Monthly Archives: April 2005

MA seeks to reinstate death penalty

UPDATE: Prof. Berman correctly points out that I have neglected to discuss the economic concerns surrounding the re-instatement of the death penalty in MA. Certainly, there are many studies [pdf] out there that analyze and discuss the cost of imposing the death penalty, which I won’t rehash here. Prof. Berman does make an interesting observation:

Consider also the fact that, according to statistics I found on the
web, alomst twice as many people are killed in Massachusetts by drunk drivers than by murderers, and the data
on rape and other violent crimes suggest that Romney’s bill may
distract from more pressing criminal justice issues in Massachusetts.

This is certainly a compelling economic argument against the death penalty. Here’s what stood out to me – In CT, in 2000, there were 98 murders, 678 forcible rapes, 3832 robberies and 6450 aggravated assaults. In CT, as of 2002, it cost the PD’s office an average of $380,000 per case for the 7 men on death row, totalling $2,659,921. By comparision, those sentenced to life after being charged with the death penalty cost an average of $202,365, totalling $2,630,745. Those who weren’t charged with the death penalty, but were sentenced to life after a trial cost an average of $79,777. Full report of the CT Commission on the Death Penalty here. The 2003-2004 cost of providing capital defense in CT was $1,959,523. That’s a lot of money that could be saved.

Original Post: Thanks to Injustice Anywhere, I just read this NYT article about MA seeking to reinstate the death penalty (well, it’s mostly the Governor). Gov. Romney calls it, rather unabashedly, as foolproof as humanly possible. Here are a few of his proposed features:

  1. It would require that there be "conclusive scientific evidence," like DNA or fingerprints, to link a defendant to a crime.
  2. It would allow a death penalty to be imposed only if a sentencing jury
    finds there is "no doubt" about a defendant’s guilt, a standard that is
    stricter than "beyond a reasonable doubt."
  3. It would restrict capital punishment to murders involving terrorism, prolonged torture, multiple killings or murder of someone involved in the criminal justice system.
  4. Defendants who had previously been convicted of first-degree murder or
    were serving life sentences without parole would also be eligible.
  5. Another unprecedented provision would give the defendant the option of
    having two juries – one for the trial and one for the sentencing.
  6. It also includes a requirement that defendants get at least two and
    possibly three lawyers, that scientific evidence be examined by a
    review board, that every death sentence be reviewed by the state’s
    highest court, and that a special panel be set up to handle complaints.

Romney calls it a model for the entire nation. Heh. RIght off the bat, I see good things and bad things about this proposed legislation.

The Good:
The requirement that there be atleast two lawyers for a capital defendant. Everyone who follows capital litigation knows that there is a terrible need to skilled and experienced lawyers and that one lawyer simply cannot adequately represent a capital defendant. By mandating that there be two, perhaps three, the bill is providing for effective representation.

Also, at first glance, the requirement that there be two juries is interesting and has potential to be a good provision. When there is one jury, it is difficult to plead not guilty – go through a trial, present (usually) horrific evidence and get convicted – and then turn around at sentencing and provide mitigating circumstances to that same jury. Perhaps the requirement that the sentencing jury be new and look at the aggravating and mitigating factors with untainted eyes might provide a better process.

Finally, the DNA evidence. Over the years, the stories of those who have been exonerated based on DNA evidence is growing. To see a bill that has DNA evidence built in to the process that triggers the death penalty is uplifting. I’m not sure what the "review board" is that is supposed to review scientific evidence, or who it will be composed of, so I’m not going to comment on that.

The Questionable:

The requirement that death be found "beyond all doubt" instead of beyond a reasonable doubt. If my memory serves me correctly, Illinois has attempted to introduce similar legislation. I’d love to see it pass, but somehow I don’t think it will.

The Bad:
Finally, we come to the problem with this bill. Point 4. above. Defendants who have previously been convicted of first-degree murder and are serving life without parole would be eligible. Huh? Perhaps Gov. Romney should be reminded of a little clause called the Ex-Post Facto clause [Article I, Section 9]. Why would he even consider putting that in? Doesn’t he have lawyers working on this with him? Why wouldn’t they tell him?

Anyway, it certainly is an interesting bill. Let’s see where this goes. Also, Prof. Berman at SL & P has a roundup of other death penalty news in the country.

Ross ruling appealed

You knew it was going to happen. You just didn’t know how soon. Well, today Thomas Groark filed an appeal directly with the Supreme Court. He also asked for a stay of the execution, which is currently just twelve days away.

In his filing Groark claims that Judge Clifford made several mistakes.  He says the New London judge:

  • "erred in concluding that Michael Ross decision to waive his right to seek post-conviction relief was voluntary."    
  • "erred in concluding that Michael Ross was not   suffering from a mental disease."

Groark also claims the judge is mistaken because he sided with the two
experts that claim Ross is competent instead of the two that Groark
brought to court who said he was not.

In other related news, seven prosecutors have filed a complaint against Judge Chatigny for his handling of the Michael Ross case. The complaint will be reviewed by Chief Circuit Judge John M. Walker, who can either dismiss the complaint or order an investigation. So wait, are we for activist judges or against?

Written consent for vehicle searches… in Texas?

Injustice Anywhere (by way of Grits for Breakfast) reports on a new bill in Texas that would require peace officers to get signed consent from motorists before inspecting their vehicles during a routine traffic stop. The bill states [bill text]:

A peace officer who stops a motor vehicle for any alleged violation of a law or ordinance regulating traffic may not search the vehicle unless the peace officer:
(1)  has probable cause or another legal basis for the search; or
(2)  obtains on a form that complies with Section 411.0207, Government Code, the written consent of the operator of the vehicle.

SECTION 2.  Subchapter A, Chapter 411, Government Code, is amended by adding Section 411.0207 to read as follows:
(a)  The director by rule shall establish requirements for a form used to obtain the consent of the operator of a motor vehicle under Article 1.06, Code of Criminal Procedure.
(b)  At a minimum, the rules must require the form to contain:

(1)  a statement that the operator of the motor vehicle fully understands that the operator may refuse to give the peace officer consent to search the motor vehicle;
(2)  a statement that the operator of the motor vehicle is freely and voluntarily giving the peace officer consent to search the motor vehicle;
(3)  the time and date of the stop giving rise to the search;
(4)  a description of the motor vehicle to be searched; and
(5)  the name of each peace officer conducting the stop or search.

I think the part requiring written consent in the absence of probable cause is great, because as Grits reports, jurisdictions that already require written consent have seen a 63% decline in motorists willing to waive their rights. At the very least, people will be more informed of their right to decline to consent.

Meet force with force: FL’s new self-defense statute – II

Update: Jeff Spivack has provided a link to a great website that has an excellent analysis of this law. Here is an excerpt:

Another interesting facet of the law is that persons who appear to be validly relying on the law, are supposedly "immune" from criminal prosecution and arrest unless and until "probable cause" exists to believe that the use of force was not legal. How that provision will work out in reality is anyone’s guess. It will probably be an issue litigated in the courts for years to come. The final benefit, which is really an empty shell: It allegedly awards attorney fees, lost income, and all expenses of defending any civil action to any person sued because of their use of defensive force who is found to be "immune" in the civil case. As a practical matter, this provision will be useless. I’ll explain why later in this article.

As to the other areas of the bill, it’s hard to say how much value they’ll have because the Legislature didn’t really think them through. Let’s do a little analysis on that:

The presumption that the person breaking in the residence/vehicle is doing merely an "unlawful act" involving "force or violence" falls far short of the required legal standard of a "forcible felony" as a predicate to any use of deadly force. A forcible felony allows deadly force as a response where the defender "reasonably believes" the force was "necessary" to stop the forcible felony – an "unlawful act with force" can merely be a misdemeanor such as battery or trespass, and the Legislature really screwed up on choosing this language.

The alleged "immunity" against arrest is probably an illusion.  Although the law says law enforcement "may use standard procedures for investigating the use of force", and shall not arrest unless they first determine that probable cause for the unlawful use of force exists – the problem is that there are no "standard procedures" for investigation, and more importantly, there is no requirement that a reasonable investigation of the lawful use of force "shall first be made before any determination of probable cause is valid". Furthermore, the phrase "may use" means law enforcement can still ignore standard procedures, and do only a bare bones job of investigation – which, unfortunately, many departments follow. The law also leaves in place other easier methods of arrest under Florida Statute 901.15, which only require probable cause of a lesser crime. Thus, the "immunity" section of the law will likely have no enforcement value before the courts, and get little respect from the police.

Original post: After my post on Florida’s new self-defense statute, I have received a number of extremely interesting and well thought out comments. These comments provide a different point of view, one from a Florida law enforcement officer, and worth a read. Commenter "Jeff Spivak" helpfully lists "non-forcible felonies" in Florida:

In Florida, non-forcible felonies include, but are certainly not limited to: Perjury; Bigamy; Fraud; Procuring person under age of 18 for prostitution; Deriving support from the proceeds of prostitution; Sale, manufacture, delivery or possession with intent of controlled substances or counterfeit controlled substances; Making or having instruments and material for counterfeiting driver’s licenses or identification cards; Dealing in stolen property; Forgery, Counterfeiting, and related crimes; Grand Theft (without the use or threat of violence). And many, many others. Note: the prostitution related crimes CAN be forcible under conditions when violence or threats of violence are used.

So I’m assuming all others are forcible. I agree that the example I used (purse-snatcher) is not really conducive to a discussion of the "prevent a forcible felony" prong of this new self-defense statute. But it does point out the inherent problem – subjectivity. For long, the determination of reasonable subjectivity has been the realm of the jury. This statute – and this is my biggest problem with the bill – takes that away and leaves it up to …. no one. Despite the thoughtful comments, I still don’t have an answer to the immunity problem. Who decides immunity – or rather, who grants it? If there is someone who makes that determination, how do they do it? Is there an arrest first? Clearly not – since the statute prohibits that. Then what? Is the police officer on the scene the one to make a determination of immunity? The statute doesn’t grant that authority – and I’d have serious constitutional problems with that as well.

But again, please read those comments.