Death penalty trials are long, torturous, gut-wrenching affairs. On one side, there is the loss of lives – often several – and the demand for vengeance, often cloaked in the garb of “justice”. On the other, there is the begging for life, the pleas for humanity, often in the garb of psychological mitigation.
Through it all, though, it’s just an ugly dance. Is there nothing redeeming about this particular individual that we, as society, should deign to let him live the rest of his life in complete isolation, to deal with the horrors of what he has done.
In most death penalty cases, guilt is a foregone conclusion. What matters is the penalty phase of proceedings: the battle to show that there is yet reason to show mercy. These battles often pit the most gruesome details of the crime in question and moral indignation against the inner workings of a severely compromised human brain. It is an odd juxtaposition of emotion and science. Emotion, of course, is unchallengeable and entirely personal. Science, on the other hand, has limits and is bound by the dictates of what exists and doesn’t. Either someone is suffering from a psychological disorder and was unable to conform his actions to society’s rules, or wasn’t.
So if you’re the prosecutor, what’s the simplest way to ensure that the penalty phase contest isn’t a contest at all and merely a walkover? Convince a judge to deny the defense funds to hire a psychologist, that’s how. In a death penalty case, this actually happened. Yes, in America.
Vanderburgh County Prosecutor Stan Levco has filed the paperwork to seek the death penalty if Weisheit is convicted. At a hearing before Clark Circuit Court Judge Daniel Moore on Thursday, Levco objected to the defense’s request for a psychologist on several grounds.
“What they asked for would essentially give them a blank check,” he said. “I also objected because the defense still hasn’t decided whether or not to file an insanity defense.”
However, Moore did stipulate that Weisheit’s defense could hire a psychologist to work on the case through Nov. 30, Levco said. He also set a Dec. 10 date for the defense to file an insanity plea if they decide to do so.
This Court has long recognized that when a State brings its judicial power to bear on an indigent defendant in a criminal proceeding, it must take steps to assure that the defendant has a fair opportunity to present his defense. This elementary principle, grounded in significant part on the Fourteenth Amendment’s due process guarantee of fundamental fairness, derives from the belief that justice cannot be equal where, simply as a result of his poverty, a defendant is denied the opportunity to participate meaningfully in a judicial proceeding in which his liberty is at stake.
Without a psychiatrist’s assistance, the defendant cannot offer a well-informed expert’s opposing view, and thereby loses a significant opportunity to raise in the jurors’ minds questions about the State’s proof of an aggravating factor. In such a circumstance, where the consequence of error is so great, the relevance of responsive psychiatric testimony so evident, and the burden on the State so slim, due process requires access to a psychiatric examination on relevant issues, to the testimony of the psychiatrist, and to assistance in preparation at the sentencing phase.
The mitigating evidence counsel failed to discover and present in this case is powerful. As Selvog reported based on his conversations with Wiggins and members of his family, see Reply Brief for Petitioner 18-19, Wiggins experienced severe privation and abuse in the first six years of his life while in the custody of his alcoholic, absentee mother. He suffered physical torment, sexual molestation, and repeated rape during his subsequent years in foster care. The time Wiggins spent homeless, along with his diminished mental capacities, further augment his mitigation case. Petitioner thus has the kind of troubled history we have declared relevant to assessing a defendant’s moral culpability. Penry v. Lynaugh, 492 U. S. 302, 319 (1989) (“`[E]vidence about the defendant’s background and character is relevant because of the belief, long held by this society, that defendants who commit criminal acts that are attributable to a disadvantaged background . . . may be less culpable than defendants who have no such excuse’”); see also Eddings v. Oklahoma, 455 U. S. 104, 112 (1982) (noting that consideration of the offender’s life history is a “`part of the process of inflicting the penalty of death’”); Lockett v. Ohio, 438 U. S. 586, 604 (1978) (invalidating Ohio law that did not permit consideration of aspects of a defendant’s background).
Nevermind the stunning irony that it is the prosecutor who chose to pursue the death penalty, thus necessitating this extreme expenditure. It is the State’s right to kill whom it chooses and we’ll be damned if the Constitution or the defense gets in the way. Hamstring the defense’s purse strings and it’s an easy road to the execution chamber.
But this isn’t just about this case for the prosecutor, it’s personal. He’s on a crusade against what he calls “exorbitant defense costs” in death penalty cases. “I feel very strongly about defense death penalty costs”, he says.
Probably because they get in the way of his bloodlust. Whatever it takes, I suppose.
[Update: Thanks to the comments, I see that this is not the first time something like this has occurred in the last two months. Read this August post by Gamso for similar commentary.]
H/T: Karen Franklin
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