Sheridan: Con-Law

GOD'S WILL: "YOU DIE" - JUROR

Suppose you are the lawyer for a person accused of murder, which you admit he committed.  He's been found guilty in the guilt phase.  Now you've gone through the penalty phase.  In each phase of trial, the judge has told the jurors that they must follow the rule of law as provided by the judge, which is the rule in California, and I would expect, every other jurisdiction, including federal, in the U.S.

As a result, you've built your argument on the idea that jurors must consult only the court's Instructions to Jurors.  They must not conduct independent investigation, go to the scene, take measurements, conduct experiments, and look up words in the dictionary in order to understand the instructions.  If they have any questions about the meaning of words, such as deliberate, premeditated, malice, aforethought, and any "special circumstances" giving rise to the death penalty, jurors have the right to put their question in writing and submit it to the court, where the judge will then consult with counsel for both sides in determining how to respond.

This way both sides and the court are working off the same deck and the defendant has his fate, life or death, decided in court, where he is represented by counsel, not out of court where a juror looks up words and puts a spin on them that neither side knows about or can rebut.

The principle of a trial is that it occurs in court, not out of court.  So when jurors do that, they deprive the defendant of his day in court.  You wouldn't want that as a defendant, his lawyer, or as a citizen interested in fair trials in important matters such as life or death.

Well, in the Harlan case, recounted below, what a juror did was to bring in the Holy Bible of her faith to help another juror, who was of the same general faith, presumably, in the sense that the same bible applied to both, agree to vote to kill the defendant, the convicted murdering defendant, but the defendant entitled to a fair trial on the issue of punishment, life or death, nevertheless.

No attorney was aware of this smuggling of other instructional material into the jury room.  No attorney could object.  The juror who took the bible initiative apparently helped to persuade the holdout juror to kill the defendant.

"It's God's will," she is reported to have claimed later.

Do you agree?

Did the defendant get a fair trial on the issue of penalty or punishment, life or death?

Would you think so if you were the defendant, a member of his family, or his attorney?

Since the state is the institution that prescribes the death penalty, and it is the state that sets up the court, and provides the judge, the prosecutor, and the governing law, which includes a jury trial, jurors, and instructions that require the trial to be conducted according to the rules in order to be fair, does the state provide a fair trial when a juror breaks the rules?

Is the state guilty of violating the "no Establishment" clause of the First Amendment when it tries to take the life of a person based on an appeal to the Old and/or New Testament?  The Koran?

The U.S. Supreme Court is being asked to consider such questions in the Harlan case, Colorado.

See the Rocky Mountain News account, below.

RIGHT TO CONSUL

If questioned after arrest to obtain incriminating information, you have the right to be advised that you have the right to represented by counsel, and that if you cannot afford counsel, counsel will be provided for you at public expense, which accounts for the existence of the Public Defender's Office.

In practice this means questioning by the police ceases, or is supposed to, and counsel is appointed to represent at the arraignment in court.

You also the right, pursuant to international treaty, or at least you did until recently when the U.S. withdrew from the treaty it signed, to have your consul notified, if not a citizen of the United States. 

The consul is the representative in the U.S. of the country of your nationality, which usually means the country of your birth, but not always, since nationality can change by operation of law, such as through naturalization.

The Medellin death penalty case is scheduled for argument tomorrow, Monday, 3/28/05, on whether the death penalty conviction should be set aside for failure to advise of the latter right until four years after arrest. 

The Christian Science Monitor has this article on the case.

The Washingon Post's Charles Lane has this article on it, as well, noting that former Texas governor and current U.S. President George W. Bush is in trouble in Texas for messing with Texas justice in this case.

DEATH PENALTY

To kill, or not to kill, that is the question...

It seems that the populace is divided. 

We don't have trouble believing that extreme crime deserves extreme punishment, but a good number of us may be concerned about the negative effect that executing the death penalty has on those who remain living.  So we wind up suspending the sentence, informally, if not formally. 

Perhaps we see the death penalty as a violation of the 'Thou shalt not murder in cold blood' biblical injunction. 

Or maybe we'd like to distance ourselves from our ancient preoccupation with killing as the remedy for killing.  We have Stone-age emotion overruling Modern-day thinking.

State ordered murder sets a poor example.  It sends a poor message to those whom we would like not to see kill. 

'Do as I say, not as I do.' 

Government is the Great Teacher, and the Great Killer. 

We can do better. 

Maybe. 

Someday.

"Thou shalt not kill" ...correction... "Thou shalt not murder"...that's more like it. 

We accept that soldiers and police officers must sometimes kill in the line of duty.  For us.  In our name.  We take that responsibility.  And we think about it.

That doesn't mean that we like it.

'Not in my name, please, thank you,' some of us say.

At some stage of English common law there were over 400 crimes that called for the imposition of the death penalty. 

There were so many capital crimes that English juries were refusing to convict in dead-bang cases because they didn't want to send the miscreant to the gallows for the moral equivalent of stealing a loaf of bread.

We don't like to see police chasing teenagers joyriding in a stolen car, either.  Too often, with the adrenaline pouring, someone is killed as the result of the high-speed chase.  Could be the cop, or an innocent motorist, or the guilty teenager.  Had the teenager not fled, but stopped and faced the music, chances are he'd be punished and placed on probation.  Neither prison nor death at the hands of the state would be in the cards.

On the subject of juries evading imposing draconian punishments, I recall the subject coming up in a college class on criminology years ago.  The professor observed that this gave rise to the longest term in sociology.  It was called "an institutionalized evasion of an institutional norm."  Death was the official norm, while evasion was the popular, competing norm.  It's odd how I can remember what the professor taught, but at this distance I can't recall his name, or even what he looked like.  He was a very good professor, nevertheless.  My failure of recollection is my fault, not his.

Two incidents from that long-ago class come to mind.

This was where I learned the important distinction between a 'schlemiel' and a 'schmendrick,' the two hapless characters of many a Jewish morality tale. 

A schlemiel is the guy who goes into a cafeteria and orders a bowl of soup. 

A schmendrick is the guy on whom he accidentally dumps it.

This good professor spent the semester teaching that criminal behavior is the product of environmental influences, desperation usually.  People are not born thieves, they're made thieves, as the result of poverty, bad influences, etc.  He capped off the last class by making that one big point. Made not born.  Nurture, not nature.  Goddit!

Okay, no problem, I thought, I can live with that.  I'm glad I was informed.  Thank you.

One of the students was a New York City plainclothes police officer, taking the course to further his advancement in the Department.  He used to wear a snub-nosed .38, his off-duty revolver, in an ankle holster, not very-well covered by an athletic sock.  This was legitimate, but not strictly necessary, perhaps, in an academic setting, long before Columbine.   This officer was willing to accept the professor's insight that thieves are made, not born, but only up to a point.  He made an exception for a particular group.

"Except for Gypsies," said the cop, "they're born thieves."

The professor expressed amazement.  We've just spent a whole semester studying material showing that thieves are made, not born, and you come out with that, he said, shaking his head.

There was nothing the professor could do to succeed in challenging this ingrained viewpoint of the cop, based on personal experience, limited though it may have been.  The officer hadn't seen the children grow up, after all.

Since my client in the Foxglove case, about which I've written and posted on this site, is Gypsy, and I've read and learned a considerable amount about that group during the years I've represented in that case, more than a decade, I understand where both sides in this debate are coming from. 

I've often thought of this exchange between my professor and the cop during the course of that representation.  Gypsies are not born thieves or anything else for that matter.  However there is a lot teaching that goes on...

Speaking of teaching, in the U.S. we impose the death sentence with some regularity, but we don't always execute the sentence. 

This way advocates for, and opponents of, the death penalty, each win.

The prosecutor brings home the scalp, sealing his reputation as a Killer DA forever, and the team of serial defense attorneys achieves similar recognition, albeit from a different constituency, by saving the bad guy's life via appeals forever. 

A win-win solution to the no-win problem of what to do with people who murder.

For you budding criminal lawyers, whether prosecutor or defense attorney (and most prosecutors eventually do some defense work), the distinction between ISS and ESS is critical to the disposition of cases.

ISS stands for 'IMPOSITION of sentence suspended.'  This is where a defendant is told by the sentencing judge, usually by pre-arrangement called for by the plea bargains which account for the disposition of maybe 95% of all criminal cases filed, that sentence will not now be imposed, but the defendant will be placed on probation for, say, the usual three years.  This is on condition that the defendant serve time in the county jail of up to one year (beyond that we're not talking probation but a state prison commitment, an executed sentence). 

The understanding is that if the defendant screws up on probation and it is later revoked after a hearing or stipulation, the new sentencing court, after the revocation, can now IMPOSE the previously unspecified sentence whose imposition was earlier suspended.  All of the previously served time is wasted. The new offense is usually also dealt out as part of the dispositional package.

ESS stands for 'EXECUTION  of sentence suspended.'  This means that the sentencing judge decides that the conduct for which the defendant was convicted, and the other attendant  (pre-Blakely, at least) circumstances, require a specific prison sentence, which means a term of years (16 months is the least in California), but that the sentence will be suspended.  Hanging as the Sword of Damocles over the defendant's head is a definite and certain prison term, if he screws up.

How can he screw up?  By failing to successfully complete the terms and conditions of sentence, such as:  he waives his 4th Amendment protection against unreasonable search and seizure, must abstain from drugs/alcohol, report to probation department, take courses in domestic violence, anger management, alcohol & drugs, and the like.  Death by meetings...

If the defendant screws up while on an ESS sentence, the sword falls on his neck upon the revocation and away to prison he may go unless spared yet again, which sometimes happens.  Oh, yes, and there is the matter of the new crime.  Usually a package deal is worked out for this as well.

This becomes even more interesting when the revocation occurs in one county and the new prosecution is in another.  Coordinating a dispo on one county is tricky enough without trying to make two jibe together.

Here's a NYT article discussing the point of our ambivalence towards actually EXECUTING the order sentencing a person to death.  I presume our use of the term 'execution,' meaning death by legal process, comes from the usage of 'to execute' meaning to carry out the legally imposed death penalty.

December 18, 2004   San Quentin Debate: Death Row vs. Bay Views   By DEAN E. MURPHY     AN QUENTIN, Calif., Dec. 17 - So many people in California have been sentenced to death that the state is about to spend $220 million to build a bigger death row next to the current one on a spectacular bayside bluff here. The state has long had the most populous death row in the country - it now has 641 condemned inmates - and the problem is that very few residents ever leave. Since the death penalty was reinstated in 1977, just 10 inmates have been put to death, and many spent 20 years or so in their cells before being executed by lethal injection. Four times as many have died from other causes like suicide and AIDS. "The comment may sound a bit whimsical, but it's literally true that the leading cause of death on death row is old age," said Chief Justice Ronald M. George of the California Supreme Court, a former prosecutor of capital cases. The decision to build the new prison was made by the State Legislature last year and the environmental reviews are nearing completion. With construction scheduled to begin next September, there is a stepped-up effort by opponents to block it. But in an indication of how accustomed Californians have grown to their Potemkin-like death row, the debate over the new prison is centered on real estate prices and panoramic views, not the snail-paced approach to executions that has made a bigger prison necessary. Many elected officials here in Marin County, just north of San Francisco, do not oppose a new prison, they just insist that it be built far away on less valuable property, and for that matter would like to move the entire complex. "The site's location on the bay and proximity to San Francisco along with access to nearby cultural and recreational opportunities provide a unique opportunity to leverage the physical characteristics and natural beauty of the property," states a developmental plan prepared by the county. The proposal, called the San Quentin Vision Plan, contemplates residential communities, bike paths, parks and a transportation center in place of death row and the rest of the prison and its 5,000 inmates. Margot Bach, a spokeswoman for the State Department of Corrections, characterized the county's approach to San Quentin this way: "They want the real estate. That's the bottom line." Even with a sharp drop in the number of people sentenced to death in recent years, the new prison is being designed to house 1,408 men, more than double the current death row population. (Women will continue to be housed at a prison in Chowchilla, in the Central Valley.) Most everyone involved expects that death row will get more populous in the coming years because so few of the condemned will be executed. Franklin E. Zimring, a law professor at the University of California, Berkeley, and the author of a book on capital punishment, said a bigger prison at San Quentin would be an appropriate metaphor for a state that values law and order but seems to have little appetite for Texas-style justice. Texas leads the nation in executions, with 336 since 1976. Its death row now houses 444 inmates. "What we are talking about looks like an inefficiency, but it may function to give us exactly what we want, which is a death penalty without executions," Professor Zimring said. "When people are ambivalent and not very honest about their priorities, it is very difficult to distinguish between ingenuity and inefficiency." He said that what was most remarkable about capital punishment in California was that even with strong public support for it - a Field Poll in March showed 68 percent favored the death penalty for serious crimes - there was scant outrage over the courts' slow-paced application of it. "There isn't a crisis here," said Professor Zimring, a death penalty foe. "Nobody's mad. The district attorneys get death sentences. That is their reward. They frame that. But they are not sitting there waiting for executions." Many advocates of capital punishment, while unhappy with the situation, say they are resigned to it. "Our Legislature is run by people who don't want the death penalty to work," said Kent Scheidegger, legal director of the Criminal Justice Legal Foundation, a Sacramento-based group that favors stepped-up executions. "They can't repeal it outright because the voters would hang them, but they can sabotage it. It is basically a matter of not pushing." Chief Justice George said in a telephone interview from Sacramento that the slow pace of executions was caused by both the state and federal courts. The state courts have been cautious in making sure defendants receive the best legal representation possible, he said, while on the federal level, "an active federal bench looks at these cases more carefully than the federal bench in other parts of the country." Unlike the United States Court of Appeals for the Fifth Circuit, which handles cases from Texas, the appeals court that serves California, the Ninth Circuit, is well known for its liberal interpretation of federal law. California is very slow in processing death penalty appeals, starting with the State Supreme Court itself, which under the state's Constitution is the first to review death sentence appeals. The waiting list for an appeals lawyer to be assigned by the court is about four years. Right now, 118 people on death row have not yet been assigned a lawyer. Six years ago the number reached 170. "The virtues of the system also represent its vices because it does end up causing a lot of delay," Chief Justice George said. "We take great care to try and appoint competent counsel." He added, "I could take care of that backlog in two or three days if I were not following the very rigorous standards that California has established." Professor J. Clark Kelso, director of the Capital Center for Government Law and Policy at the McGeorge School of Law at the University of the Pacific, was a consultant to the state in the late 1990's, when legislation was passed to speed up the appeals process, including paying higher hourly fees to lawyers. But even with those changes, Professor Kelso said it would take 15 or 20 years to catch up with the backlog of cases before the Supreme Court. Some groups opposed to the death penalty objected to a new prison when the State Legislature was considering it, but the debate has been minimal since then. Some of the groups have even thrown their support behind the bigger prison because it promises to offer better facilities and would keep the inmates close to San Francisco, maintaining easy access to them by death row lawyers, volunteers and service organizations. "This was an effort that kind of pulled the movement apart a little bit," said Lance Lindsey, executive director of Death Penalty Focus, a San Francisco group that opposes a new prison. "Of course a lot of us are for humane conditions, but conditions could be improved without expanding death row, and if we ended the death penalty, we wouldn't need all that money to expand death row." The Prison Law Office, a nonprofit firm located outside the gates to the 152-year-old prison here, is among the groups that have supported a more modern death row. It has also resisted efforts to move it away from San Quentin, insisting that executions, when they do occur, need to be held in a big urban center so that they receive public scrutiny. Steven Fama, a lawyer with the Prison Law Office, said the new prison was indicative of "a sort of stalemate that has become entrenched" in the state over capital punishment. While the overcrowded death row signals "a legal system that cannot accommodate the death judgments," Mr. Fama said there was widespread acceptance of the status quo and a feeling on both sides to make the best of an imperfect situation. "Increasingly it just doesn't work the way it is now," he said of death row. "There are not enough cells for the disabled. The mental health care has to be given out in a makeshift way. They have had to be creative, building a chapel in an old shower area." Assemblyman Joe Nation, a Democrat from Marin County, has been promised a meeting with aides to Gov. Arnold Schwarzenegger, who has expressed support for the new death row, to make a last-ditch pitch to sink the plan. Mr. Nation, who wants the new prison to be built somewhere less expensive than the Bay Area, said his presentation to the governor's staff would focus entirely on economic issues. A state audit of the prison proposal last spring raised some financial questions about the plan, and Mr. Nation said it was a mistake for the state to "box itself into having a prison" at San Quentin for another 50 to 100 years by making such a big investment. He said state officials had estimated that the land there was worth as much as $750 million. In the long run, opponents of the death penalty hope money concerns might also persuade Californians to give up on death row entirely. Though there have been few comprehensive analyses of the financial impact, the Indiana Criminal Law Study Commission in 2002 found that the additional legal and incarceration costs to that state for a death sentence versus one for life without the possibility of parole was about 30 percent. "In a perfect world, we would have a serious discussion about the death penalty in California," Mr. Nation said.