I was considering whether to sign or veto the death penalty repeal law in New Mexico, I invited people to contact me with their views. I heard compelling arguments from family members who had lost loved ones and from law enforcement officers concerned about their on-the-job safety.

But I also heard equally compelling arguments from members of the clergy as well as from family members who also lost loved ones and from law enforcement officers who urged me to sign the repeal in New Mexico.

I respected everyone’s opinions and took their experiences to heart, as I am certain that all Delaware state legislators are doing right now.

As the Delaware House of Representatives considers Senate Bill 19, I would like to emphasize that repeal of the death penalty would actually keep Delaware families and communities safe.

Senate Bill 19 is a tough bill:  it will result in the state’s worst criminals being sentenced to life in prison without the possibility of parole. They will never get out of prison. They will never threaten our communities again. Those convicted of murder will die in prison.

Since we repealed the death penalty in New Mexico, we have seen no big upswing in murder overall nor has there been a huge upswing in the death of law enforcement officers.

In fact, our murder rate is down significantly, and let me add that not a single legislator who voted to repeal the death penalty in New Mexico lost his or her seat in a re-election bid because of that vote.

More than 144 death row inmates have been exonerated across America since 1973—including four (4) New Mexicans—a fact that none of us can ignore.

I feel deeply about this issue.

Since leaving the governorship of New Mexico, I have become Co-Chairman of the International Commission Against the Death Penalty, traveling the world to make the case against its use.

Many of the countries that continue to support and use the death penalty are also the most repressive nations in the world, including China, North Korea, and Iran. That is not good company for the United States or Delaware.

In a society that values individual life and personal liberty above all else, where justice and not vengeance is the singular guiding principal of our criminal justice system, the potential for wrongful conviction and, God forbid, execution of an innocent person, stands as anathema to our very sensibilities as human beings.

That’s why I am here in Delaware today—to urge members of the State House of Representatives to release Senate Bill 19 from committee and to bring it forward for a full House debate and an up or down vote.

At the very, very least, Delaware deserves a vote on this important piece of legislation. It’s a matter of life or death.

Death Penalty is not an effective way to protect law enforcement officers

The Delaware Repeal Project recently compiled data regarding the death penalty and deaths of law enforcement officers. The findings indicate that:

  • The presence or absence of the death penalty has no bearing on law enforcement deaths by homicide.
  • States that have ended the death penalty tended to have fewer law enforcement deaths by homicide after their states ended the death penalty, confirming that the death penalty is not an effective method for protecting law enforcement officers from being killed.

Check out the full report here.