Appeals Do Not Exonerate The Convicted (Norman Costa)

 

--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.

Comments

[Dean C. Rowan]

I'm in a rotten mood after learning this morning that the execution had taken place. Please forgive me, Norm, if I'm being short here. To boot, my maternal uncle died yesterday. My sole consolation is the happy news that REM has called it quits. If not the death penalty, at least they should have been abolished years ago.

I smell equivocation in your essay. There's a pretense of prudence and logic that doesn't fit the occasion. What does it mean to accept the death penalty "philosophically" if it's impossible to administer properly? Whatever one thinks of the justice system in general, surely capital cases are sui generis. Your six persuasive "practical" reasons for abolishing the death penalty are to my mind also solid philosophical reasons, unless by philosophy you intend the most rarefied sort of idealism.

Procedural fairness is an important goal of the justice system, but it isn't sufficient in capital (or even just habeas) cases. Accuracy is a compelling virtue, too, albeit one applied parsimoniously. Competing virtues are "finality"--a purely positive exercise by a court of its sovereign authority, sometimes dressed up as sympathy for the victims--and judicial economy, a euphemism for official laziness.

My understanding of the Troy Davis case (such a safe, clinical word) is that some witnesses reported they had been unduly pressured by police. If that's so, they're not simply changing their minds after the passage of time and the fantastic revision of memories. They finally feel safe to report official wrongdoings. If that's the case, then the successful conviction in this case did not depend solely on superior advocacy skills. It depended on a rotten system designed to shield official malefactors, themselves a faction of the legal system.

[Ruchira]

Thanks, Norman and Dean. Both of you make excellent points. The Troy Davis execution was a travesty - most probably an innocent man was killed. The Supreme Court, as is becoming more and more frequent for that august body, took the cowardly route out once again.

Davis, strapped to the death-gurney, looked the victim's family in the eye and said, "I did not have a gun." The only consolation I hope to derive from this barbaric act is that his parting declaration will cause at least some people to lose sleep for the rest of their lives.

[Naveeda]

The execution of Troy Davis was a travesty and I find no consolation in the fact that the band R.E.M called it quits, or anything for that matter. But life does go on as George Harrison sang "within us and without us". If only the Supreme Court could have seen fit to allow that for Troy Davis.

Some good points made for the abolition of the death penalty.

[Sujatha]

http://abcnews.go.com/US/troy-davis-sister-kimberly-davis-recounts-moments-executed/story?id=14580835

So the McPhail family is still hoping to find peace in the 'eye for an eye'. If Troy's execution didn't instantly lighten their minds, I wonder what will.

[Norman Costa]

Thank you to everyone who took the time to read and comment. No apology necessary, Dean, and my condolences on the death of your uncle.

@ Dean: Yes, there is an element of equivocation - a bit of "on the one hand this, but on the other hand that." With my old buddy, Bill, there was no equivocation on his opposition to the death penalty. In my personal view, people like Ted Bundy, Gary Gilmore, John Wayne Gacy, Richard Speck, and Jeffrey Dahmer should be executed. However, a death penalty in a judicial system like ours cannot be administered without the execution of innocent people. Herman Goering, Hitler's military high command, and General Tojo were justly executed for crimes against humanity, under a system that could be flawed by failing to punish others who were guilty.

Mark Osler's article is interesting, to me, because he interjects the idea of competing virtues. In my essay I discuss the competing virtues of fairness and truth. Why can't we have fairness AND truth? Good question. It seems to me that striving more for truth will result in less justice for the guilty. It appears we cannot have both fairness and truth in sufficient quantities.

[Dean C. Rowan]

Norm, I think you're confusing fairness with a less normatively (ooh, a pun!) motivated tolerance of adequacy. Fairness and truth compete in one narrow sense, namely, there is a cost of achieving a result approximating truth (i.e., even allowing for an inevitable sliver of a margin for error) that becomes a burden on potentially all parties involved: the victims, the defendants, the legal system, and the public at large. The fairness attenuates as procedural rigor overwhelms the system, hence the finality interest. Otherwise, truth and fairness--for all of those parties--are harmonious. I don't dispute that administration of the death penalty will occasionally go, "Oops!" That's one reason I can easily draw a clear, solid line against it. (Bundy, Gilmore, Gacy, Speck, and Dahmer are inapt examples. Their official elimination served no purpose other than state sanctioned vengeance. What do we gain from it?) But we're not talking about the tragic mistakes on the margins. We're talking about what appears to be an egregious systemic dysfunction, a system non-responsive to evidences of police misconduct and pervasive racism, not to mention judicial apathy (or worse).

[Sujatha]

Dean: So you are against the execution of Bundy, Gilmore et al. purely because it satisfies the need for vengeance, sealed and delivered by the state rather than vigilante justice? What other punishment do you think would have been more suitable?

[Dean C. Rowan]

I am assuming that these guys, despite their fun habits of dressing up in clown suits or cannibalizing their one-night-stands, are sociopaths, sick individuals without moral compass or responsiveness to deterrence. Even the threat of capital punishment won't faze a dyed-in-the-wool serial killer. So the best we can do is to keep them locked up.

I'm on the fence respecting vigilantism. It is in some respect a democratic enterprise, but I suppose it depends on the side of the dispute with which one sympathizes. Dahmer was arguably offed by a prison yard vigilante, if my memory is correct. We can be ashamed of the lax administration of the penitentiary, then, but that's easier to swallow than the cruelty of the country exhibited last night.

[Sujatha]

Hmmm, locked up in solitary confinement with nothing beyond the basics does seem like an appealing solution for those kind of pathological killers. No TV, no books, no interaction with humans, just day after day of an endless life. Or would that be too inhumane?

[Ruchira]

"I'm on the fence respecting vigilantism."

I often feel that for the likes of sociopathic killers (even more so, child sex killers), the most appropriate justice may be meted out by locking up these guys in a room with mothers and grandmothers armed with blunt instruments.

Despite my blood lust for certain criminals, I do agree with Dean that even with Dahmer et al, life in prison without the chance of parole is a fitting punishment. The organized killing by the state (especially "pro-law & order" states are like Georgia, Texas, Oklahoma etc. where anyone in uniform and with light pigmentation will prevail most of the time despite the lies and mishandling of evidence) is just vengeance. Indeed, it was much more palatabe for Dahmer to meet his fate in the hands of a fellow criminal and in some way, more fitting "justice."

Also, there is some evidence that even in pro-capital punishment states, given the option of "life without parole," juries tend to opt for that over death penalty. That is why sometimes, they are denied that choice by states like TX. While Davis died last night under media attention and huge public sympathy, we killed a proven and unrepentant killer quietly last night in Huntsville.

[Norman Costa]

@ Dean:

"The fairness attenuates as procedural rigor overwhelms the system, hence the finality interest."

Keep in mind that I am not using FAIRNESS in the dictionary sense of the term. Fairness in this context is procedural rigor. I am describing the present system, not advocating nor dispelling.

[Norman Costa]

"Vigilantism"

I wrote a piece some time ago about a vendetta system of justice. You find this in places where the rule of law is corrupted or severely curtailed. One example was parts of Lebanon (principally Beirut) during the revolution of the 1970s. A child dies from an overdose of a street drug. The father tracks down the dealer and shoots him. Someone might come around to investigate, but without much enthusiasm. The understanding in the community is that the justice delivered upon the perpetrator is proportional, without 'collateral damage,' and unlikely to launch a tit-for-tat reprisal.

[Dean C. Rowan]

Gotcha, Norm, re: your definition of fairness. And thank you, by the way, for your condolences.

Somewhere in The Uses of Disorder, Richard Sennett says something to the effect that a little graft doesn't hurt the operation of a civic machine. I've always thought that made some sense.

[Ruchira]

Here is some "food for thought" in the front page of today's Houston Chronicle. Apparently this long standing serio-comic pre-execution ritual was brought to an end by the demands of the last prisoner killed in Texas on the same night that Troy Davis was executed.

By the way, is everyone commenting here having to go through "captcha" word verification before posting comments? I have not enabled that feature on A.B. Yet I have to go through that step every time. This has been going on for the last couple of months.

[Dean C. Rowan]

I get a captcha every so often, but not every time I post a comment.

Here in the foodie Bay Area (which, by the way, doesn't come close to Southern California in terms of restaurant quality), we gloat about restaurants to die for. Brewer (hmmm, he didn't order a beer...) took the snobbishness to its extreme.

[Ruchira]

For some reason, I have always found the expression, "to die for" off-putting, particularly when applied to epicurean pleasures. But that is the non-American in me.

The article mentions that Brian Price, the death row chef who prepared the "last meals" has a cook book named Meals to Die For.

[Dean C. Rowan]

I guess I didn't read enough of the article. Had I done so, I wouldn't have echoed the joke. A prominent high-end audio component journal often features "records to die for." Yes, it is off-putting.