Sunday, November 27, 2005

Requiring corroboration for eyewitness testimony might have saved Ruben Cantu

What can be done to stop the government from convicting and even executing the wrong people? Blogger Clayton Cramer suggested a great reform proposal in the wake of last week's report by the Houston Chronicle that Texas likely executed Ruben Cantu in 1993 for a crime he didn't commit. Writes Cramer:
At one time, a number of states required two eyewitnesses to a murder before the state could impose the death penalty. Why?

Because America was a Bible-believing nation at the time of the Revolution, and reformed many of its criminal statutes in that era to conform to the Bible. Numbers 35:30 says:
Anyone who kills a person is to be put to death as a murderer only on the testimony of witnesses. But no one is to be put to death on the testimony of only one witness.
Even though I disapprove of the death penalty, using the Bible's standard on this would certainly have prevented the execution of Ruben Cantu for a crime that he apparently did not commit.

Liberals, unfortunately, would never tolerate writing a law with Biblical input today.
That's a terrific idea, and I think Cramer might be surprised at what liberals can tolerate. The reason a two-witness rule would have difficulty being enacted isn't because "liberals" oppose it, but because prosecutors and police unions would throw the loudest hissy fit you've ever heard. Trust me on this one -- I know from experience.

After the scandals arose surrounding the Tulia drug stings, the ACLU, NAACP, and LULAC
teamed up with ministers and victims families from the group Tulia Friends of Justice to help pass a bill requiring corroboration for undercover testimony in drug cases. (The original bill would have required corroboration for any undercover testimony, but the final, passed legislation required it only for confidential informants or "snitches," not police officers.) Still, it has had a big impact.

The biblical requirement for corroboration was very much a part of the debate surrounding the Tulia legislation, a message carried door to door at the Texas Legislature in 2001 by Reverends Charles Kiker and Alan Bean from Tulia Friends of Justice. (I've still got a copy of the flyer they distributed with a headline reading, "The Bible and the ACLU Agree: Require Corroboration for Drug Sting Testimony.")

In fact, as Rev. Kiker would be quick to point out, the corroboration requirement in Mosaic law is more extensive than what Cramer cites. In
Deuteronomy 19:15 we're told that all accusations of crime must be corroborated: "One witness is not enough to convict a man accused of any crime or offense he may have committed. A matter must be established by the testimony of two or three witnesses." Jesus (Matthew 18:16) and the Apostle Paul (2 Corinthians 13: 1 and 1 Timothy 5:19) both affirmed this tradition for New Testament believers.

That 2001 legislation was crafted to resolve particular problems with mendacious undercover operations that became apparent in the infamous Tulia and Hearne imbroglios. (Most folks have heard of Tulia, but if you don't know much about what happened in Hearne I'd encourage you to watch this video.) But folks have been thinking about what constitutes justice for thousands of years. Nobody in their right mind, and certainly nobody at the ACLU of Texas who I work with, would flinch because some modern conception of justice coincided with Judaism, Christianity, Islam, or for that matter Buddhism or the Tao Te Ching.

I helped negotiate language for that bill on behalf of ACLU of Texas, and I can assure Mr. Cramer I didn't complain about the Reverends' religious rhetoric, nor was I particularly concerned that a basis existed
for our proposal in Mosaic law. Sitting in the gallery, I chuckled at the irony when conservative legislators quoted the Bible on the floor of the Texas House to support a bill first proposed by the ACLU, but that's politics -- everyone's political stances are informed by their values, and where those values are based on religious beliefs, I'd never begrudge someone from bringing them into the public square. Obviously, every idea deserves vetting and "God said so" isn't a good enough reason to pass a law. But in this case those ancient values of fairness and justice translate extraordinarily well into the modern setting. As Rev. Kiker told legislators, requiring corroboration
puts a protective hedge around the ninth commandment, ‘You shall not bear false witness against your neighbor.’ As long as people bear false witness against their neighbors, this Biblical law will not be outdated.
Corroboration for eyewitness testimony would be an appropriate, initial reform in the wake of Ruben Cantu's wrongful killing by the state of Texas -- but it's needed not just in murder cases but for all eyewitness testimony, which is notoriously unreliable. Cantu and the Tulia cases are the tip of the iceberg -- across the country prosecutors routinely secure convictions based on uncorroborated testimony for all kinds of cases.

I don't know if Cramer's suggestion (or Moses', I suppose, depending on how you look at it) is "liberal" or "conservative," but who cares? It would be a great first step toward preventing more wrongful convictions and executions in the future.

Cross-posted at the ACLU of Texas' Liberty Blog. See also: The Ruben Cantu Tragedy: The Real Killer Is Still Out There.


Anonymous said...

Four things that would help would restore earlier American justice traditions.

First, put an end to jury biasing: the first twelve jurors called are the ones who serve. Having both sets of lawyers and the judge work in collusion to rid the jury of undesirables -- people who don't trust judges, lawyers, or cops -- is not safeguarding fairness, it is biasing the jury in favor of the prosecution.

Second, restore the original power of the juror to veto. This would require twelve people to agree the prosecution made its case. Any other outcome would be an acquittal (unless all twelve veto, which would make it an exoneration). A hung jury would acquit the defendant and preserve the protection against double jeopardy. (Also, if the defendant is charged with murdering somebody and is acquitted, the prosecution should not be allowed to charge him again with killing the same person under the chargee of manslaughter. Once a case is lost, it is lost forever.

Third, when the police buy testimony, as in promising a lighter sentence, a word with the parole officer, or not charging for some crime the witness was arrested for or for what the witness was caught with, all the details of the negotiation should be presented to the jury, and done ahead of the actual testimony, letting jurors judge the taint for themselves.

Fourth, in a jury trial, let the jury try the case, not the judge. The jury's decision should be final. Thus no conviction by the judge against the decision of the jury to acquit, no 'mistrial', and no retrial in violation of the guaranteed protection against double jeopardy.

Anonymous said...

Add three more things:

Fifth: Make everyone in the courtroom swear an oath, not just the witnesses.

Six: The prosecution has the burden of proving guilt but they also have all of the resources to prove it. Doesn't that unfairly undermine the difficulty of the burden? Disproportinate resource allocation unfairly tilts the scales even before the process deciding guilt or innocence starts. Alot of money goes a long way to buying a not guilty verdict. It also buys a guilty one.

Seven: Imagine reading the police reports from the Rodney King beating, if his beating hadn't been videotaped. Don't ever let the police police themselves under any circumstances.

Restore some of the faith people once had in the administrators of the system: judges, lawyers, and cops; to restore faith in the system itself.

Anonymous said...

The suggestions put forth in these comments are excellent.

The way a "jury of one's peers" is selected these days is an obviously corrupt way of doing it.

"Stacking the deck" is cheating in a card game. It's cheating in jury selection, too.

Clayton Cramer said...

"That's a terrific idea, and I think Cramer might be surprised at what liberals can tolerate."

Sorry, but I lived in California. Anything that even remotely smacks of Christianity--even "under God" in the Pledge of Allegiance, or an historical cross in the County of Los Angeles seal--just sends liberals into a tizzy.

When liberals stop insisting on same-sex marriage, removing all even slightly vague references to religion from public places, and treating rape as a non-serious crime--well, then we can discuss the idea that liberals don't have an objection to the Bible.

Gritsforbreakfast said...

Hell, Clayton, even I can't tolerate California liberals! :-) I know for damn sure it's not liberals who'd fight your two eyewitness rule, though.

I don't know anybody in the world who agrees with me 100% of the time, including (and perhaps especially) my wife. To me (and to the Texas Republicans who helped us pass the snitch corroboration bill) if left and right can agree on a substantive proposal like corroboration, all the things and the world we don't agree on shouldn't stop that from happening. Otherwise, it's D.C.-style gridlock and nothing ever gets done.