--By Norman Costa
A friend of mine was summoned for jury duty. It was a capital case. During the voir dire, the prosecuting attorney asked Bill if he could vote to convict a guilty man who would be sentenced to death. Bill answered, “No!” He was opposed to the death penalty on personal and religious reasons. Bill was excused from the jury panel.
Philosophically, I am not opposed to the death penalty. However, I believe it should be abolished for a number of practical reasons.
1. It is impossible to administer a judicial process leading to an execution that is consistently fair, unbiased, and without error.
2. A death sentence starts a process that is very costly to the tax payers of the State. The appeals process is prescribed and made mandatory by law. The appeals process, and the many variants of appeals of appeals, costs hundreds of thousands of dollars. In many cases, the burden on the State treasury runs into the millions. The long term incarceration of capital criminals, who would otherwise be executed, is less costly than a legal system that carries out a death sentence.
3. The administration of capital justice is a heavy burden that affects the morale and mental well being of the people who staff the death row corridors of our prisons.
4. Abolishing the death penalty would put the United States on a par with most of the countries of the world. We lose any moral advantage when, as a country, we oppose an execution in another country because we feel it is unfair or unjust.
5. Eliminating the death penalty provides time for successful appeals or retrials. Posthumous exoneration is small comfort for friends and family, and none for the innocent prisoner.
6. A lifetime in jail, rather than death at the gallows, offers the convicted a chance to reflect on his or her crime and to come to terms with the consequences of their actions. This will be lost on the sociopath, but others may benefit in a personal or spiritual way.
Let's turn to the matter of Troy Davis. As I started writing this essay, a yellow banner appeared on the CNN home page on my browser. Troy Davis was just executed in Georgia. I will not discuss the merits of the opposing sides on this case. Rather, I would like to discuss some broader issues that are not understood very well, if at all, about our justice system and the appeals process in criminal matters.
Our system of justice is not focused on getting it right. The emphasis is on fairness. The familiar adage, “Innocent until proven guilty,” means that you are entitled to a FAIR trial, not to a perfect outcome. An instructive experience is sitting in on a moot court trial in law school. I highly recommend it to anyone who wants to understand the difference between making it a fair fight versus finding the truth. Make sure you read a copy of the case before you watch the trial.
The case file has solid evidence of the guilt of the accused. It also has evidence that contradicts the charge of committing a crime. There is evidence that is less than clear on both sides. The job of the prosecuting and defending student attorneys is to mount their case, present the evidence, and use all the procedural tricks of the trade against the opposing side and it's evidence. The published case does not lead to a clear verdict on either side. A successful conviction or successful defense will depend solely upon the preparation and trial skills of the jousting knights.
The appeals process is not what most people think it is. The average citizen believes that the appeals process determines if the jury got it right and rendered the correct verdict. There are exceptions, but the appeals process is less concerned with the jury getting it right, than with making sure the procedures of law, criminal trial, and rules of evidence were fairly administered.
The concept of the fair trial is sacrosanct in our system of justice. It is such a important foundation of our government and our society that we do not let a jury, or any other faction in our legal system, impeach the process. A juror announces after trial that she would not have rendered a guilty vote if she knew that the death penalty would be imposed. Another juror announces that he made a mistake in voting for a guilty verdict. He did not understand a very important aspect of the evidence presented at trial. In spite of this, it is rare that the verdict will be overturned. The jury cannot, and is not allowed to, impeach its own process.
The same can be said about witnesses who, later, recant their testimony. Barring the finding of clear, unopposed, and overwhelming evidence, and the conversion of the prosecutors office, the appeals process is unlikely to overturn the verdict that was the outcome of a fairly administered process. All things being equal, recanting witnesses do not a reversal make. Recanting witnesses cannot impeach a fair process – one in which they were contributing players.
How do we take a justice system that focuses on fairness of process, and get it closer to a focus on the truth? The most radical idea for the United States is to transform the jury system of criminal justice into one that is presided over by panels of professional judges. You see this in Europe and in many quarters of the world. The judges do the questioning and investigating. The judges vote to render a verdict. A court room is not a jousting tournament for lawyers. Their role is very different.
This is very unlikely to be implemented in the U.S. for criminal trials. That leaves us with only a few avenues of reform. One is better training, higher education requirements, and improved managerial supervision of police. Effective citizen review of their law enforcement employees (police work for the citizens) has been talked about for years, but is largely a joke. Police do not want to be reviewed by the citizens who hire them and pay their salaries. What would have been the outcome of the Troy Davis trial if Georgia had had a system of effective civilian review boards?
Finally, State and local legislatures and political leaders have to establish law, policy, and funding to give the accused (and the convicted) access to modern forensic science.