Supreme Court Justice's Time to Act

[Guest fountainhall]

Please read this article. I find it disgraceful and disgusting in the extreme, but sadly not an issue which is the only one in recent US history – nor, indeed, in the recent history of several other so-called civilized countries.

 

I trust that Justice Antonin Scalia will be true to his words, and there will be photos and vdos of his being the first to take the action he advocated so they will be beamed around the world for all to see.

 

The article in today’s Guardian starts –

 

A few years ago, Antonin Scalia, one of the nine justices on the US supreme court, made a bold statement. There has not been, he said, "a single case – not one – in which it is clear that a person was executed for a crime he did not commit. If such an event had occurred … the innocent's name would be shouted from the rooftops."

 

Scalia may have to eat his words. It is now clear that a person was executed for a crime he did not commit, and his name – Carlos DeLuna – is being shouted from the rooftops of the Columbia Human Rights Law Review. The august journal has cleared its entire spring edition, doubling its normal size to 436 pages, to carry an extraordinary investigation by a Columbia law school professor and his students.

 

The book sets out in precise and shocking detail how an innocent man was sent to his death on 8 December 1989, courtesy of the state of Texas. Los Tocayos Carlos: An Anatomy of a Wrongful Execution, is based on six years of intensive detective work by Professor James Liebman and 12 students.

 

Starting in 2004, they meticulously chased down every possible lead in the case, interviewing more than 100 witnesses, perusing about 900 pieces of source material and poring over crime scene photographs and legal documents that, when stacked, stand over 10ft high.

 

What they discovered stunned even Liebman, who, as an expert in America's use of capital punishment, was well versed in its flaws. "It was a house of cards. We found that everything that could go wrong did go wrong," he says.

 

http://www.guardian....ocent-man-death

 

Please read it all.

[Guest fountainhall]

If paying the ultimate price as a result of tainted or downright false evidence plumbs the depths of a criminal justice system, a miscarriage of justice which sentences a man to life imprisonment for a murder he did not commit must follow close behind. And that is what happened in London’s Royal Courts of Justice in 2005 when 18-year old Sam Hallam received his sentence.

 

But Hallam has not had to serve his full term. Thanks in part to the Criminal Cases Review Commission, today at those same Courts of Justice, Lady Justice Hallett informed the Court that Sam Hallam would soon be a free man. His release is also partly due to the fact that photos on his own mobile phone proved that at the time of his trial he was wrongly identified to have been taking part in the murder when in fact he was in a pub with his Dad. Had the police done their job, they would have known that Hallam was innocent.

 

As The Guardian points out in a hard-hitting article today –

 

The miscarriages of justice presently coming to the fore share a theme of lack of disclosure caused - at its most generous - by ineptitude and at worst by dishonesty on the part of some police officers.

 

http://www.guardian....-justice-system

[Rogie]

Please read this article.

 

Having now done so I agree it highlights a shocking abuse of justice.

 

Taken together with the decision to release Sam Hallan I suppose the obvious comment is the death penalty should be abolished in Texas (but see below).

 

The British Government have a debate from time to time as to whether capital punishment should be reinstated in Britain. That decision rests on the shoulders of the 600-odd Members of Parliament. They are permitted to vote according to their individual beliefs, free of Party tie or any pressure from the Whips. That system seems to me a fair one.

 

In 1953 a young man called Derek Bentley was hanged for the shooting of a policeman. His accomplice Chris Craig, who actually pressed the trigger, escaped the death penalty as he was under 18. Bentley was alleged to have shouted "Let him have it Chris!". As you can imagine this can be taken either of two ways. "Hand over the gun Chris", or "shoot him Chris". A film of that title was made in 1991. It took until 1998 for Bentley to be pardoned. Bentley was a criminal, he wasn't completely innocent, but a custodial sentence would have been appropriate under the circumstances, especially when a conviction rests on such ambiguous grounds.

 

http://en.wikipedia....Let_Him_Have_It

 

Back to Texas: It's none of my business whether states like Texas retain the death penalty or not. I'd say the same about China or Thailand or any country that still puts some of its citizens to death - none of my business. In fact it could be argued that with advances in forensics, DNA testing etc, a suspect's guilt can often be proved with near 100% reliability, and therefore the prosecution can be confident awarding the death penalty is cast iron secure. However, that still leaves the possibility of incompetence, corruption, tampering with evidence interfering with proper justice, so on balance my personal preference would be to see the death penalty abolished in those countries still retaining it. A halfway house often proposed would be to reserve capital punishment for certain categories of crime only. In Britain, a category often cited is murdering a policeman (bearing in mind the British Bobby is usually unarmed), or the murder of a child. I have to say I wouldn't lose any sleep knowing somebody capable of doing what the so-called Moors murderers did, Myra Hindley and Ian Brady, had been hanged all those years ago.

[Guest fountainhall]

This is more an issue for a lawyer like Bob, who is presently not in Thailand.

 

As I understand it, juries can convict an accused person if the prosecution has proved the charges against the defendant beyond a reasonable doubt. Is this the same in cases which would involve capital punishment? If so, then it seems to me that the bar should be raised considerably higher - although how one does that and what it would entail, I have no idea.

[Bob]

As I understand it, juries can convict an accused person if the prosecution has proved the charges against the defendant beyond a reasonable doubt. Is this the same in cases which would involve capital punishment? If so, then it seems to me that the bar should be raised considerably higher - although how one does that and what it would entail, I have no idea.

 

Yes, the "beyond a reasonable doubt" standard applies to all criminal cases including capital cases. I'm not aware of any criminal system anywhere that uses a "higher" standard than that.

 

The system works well in 99.9% of all cases but there have been and always will be exceptions. Any system that relies on eyewitness testimony is bound to have faults and, in the very few cases where innocent people are convicted, it's usually due to faulty testimony or even some perjury (when that happens, it's most often do to the "professional" witnesses such as police officers) but I've never been aware of a case where I would have blamed the jury. They generally do their job with diligence and they do tend to exercise even greater care when the alleged crime involved is a serious one (murder, rape, or whatver).

 

It would be prudent (in my view) to simply abolish all forms of capital punishment. Besides being morally repugnant to some (myself included), it's actually cheaper to house somebody in prison for life than to go through that often decades-long appeals processes that end up costing millions. Executing somebody in my view is simply state-sanctioned murder. Thankfully, I am from a state (Michigan) which outlawed capital punishment back in 1846 (and that statutory ban was adopted in our newest state constitution in 1964).

 

Our system does seem to gradually improve with the discovery of new forms of evidence. DNA typing has allowed a couple of dozen people to be freed from the death rows of some states and that, of course, is very good; however, I'd be willing to bet a small amount that most of us here, had we sat on the juries that heard the evidence in the original trials, would also have voted convict. Had there been usuable DNA evidence at the time of the original trial, some of the mistakes would have never happened.

 

I do get concerned that the public perceives the justice system based only on an extremely tiny sampling of cases - meaning, of course, the bizarre and notorious cases that are often badly reported in the news media. I can't blame people for thinking the system is broken after watching the OJ Simpson case (and then presuming many cases are like that one) and it is unfortunated that a few abberations are allowed to color the entire criminal justice system. If I could walk somebody through the local courts for a week, most would come away rather impressed as to how the system works.

[Guest fountainhall]

Way back around 1984, I had to sit on a jury in Hong Kong. It was a murder trial in which a youth had been killed in a billiard room brawl, allegedly by two other youths in their late teens.

 

The trial took place in an old colonial building with few modern amenities and we were there for almost two whole weeks. Several things surprised me. There was no stenographer. Everything depended in the end of the day on the judge’s handwritten notes. Then, everything was conducted in English, even though the defendants and all the witnesses spoke only Cantonese. They therefore depended completely on the court’s interpreters.

 

Another surprise was the arrangement for catering when we were considering our verdict. Prior to the start of each of the three days it took to reach the verdict, a court officer brought us the lunch menu. This consisted of –

 

McDonalds Hamburger plus trimmings

McDonalds Cheeseburger plus trimmings

McDonalds Big Mac plus trimmings

McDonalds Fillet of Fish plus trimmings

 

I thought if ever there was an incentive to get a quick verdict, this surely is it!

 

After we started our deliberations, we were all quickly convinced that one of the men was guilty on the basis of the evidence. We were less sure about the other. We needed to revisit some testimony. So, we were ushered back into the court where the judge found the relevant part of his notes and read them back to us. The lack of precise detail in that session bothered me.

 

A day later, we had unanimously concluded that the second man was also guilty. We returned to the court to give our verdict. At this point there occurred a scene that I avowed I could never again witness. A black silk square was brought to the judge who put it on top of his wig. In a solemn voice he then looked at the men in the dock and said something like –

 

“XXX and YYY, you have been found guilty in a court of law of the murder of ZZZ. The verdict of this court is that you will be taken henceforth and detained at Her Majesty’s pleasure. At a date to be determined, you will be escorted to a place of execution where you will be hanged by the neck until you are dead. May the Lord have mercy upon your souls."

 

As this was being translated to the prisoners and the rest of the court, the most ghastly agonized wailing arose from the public benches, the men’s (well, they were really hardly more than boys) families reacting in horror to what they had heard. Both men collapsed in the dock.

 

Which was all a horribly gruesome joke. In line with the UK, Hong Kong had suspended capital punishment in the early 1970s and substituted life imprisonment. But since it was merely a suspension, judges still had to go through the theatre of reading out the death sentence. Were the families all aware of this in colonial administered Hong Kong? I don’t know.

 

We were dismissed after being thanked by the judge for our service to the community. As I walked out into the warm spring air, I realised I could not go back to my office that day. I felt an enormous sense of guilt that I might be – if the law was ever changed back – responsible for the deaths of two men. A silly thought, perhaps, and yet one which I am sure a lot who serve on juries feel. I just wandered around Hong Kong for several hours thinking a great deal about the justice system, about imprisonment, about the act of murder, about the taking of another’s life in the name of the state – and about life itself.

[Bob]

I felt an enormous sense of guilt that I might be – if the law was ever changed back – responsible for the deaths of two men. A silly thought, perhaps, and yet one which I am sure a lot who serve on juries feel. I just wandered around Hong Kong for several hours thinking a great deal about the justice system, about imprisonment, about the act of murder, about the taking of another’s life in the name of the state – and about life itself.

 

An absolutely normal and admirable reaction, one repeated again and again by jurors all over the world (well, at least where they allow juries). Sometimes I've been amazed how deciding a case truly affects somebody and I've known people who've fretted for years after sitting on a jury which convicted somebody of a simple misdemeanor. Those type of reactions confirm to me the value of a system of trial by jury.

[Guest fountainhall]

Thanks, Bob, but I guess what I was really trying to suggest in a roundabout way is: shouldn't I have experienced these feelings before the verdict was read out? And if I had, would that have affected my attitude to the deliberations we had in the jury room, and eventually our verdicts?

 

The judge had clearly informed us of the law in such cases, although he did not mention the penalties. Those of us on the jury were a mix of western permanent residents and local Chinese who spoke pretty good English. I believe we undertook our deliberations with great respect for the law, for the community we lived in and for the evidence we had heard. We all knew that the death sentence was no longer carried out. The possibility of a guilty verdict leading to death therefore was never a factor. 'Guilty' meant life in prison with the possibility of parole after 15 or so years (I cannot recall the exact period). We knew that these teenagers could pay for their crime and still look forward to a release and therefore a new life by the time they were less than 35.

 

15 years or so is certainly a severe penalty. However, had we known then that the penalty would indeed have been death, I suspect - but obviously can not be sure - we would have treated our deliberations rather differently. I again suspect we would have questioned more of the evidence in even greater detail, and that I for one would have had a greater reluctance to find particularly the second youth guilty of first degree murder. In other words, I would probably have been swayed to a certain degree by the sentence rather than exclusively by the evidence.

 

I'm not particularly proud of that feeling. All I know is I could never again sit on a jury where the accused could be put to death. Never!

[Bob]

In a few jurisdictions that have the death penalty and actually allow the jury in a second deliberation to make a finding/recommendation of execution versus life imprisonment, juries generally are neither told about the possible punishment nor are allowed to consider or speculate about that topic during their deliberations. The theory, I understand, is that juries should make findings of fact and, once that's done, then the judge or tribunal should impartially apply the punishment determined by the legislature. Considering or handing down an actual sentence would, it's theorized, alter the basic function of the jury to determine whether the defendant did or didn't do the particular act in question. Your comments - that you'd be swayed to a certain degree by the sentence rather than exclusively by the evidence - clearly demonstrates that dilemma.

 

Having lived through the system for so long (which I think tends to make one blindly believe that "the way it's always been" is the only right way to do things), my first reaction is that I wouldn't want juries to provide punishment for convicted offenders for many reasons. The sentencing process, I'd think, ought not to be swayed by inflamed emotions, sympathy, bias, or whatever. And, importantly, the sentencing process takes into account the history of the particular defendant including the prior criminal record (and it's thought that telling a jury a defendant robbed 10 banks before would certainly cause them to "lower" the level of proof required to convict him of another robbery charge).

 

But I'm absolutely against the modern trend of legislatures providing for certain fixed or minimum sentences - such as mandating that somebody caught with 2 pounds of pot must serve a minimum of 4 years in prison or that anybody committing an offense with a firearm must receive an additional 7-year prison sentence. Given every defendant is different and normally there are extenuating circumstances (both favoring and condemning the defendant) which ought to be considered in the penalty phase, maybe allowing the juries to determine sentences in those type of cases would offset the arbitrary harshness of some legislative mandates. I'm not sure about that but perhaps it'd be worth considering (or perhaps I'm just a little bit in favor of allowing juries to intentionally ignore stupid laws which, I suppose, is advocating a bit the disfavored concept of jury nullification). In reality, though, maybe I'd rather have a judge who's unfettered in considering all the circumstances and history of the defendant and let him or her decide what is or isn't the appropriate sentence.

[Rogie]

I'm not particularly proud of that feeling. All I know is I could never again sit on a jury where the accused could be put to death. Never!

 

The theory, I understand, is that juries should make findings of fact and, once that's done, then the judge or tribunal should impartially apply the punishment determined by the legislature. Considering or handing down an actual sentence would, it's theorized, alter the basic function of the jury to determine whether the defendant did or didn't do the particular act in question. Your comments - that you'd be swayed to a certain degree by the sentence rather than exclusively by the evidence - clearly demonstrates that dilemma.

 

. . . my first reaction is that I wouldn't want juries to provide punishment for convicted offenders for many reasons. The sentencing process, I'd think, ought not to be swayed by inflamed emotions, sympathy, bias, or whatever.

 

A very understandable feeling FH, and one I think I would share if the UK still had the death penalty for certain crimes and I was called up for jury service in the UK. Fortunately that conundrum facing a jury no longer exists in Britain.

 

That leads me to wonder how somebody called up for jury service in one of the states of America that retains the death penalty feels about that. Suppose he is chosen to sit on a jury trying a person (or people) whose crime, if found guilty, may carry the death penalty. I know the jury are just handing down a guilty or not guilry verdict, and the judge decides on the sentence, but it stands to reason that in some criminal trials it is going to be obvious to those following it (i.e press and public) that the accused is guilty and will be sentenced to death. Whereas at one time a death sentences were common, with people being executed on a regular basis, nowadays it is pretty unusual in western countries. That must have repercussions for the particular society the juror hails from. I would hazard that in a state where the death penalty is still intact, inevitably some people living in that state will have serious misgivings whenever a new trial begins. These might be people made to feel awkward by vocal opponents of the death penalty, and embarrassed that their state still retains it. Others will react pugnaciously to any such criticism, effectively saying it's none of their business. Selecting a jury for a trial where outside observers can be pretty sure the accused will be sentenced to death if found guilty must be one hell of a headache.

[Bob]

That leads me to wonder how somebody called up for jury service in one of the states of America that retains the death penalty feels about that.

 

During the time that potential jury members are questioned, they are asked in the cases you mention what their attitude is about capital punishment and, if they indicate that they could not ever agree to make a finding of death regardless of the circumstances, they are excused and not allowed to sit on that case. Seems strange but, for those barbaric states (the majority of states!) which have the death penalty, it makes some legal sense (having a potential juror say he or she won't follow a given law under any circumstances somewhat logically disqualifies them from serving).

[Rogie]

During the time that potential jury members are questioned, they are asked in the cases you mention what their attitude is about capital punishment and, if they indicate that they could not ever agree to make a finding of death regardless of the circumstances, they are excused and not allowed to sit on that case.

 

That seems reasonable. But that does mean the jury in such cases will not be representative - there won't be a cross-section of the community serving on that jury, so surely something doesn't quite add up. By omitting those who are excused for the reasons stated, that leaves those with a completely opposite viewpoint. Quite possibly I am viewing juries through rose-tinted spectacles - no doubt many juries can be manipulated so that in the opinion of defence counsel his client stands the best hope of a sympathetic hearing that may make all the difference beteeen conviction and aquital.

 

Seems strange but, for those barbaric states (the majority of states!) which have the death penalty,

 

I didn't know that, I thought it was just a 'handful'.