Sunday, December 05, 2010

Question not 'Is death penalty unconstitutional' but 'Is common evidence unreliable?'

The big news story next week in the Texas criminal justice world will be the hearing to begin mañana in Judge Kevin Fine's court in Houston to determine whether the death penalty as practiced in Texas is unconstitutional. The hearing will be heavily covered in the MSM and I probably won't be tracking the blow-by-blow on Grits, but Mark Bennett will be there and has provided the pleadings and expert witness list from the defense. See also various MSM coverage here, here, here, and here. Getting to the heart of the matter, Andrea Keilen of the Texas Defender Service had a guest blog post at the Dallas News laying out the top six arguments against the death penalty, several of which are implicated at the hearing. They are:
  • First, Texas has no standards to ensure that eyewitness testimony is obtained in ways that protect against the risk of mistaken identification. 
  • Second, Texas allows the introduction of confessions that have been obtained without safeguards to protect against false confessions.
  • Third, use of informant testimony is largely unregulated in Texas.
  • Fourth, pervasive flaws have been identified in the analysis of presentation of forensic evidence that result in unreliable results.
  • Fifth, pretrial  discovery procedures are inadequate to safeguard against the prosecution's suppression of evidence favorable to the accused.
  • Sixth, Texas prosecutors in Harris County and elsewhere have a shameful history of excluding African Americans from juries.
Most notable to me about the debate to take place in Fine's courtroom is that, despite the fact that the Culture Warriors on both sides will be out in force flaming one another over whether the death penalty is justified, none of these arguments actually have anything to do with the death penalty per se, except that the death penalty happens to be in play as a potential punishment in this particular case. Instead, these are debates about the quality of evidence used to convict defendants throughout the justice system and whether, given the present lack of safeguards, such evidence and procedures may be trusted to sustain a conviction beyond a reasonable doubt.

Eyewitness testimony is vulnerable to error in all types of cases when the witness didn't previously know the defendant, not just capital murder. Texas does not require recording police interrogations, and confessions needn't be corroborated as they must be, for example, in federal and military courts. Very few limits exist on incentivized informant testimony. The same forensics that are flawed in capital cases have been questioned in more mundane settings. And neither pretrial discovery nor racial skewing of jury selection are procedural  matters that only arise for capital defendants.

So in a real sense, this is not a debate over "Death Penalty: Pro or Con?," though you can be sure that's how the loudest arguments will be framed. The only thing that makes these issues especially problematic regarding death penalty cases is the irreversibility of error, not its sources, which are common in many types of cases.


Anonymous said...

"Incentivized testimony." Polite word for bribed.

FWIW, (maybe an inflated quarter?), I think you're right on about these same arguments being applicable to cases other than death penalty, and of course that errors in these cases are not reversible after the penalty is imposed.

Charles in Tulia

D.A. Confidential said...

Yes, I'm pleased to see you note that these arguments can be applied to every criminal case. I think we'd get far more out of such hearings/debates if the polarizing aura of the DP was omitted.
As for the list of six arguments, very interesting. Some are, supposedly addressed by an intelligent jury, some by the defendant having competent counsel, and some by both. However, the more discussion on such issues the better, I think.

Don said...

To DA: I agree. I think part of the problem, a large part, goes to the jury system and the way juries are picked. How do you get an "intelligent" (read: unbiased) jury. And the problem of competent counsel keeps rearing it's ugly head. Unless we get a uniform public defender system, or somehow start compensating court appointed attorney's adequately, it won't go away.

Anonymous said...

In doing some research on the issue of prosecutorial misconduct and immunity I read some information on the English system compared to the American system. In the English system the "barristers" are not assigned to exclusively represent one side or the other. One day they may represent the prosecution. The next day they may act as defense counsel. The author of the source for the information was suggesting that this difference may account for the fact that prosecutorial misconduct is almost nonexistent in their system while it is far to common in our system.

That got me thinking. Now, I'm not naive enough to think this would ever happen in Texas but...what if, instead of having assistant DA's and public defenders they were all part of the same group and were just designated as advocates. On one case they may be assigned to prosecute, on another they would represent the defense. That may sound ridiculous to some but it apparently works in the English system. One problem that would then solve is the disparity in resources that often occurs between the prosecution and defense. They would work for the same office and have access to identical resources. What could be fairer than that? I know something like that would never happen, especially in Texas.

titfortat said...

Racial equality on a jury doesn’t qualify as unbiased either so the only sensible answer would be to require a crystal ball be used by all parties.

No doubt this next statement will be laughable or thought of as just plain stupid and in my own defense I am not an attorney so my naïveté is well founded; that being said I wouldn’t think competent defense counsel to be predicated on compensation. In fact that sounds criminal.

The only reasonable solution for the protection of all is life and it also provides for a fair and just exchange for death mongers like me. When I think of people like Steven Hayes I pray for my own forgiveness which provides for a pretty good reality check.

Anonymous said...

Sounds like a liberal hugathugapalooza! I bet Barry Scheck gets an erection just thinking about this assemblage of anti-death penalty expert do gooders! Wonder how much this charade is going to cost the taxpayers?

Anonymous said...

Hugathugapalooza vs. Headinsandindenial

sunray's wench said...

Why allow juries to be "picked" at all? If you make the only acceptable exclusions to be whether the juror knows the defendent, whether the juror has prior knowledge of the case (through any medium), and ill-health or advanced pregnancy, then you really do get a cross-section of the population which is what a jury is supposed to be.

Gritsforbreakfast said...

3:30, aren't people who support the death penalty also "do gooders"? Is there some reason you think they want to do bad?

Sunray, fwiw, in Texas having direct knowledge of the case doesn't necessarily exclude a juror, the Court of Criminal Appeals recently ruled. That one surprised me.

Anonymous said...

Go sit and observe a jury selection and hear for yourself some of the kooky people that are out there. There has to be a mechanism to get the extremists and nuts off.

Alex S. said...

I long for the days of picking kids in P.E. class to be on your team. Why can't jury selection be the same? The Defense gets 6 and so does the prosecution. Peremptory strikes should be abolished.

zeety said...

Culture warriors on both sides? You enumerate six solid reasons why the Texas justice system is a joke and then pretend both sides obfuscate the issue.

This ain't Grits, it's Vanilla Puddin'.

Moar redlight outrage!

A Texas PO said...

It would be terribly interesting to see which jurisdictions routinely sentence offenders to death, and which ones routinely have these evidentiary problems. In all my years working in the courts, I've not experienced a death penalty sentence in my jurisdiction.

Also, I never thought I'd see "hug-a-thug" on this blog, whether it's part of a -palooza or not.

sunray's wench said...

"Go sit and observe a jury selection and hear for yourself some of the kooky people that are out there. There has to be a mechanism to get the extremists and nuts off."

Why? If they are citizens of Texas, and jury is supposed to be made up of your peers, then like it or not, those people should be included. I happen to think anyone who likes Country music is a bit kooky, but that doesn't mean they should be excluded from jury service.

Anonymous said...

Life is an unalienable Right. See Organic Law, July 4, 1776.
State sponsored murder is not, and never has been, legal or Constitutional on our Land known as the US of A.
But ignorant, incompetent, and treasonous people that have been entrusted with our Supreme Court have often refused to HONOR the supreme Law of the Land. They have given unlawful practices the COLOR of Law. It looks like law, but IS NOT !!!
Liberty, as with Life, is an unalienable Right of the Individual. But for our black countrymen Liberty was denied - even tho it was clearly contrary to a Constitution created on the Foundation of our Organic Law.
It takes a lot of courage to HONOR and ENFORCE our Constitution. Took a Civil War to enforce some of it. Today, we the people are routinely deprived of our unalienable Rights - Including the most basic: Liberty & Justice. That is why we have the highest incarceration rate in the world and are headed towards bankruptcy. The weight of the Police State will be our demise. Then our people will re-learn what has been forgotten. Sad that History must repeat itself due to collective ignorance combined with deception perpetrated by the Evil people the people have chosen to trust.