Category Archives: death penalty

About that Scalia quote on executing the innocent

After the news of Justice Scalia’s death broke and people eulogized him and hated him and politicized him, one quote attributed to him started making the rounds of Twitter and thinkpieces. It was this:

Mere factual innocence is no reason not to carry out a death sentence properly reached

What an offensive, horrible thing to say! Reality, of course, is that he did not say that. It reached such Urban Legend proportions that Snopes quickly intervened, debunking that he wrote those words.

What he did say, in a concurrence to Herrera v. Collins was:

We granted certiorari on the question whether it violates due process or constitutes cruel and unusual punishment for a State to execute a person who, having been convicted of murder after a full and fair trial, later alleges that newly discovered evidence shows him to be “actually innocent.”

I would have preferred to decide that question, particularly since, as the Court’s discussion shows, it is perfectly clear what the answer is: There is no basis in text, tradition, or even in contemporary practice (if that were enough), for finding in the Constitution a right to demand judicial consideration of newly discovered evidence of innocence brought forward after conviction.

In saying that such a right exists, the dissenters apply nothing but their personal opinions to invalidate the rules of more than two thirds of the States, and a Federal Rule of Criminal Procedure for which this Court itself is responsible.

If the system that has been in place for 200 years (and remains widely approved) “shocks” the dissenters’ consciences, post, at 1, perhaps they should doubt the calibration of their consciences, or, better still, the usefulness of “conscience shocking” as a legal test.

I nonetheless join the entirety of the Court’s opinion,including the final portion (pages 26-28)–because there is no legal error in deciding a case by assuming arguendo that an asserted constitutional right exists, and because I can understand, or at least am accustomed to, the reluctance of the present Court to admit publicly that Our Perfect Constitution [n.1] lets stand any injustice, much less the execution of an innocent man who has received, though to no avail, all the process that our society has traditionally deemed adequate. With any luck, we shall avoid ever having to face this embarrassing question again, since it is improbable that evidence of innocence as convincing as today’s opinion requires would fail to produce an executive pardon.

In other words, in Scalia’s opinion, our Constitution would let stand the execution of an innocent man who has received all the due process our society deems adequate and there is nothing that Federal courts can or should do to stop such an execution.

He didn’t say what’s being attributed to him; he said something far worse.


In news that should surprise no one

Ohio’s death penalty is racist and sexist:

[Frank Baumgartner, a University of North Carolina political science professor] looked at Ohio’s 53 executions between 1999 and 2014, finding “significant and troubling racial, gender, and geographic disparities with regards to who is executed in Ohio.” Baumgartner concluded that the victim’s race and gender, and the county where the murder occurred, influenced whether or not the killer was executed.

The study [PDF] found in 65 percent of all executions the murder victim was white. However, overall only 43 percent of all victims are white. In addition, murderers of white females are six times more likely to be executed than those who kill black males.

Just four counties, Cuyahoga, Hamilton, Lucas and Summit, are responsible half of all executions. There are 69 of 88 counties where no one has been executed.

Hamilton County’s execution rate is almost nine times that of Franklin County.

Of course, Connecticut has its own racial and geographic disparity in the death penalty, an issue that was highlighted in a concurring opinion [PDF] in the case that (for now) ended the state’s death penalty.

Abolition of the death penalty is not a judicial “contrivance”

There’s been a lot of commentary about the abolition of the death penalty in Connecticut since State v. Santiago [PDF] was decided last week. Some of it has been interesting and insightful, if a bit of the “shh-don’t-give-them-any-ideas” variety. Some has been predictable and offensive.

A lot of the narrative has been what I call “conservative clickbait” with two themes:

  1. That the court engaged in judicial activism to overrule the clear will of the people of Connecticut, by abolishing death for all death row inmates retroactively, in clear contravention of the 2012 legislation that specifically said ‘prospective only’.
  2. That it is inconceivable that the two “Cheshire killers” will not get death.

I want to point out a few things about both these arguments because they are intellectually dishonest, misleading and dangerous.

First, the notion that a court – the third, independent branch of Government – cannot review and rule on the legality of legislation passed by elected representatives of the people was dispensed with in 1803 in Marbury v. Madison. It is an idiotic notion and anyone who espouses that should immediately have conveyed to you their utter stupidity. So the further question, then, is whether the judiciary must give deference to the legislature which has decided what is a crime and what are the punishments for those crimes. This is the argument raised by the Chief Justice’s dissent, which is quoted by many in support of their “judicial overreaching” argument.

This is also fallacious. Courts routinely decide whether a law is too vague, or whether the punishment exceeds constitutional bounds, like, say, execution of the mentally retarded, or of juveniles, or life without parole for juveniles, or criminalizing sodomy or making it illegal to marry a person of another race, or of the same sex.

This is precisely the function of a court: to review the laws passed by elected representatives and decide if they comport with due process and other constitutional guarantees, such as the prohibition against cruel and unusual punishments. The judiciary has this independent function to serve as a check against the oppressive power of a majority. Our history is all too littered with examples of a majority imposing its moral will on a minority through the legislative process.

In fact, this is precisely what the Connecticut Supreme Court majority did in Santiago. But first what it didn’t do: it didn’t rule that the death penalty itself is unconstitutional. It specifically stated that if the people of Connecticut wanted to amend the Constitution to state that our evolving standards of decency will always encompass the punishment of death, then we are free to do so.

What it said was that the prospective abolition of the death penalty in 2012 was the straw that broke the camel’s back. It is the the last sign needed to conclude that Connecticut no longer considers the death penalty a legitimate punishment. While the repeal law was the catalyst, it was not the sole factor.

For instance, Connecticut had been trending towards abolition since the mid-2000s.

In 2003, a Quinnipiac University poll found that 47% of CT voters favored death and 46% favored life.

In 2005, a QU poll found that CT voters favored life by a margin of 49-37%.

And then Cheshire happened. Two of the most notorious killers in CT brutally tortured and murdered almost an entire family. It was horrible and set off a shockwave of profound effects in the CT criminal justice system.

Yet. In November 2007, that same year, a QU poll found that CT voters were essentially split 47-44 between death and life.

In 2009, the Connecticut legislature abolished the death penalty. Remember that? Governor Rell vetoed it.

And yet, in 2010, a QU poll found that CT voters were still split between death and life, 46-41%.

In 2011, abolition came by again and this time it was defeated by two legislators, Edith Prague and Andrew Maynard, both self-proclaimed fervent abolitionists, who both could not bear to see the Cheshire killers live and thus they killed abolition.

And yet, despite all of that hoopla, in 2011 a QU poll found that CT voters hadn’t budged much on the death penalty: 48-43.

In 2012, abolition came for a third time and this time it stayed. A QU poll found that CT voters were now exactly split on death vs. life: 46-46%, a bit of an upward trend for life.

And even the abolition that came in 2012 was a compromise. It was abundantly clear to everyone who watched the proceedings that prospective abolition was the consolation prize. We were settling for this because no one wanted to be seen publicly agreeing to give the Cheshire killers life.

To anyone following the course of abolition in Connecticut, there is no doubt that if Cheshire had not happened, the death penalty would’ve been abolished in 2007 or 2009. And no one would’ve cared.

This – not the 2012 law alone – is what leads the supreme court to conclude that we just don’t have the appetite for death anymore in Connecticut. That we have determined, through the legislature, that death is not a viable option anymore.

And if it cannot be a viable option going forward, then how can we say that we will still execute people? If the death penalty is no longer a valid punishment, then it is no longer a valid punishment for everyone. If we will not execute anyone because the death penalty is barbaric, or fraught with problems, or irreversible, or too costly, or morally repugnant, or a waste of time and money or overrun with racial and geographic bias, then that argument holds true regardless of the date of the offense. Because it is to the time of punishment that we look in determining if we have the stomach for executions.

That time is now and we don’t. Frankly, Connecticut never has had the stomach for executions. The last two have been volunteers and they’ve been the only two in over half a century.

It would have been judicial contrivance to say that the will of the people magically changed on that night in April 2012 and that from that day onwards and only onwards, would we have evolved to the point of disfavoring death.

Either Connecticut no longer imposes the death penalty or it does. We can’t do it for some and not others, where that distinction isn’t based on the acts or the individual but rather the date of the crime.

But really, this is about the Cheshire killers and our collective desire to see them dead. While Connecticut voters’ enthusiasm for the death penalty waxed and waned and ebbed and flowed, there really was an overwhelming consensus that the Cheshire killers be put to death. Voters wanted them executed by 4-1 margins.

Abolition bills were vetoed and nixed because of those two.

And yet, that is precisely why retaining the death penalty is a dangerous idea. To pin the veto of repeal or the reason for suddenly voting against abolition after being an abolitionist for most of one’s life on the desire to see those two individuals executed comes awfully close to a bill of attainder. That should frighten everyone.

Bills of Attainder, of course, were acts of the legislature that targeted specific groups of people and punished them. They are unconstitutional everywhere in this country and rightfully so because they are, in effect, the government singling out a few individuals because of who they are, not what they did.

To permit the death penalty to continue as a viable punishment solely because we want to execute those two – and, seriously, no one knows the other death row inhabitants or their victims, which is disgusting and insulting on its own – should be a notion that wakes the libertarian hiding inside each one of us.

The supreme court did what was squarely within its power to do. The death penalty is a contentious, moral issue, which is debated while seated on the corpses of the dead. It should be treated with the solemnity it deserves. To accuse the justices of neglecting the law to achieve a personal goal – activism – is to insult the profound questions we grapple with and demean our convictions that society must always evolve to be more humane and more decent.

There is no greater embodiment of this idea than Justice Palmer himself. Justice Palmer, who wrote the majority opinion, has voted to retain the death penalty every single time since he joined the bench. By my rough count, he’s had more than a few opportunities since 1993 to pen an opinion finding the death penalty unconstitutional. Rather, up until 2015, Justice Palmer had only said that the death penalty was not violative of the Constitution. To say that he flipped his vote out of judicial activism is to put political theater over the reality of coming to terms with a difficult but logical evolution in how we wish our society to be.

From this day forward, [we] no longer shall tinker with the machinery of death

Three years and four months ago, Connecticut abolished the imposition of the harshest penalty – death – for any offense, no matter how severe. There was one caveat, however. Those who already were sentenced to death remained so. In what was pretty blatantly an attempt to assuage those who felt uncomfortable voting to give life to two of Connecticut’s most notorious killers, the abolition was prospective only, with the fight for full repeal left to the courts.

Two years after a full panel of the state Supreme Court heard oral arguments on whether every person on death row should be spared death, it issued a contentious ruling [pdf] declaring, in the words of Justice Blackmun, that this State would no longer tinker with the machinery of death.

Everything that I can say about repeal I’ve said before. I have no flowery words, no eloquent statements about our humanity, no odes to civilized existence. The horrible deed of murder in cold blood that we’ve been engaging in for 400 years is done. There is a grim memory of those who have been executed, right or wrongly, and those who have been killed at the hands of the executed.

But that is not to say that we must not remind ourselves that this was the correct decision – the only decision – to be made as we enter the middle half of the second decade of this century. For that, I turn to Justice Blackmun’s infamous dissent in Callins v. Collins, from which the title of this post comes:

Within days, or perhaps hours, the memory of Callins will begin to fade. The wheels of justice will churn again, and somewhere, another jury or another judge will have the unenviable task of determining whether some human being is to live or die.

We hope, of course, that the defendant whose life is at risk will be represented by competent counsel — someone who is inspired by the awareness that a less than vigorous defense truly could have fatal consequences for the defendant.

We hope that the attorney will investigate all aspects of the case, follow all evidentiary and procedural rules, and appear before a judge who is still committed to the protection of defendants’ rights — even now, as the prospect of meaningful judicial oversight has diminished.

In the same vein, we hope that the prosecution, in urging the penalty of death, will have exercised its discretion wisely, free from bias, prejudice, or political motive, and will be humbled, rather than emboldened, by the awesome authority conferred by the State.

On their face, these goals of individual fairness, reasonable consistency, and absence of error appear to be attainable: Courts are in the very business of erecting procedural devices from which fair, equitable, and reliable outcomes are presumed to flow.

Yet, in the death penalty area, this Court, in my view, has engaged in a futile effort to balance these constitutional demands, and now is retreating not only from the Furman promise of consistency and rationality, but from the requirement of individualized sentencing as well.

Having virtually conceded that both fairness and rationality cannot be achieved in the administration of the death penalty, see McCleskey v. Kemp, 481 U. S. 279, 313, n. 37 (1987), the Court has chosen to deregulate the entire enterprise, replacing, it would seem, substantive constitutional requirements with mere esthetics, and abdicating its statutorily and constitutionally imposed duty to provide meaningful judicial oversight to the administration of death by the States.

and thus

From this day forward, I no longer shall tinker with the machinery of death.

So say we all.

Tsarnaev: a hearing in futility and the neverending charade


Just when you thought that the window-into-the-criminal-justice-system’s-foibles that the Tsarnaev case couldn’t get any window-into-the-criminal-justice-system’s-foibles-ier, the First Circuit ups and practically shoves an opinion in our faces that screams “CHARADE! CAN YOU SEE IT? THIS IS A SCAM!”

You might remember from my earlier posts that after being denied a change of venue three times, Tsarnaev filed a second Writ of Mandamus in the 1st Circuit, asking them to stay jury selection and move the trial to another jurisdiction. The 1st Circuit finally ruled [PDF]. The headlines will be: “First Circuit grants argument in venue change!”

The reality is that they’ve already told you how they’re going to rule.

In addition to the Second Petition, three motions are pending before this court. First, petitioner seeks a stay of jury selection in the district court, which the government has opposed. Petitioner’s motion to stay is denied as without merit by two judges of this court.

The First Circuit will listen to arguments on whether the jury selection and the whole trial should be moved to another jurisdiction one week from today but they won’t stop jury selection until then. We don’t know how many jurors will be questioned between now and then and if enough will be accepted to seat a whole jury.

Do you really think that next week, the First Circuit is suddenly going to say that, yes, of course, the trial should be moved? Absolutely no chance at all of that happening1.

So why are they granting a hearing in the first place? It seems because they have to:

Our concurring and dissenting colleague has requested oral argument and argument may be granted at the request of a single judge. Accordingly, we will hear argument on the Second Petition on February 19, 2015, at 10:00 a.m.

The panel that issued this order consists of three judges. Out of the three, only one would have granted the stay of jury selection and only one wants to hear oral argument on whether the case should be moved. The lone dissenting judge is Juan Torruella, all of 81 years and a Reagan appointee. He makes the rather obvious point that if a hearing is to be conducted next week on whether the case should be moved elsewhere, then wouldn’t it make sense to halt jury selection until then?

So how do you think the other two will vote come next Thursday? I don’t think Judge O’Toole is worried.

Then there’s also the charade of dancing around the very heart of the matter that’s at the core of this motion for change of venue. Both parties are not allowed to reference items that are sealed below. This means that they cannot reference, in open court, the responses of jurors to questions or to the questionnaire that call into question the ability of Tsarnaev to have a fair trial in Boston.

Judge Torruella again:

Second, while I agree with the order as to the time, place, and length of the hearing, as well as the briefing schedule, I disagree with the restrictions placed upon it by virtue of the sealing order. It will be quite an interesting hearing since the parties will be forbidden from discussing the details of facts directly at the heart of the issue presented: whether the answers given during the jury selection process have demonstrated that the jury pool is so tainted and prejudiced that it is impossible for the Defendant to receive a fair trial.

At 81, he’s no fool. He sees this for what it is: a pro-forma hearing with a foregone conclusion. The First Circuit seems to have made up its mind: this trial will happen in Boston, regardless of how fair the jurors are and at the exclusion of the press and the public if need be.

This is justice in America. Some have called it a Kangaroo Court. I call it Thursday.

  1. I suppose one never says never, but this is as unlikely as a koala giving birth to a caterpillar.

It depends on what you mean by a fair trial (updated)

Both the Federal Constitution and the state constitution provide every person with several rights when it comes to the kind of trial that he or she deserves: there is a right to a public trial1, a right to a fair trial2 and a right to a trial by an impartial jury3.

Concurrently, the public and the press have a First Amendment right of access to courts and to trials4. These rights combine to form a “presumption of openness”5 and access to courts and judicial documents.

The core value of this right to a public trial is:

Public monitoring of the judicial process through open court proceedings and records enhances confidence in the judicial system by ensuring that justice is administered equitably and in accordance with established procedures.

“[T]he bright light cast upon the judicial process by public observation diminishes the possibilities for injustice, incompetence, perjury and fraud. Furthermore, the very openness of the process should provide the public with a more complete understanding of the judicial system and a better perception of its fairness.”

Rosado v. Bridgeport Roman Catholic Diocesan Corp.

An impartial jury is one which comes into a trial without any preconceived notions and can put aside whatever biases they may have formed and decide the case based on the evidence presented to it. Just because jurors have been exposed to news coverage doesn’t mean that the defendant is deprived of due process6. Jurors are not required to be “totally ignorant of the facts and issues involved” and prominence does not necessarily produce prejudice, and juror impartiality does not require ignorance7.

Sometimes, however, these core rights are at loggerheads. This is when the public’s right of access and the media’s right to report on court proceedings creates an atmosphere of publicity in which it is impossible to find and seat impartial jurors. This happens in high profile cases where there is such extensive media coverage with inflammatory information and facts that create irreversible biases among potential jurors. In a case like that, the defendant need not prove that each potential juror is actually biased against him, but whether the pretrial publicity constitutes an “extreme circumstance where there has been inherently prejudicial publicity such as to make the possibility of prejudice highly likely or almost unavoidable.”8 Since this would be done pretrial, most defendants would seek to have the trial moved to another location where there isn’t such publicity, or wait a long time for the prejudice to abate.

This Constitutional lesson is currently being enacted for the American public in Boston, where Dzokhar Tsarnaev is being tried in a capital case for the Boston Marathon bombings.

That there is immense pretrial publicity in this case is undeniable. The Boston bombing was the top MA story of 2014. This has already prompted Tsarnaev’s lawyers to file three motions for change of venue. [UpdateThe first two were rejected All three have now been rejected [PDF] as was a subsequent Writ of Mandamus filed in the 1st Circuit Court of Appeals [pdf] which that court denied [PDF].9 This is because courts like to think that jury selection can weed out the partial jurors and uncover those hidden gems who can profess to be impartial. In fact, it’s one of the minimization mechanisms required as an alternative to a change of venue.10

It is with that in mind that it seems the district judge and the court of appeals denied Tsarnaev’s first attempts at changing venue.

Then came jury selection, which has been an unmitigated disaster. According to his third Motion for Change of Venue [PDF] and his Second Writ of Mandamus [PDF], juror questionnaires and jury selection have uncovered irreparable biases:

[A]n extraordinary 85 percent of the prospective jurors either believe Mr. Tsarnaev is guilty, or have some self-identified “connection” to the case, or both.

Fully 68 percent of prospective jurors already believe that Mr. Tsarnaev is guilty, before hearing a single witness or examining a shred of evidence at trial.

Even more striking, 69 percent of prospective jurors have a self identified connection or expressed allegiance to the people, places, and/or events at issue in the case. Stronger support for a finding of presumed prejudice in Boston is difficult to imagine, and the existing record precludes a fair trial in Boston.

The news media has done an equally impressive job of documenting the utter futility of seeking impartial jurors and the investigations of potential jurors’ social media accounts have uncovered biases that may have otherwise remained hidden. In fact, a new poll published today in the Boston Globe reveals that almost 90% of people think he is guilty or probably guilty.


11 days of selection have passed, 142 jurors have been questioned and we still don’t know how many, if any, have been selected11.

The First Circuit ordered the Government to respond to Tsarnaev’s Writ today. Whether it rules today and in what direction remains to be seen, but all of this does raise the question:

What do we really mean by a fair trial? Given the juror responses and the polls conducted, it seems obvious that everyone thinks Tsarnaev is guilty. Then why are we persisting with this charade in Boston? Our rules of law require that a decision be made only on the basis of the evidence presented in court. Yet if this trial is permitted to remain in Boston it will become clear that what we mean by “Fair Trial” is merely an “appearance of a fair trial” without regard to reality. Fair trial would mean “a fair trial to the extent that we can provide one under the circumstances”. The right decision here would be to move the trial but can we get past the legalese and make that difficult decision?12 Or is it going to be “good enough” for us to say that “well, we know he’s really, really guilty, so seriously, c’mon guys, the Constitution doesn’t count here”?

The Tsarnaev case has already once delivered a beating to a core Constitutional right. Will there be a second?

  1. Sixth Amendment to the United States Constitution provides: In all criminal prosecutions, the accused shall enjoy the right to a … public trial.” Article 1, Section 8 of the Connecticut Constitution, as amended by Article XVII of the amendments to the Constitution, provides: “The accused shall have a right … in all prosecutions by information, to a speedy, public trial by an impartial jury.”
  2. State v. Crafts.
  3. Skilling v. United States.
  4. Press-Enterprise.
  5. Nixon v. Warner Comm’n.
  6. Murphy v. Florida.
  7. Irvin v. Dowd.
  8. State v. Marra.
  9. The Second Writ of Mandamus is still pending before the 1st Circuit.
  10. State v. Marra; U.S. v. Sabhnani.
  11. This is because the judge has decided to keep secret the actual selection or removal of jurors and challenges for cause, another First Amendment violation that requires a separate post. The Boston Globe has challenged this here (PDF) and there’s still no hearing or ruling.
  12. This might also explain the trial judge’s ludicrous dismissal of the presumption of innocence.

Death by any means

It’s bad enough that the duty of prosecutors to disclose and give to the accused any exculpatory and impeachment evidence is entirely self-regulated. It’s quite another when prosecutors flout that requirement to obtain convictions while hiding behind the quickly falling veil of justice. It’s worse yet when they intentionally hide evidence in a case in which they are seeking to murder the accused.

This may sound familiar to you and that’s because I wrote back in February about Virginia prosecutors and their quest to kill Justin Wolfe. If only this were a follow-up to that post. It is not. This is yet another instance of prosecutorial hide-the-ball in a death penalty case, this time from Colorado in the case of Sir Mario Owens1.

Determined to demonstrate just how far he believed Arapahoe County prosecutors had strayed over the line in the effort to obtain the death penalty against his client, defense attorney Jim Castle resorted to a visual aid. During a hearing late Friday, he presented District Judge Gerald Rafferty with a wheeled cart piled with documents that he said prosecutors were obligated to turn over to the defense before trial but failed to do so — a transgression of due-process rights known as a Brady violation.

“There are so many violations in this case, I can’t cover them all,” Castle said. “How did this happen? This shouldn’t happen. If it’s allowed, we will accept a new low for justice in Colorado.”

I’m not going to go into a long-winded rant about the injustice of this. I’ll just let you see how outrageous it is.

  • [Co-defendant] Robert Ray’s wife, LaToya Sailor, testified that she wasn’t willing to come forward about what she knew until after Owens was arrested because she feared Owens would harm her son. Despite the fact that police documents indicate Sailor was already cooperating with authorities prior to Owens’ arrest, prosecutors made her supposed need to be protected from Owens “an issue in the case” and hammered away at it to the jury.
  • Another document withheld from the defense indicated Sailor, the beneficiary of a car from then-District Attorney Carol Chambers, had initially offered to assist in an accessory case against Ray but didn’t want to tie him directly to the Marshall-Fields shooting. (Ray was sentenced to death for Marshall-Fields’s murder and received a life sentence for Wolfe’s death.)
  • Witness Jamar Johnson was facing two counts of conspiracy to commit murder if he failed to cooperate in the Ray-Owens prosecution, but defense attorneys weren’t made aware of that possible motivation or how it might have shaped his testimony.
  • Greg Strickland, the only witness to identify Owens as the shooter of Marshall-Fields and Wolfe, testified that he’d received no assistance in any of his own cases in return for his testimony. But records indicate he received a plea deal in Adams County in exchange for his cooperation.

Some prosecutors take the position that if they don’t ask or know about information that would tend to prove the accused’s innocence, then they don’t have to abide by the Constitution. DA Carol Chambers apparently subscribed to that school of thought, because this isn’t the first case in which her ethics were called into question.

It is precisely this blood-lust that leads to a convict-at-all-costs attitude. And when the priority is a conviction, it is justice that dies.

  1. Yes, apparently his name is Sir Mario