The Supremes Dance With Death

The Supremes say that the death penalty in the United States requires that the state "rationally narrows the class of death-eligible defendants and permits a jury to consider any mitigating evidence relevant to its sentencing determination." The Supremes sided with the state of Kansas in allowing the state to stipulate that if the mitigating factors do not outweigh the aggravating circumstances, then the death penalty is the appropriate jury choice. This, as the Supremes note, puts the burden of proof on the defendant in regard to whether or not he or she should be put to death and says that that is fine and dandy with them.

I have posted on the death penalty twice before and you may want to review the posts. They are the first two items under "Law." For those who don't have the time to do so, let me just say that an aggravating circumstance is some specific characteristic of the crime named by the state such as that the defendant killed two people or a police officer or that he or she killed someone during the course of committing a felony, the famous "felony murder" one hears about all the time. So, robbing a liquor store while brandishing a weapon cannot result in your being put to death but killing the clerk while robbing the store can. Mitigating circumstances are anything the jury wants to consider from his or her being very young, or acting under duress, or being a pretty blond.

What is interesting in this particular case is that the Supremes affirm that the burden of proof can be placed on the defendant rather than the state. Forgive me for being a little dim but this seems as un-American as anything I can think of. In our system of justice, the burden of proof that a defendant is guilty of felony murder lies squarely with the state and it must meet a very high standard of providing proof beyond a reasonable doubt. I ask you which is more important in the grand scheme of things -- whether or not someone is guilty of felony murder or whether or not someone should be put to death for felony murder? Reasonable people could, I suppose, disagree as to the answer to this question.

But consider this point. The defendant is presumed innocent of any crime until proved guilty beyond a reasonable doubt. This standard is designed to make sure that the jury approaches the testimony in a case without bias. Now, we are grown ups here and we all know that that is a pipe dream. Pretrial publicity, racial and ethnic and religious biases, gender biases, and social class and other biases may very well play a role in any given juror's thinking. Asking prospective jurors whether they can render an unbiased verdict is one of the silly exercises the justice system goes through. I suppose the legal community goes through this exercise so that it can feel good about itself. Do these people really think that prospective jurors are going to always tell them the truth? Surely they are not that stupid. No one else does.

The Kansas statute in contrast to the presumption of innocence demanded of what is called the "guilt phase" of a death penalty case, allows a presumption of guilty (more precisely, a presumption that the defendant should be put to death) in the "penalty phase" of a death penalty trial. During my work on death penalty cases in Ohio, I argued that the jury instructions at that time did bias the jury in favor of imposing the death penalty despite the fact that Ohio law labored under the pretense that there should be no such bias. Imagine my surprise in discovering that one state, at least, made a verdict of death the default choice.

Here are the differences between the guilt phase and penalty phases of death penalty laws in Kansas.

1. The guilt phase presumes a verdict favoring the defendant at the outset but the penalty phase does not.
2. Guilt must be proved beyond any reasonable doubt but not only is this not true of the penalty phase in any state I am familiar with, Kansas allows for "ties" favoring the state.
3. In the guilt phase, as in Ohio, Kansas does not allow as an aggravating circumstance that the crime be heinous, brutal, or something else ugly or that the defendant is incapable of rehabilitation, but you can be absolutely sure unless Kansas is very different from Ohio, that prosecutors will routinely stress one or the other or both things in their closing statements without objection by the defense attorney or admonishment by the judge.
4. Juries can hang during the guilty phase of a death penalty case but not during the penalty phase.
5. Jury nulification during the guilt phase favors the defendant but in the penalty phase if favors the state.

In regard to the third point, in the several cases I am familar with where lawyers in the Ohio Public Defenders office did interviews with jurors, it was these factors, especially the first, that swung the jury over to the determination to impose the death penalty. In short they totally ignored the jury instructions. This is what I meant by item five above. Given how often it has been determined that persons given the death penalty have been proved innocent of the underlying crime, one would think a fair society would bend over backwards in an effort to minimize imposition of the death penalty. But not in the Good Old USA.

As I noted, in Kansas, a tie in regard to whether or not the aggravators outweigh the mitigators goes to the state. What this comes down to is that if a juror is uncertain whether the aggravators outweigh the mitigators he or she should vote for death. But what should happen if the vote is, say, 7-5 for death or 8-4 or even 11-1? In Ohio back when I was doing my work on the death penalty, the law said that the jury/court was supposed to impose a life sentence unless it is 12-0 for death. In practice, that didn't happen. Jurors were forced in fact to come up with unanimous verdicts. It will be no surprise to you, I suppose, that imposing the death penalty became a higher priority for jurors than being sequestered over a weekend for further deliberations. The problem here is that while juries can "hang" in the guilt phase, they cannot hang in the penalty phase.

Another problem is the absurdity of "weighing" aggravators versus mitigators. How does one weigh the killing of a police officer against the fact that the defendant was 18, had never been arrested for a crime, and who always got good grades? I have no clue how that is to be done. This is the classic issue of judging between apples and oranges. Worse than this is the fact that Barry Scheck, Peter Neufeld and Jim Dwyer, authors of "Actual Innocence," have claimed, "in the last ten years, DNA testing has uncovered stone-cold proof that sixty-five completely innocent people were sent to prison and death row." As of April 22, 2002, 100 persons on death row had been found to be innocent of the underlying crime, not all because of DNA evidence. In July 19, 2006, a study documented that 26 people convicted of crimes in New Jersey were innocent. Not all were death penalty cases.

The fact is that our legal system is fallen and can't get up. There are two principal reasons for this. The first is that District Attorneys are elected. The second is that Judges are elected. I believe only federal and state Supremes (and perhaps appellate judges) have life appointments. There is constant pressure on DAs to get convictions, on the police to testilie, and judges not to be lenient, especially when the public is up in arms about upsurges in crime. This is where much of the corruption of the system comes from.

So far, everything I have written stamps me as a liberal. Here is where I throw you a curve ball. I believe also that the notion of "proof beyond a reasonable doubt" is both too vague a concept and too high a standard to be workable and is another major source of the corruption in the law including, specifically, police fibbing on the stand to strengthen a case. The fact is that scientists rarely can prove that this or that scientific principle is true beyond any reasonble doubt. One needs a standard that is comprehensible by the average juror, is strong enough to protect the defendant, and weak enough to be attainable. I am open to suggestions. How about: After evaluating the evidence, I am as certain as I expect myself to be before making a major life decision such as to marry someone or buy a house that the defendant is guilty.

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Tags: death penalty, Supreme Court, Kansas, Ohio