The study is remarkable in its breadth and scope; it analyzed 4686 murder cases spanning 34 years to see whether the application of the death penalty was arbitrary in any fashion. The results are telling and a sizeable slap across the face of The Constitution State. The NYT sums up the numbers nicely:

Of those [4686 murders], 205 were death-eligible cases that resulted in some kind of conviction, either through a plea bargain or conviction at trial. The arbitrariness started at the charging level: nearly a third of these death-eligible cases were not charged as capital offenses as they could have been, but as lesser crimes. Sixty-six defendants were convicted of capital murder, 29 went to a hearing for a death sentence, nine death sentences were sustained and one person was executed.

In order to evaluate the arbitrariness of the imposition of the death penalty, Prof. Donohue devised an egregiousness scale and applied it to each case:

It considered four factors: victim suffering (like duration of pain); victim characteristics (like age, vulnerability); defendant’s culpability (motive, intoxication or premeditation); and the number of victims. He enlisted students from two law schools to rate each case (based on fact summaries without revealing the case’s outcome or the race of the defendant or victim) on a scale from 1 to 3 (most egregious) for each of the four factors. The raters also gave each case an overall subjective assessment of egregiousness, from 1 (low) to 5 (high), to ensure that more general reactions could be captured.

The results are either stunning or completely unsurprising, depending on your point of view or naivete. For example, the study completely undermines the most often repeated defense of the death penalty in CT and elsewhere: that it’s reserved for only the “worst of the worst”. As this NYT graphic demonstrates, the study found that only one of the 32 “most egregious” crimes in CT resulted in the imposition of the death penalty. Further, the study found no real disparity in the “egregiousness” of the crimes that resulted in a sentence of LWPOR and the death sentence, thus further underscoring the idea that the death penalty was nothing but arbitrary.

It even supported the vast geographic disparity in Connecticut: a murder in the death penalty capital of CT – Waterbury – was seven times more likely to result in a death sentence than in any other jurisdiction in the State. If the chances of an individual getting a death sentence increase by 700% merely because of the physical location of that crime, then that is the very definition of arbitrary.

The study’s findings also supported those of other nationwide studies that the race of the defendant and the victim play a major role in determining whether the death penalty is imposed:

not only are minority on white murders getting harsher treatment controlling for all of the factors specified above, but this harsher treatment is substantial.  Minority on white murders are charged as capital felonies at a roughly 21 or 22 percentage point higher rate (see columns 2, 3, 5, and 6 in row 2 of Table 22) and receive death sentences at a roughly 4 to 8 percentage point higher rate (see columns 2, 3, 5, and 6 in row 2 of Table 23).  A sense of the importance of these estimated effects can be gained by comparing these effects against the overall charging and sentencing rates.

For instance, the overall rate of capital charging from the data set of 205 death-eligible cases is roughly 67 percent (as indicated in Table 21). Clearly, a 21 or 22 percentage point increase in charging for a racially defined class of crimes is a notably large number.  Similarly, when the overall death sentencing rate in the sample is only 4.4 percent (see Table 21), an elevated death sentencing rate for minority on white crimes on the order of magnitude of 4 to 8 percent is obviously sizeable.

Indeed, the harsher sentencing of minority defendants who kill whites is even greater (proportionally) than the increase in the capital charging rates experienced by this same group.  The proportionally greater death sentencing rate suggests that minority on white murders receive harsher treatment not only by virtue of initial prosecutorial decisions to charge death-eligible cases as capital felonies, although this is clearly one component, but also because of subsequent racially biased decisions of prosecutors and/or judges and juries subsequent to the initial charging decision.

The study is also a delightful read because it takes the counter-study of the State’s expert and rips it to shreds. It cuts through the “rhetoric and unfounded speculations” made by the State’s expert and presents the findings of that study as following:

1.  There are enormous and unexplained geographic disparities.
2.  Death sentences are not confined to the worst murders.
3.  There is gender bias in death sentencing.
4.  There is racial bias in capital outcomes.
5.  There is arbitrariness in the key charging and sentencing decisions of the Connecticut
death penalty system.

That sounds awfully like the State’s expert agrees with the defense expert.

The report concludes as one would expect: with a plea to the court and the legislature to take into account the findings of the study and to do something to fix the problem (or, in my opinion, do away with it entirely). If you read the entire report, it will leave you with no doubt that the death penalty as it stands is unworkable and geographically and racially disparate and that its application is nothing but arbitrary, a clear violation of Furman and the Eight Amendment to the Constitution of the United States. As the legislature heads into its short session in February, it would be wise to look at this report and address the concerns raised by it. Now that that trial is over, perhaps we will talk honestly about the problems created by the death penalty in Connecticut and look seriously to abolition.

[We] have a fundamental belief in fairness and justice – in swift and certain justice. The death penalty as practiced [here] is neither fair nor just; and it is  not swift or certain. It is not applied equally to all. It is a perversion of justice that the single best indicator of who will and will not be executed has nothing to  do with the circumstances of a crime or the findings of a jury. The only factor that determines whether someone sentenced to death [here] is actually executed is that they volunteer. The hard truth is that in the [40 odd] years since [we] reinstated the death penalty, it has only been carried out on [one] volunteer who waived [his] right to appeal.

In the years since [then], many judges, district attorneys, legislators, death penalty proponents and opponents, and victims and their families have agreed that [our] system is broken.

But we have done nothing. We have avoided the question.

And during that time, a growing number of states have reconsidered their approach to capital punishment given public concern, evidence of wrongful convictions, the unequal application of the law, the expense of the process and other issues.

It goes on and on. Sadly, while the debates and the struggles and the arguments are the same, the State is not Connecticut, but rather Oregon, and the above is not an excerpt from a speech of Governor Malloy, but rather from a remarkable statement [PDF] made by Governor Kitzhaber in explaining his decision to impose a moratorium on executions in Oregon. Compare the solemn eloquence of Kitzhaber’s statement with the barbaric vengeance that spewed forth from the mouth of Edith Prague. The former is replete with compassion and realism, while the latter is devoid of any intellectual honesty.

Is there any wonder that we still seek and pursue the death penalty here in Connecticut? What more could highlight the arbitrariness of the death penalty when the same argument is utilized by Kitzhaber to justify his moratorium and by the Connecticut Supreme Court to continue to sanction this ghastly punishment [PDF]:

And while it may be convenient to blame lengthy and expensive death penalty trials and appeals on inmates “working the system,” the truth is courts (and  society) continue to reinterpret when, how and under what circumstances it is acceptable for the state to kill someone. Over time, those options are narrowing.  Courts are applying stricter standards and continually raising the bar for prosecuting death penalty cases. Consider that it was only six years ago  that the U.S. Supreme Court reversed itself and held that it is unconstitutional to impose capital punishment on those under the age of 18. For a state intent on maintaining a death penalty, the inevitable result will be bigger questions, fewer options and higher costs.

versus:

We recognize that imposition of new death sentences also has declined substantially over the past decade, from 224 in 2000 to 112 in 2010. Death Penalty  Information Center, ‘‘Facts about the Death Penalty,’’ supra, p. 3. Various reasons have been posited for the decline, however, including: the high costs of the  death penalty at a time when state budgets are strained from a weak economy; publicity about convictions overturned due to DNA evidence; a significant drop in rates of violent crime and murder; improved legal representation for capital defendants, including the greater use of mitigation specialists; and the increasingly available option for prosecutors to seek life sentences without the possibility of parole.

Although some of these explanations suggest declining public support for the death penalty because it offends contemporary standards of decency and  morality, others decidedly do not. Because of the ambiguity underlying the decline in new death sentences, that circumstance does not provide compelling  support for abandoning our decisions in Ross and Webb.

The courts and the legislature in Connecticut are engaged in a silly game of kickball and avoidance. We hide behind the cutesy nickname, “the land of steady habits”, when in reality, we are the only state in the entire Northeast to still sanction this punishment. Steady we are, I suppose. Steadily vengeful and regressive.

Says Kitzhaber:

Fourteen years ago, I struggled with the decision to allow an execution to proceed. Over the years I have thought if faced with the same set of circumstances I  would make a different decision. That time has come.

The time has come. Who will have the courage to utter these words and take a different approach?

see end of post for info on this picture

I feel compelled to start, once again, with one of my favorite quotes:

Ammianus Marcellinus relates an anecdote of the Emperor Julian which illustrates the enforcement of this principle in the Roman law. Numerius, the governor of Narbonensis, was on trial before the Emperor, and, contrary to the usage in criminal cases, the trial was public. Numerius contented himself with denying his guilt, and there was not sufficient proof against him. His adversary, Delphidius, “a passionate man,” seeing that the failure of the accusation was inevitable, could not restrain himself, and exclaimed, “Oh, illustrious Cæsar! if it is sufficient to deny, what hereafter will become of the guilty?” to which Julian replied, “If it suffices to accuse, what will become of the innocent?” Rerum Gestarum, L. XVIII, c. 1.

Coffin v. United States. And yet, in these days, I look around and see more of Delphidius than of Caesar. Surely, you have heard of Casey Anthony and the verdict of not guilty rendered in her capital trial, that has sent a million heads spinning and the veins of nearly half the population of the country pumping with boiling blood calling for vengeance and murder.

The appreciation of a system which presumes an individual innocent unless the State can prove guilt beyond a reasonable doubt seems to be shrinking to a select few who make their living in that system. For the rest, the pure exhilaration of having a pre-determined verdict of guilt (and isn’t it always guilt?) announced, confirming their increasingly myopic and monochromatic view of the world is the only expectation.

Do we want a system that protects the individual or do we want a system that confirms our view of the guilt of those arrested? Do we want a system that lifts the substance of the accusation up to the light – and upon finding  it wanting – discards it? Or do we want a system that goes by the smell test? Do we want a system where no one who is arrested is not guilty? Do we want so much to believe in the infallibility of our so-called protectors? Do we want a system that allows us to so easily and hypocritically create an artificial divide between the mob and the mobbed?

Does the system only work when the guilty are convicted and the innocent are acquitted, or does it work when some who may be guilty are nonetheless set free? Does the system work when some who are likely innocent are not?

we are mindful that it may seem unjust to allow a conviction to stand when the evidence on which the conviction rested has been discredited. It must be remembered, however, that, once properly convicted, the petitioners no longer are cloaked in the mantle of the presumption of innocence.

Gould v. Commissioner of Correction, while doing just that. Gould is a case I wrote about some time ago, where a habeas court reversed Gould’s (and his co-defendant Taylor’s) conviction for murder on the grounds that they were actually innocent. From that decision:

“A senseless, cold-blooded, execution style murder was committed in the early morning hours of July 4th, 1993,” Fuger begins. Eugenio Deleon Vega went to his small Fair Haven bodega, La Casa Green, to open shop at 5:08 a.m. “Before the hour of six AM, before he could even arrange the morning newspapers, he was dead.  He had been executed, shot once in the left temple with a projectile from a .38 caliber semiautomatic pistol. These are indisputable facts.”

Fuger sets the scene for his sharp reproof with a blazing sub-header on Page One.

“This case rises and falls on the testimony of Doreen Stiles,” the sub-header reads, quoting New Haven’s Senior Assistant State Attorney James Clark’s words during Taylor and Gould’s 1995 Superior Court trial.

“No truer statement has ever been spoken,” Fuger wrote.

Stiles, a drug-addicted police informant, was the only supposed eyewitness who placed the defendants at the murder scene. DNA evidence found at the murder scene did not match Gould or Taylor. The state’s case rested on Stiles’ testimony, as Clark openly admitted during the trial. Stiles came forward and recanted her statement in 2006, allowing the defendants to open a joint habeas corpus claim of actual innocence, based on new evidence.

It is “crystal clear,” wrote Fuger, “that the sole piece of evidence, the only thread that links George Gould and Ronald Taylor to this senseless murder is the testimony of Doreen Stiles. If this tether breaks, then there is absolutely nothing that implicates these two men.”

“At the trial of the case in 1995, the case rose because Doreen Stiles made that linkage; at the trial of the habeas petition in 2009, the case must fall, once again, based upon the testimony of Doreen Stiles,” Fuger wrote.

The Supreme Court in its desire to so respectfully uphold the notion of finality, trips over itself to make absolutely clear that they seems somewhat squeamish about writing this decision, but in the end, they really have to. They don’t, really. I know it, they know and you should know it too. The verbal gymnastics are impressive:

In sum, the recantations by Stiles and Boyd may demonstrate that there no longer is any credible evidence that the petitioners did commit the crimes of which they were convicted. What the habeas court’s decision lacks is any discussion of affirmative evidence that would prove by clear and convincing evidence that the petitioners did not commit the crimes. We therefore conclude that the habeas court’s judgments must be reversed…

Emphasis added by me to point out the subtle use of words to support their conclusion.

So, if the only testimony which links the defendants to the murder is now discredited, and that’s not enough, then what must someone do to convince a court of their innocence? I’m glad you asked:

First, taking into account both the evidence produced in the original criminal trial and the evidence produced in the habeas hearing, the petitioner must persuade the habeas court by clear and convincing evidence, as that standard is properly understood and applied in  the context of such a claim, that the petitioner is actually innocent of the crime of which he stands convicted. Second, the petitioner  must establish that, after considering all of that evidence and the inferences drawn therefrom, as the habeas court did, no reasonable  fact finder would find the petitioner guilty.

Not only does one have to prove to the system that they affirmatively did not commit this crime, but they also have to prove that a jury would not find them guilty. It isn’t enough, here, that one presents evidence proving that they did not commit the crime – although how that is to be applied as a universal standard is beyond me.

Are we to decide on the innocence of individuals who are caught up in our system based on their their sheer luck that there exists some physical evidence such as DNA that proves they did not commit the crime? Must we require such a circumstance beyond their control? And what do we say to those who are lucky enough to completely undermine the State’s case against them, yet unlucky enough to have no independent corroborative evidence of their “alleged” innocence? Finality trumps innocence? Form over substance? Perhaps.

It really doesn’t come as any surprise, though, to me – and perhaps to you as well – that our rules are such. That there is a bias toward convicting and keeping people convicted. I sit here, day after day, reading as cases and reports of cases come flooding across my line of sight – and every day it’s the same: we love pronouncing judgment on others and love our moral indignation and our self-assumed superiority. We are better. They are guilty. And how dare anyone disagree with us:

A red-haired woman in her 60s who moved to Florida from Michigan, she told the court she worked at a Publix Grocery when she was questioned as a potential juror.

Now, she’s in hiding.

Juror number 12 left Florida. Her husband, fighting back tears, tells NBC News he’s not sure when she’ll return to her home in Florida.

Why? He says she fears half of her co-workers want her head on a platter.

The other may understand what she did, but she didn’t want to face them.

She was due to retire in the fall, but Juror number 12, after being released from sequestration, chose to call her boss to announce she couldn’t come to work. She didn’t feel safe.

She retired over the phone.

The husband, who sat with two NBC News producers, glanced repeatedly at his blood pressure monitor on the coffee table and the Bible next to it.

One day they’ll come for you and there’ll be no one left to speak up for you.

What do we want from our system? A rubber stamp, apparently.

[For an interesting local connection to the image above, see here.]

This case concerns the Sixth Amendment right to a jury trial in capital prosecutions. In Arizona, following a jury adjudication of a defendant’s guilt of first-degree murder, the trial judge, sitting alone, determines the presence or absence of the aggravating factors required by Arizona law for imposition of the death penalty.

In Walton v. Arizona, 497 U. S. 639 (1990), this Court held that Arizona’s sentencing scheme was compatible with the Sixth Amendment because the additional facts found by the judge qualified as sentencing considerations, not as “element[s] of the offense of capital murder.” Id., at 649. Ten years later, however, we decided Apprendi v. New Jersey, 530 U. S. 466 (2000), which held that the Sixth Amendment does not permit a defendant to be “expose[d] . . . to a penalty exceeding the maximum he would receive if punished according to the facts reflected in the jury verdict alone.” Id., at 483. This prescription governs, Apprendi determined, even if the State characterizes the additional findings made by the judge as “sentencing factor[s].” Id., at 492.

Apprendi’s reasoning is irreconcilable with Walton’s holding in this regard, and today we overrule Walton in relevant part. Capital defendants, no less than noncapital defendants, we conclude, are entitled to a jury determination of any fact on which the legislature conditions an increase in their maximum punishment.

In other words, any aggravating factor that exposes the defendant to the sentence of death must be found by a jury, beyond a reasonable doubt. A judge cannot find an aggravating factor that then increases the defendant’s punishment to death.

Florida’s capital sentencing statute (see also) permits exactly that:

(1) A person who has been convicted of a capital felony shall be punished by death if the proceeding held to determine sentence according to the procedure set forth in s. 921.141 results in findings by the court that such person shall be punished by death, otherwise such person shall be punished by life imprisonment and shall be ineligible for parole.

(Emphasis mine). In a Florida capital case, the jury’s recommendation as to death is merely advisory. The court, after receiving the jury’s recommendation, must find the existence of an aggravating factor and determine whether that is outweighed by a mitigating factor and then decide whether to impose the sentence of death.

But this highly convoluted and “advisory” process gets even worse: a capital jury does not have to make specific factual findings. Reviewing courts never know what aggravating or mitigating factors were found. It is possible that some jurors found no aggravating factors, or that each juror found a different aggravating factor or all jurors found aggravating factors but some found they were outweighed by mitigation.

All it takes, in Florida, is a simple majority of jurors to recommend a sentence of death. Once that happens, a separate hearing is conducted in front of the judge only. The state and defense may present additional evidence and then the judge has to find an aggravating factor. Since the judge doesn’t know what aggravating factor the jury may have found, he may find an entirely different factor and not find the existence of the one the jury found!

This is squarely at odds with Ring. Under Ring, a jury – and only a jury – can find beyond a reasonable doubt the existence of an aggravating factor that exposes the defendant to the sentence of death.

What’s even more troubling according to Judge Martinez – and I agree – is that there is no evidence to show that the jury in Evans’ case found the existence of an aggravating factor by even a simple majority. Consider the scenario – as in this case – where the jury voted 9-3 in favor of death. Since we don’t know what aggravating factor was found by whom and how many, it’s possible that 5 jurors found the existence of one aggravating factor and 4 jurors another – both below the number 6, which is just half of the jury. While unanimity is not required, the Court is rightly troubled by the fact that this sentencing scheme can permit a man to be sentenced to death when not even 50% of the jurors agree on an aggravating factor.

In this news article, a (presumably) sitting Florida judge [Judge O.H. Eaton Jr., who offers legal analysis for WESH 2 - heh] opines that the decision affects only Mr. Evans and the effect on Florida’s death penalty as a whole will not be felt for years, if at all:

The judge’s decision in the murder-for-hire case only affects that particular trial. Eaton said Florida’s attorney general may file an appeal with the 11th Circuit Court in Atlanta.Eaton said that if the ruling has any effect on Florida’s death penalty statute, it will not be immediate.”That would be several years down the road,” Eaton said.

Perhaps the good judge missed this from footnote 33:

Here, the Court finds that Ring does apply in Florida and the Florida sentencing statute is unconstitutional.

Don’t even think about asking me what this means for the Casey Anthony trial.

• In what is reminiscent of the plot of an O’Henry short story or an article on snopes.com, a man robs a bank, asking for only $1, so he can be arrested and spend a few years in jail. His logic?

That’s right. James Verone says he has no medical insurance. He has a growth of some sort on his chest, two ruptured disks and a problem with his left foot. He is 59 years old and with no job and a depleted bank account. He thought jail was the best place he could go for medical care and a roof over his head. Verone is hoping for a three-year sentence.

• Connecticut judges agreed to allow cameras in all Judicial District criminal courtrooms starting in January:

Beginning in January, cameras and recording devices will be allowed at criminal court hearings in the state’s 13 judicial districts. Whether a proceeding may be televised or recorded will be up to the discretion of the judge in the courtroom. Cameras will be prohibited from courtrooms in which the proceedings involve a sexual assault or a juvenile defendant.

Connecticut’s Commission on Child Protection – deep in the red – folds and its responsibilities will now be shouldered by the Public Defender’s Office:

The state agency that pays private lawyers to represent poor parents and children in child-protection cases has run up such a gaping deficit and owes the lawyers so much money that the agency has been abolished; its work will be folded into the public defenders’ office starting July 1.

Nearly 200 private lawyers are owed as much as $2.4 million by the Commission on Child Protection – which had overspent its budget by $3.8 million at one point late last year. That was the largest deficit, by percent of budget, of any agency of state government.

Most of the lawyers devote at least 80 percent of their practice to this work, which includes defending parents who face losing custody of their children in neglect cases brought by the Department of Children and Families. The lawyers, who also represent children in court, haven’t been paid since October or November in many cases.

• Yet another story – this time from CA – that reiterates the inordinate cost of the death penalty:

Taxpayers have spent more than $4 billion on capital punishment in California since it was reinstated in 1978, or about $308 million for each of the 13 executions carried out since then, according to a comprehensive analysis of the death penalty’s costs.

The study’s authors, U.S. 9th Circuit Judge Arthur L. Alarcon and Loyola Law School professor Paula M. Mitchell, also forecast that the tab for maintaining the death penalty will climb to $9 billion by 2030, when San Quentin’s death row will have swollen to well over 1,000.

Among their findings to be published next weekin the Loyola of Los Angeles Law Review:

The state’s 714 death row prisoners cost $184 million more per year than those sentenced to life in prison without the possibility of parole.

A death penalty prosecution costs up to 20 times as much as a life-without-parole case.

The least expensive death penalty trial costs $1.1 million more than the most expensive life-without-parole case.

Jury selection in a capital case runs three to four weeks longer and costs $200,000 more than in life-without-parole cases.

The state pays up to $300,000 for attorneys to represent each capital inmate on appeal.

• Police corruption has “forced” prosecutors in the Bay Area to dismiss over 800 criminal prosecutions in the last year:

Bay Area prosecutors have been forced to dismiss more than 800 criminal cases in the past year because of allegations of police corruption that include selling drug evidence, conducting unlawful searches and conspiring to get men drunk and then arrest them on drunk-driving charges.

In some cases, defense lawyers found that security-camera videos in residential hotels—showing police making drug arrests—apparently contradicted the officers’ sworn statements.

In one case, a suspect was seen in a video of his arrest wearing a different jacket from the one the officers entered into evidence.

Last year, the San Francisco district attorney dismissed about 700 criminal cases after a drug crime-lab worker was accused of stealing evidence. This year, since March, the district attorney has dismissed about 125 cases, mainly felony drug prosecutions.

• An interesting opinion from SCOTUS today, in Turner v. Rogers [pdf], holding that while the Constitution does not guarantee the provision of counsel in civil contempt cases where incarceration is a possibility, the Due Process clause mandates certain procedural safeguards before a person may be imprisoned after being held in contempt.

And you say I don’t post anymore.

The parties have not called our attention to any state legislative consideration of the suitability of imposing the death penalty on mentally retarded offenders prior to 1986. In that year, the public reaction to the execution of a mentally retarded murderer in Georgia apparently led to the enactment of the first state statute prohibiting such executions…

Georgia, once at the forefront of radical movements in the criminal justice system, is now floundering at the bottom. Yesterday, the GA Supreme Court upheld [pdf] the constitutionality of a statute that requires defendants to prove beyond a reasonable doubt that they are, in fact, mentally retarded. In a decision that is short on logic or reasoning and long on law-and-order-fed-vengeance, a 6-1 majority relied – I kid you not – on the fact that SCOTUS, in Atkins said nothing negative about GA’s burden of proof. Don’t believe me? Here:

In Atkins, the Supreme Court praised Georgia as being the first state in the nation to have banned the execution of mentally retarded persons, and the Supreme Court made no negative comment about Georgia’s heightened burden of proof, but instead counted Georgia among the states forming the national consensus about the treatment of mentally retarded defendants.

…

Georgia, among other states with heightened standards for defining and proving mental retardation, was counted by the Supreme Court as being part of the national consensus regarding the treatment of mentally retarded defendants, and it seems to us entirely illogical that Georgia could have been a part of the consensus dictating a categorical rule and yet somehow simultaneously in violation of that rule.

(Emphasis in original.) Justice Melton, who authored the 6-1 GA decision, seems to have a massive reading comprehension problem. Atkins was a decision about whether the practice of executing mentally retarded people violated the Constitution, and to that extent the Court’s praise (such as it was) of the Georgia statute was warranted. What the court in Atkins was not deciding was the burden of proof required to find that a defendant is mentally retarded. But it gets worse. Here’s what Justice Stevens wrote:

To the extent there is serious disagreement about the execution of mentally retarded offenders, it is in determining which offenders are in fact retarded. In this case, for instance, the Commonwealth of Virginia disputes that Atkins suffers from mental retardation. Not all people who claim to be mentally retarded will be so impaired as to fall within the range of mentally retarded offenders about whom there is a national consensus. As was our approach in Ford v. Wainwright, 477 U. S. 399 (1986), with regard to insanity, “we leave to the State[s] the task of developing appropriate ways to enforce the constitutional restriction upon [their] execution of sentences.” Id., at 405, 416-417.

Nowhere in Atkins does the Court say that a defendant must prove beyond a reasonable doubt that he is mentally retarded in order to save execution. The paragraph above and its mention of the definition of mental retardation stems from the large number of briefs submitted to the court by psychiatric organizations highlighting that mental retardation isn’t a definite concept that can be given a fixed number. While we may now generally use an IQ range of 70-75 to separate those who are “retarded” from those who aren’t, any reasonably-versed practitioner will tell you that that is not something that can be set in stone. Individuals with an IQ of 80 may well be mentally retarded. In that vein, make sure you read this terrific law review article on the challenges of implementing Atkins. Here’s an excerpt, which highlights the problem:

What is so striking about Atkins is that the Court was persuaded to adopt a per se rule exempting all persons with mental retardation from the death penalty based on diagnosis alone. This is all the more remarkable in light of the fact that the line between being mentally retarded and being of borderline intelligence is operationalized statistically by an admittedly arbitrary line on a bell curve representing performance on an IQ test two standard deviations below the mean. In short, the diagnosis of mental retardation is in large part a statistical construct.

As for Melton’s claim that since they were praised for being on the forefront of this change, they should be allowed to rest on their laurels? The dissent rips it to shreds.

It seems that Georgia is now the only state in the country that requires such an impossible burden. Of the 35 states that impose the death penalty (and thus prohibit the execution of the mentally retarded), 22 require proof by a preponderance of the evidence – a much, much lower standard. Four states require proof by clear and convincing evidence and the three States (*cough*Connecticut*cough*) have not yet articulated the standard, though I would be surprised if it were anything but preponderance here.

The dissent also rightly points out the import of the language in Atkins, that the highest burden of proof needs to be reserved for the determination of factual allegations and scientific diagnoses are by nature more fuzzy. To subject the interpretation of test scores, manifested symptoms and perceived cognitive difficulties to that high standard would only serve to ensure that a mentally retarded individual will be executed, thus clearly violating the Constitution.

Even more puzzling, to me, is the fact that it seems that Georgia has no standard for proving mitigation in capital cases. It seems that juries can decide to recommend a sentence of life for any reason whatsoever. In fact, one of the complaints [pdf] about Georgia’s capital system is that its jury instructions are so poorly crafted that juries are regularly misled: a full 62.2% of jurors surveyed in this study believed that the defense had to prove mitigating factors beyond a reasonable doubt, which is incorrect.

Think about that. Georgia defendants aren’t even required to prove ordinary mitigation factors. A defendant may get up and say “spare me, I’m left handed” and the jury can say “but we saw you writing with your right hand” and still decide, that because he’s left handed, they’ll spare his life. A defendant can claim to be the love child of Amelia Earhart and Britney Spears, and based on that that jury can spare his life. But if the defendant is mentally retarded and thus protected by the Constitution, he must prove it beyond a reasonable doubt?

That’s not only troubling, it is what I call retarded. I think it’s about time Georgia got its own category on this blog.

The website and database are intended to fill a void in current information about the laws and practices relating to the application of the death penalty around the world. There is a great deal of conflicting information about the death penalty, and at times it is difficult to gauge the accuracy of reports one is able to find by searching the web. Although there are many excellent online sources of information relating to death penalty practices around the world—most notably, reports generated by Amnesty International and the database maintained by Hands Off Cain—none of these are devoted to academic and legal analysis of developments in this field. This resource is not intended to supplant those resources, but to supplement them.

The database is the centerpiece of the Death Penalty Worldwide project. It is intended to provide detailed and transparent information regarding the application of the death penalty in law and in practice in every country that retains it.

The database seems very comprehensive and informative, so be sure to poke around the site. You’re bound to learn something new.

Now we have a partial answer: his lawyers filed this motion today (thanks, Courant!) asking the Hon. Judge Blue to interrupt jury selection for three months to allow the torturous image of a man hanging by his penis from a tree on Main Street to fade from the memories of the general public. The motion seeks a continuance of three months for this to happen. It does not request scrubbing Sen. Prague’s mouth with soap. An excerpt:

Her public comments were clearly reckless and undignified for an individual who is a member of the Connecticut legislature and her comments only serve to contribute to the mob mentality. If the senator truly did not care what people think of her reversal, she could have simply announced her reversal in a more responsible manner without need for anatomical reference. It is outrageous that an elected official of the senator’s stature would publicly advocate for public torture and attempt to subvert the judicial process with such sensational remarks.

(Are you paying attention, Connecticut Bar, Connecticut Criminal Defense Lawyers’ Association and CT Network to Abolish the Death Penalty?) This is a valiant effort and the motion includes lots of evocative and motivational language that is sure to rile up Komisarjevsky’s opponents and stir the smoldering embers within the heart of every abolitionist, but ultimately, it is a fool’s errand. Judge Blue is just as likely to grant this request as I am to become the next President of France.

What the motion does, however, is to highlight the inherent difficulty in selecting a jury in a case as inflammatory (pun wholly unintended) as this. It mentions a potential juror, who while being questioned seemed to give all the right answers, but upon being excused, erupted in cries of “Murderer! Asshole!” directed squarely at the defendant. If this were the case prior to Senator Prague’s comments, the motion argues, how are we to prevent the inclusion of such people, now emboldened by an elected official’s animalistic outburst, on this jury of supposed neutral peers?

That’s a rhetorical question.

You can thank me later for not including a picture with this post.

go ahead, tell me he doesn't look like Nino

There’s a reason why the phrase “death is different” was coined: because it is. In many ways, not the least of which is its finality. That irreversible quality and the magnitude of the punishment also renders other aspects of death cases different, namely the resources that are expended and the amount of time that is consumed. Death penalty lawyers often handle a few cases at a time – there are specialized units – and appeals take years to perfect, argue and get decided. Courts have also recognized the need for special treatment: greater number of jurors, repeated extensions of time and the setting of generous page limits for briefs (and when I say generous…I’ve read some that run over a few hundred pages). Post-conviction doesn’t get any better: thanks to the ridiculous rules set in place by AEDPA, state and federal habeas have become the proverbial kitchen sink – and who can blame inmates facing death? You’d want to exhaust every avenue possible and every colorable claim if you were facing the end of your days.

Everyone knows this. Lawyers for the defense, for the state and judges. Which is why this recent spat brewing in Pennsylvania is astonishing. It all started with the PA Supreme Court Chief Justice writing a “concurring” opinion in a capital appeal for one Mr. Spotz. It starts:

I join the majority opinion in its entirety. I write separately to note and address broader issues implicated by the role and performance of federal counsel in purely state court collateral proceedings in capital cases, such as this one.

What follows is a 34-page vituperative rant about perceived sabotage of the death penalty in Pennsylvania. He throws around phrases like “bordering on the perverse” and calling the lawyers’ representation “abusive”. He writes:

The zealous pursuit of what is difficult to view as anything but a political cause: to impede and sabotage the death penalty in Pennsylvania.

It truly is a jaw-dropping example of judicial bullying, coming from the most powerful judge in Pennsylvania. It is not unusual to see snide comments about (almost exclusively) defense counsel thrown into a legal opinion, but to see one entirely devoted to questioning the ethics and professionalism of capital counsel is unheard of.

Because that is precisely what the “concurring” opinion does: it attempts to embarrass and ridicule the defense attorneys whose sole responsibility is to zealous advocacy on behalf of their client – and in capital cases – to prevent the State from killing him.

But nothing I can say will be an adequate response: for that, read the motion filed by the defense attorneys in response to this “concurring” opinion, seeking withdrawal of Castille’s opinion and recusal from another pending capital appeal. After a page or two devoted to the cheeky argument that the “concurring” opinion should be withdrawn because it doesn’t comply with the court’s own rules, the motion moves onto addressing the allegations of the Chief Justice:

The Opinion makes a number unwarranted and unfounded accusations of misconduct against the FCDO and its employees. In this Motion we rebut those accusations, to the  extent that we are able to do so in this forum. Chief Justice Castille’s accusations demonstrate a misperception about the role and responsibility of capital post-conviction  counsel. Those misperceptions will be addressed in section A, below. Chief Justice Castille also makes specific and unfounded assertions about particular actions taken by FCDO personnel. Those will be addressed in section B, below.

The motion is also a refresher course for those who need it – perhaps the Chief Justice among them – in the role of defense counsel and just what zealous advocacy means:

The federal defenders say they are merely doing what they are paid to do: provide the best representation possible. They cannot choose who deserves the best effort, said Leigh M. Skipper, the chief federal defender based in Philadelphia. “We take the cases as we find them. We can’t differentiate between ‘good murderers’ and ‘bad murderers.’ A lawyer has an ethical obligation.”

The lawyers also sharply rejected Castille’s complaints that they nitpick to deliberately clog the court.

“As a lawyer who is appointed to represent someone, we don’t have the luxury of saying, ‘Well, it’s close; we don’t make this argument,’ ” said David Rudovsky, president of the Defender Association of Philadelphia, which oversees public defenders in state and federal courts. “Frivolous claims are in the eye of the beholder,” he said.

You really should take the time to read it, if you haven’t already. It systematically destroys every item “noted” by the Chief Justice and exposes just how specious his arguments were to begin with.

The most relevant portion is that which notes the real impact of this “concurring” opinion: the chilling effect it could have on capital appeals. Certainly, the well-funded federal defender’s office doesn’t represent all the capital defendants in PA, nor even a majority, I suspect. Most of them would be handled by state public defenders or private lawyers paid by the State, who also have to come before the Supreme Court on behalf of other clients. Having the Chief Justice of the Supreme Court put in writing such a negative view of what is required of post-conviction counsel in State proceedings can only hurt the level of representation that is provided capital defendants.

The idea that a supposedly impartial supreme court justice – an umpire who calls balls and strikes, as it were – would take such an unusual interest in capital appeals and attempt to vilify those defending the condemned individual is stunning. I understand efficiency in the courts and docket management and all that nonsense, but this goes above and beyond that. This is a rant from a man who has let his personal feelings on the death penalty affect his impartiality and neutrality in the most serious of cases.

But surely he sees that.

oh, how did this get here?

“They should bypass the trial and take that second animal and hang him by his penis from a tree out in the middle of Main Street,”

State Senator Edith Prague, D-Lots of Places That Are Not Cheshire, CT, who was for the death penalty before she was against it, before she was for it again, but only for one man.

The abolition of the death penalty in Connecticut was already hanging on by the thinnest of wires, thanks to Governor Malloy’s decision to take several Senators into his administration. The vote was a very, very close one. And that was before Sen. Prague’s comments today, after she had a meeting with Dr. He Who Shall Not Be Named, CT’s favorite victim.

But lets be clear: Sen. Prague may not have changed her stance on the death penalty in general – she may very well vote for abolition next time, she magnanimously informs us – but in this one instance, she wants the government of Connecticut to murder a man:

Prague indicated she may still support future efforts to abolish the death penalty but said, this year, she couldn’t look Petit in the face and “not give him something that would make his life a little easier.”

And more:

“I actually believe in repealing the death penalty,” said Prague, a senator for 16 years. “For Dr. Petit, for me to do one more thing to cause him some kind of angst, I can’t do it.”

…

Prague’s voice broke today as she recounted her visit from Petit.

“I can still see Dr. Petit’s face in front of me. Oh, my god in heaven. I’m doing it because that’s what they came in for,” Prague said. “They brought their lawyer and said, ‘If you vote for the repeal, it would make it more difficult.”

And she’s not the only one:

Sen. Andrew Maynard, D-Stonington, who voted for repeal two years ago, said he also has reconsidered as a result of conversations with Petit.

Those who are regular readers know that I am not easily left at a loss for words. To say that these comments left me reeling would be an understatement. So let me state this in terms that should not be misunderstood by anyone: Sen Edith Prague is deciding policy in the State of Connecticut based on the wishes of one man.

She may well be the deciding vote that defeats the abolition bill and she is doing so, not because of some moral opposition to the death penalty, but because one survivor made a personal request to her. And what of the others? Those survivors who are opposed to abolition? Did she even bother to listen to their opinions? Can she look them in the face and make their life easier? Or is their loss not the same? Must we always side with vengeance and “justice” over mercy and compassion? Where do you want to be, at the end?

Connecticut’s capitulation to the person in question is well documented: our former Governor Rell repeatedly invoked his name in defeating criminal justice and death penalty abolition bills. Public opinion polls routinely separate one particular case from the idea in general when asking about the death penalty. And apparently, a majority of Connecticut’s citizens would agree with Sen. Prague.

It is one thing, however, for the general populace to voice such opinions – they should and are entitled to it. It is quite another for an elected representative, who takes an oath, to put aside policy considerations for the specific interest of one individual.

Make no mistake: this is the State of Connecticut explicitly stating that Joshua Komisarjevsky and Steven Hayes are to be murdered. This should trouble you. The machinery of two governmental branches of the State have now maneuvered and conspired to bring about the deaths of two individuals.

If two elected representatives to State Government are so moved by their desire not to “make it more difficult” for this survivor, what chance do 12 members of a jury have?

I offer an analogy – admittedly weak, because nothing can adequately capture the gravity of the State’s decision to murder someone – but nonetheless: If this were not an abolition bill, but a bill to raise taxes and Sen Edith Prague made public comments that while she supports raising taxes and it will benefit the State, one individual from a city not in her jurisdiction came to her and begged her not to, because it would affect him personally, and so she will be voting against raising taxes this time. How hard would you laugh at her?

If the State can so contort itself to train its crosshairs on these two individuals – so explicitly, so blatantly and without any shame – why do you think you’re not next?

I suppose, on balance, an abolitionist might gain some small measure of hope from the fact that these public comments, with their explicit emphasis on the desire to please one individual over greater policy, would make it almost impossible for an appellate court to affirm the death sentence for a man so clearly and publicly marked for death. Upon rumination, however, I do not share that optimism. I have no faith in any of the branches of Government of this State. And they haven’t given me any reason to.

Whether you are for or against the death penalty is, in my opinion, entirely irrelevant to this post. Sen. Prague’s comments and her willingness to cow-tow to the emotional machinations of one individual should put the fear of God in all of us.

Today, we can no longer say that there is a divide between “them” and “us”. Today, Sen. Prague has made us all animals.