The Death Penalty, Back in the News

by Holly Hughes

It’s been a busy week for the death penalty in American jurisprudence.  We seldom hear so much about it from simultaneous corners.  From Texas to Georgia to Connecticut, we have seen it take center stage this week. What I find fascinating are the varied reactions to each of these individuals cases.

Troy Davis was convicted nearly two decades ago for the murder of off-duty police officer Mark MacPhail.  In the ensuing twenty two years since that murder, Davis’ case has been heard by twenty eight different courts, including the Supreme Court of the United States.  His legal team sought clemency from the Georgia State Board of Pardons and Parole Board twice.  Thanks to the advent of social media Troy’s case generated enough attention to collect over 600,000 signatures calling for a stay.  There were protests staged at the Georgia State Capitol Building and the Georgia Diagnostic Classification Prison where Davis’ execution was carried out.  Former Presidents and Popes weighed in.  

A lot of the news coverage stated emphatically that there was no physical evidence.  Other media outlets briefly acknowledged that there was some, ie: the shell casings, which matched  casings from another shooting that Davis had been convicted of.  Much was made about the seven recantations, but little was mentioned about the fact that it took seventeen years for those recantations to occur.

I am not weighing in on the guilt or innocence of Troy Davis.  I have not read the transcripts, nor watched any interviews of witnesses.  I am simply commenting on the fact that most of the reporting on this particular case was inaccurate or incomplete at best.  However, it garnered a lot of attention and gave opponents of the death penalty a great deal of ammunition in their argument against the death penalty.

At the same time, in Texas, another man was scheduled to be, and ultimately was, executed.  We didn’t see this one widely reported.  In fact, it passed relatively unnoticed.  On the very same day that Georgia executed Troy Davis, the State of Texas put to death Lawrence Russell Brewer.  Brewer was convicted of the horrific murder of James Byrd, Jr. back in 1998.  Brewer, along with his two co-defendants in the case, committed unspeakable violence against Mr. Byrd simply because he was African-American.  It was a hate crime pure and simple.  But there was nothing pure or simple about the inhuman acts perpetrated against Mr. Byrd.  He was beaten unconsciousness, urinated on, tied by the ankles with a heavy chain and drug behind a truck until his arm and head were severed from his body.  

While Texas and Georgia were carrying out death sentences, Connecticut was seeking to have one handed down.  This brings us to the case of Joshua Komisarjevsky.  This is the monster who broke into the Petit family home, beat Dr. Petit unconscious and tied him up.  Once that was done, he then, along with his co-defendant, Stephen Hayes, sexually assaulted the Doctor’s wife and two daughters, the youngest of which was eleven years old.  When that was done, Komisarjevsky took Mrs. Petit to the bank and forced her to withdraw fifteen thousand dollars.  As if all of these abuses were not enough, when they returned to the house, these two monsters tied all the women to their beds and set the house on fire, burning them alive.

Prior to this case, the State of Connecticut was debating abolishing the death penalty.  These crimes put a quick stop to that.  In the face of such evil, the people decided  they needed the death penalty, they wanted the death penalty and they were going to seek the death penalty.  They got it.  Last year, co-defendant Stephen Hayes was sentenced to death.

So, the question that arises is: why did we not see 600,000 signatures calling for a stay for Lawrence Russell Brewer?  Why are there no protests outside the Connecticut courthouse where prosecutors are currently seeking the death penalty against Komisarjevsky? Now, the easy answer is “there was little to no evidence against Troy Davis.”  Well, who gets to make that decision?  A jury of his peers, yes, his peers.  Seven of the original twelve jurors were African-American.  

Twenty eight different courts reviewed this case and felt that the evidence was strong enough, even in light of the late-in-the-day recantations. From a purely pragmatic standpoint, allowing social media to dictate who gets executed and who doesn’t turns the justice system into nothing more than a version of Survivor (no pun intended).  No one should be voted off the island but people who weren’t even involved in the game.

Again, I cannot say whether or not Troy Davis was guilty.  I am simply asking the question, “what can we learn” from this past weeks’ multiple death cases.  If you believe the death penalty is wrong, then it’s wrong for everyone, including the monsters who commit unspeakable horrors against their fellow human beings, sometimes for no other reason than prejudice.

If the problem is with the application, then how do we fix it?  Lobby legislatures?  Call for one uniform application of the death penalty, which would be forced on all states by the federal government?  I don’t pretend to have the answers.  I will leave that to minds greater than my own.  But I find it an interesting dichotomy that the folks who oppose the unequal application of the death penalty are themselves unequal in their passion of whom they choose to rally for.

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That Damn Death Penalty - Again

by Katherine Scardino

I have posted many articles on Women in Crime Ink about the death penalty, especially in the State of Texas. There have been several incidences recently which scream out for a revisit of this unpopular and hateful subject.

I read an article yesterday in the local Houston paper that our Supreme Court refused to give Linda Carty a new trial - even though her trial lawyers did not put on any mitigating evidence and only met her two weeks before jury selection. Linda Carty did a terrible thing. She kidnapped a woman and her four-day-old baby, and killed the mother. Do not misunderstand - I, of all people, am well aware of the horrible acts that one person can commit against another. It is sickening and disgusting. That doesn't change the fact that we must have rules and laws that we all obey we're going to take a person’s life in the name of our law.

I admit I don't know all the facts of the Linda Carty case. Thank goodness I wasn't involved in it -- and I hope that if I had been, no one could say she had an incompetent defense. But the two failures in her defense are enough in my mind to give pause to the Supreme Court’s decision.

A defense attorney has a duty to “know” his client -- especially one who may die as a result of the attorney’s laxity or ineptness. It is indefensible for a lawyer to not meet his client until two weeks prior to trial. It is indefensible for a lawyer to know so little about his client that he has no witnesses and records to present to the jury during the punishment phase of a capital case. How can any attorney convince a jury that mercy -- life in prison instead of execution -- is appropriate without a complete picture of the defendant's background? What kind of life did this person live? What negative influences may have changed his life? 

This attorney is not arguing guilt or innocence. If he convinces the jury, it won't mean the defendant will walk out of the courtroom and down the elevator with you.

Then, there is the arson murder case of Cameron Todd Willingham. Willingham was convicted of setting a fire that killed his three children. I don't have the words to express my outrage at how ignorant and uninformed Gov. Rick Perry sounded when he said the there was other evidence besides the state's arson experts to prove the cause of the fire. The State of Texas had to prove arson if the jury were to reach a capital murder verdict. The problem is that fire experts, not just someone the post-conviction lawyers pulled off the streets, but individuals renowned in the field, now condemn the state’s arson testimony as bogus and unscientific. Oh, did I forget to mention - Texas has already executed Cameron Todd Willingham. He was most certainly an innocent person. At least, Perry must be afraid he was. In October, Perry abruptly replaced the chairman and two members of the state's Forensic Science Commission -- two days before they were to hear the evidence of the arson expert. 

Rick Perry doesn't like the idea that while he sat on his ass and refused to look at the reputable fire scientists' evidence, Cameron Todd Willingham died.
Is there one person out there who can state that Cameron Todd Willingham is the only innocent person Texas has executed? I dare you to make that statement. You would have to ignore the evidence related to the cases of Carlos DeLuna and Ruben Cantu, just to name two. There are many more. But, the issue is - even if there is one, just one - that is one too many. Killing another human being, through an act of violence or an act of the supposed legal system of Texas our State, is final. We can't bring that person back to life. We took that away from him or her, and we did it wrongly.

Our capital punishment system in Texas -- and elsewhere -- is flawed. It is not dispensed fairly. It is not certain. Arrogant, self-centered, unqualified politicians decide whether new evidence is sufficient to stop an execution. These same arrogant, self-centered politicians -- so-called judges -- tell us that “actual innocence” is not enough to warrant a new trial, let alone stop an execution.

What in the hell are we doing?

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Dead Man Walking—Next to Me. . . .

by Katherine Scardino

For the last twenty plus years, I have been involved in representing defendants who are accused of capital murder, and in most of those cases, death was an option for the jury. I have heard the death verdict three times in that period of time—not a great number, considering I practice law in Harris County, the death capital of the United States.

I have watched our Texas Court of Criminal Appeals ignore valid constitutional issues and affirm the trial court’s sentence of death. I have watched prosecutors get away with withholding exculpatory evidence. I have watched the case involving the “sleeping lawyer”—and that was on the defense side. Pretty embarrassing.

I have watched the rise in the number of death verdicts, and now I seem to be watching a fall in the number of death verdicts across the United States, and even in my state of Texas. The fall in the number of death verdicts can be attributed mainly to the passing of a statute allowing for “life without parole,” or LWOP. Texas seemed to be hesitant in adopting this law, much later than a lot of the other states in our Union. But, we have it now, and it seems to assuage many juries away from the death penalty.

I actually felt that juries were getting away from sentencing death because of the life without parole option. So, when I was called by the Federal judge in the Eastern District of Texas about two years ago to represent this man accused of murdering a fellow inmate in a Beaumont federal prison, I readily accepted, thinking that the Federal court does not generally seek the death penalty, and even if they did seek death, since we are in Texas, we would have the LWOP option.

When the discovery materials started arriving from the Assistant United States Attorney who was assigned to prosecute this case, I soon learned that this “simple” case was not so simple after all. My client had been convicted of juvenile murder at the age of 15 years in Washington, D. C.

He was sent to several juvenile detention centers across the nation, ending at a place in Brush, Colorado, which was later closed due to allegations of abuse and neglect. After being in these juvenile centers for approximately two years, he was released back to the same dysfuntional, poverty-stricken, crime-infested environment that he came from.

Given these circumstances, it is not hard to believe that at the age of 18 years, he was again accused of murder. This murder involved a dope dealer whom my client and one of his buddies believed had stolen some money from the buddy.

So, both of these young men, without a hint of morality or hesitation, found this “thief” and executed him. They were both caught, of course, and my client, at the age of 18 years, in 1999, was sentenced by a Washington, D. C. jury to 61 years to life in prison.

After a stint in prison in Lorton, Virginia, and then in Atlanta, Georgia—where he found the Muslim religion—he eventually was transferred to Beaumont.

The DC Gang in Beaumont Federal prison stuck together. Instead of an ethnic group, like the Hispanics with the Mexican Mafia or the Texas Syndicate, the DC crew consisted of young and old men who were from the DC area. They helped each other and took up for each other.

In May 2005, a man was transferred to Beaumont from Atlanta. This man had been a snitch against two of the other DC crew members. The Beaumont inmates learned he was there, with them, and conspired how and when to take him out, to “punish him.”

My client, unfortunately, became involved in this plan and was accused of putting the snitch in a headlock and holding him while another of the DC crew members stabbed him, and stabbed him, over and over—106 times. My client told me a tale that sounded believable and I actually did believe him. He seemed to be sincere. And, that was important because he was going to have to get on the stand and tell it to the jury.

The jury would know my client was in the cell after they learned about his fingerprint found inside the cell where the snitch was killed, not to mention the security videotape that shows a person identified as my client walking into the snitch’s cell along with the man who was the stabber. My client told his story to the jury; he told them he did not have any knowledge that the other guy had a shank and that he was going to kill the snitch. He tried to stop him, but could not.

Needless to say, this is a very shorthand version of this case. The reason I am relaying this to you is because a jury came back to me and said that I failed; that they did not believe any evidence I presented to them; nor did they believe my client’s testimony. The jury pronounced a death verdict for my client.

I was sitting there wondering how I was going to get over this. I wanted very much to get a life sentence for this young man. You may say, “Scardino, what is your problem? The man has now been convicted of killing three people.”

I do understand that, but this young man epitomized everything that I think is wrong with our social makeup today. He had a family who failed him; after dropping out of school in the 9th grade, no one came to his home and picked him up and made him go to school. There was no one from Child Protective Services to knock on his door and offer some type of assistance to the family, or to this child personally.

The juvenile courts took one look at him, and without more, sentenced him to juvenile life, which was supposed to mean locked up until 21 years of age. But, that did not happen. He was released at the age of 17 and some few months. After being at home and on the streets for only four or five months, he was back in trouble and the same type of trouble as before, only this time he was an adult. The sentence is a bit lengthier—like Life.

There is no parole in the Federal system. So, by getting a sentence of 61 years to Life, that meant he would serve 61 years or close to it, before he would even be considered for release.

So, even though people like the "Unabomber," Ted Kaczynski, or Oklahoma City bomber Terry Nichols, and other hardened criminals received life sentences—which are being served at the famed ultra-security Supermax facility in Florence, Colorado—this jury in Beaumont, Texas did not think this young man was deserving to live at all. Spending a lifetime in a facility like Supermax would not be a walk in the park.

During this jury trial, my expert witness told the jury what it would be like to live in a high security facility. He would stay in his cell, alone, 23 out of 24 hours a day. When he was allowed to see the sunlight for one hour a day, it would be in a very small wired cage about 16 feet tall but the top was open so that some sunlight could hit his white body. One hour a day of Vitamin D was about all the nutrients he would ever get.

What I do not understand is why we feel that we have to kill. Is it revenge? Why can’t the defendant be placed in a box for the rest of his life. God knows that he will be punished. No human contact for years would be enough to make me nuts. Sensory deprivation would be a big punishment. And, studies show that it costs a lot more to execute an individual than to place him in this box for the rest of his life. Don’t ask me to explain that statistic to you. I can’t. I just know that it is there. I would think that the cost of minimal care, minimal food, minimal needs all around, would not be as expensive as appellate lawyers, briefs, retrials, more appellate briefs, more lawyers, more appellate courts, etc. for years.

Here I am, one week after hearing that death verdict, and I cannot shake the sadness. Sometimes I just break out in tears. I have been told that I get too personal with my cases; that I care too much. And, this was a criticism, not a compliment.

Frankly, I do not see how lawyers can practice death penalty work unless they do get “involved.” The lawyer has to know every aspect of this person’s life, and frequently, that is not a pleasant duty. If the lawyer does not want to win, then how can he or she send a message to the jury that this client of mine is a human being—he deserves to live? He will grow out of his dangerous years and statistics show that inmates with lengthy sentences actually help the other inmates. As the inmate ages, his desire to cause trouble decreases.

But, no, that is not to be for my young client. He will be sent to Death Row. He will be appointed some hotshot appellate lawyer who will begin the appellate process that will take years. In the meantime, he will sit, alone, and have his memories. He will remember seeing his “family” during the trial after eight long years and the shame of it all was unbearable. He will remember not being able to look at his aunt—not that she did anything to help many years ago—in another lifetime—but she was his aunt and someone he cared about when he was a child. And, more shame. And, more loneliness and more hopelessness, and more waiting. And, for no reason other than 12 people said he should die, but another set of 12 people said other criminals get to live.

Dead man walking. . . . When will this insanity stop?

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The Death Penalty - Revisited

by Katherine Scardino

Every once in a while, I do some serious thinking - not often, mind you, and even when I do, it is not some subject that all of you would find interesting.

Lately, in my work as a criminal defense attorney, I have had the opportunity to review the opinions of about 200 people on various subjects, but specifically, on their thoughts about the death penalty. It always gives me pause when I hear that people seriously believe the death penalty is a deterrent to crime in their area and therefore is a valid reason to kill a fellow human being. The only valid, real deterrence is to the person killed. He will no longer be a threat to you, me or anyone in our society. That is not a bad thing. However, if we are going to support a policy as serious as taking a person’s life because he or she took another person’s life, then we should be frank with ourselves.

There are generally two reasons why people support the death penalty. The first, for revenge. Think about the Casey Anthony case. This is the case in Florida where the young mother is in jail awaiting trial for her baby daughter’s brutal, cruel murder. She was photographed dancing and partying during the period of time her baby was missing, that is, before the authorities found her little decaying body in a local woodsy area. Now, I am certainly not saying that we should believe that she is guilty prior to her trial. But, if - and that is a big “IF” - she is found guilty, it would be hard not to think that she deserves to die. Then again, there has to be something inherently wrong with her. I am not a mental health expert and have no clue what it is, but I can assure you that she is not a normal young mother who was concerned about the safety of her child. She has a warped screw somewhere. I presume her mitigation specialist and mental health expert will find it. Maybe the jury will hear about it and find that she was/is incompetent/insane or will find some other reason to lessen her culpability. But, the point is, her case is a prime example of a “revenge” killing by the State.

Another reason why people support the death penalty is that they believe having this a law in their state deters deranged people who may be bent on committing heinous crimes. Think of Ted Bundy and other serial killers we have had roaming around among us in the United States. We certainly do not want those people out and about, possibly threatening our lives and the lives of our loved ones. The death penalty will certainly deter people who get a kick out of killing other people, right? Wrong.

There have been several studies about the effects of the death penalty on crime in the United States, some of which claim that the death penalty does have a deterrent effect. There have also been several academic critiques of this research.

Dr. Jeffrey Fagan of Columbia University describes numerous serious errors in the recent deterrence studies, including improper statistical analysis as well as missing data and variables that are necessary to give a full picture of the criminal justice system. He claims that evidence which shows that executions can exert a deterrent effect are flawed and unreliable.

Stanford Law Review published an article that examined deterrence studies. The article stated “aggregating over all of our estimates, it is entirely unclear even whether the preponderance of evidence suggests that the death penalty causes more or less murder” (58 Stanford Law Review 791 (2005)).

While doing some Google research, I found a lengthy study that showed the average murder rate per 100,000 people living in states that had the death penalty was 5.5 %, while the average murder rate of states without the death penalty was 3.1%. To summarize, in reality it does not appear that having the death penalty will make us safer as a society. People who are prone to commit crimes will not avoid committing those crimes just because the state where they live has the death penalty.

Why do we have the death penalty? Why do we say it is “fair” and “just” that we kill another person because that person killed someone else. How do we reason that it is the right thing to do? My answer is revenge. It is the only honest response to this question. We kill to avenge the unwarranted, senseless killing of another person in our community.

But, is that enough? Will that pass muster in our minds if we all were to start having some serious thoughts about this issue? Personally, my answer is “no”. However, I also know that some of you will quote the Bible - “an eye for an eye”. Isn’t that simple revenge? I doubt it.

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