Osler's Razor

Yes, it matters.

And no, no, no, I cannot support a capital punishment regime that executes innocent people. Nothing in life is perfect, and this is not an area in life where we can support imperfection.

And I don't support the DP even for the guilty. But you all know that about me.
 

No, but see:

“This court has never held that the Constitution forbids the execution of a convicted defendant who has had a full and fair trial but is later able to convince a habeas court that he is ‘actually’ innocent. Quite to the contrary, we have repeatedly left that question unresolved, while expressing considerable doubt that any claim based on alleged ‘actual innocence’ is constitutionally cognizable.” -- Scalia

http://www.thedailybeast.com/blogs-and-stories/2009-08-18/scalias-catholic-betrayal/
 

I think it's sickening, not only that this could even happen, but that people aren't absolutely outraged about it (I realize some are, but I think more could/should be).
 

Recognizing that the death penalty isn't going to be found unconstitutional and that society isn't going to get rid of it in the foreseeable future....

I've been wondering how the justice system can insert more procedural protections into the capital sentencing process to minimize the risk of executing actually innocent people.

I think we ought to use a different evidentiary standard for capital cases. Courts should instruct juries that they may only return a guilty verdict for capital offenses if they find the defendant committed the offense beyond all doubt. If the jury cannot find guilt beyond all doubt, but can find guilt beyond a reasonable doubt, then they should be instructed to acquit the capital offense and only convict the lesser-included offenses.

I think this standard would help juries consider the finality of their decisions that is unique to capital cases and render death only with absolute certainty, inasmuch as a trial can provide it. Life sentences would be imposed where they are firmly convinced of guilt; death would, hopefully, be reserved only for exceptionally well proven cases.

A beyond all doubt standard cannot stop all convictions of innocent defendants, but I think it would reduce the number of death warrants issued, thereby reducing the number of innocents executed.
 

What is Scalia saying? That you can't constitutionally prove yourself to be innocent, once convicted?

Aarrgggh . . .
 

No-- Scalia is saying that if you can prove yourself innocent, that may not be enough to free yourself, unless an error in process was also made. The Constitution, he feels, guarantees due process but not a correct outcome.
 

I think TJ is intellectually curious enough to have read Scalia's entire opinion instead of just relying on a quote from the eminently reliable and completely unlikely to take a quote out of context Daily Beast (a website that was created because they believed the Huffington Post was too moderate). If you read the opinion Scalia is making a procedural argument (or as I like to call it, the "this isn't 'Nam, there are rules" argument) about the nature of post-conviction proceedings. I'm not saying he is right (mostly because I do civil work and don't know enough about habeas procedure to know if he is right or even in the ballpark of right) but I don't think he is making a pro-killing-innocent-people argument.

I think Scalia wouldn't take the position that if genuinely new evidence, such as evidence that confirms the fire was not manmade in an arson case, came to light then a new trial is appropriate to determine guilt/innocence.

Even though I'm the resident "Radical Republican" on this blog, not that I think killing people is a conservative or liberal position necessarily, I don't think anyone can honestly defend killing innocent people. It is a very unfortunate case. I like AZ Public Defender's position. I think there are other potential solution.

However, if we get socialized medicine we will all die too early to have to worry about such things anymore. (for Bob - that was a joke)
 

RRL--I agree with you that most of the discussion regarding Scalia's dissent is largley misinformed. I don't think the infamous quote is as harsh as others believe.

Scalia says the issue brought before the court under strict, legal analysis requires that no relief be granted pursuant to the limited review of state court convictions available under AEDPA. I sense, however, that he is inviting a petition for relief arguing the constitutional illegality of executing a person found by a competent fact finder to be actually innocent--an argument relying on 5th/8th amendment law, I assume, that is divorced from AEDPA analysis. He mentioned that SCOTUS has never answered that question because he would like to answer that question. It appears that the Court couldn't answer that question because it wasn't properly raised.

The quote, standing alone, makes Scalia seem monstrous, but the entire opinion shows that he was just trying to answer the question in front of him while waiting for the other question to come in the right way.
 

It appears that the Court couldn't answer that question because it wasn't properly raised.

While I agree with this idea in principle, the fact is that it may very well result in the execution of someone with a legitimate claim of factual innocence. Call me a judicial activist, but if someone like Scalia has the power to stop it but doesn't due to his interpretation of the rule, well, that's just cowardly in my opinion. Of course, my opinion isn't worth much, but I lost a lot of respect for Scalia even under the most generous interpretation of his quote.
 

On a different note, why is the New Yorker one of the few outlets of excellent, in-depth journalism like this?
 

What I don't understand in this case, and is never brought up in any articles dealing with the DP, is how the jury came to its conclusion on the special issues.
In TX, a jury must first find someone guilt (BRD) of the capital offense. However, they must THEN find that the person will still be a continuing threat to society, AND that there is no evidence that would mitigate the punishment.

How is it that the jury came back with such a verdict in this case? What about him made them decided such an issue that way? Yes the guilty verdict was quickly determined, but what was the evidence that got him sentenced to die?

I will also point out that the article, written for effect, does not rule out the possibility that he did set the fire.

I have handled Beyond ALL doubt cases where there was no scientific proof of guilt based on chemicals, burn patterns etc. Yes, I understand that this man shouldn't have been convicted on the wrong scientific interpretation, but it was obviously more than that.

As is the case when something like this hits the news, I can assure you that there is much we don't know.

As for the original question. Yes I can support such a position. I, unlike most people, believe that lives might have to be sacrificed for the greater good. We must do all we can to ensure it happens as infrequently as possible. But my own personal opinion is that the system is much safer now than it was even 10 years ago.

I will say that I have yet to see my office try a case (4 years) where there was ANY question as to guilt. And that is due to people being very involved in asking just these types of questions and keeping a watchful eye on such a necessary system
 

Dallas ADA, your comment: "I will say that I have yet to see my office try a case (4 years) where there was ANY question as to guilt. " - Seriously? I am amazed that your office has that record. Pretty impressive. Either Dallas knows more than any other city in America or you are quite arrogant. There is no DA office in the country that has not prosecuted an innocent person.
 

Dallas ADA,
I know Craig Watkins is doing a fantasic job and I'd vote for him if I could (unfortunatly I'm a convicted arsonist) but really? In the last 4 years your office hasn't prosecuted one shaky case? If so either congrats on an unparralled record or shame on all of you for making up your mind early and sticking to it no matter the evidence.

I have less and less faith in our system of criminal jsutice every time I read something like this.
 

I'm talking about Capital Death cases. And no, there haven't been any where there was a question as to who committed the crime.

I don't want y'all thinking my office has never convicted an innocent person (20 exonorees prove otherwise), but honestly the people that have been working there BEFORE Craig Watkins and AFTER have all been very mindful of who they were going after in the death cases.

Each of the death sentences handed down in the four years I have been working there have been deserved and more importantly, there was no question in my mind as to guilt.

My point was to hopefully make you guys feel better at the prevailing attitude at an office like mine. At least at my office, no one has been willing to risk his career, sanity, and most importantly someone else's life, just to get a conviction.

Can I say that about everywhere in TX? No way. But I'm proud to work with people like that, and hope to follow in their footsteps someday.
 

Dallas ADA,

I never meant to insult you or your peers and don't doubt your collective ethics or conscoius. I admitedly have a different standard than is the norm in Texas, that being it is never acceptable for soceity to execute a human. Never ever ever, no matter the circumstances. Not Bin Laden, not Hitler, not even Donovan McNabb. I realize that places me on the fringe left but I do have this question for you. How many of the prosecuting DA's on those 20 (and counting) exonorations really had any doubt into the guilt of the defendant.

I don't think the problem lies with prosecutors, judges and juries doing the wrong thing, that is going to happen when you leave those decisions to fallible humans. My problem lies with a system that allows fallible humans to make such an irreversible decision.
 

No, I don't support the death penalty as a matter of personal morals.

Yes, I would (will? have?) argue for it if/when I work on a death case. So far, all of my murders have been non-capital in nature (except for ancillary work), but like Dallas_ADA, I wouldn't sign my name to a habeas petition or an appeal if I didn't honestly and truly believe in the guilt of the accused.

If I were proven wrong, I'd be the first to call for release someone. If the conviction were obtained in violation of due process, I'd willingly try someone again.

And I do think Scalia believes that it is OK to execute an innocent person as long as the state may rely on some sort of "good faith" (e.g., due process) exception. I think the execution of even one innocent person is too high a price to pay for the death of someone, even someone that deserves it.

Killing another human being is categorically wrong, whether it is a private actor or the State that does it.
 

So Lane you are able to seperate your personal and professional morals? Are they/can they be differentiated? Again, I'm not trying to attack you but I don't understand that stance. I think the law may be the one "profession" (I honestly think its more of a trade, akin to plumbing) where that beleif is acceptable.
 

I know it's sometimes difficult for people to do based just on news reports, but you guys really have to separate the 20 exonorees in Dallas (generally sex assaults and robberies based on eye witness testimony from 20 years ago) from the more recent death penalty cases.

Again, I stress that times have changed, at least in Dallas, and I would argue around the state and country based on the conferences I attend, when it comes to prosecutorial attitudes.
It's not the good old days in offices like mine where the decision to go for death is now vetted by muliple high level prosecutors and then ultimately by the DA himself. I can't just go after someone to pad my resume.

I can assure you that if anyone in those higher leves has a doubt about it, the case will not be tried as a death case.

but again, I just happen to believe that there are people that don't deserve to be kept alive because of what they have done and the lives they have led. And as unfortunate as it is, someone truly innocent has probably died to keep this system in place. I believe, the level of deterence we gain from the system is more valuable than that life. I understand and respect the opposite argument, but can't go down the slope that toofat is on and actually believe that there are certain Evils in our world that should be eliminated for our common good.

PS I can't get enough of the intelligent and well reasoned thoughts from "most" of the fans of this blog!
 

TF,

I don't have professional morals. Morals are inherently personal things. My personal morality, however, is going to occasionally conflict with my public duties. I am not under the illusion that I am a morally perfect being. Quite the contrary. As long as my public duties (as an ADA) do not conflict with the professional code of conduct to which I aspire, I will do them, even if it violates my personal morality (to a point).

This is because as an advocate I am not "my own man," so to speak. I owe a duty to the people of the State of Texas to be their voice, and if their voice calls for capital punishment, I must respect that (since I work mainly in appeals). Were I given the choice between a capital and non-capital offense (at, say, the indictment level) I would unfailingly choose non-capital.

Like Dallas_ADA, I think (after having worked some murder cases) that society would not suffer at all from the removal of a convicted murderer. There are some people for whom life is too good. But I don't think I personally could say that because I feel this way, I am justified as an instrument of the State in seeking that punishment. Defend it, yes, but I myself am not capable of making that decision.
 

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Dallas ADA. I disagree but respect your opinion about the death penalty. However, I do wonder about one thing you have repeatedly said.

You've said that in regard to death penalty cases, no one would request that if they had any doubt about the guilt of the defendant. I ask, what’s the difference between a "death" case and one where you are simply going to ask for life in prison or 30 years (and the burden of being a convicted felon)?

Unfortunately, I too am a lawyer (although I practice civil law) and it seems to me that the adversarial nature of the practice of law often leads to folks digging in their heels when they shouldn't.

I'm at least a little worried if there is a difference in the prosecutorial mindset between a death case and a non-death case or a "serious" crime and a "non-serious" one. Shouldn't all cases be judged by the same standard regarding guilt by the prosecuting attorney?