Archive for December 12, 2007
Study finds CT’s death penalty racially biased
Dec 12th
Only now is word leaking about the substance of the death penalty challenge that is the subject of tomorrow’s hearing [previous post here]. The seven inmates that are party to the challenge are relying on a study [pdf] by Yale Law School professor, which finds that there is racial disparity and arbitrariness in the way the death penalty is charged and sought in Connecticut.
Yale Law School professor John J. Donohue III, who oversaw the study, said one of the most surprising findings is that the death penalty is often not sought for crimes that are more violent and disturbing than ones where lethal injection is pursued.
“There was basically no rational system to explain who got the death penalty,” Donohue said Tuesday. “It really is about as random a process as you can possibly construct.”
Over the past year, researchers reviewed 207 murder cases dating back to the early 1970s that were eligible for death penalty prosecution. Donohue said 60 percent of the defendants were minorities and 40 percent were white, numbers that conflict with the percentages in the general population.
Among the other findings in Donohue’s 128-page report:
- Black defendants receive death sentences at three times the rate of white defendants in cases where the victims were white.
- Killers of white victims are treated more severely than people who kill minorities, when it comes time to decide the charges.
- Minorities who kill whites receive death sentences at higher rates than minorities who kill minorities.
Of the inmates on death row, four are black, three are white and two are Hispanic.
I’m looking for a copy of this study. If someone has it, please let me know. Here it is.
Sometimes I think the media shouldn’t cover crim justice stories at all
Dec 12th
I’ve said this before and what I heard on the radio today re-affirmed this belief. Sometimes, I think they don’t know what the heck they’re talking about.
One of the topics of discussion on Ray and Diane’s morning show today was tomorrow’s death penalty constitutionality hearings. Right off the bat, they didn’t know when the hearing was being conducted. Diane kept talking about how if she was free this afternoon, she’d go watch. I hope she didn’t. Because it’s tomorrow.
Then, the central theme of their rant was how anyone could think that those on CT’s death row weren’t deserving of the death penalty. Ray decided to read (and re-read) the convictions of those on death row and the reasons for them being there (shot a cop, killed a pregnant woman, etc.).
Yes, I understand. These people are convicted of heinous crimes. I don’t think anyone doubts that the crimes were extremely gruesome and depraved.
But that isn’t the question. Therein lies the problem. It’s not that complicated really, and if you’re going to rant about it for over 30 minutes, then at least make the effort to find out what the claim really is.
Failure no more
Dec 12th
Mark Bennett’s post on the use of the phrase “failure to testify” in jury instructions, which I mentioned in this week’s Jumpstart, has spawned a vibrant discussion in the blawgosphere. Mark initially asked this question:
How is it even conceivable that we should allow a court, when talking to jurors, to describe a defendant’s election not to testify — the exercise of one of the rights that we, as defenders, hold sacred — as a “failure”?
Jamie at Austin Criminal Defense followed up with his own post, Anne got involved and the Great Greenfield has his own comments on this and why defendants should or should not testify. Universally, the defense blawgers agree that this makes them cringe; that the word “failure” connotes something negative (much like the use of the word “victim“).
So, Jamie asks, what is an instruction that will pass muster? He offers:
While a defendant may choose to testify if they so wish, when the State fails to prove any element of the offense beyond a reasonable doubt, it becomes completely unnecessary for a defendant to testify. The State’s case is not any stronger just because the defendant has chosen not to testify in this particular case.
Before I offer my own, I decided to take a look at CT’s jury instruction on the defendant’s “failure” to testify. It states:
The defendant has not testified in this case. An accused person has the option to testify or not to testify at the trial. He is under no obligation to testify. He has a constitutional right not to testify. You must draw no unfavorable inferences from the defendant’s failure to testify.
It seems really good until that last sentence. So have there been challenges to this language? Yep, at least in CT. In State v. Casanova, 255 Conn. 581, 597-601 (2001), the Supreme Court held that ”the charge as a whole . . . was neutral in substance and appropriately guided the jury to a proper verdict,” despite the defendant’s argument that the language ”failure to testify” had a negative connotation. Id., 600.
Understanding that in CT “failure to testify” does not mean anything negative, I offer the following jury instruction in its place:
“Earlier, we talked about the burden of proof. The State bears the burden of proving – beyond a reasonable doubt – that the defendant is guilty of the charges. The defendant has the right to present evidence to rebut those charges. The defendant may choose to do so in several ways: the defendant can present testimony of other witnesses or testify himself. The defendant has an absolute right not to testify. Whether the defendant testifies or not, it does not change the State’s burden of proof one bit. The State still has to prove beyond a reasonable doubt that the defendant is guilty. If the defendant chooses to testify, you will weigh his/her testimony as you would any other witness and determine if it is credible or not. If the defendant chooses not to testify, you will simply consider the evidence presented and determine whether the State has proven guilty beyond a reasonable doubt based on that evidence alone.”
What do you guys think?
Yet more proof that cops are different
Dec 12th
Consider this tale:
Two co-workers, having an affair. They get into a brawl in the parking lot of a bar. The next thing you know, one of them is “seeing stars and has blood pouring down his face and left eye.” On another occasion one “split the head” of the other. On yet another night, one punched, slapped and kicked the other before he left the house. The first person said the other shoved her to the ground in her driveway.
Then you read this tid-bit:
State police investigated the incident as a domestic case but no charges were filed.
Ah, common sense, you say. Two lovers having silly squabbles. Both of them “didn’t want to prosecute”, probably. Let’s sort it out amongst ourselves.
We see this all the time, though, with our clients. A domestic dispute. One beats the other up or they beat each other. Both are injured and both are arrested. Both are needlessly prosecuted, wasting time and money and resources.
Maybe the cops did the right thing this time, you say. Then you discover that the two in the tale are cops.
It all makes sense.
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