Exonerations and the Death Penalty

surface is hard. The crevasses allow the climber to gain footing. With each laborious movement the climber gets closer to his ultimate goal. Her goal is to reach the top, and the danger and difficulty are her obstacles. Her foot slips unexpectedly. She begins to fall, but the safety harness saves her life. She is safe, this error is not fatal.

What does that little story have to do with the death penalty as it is applied in the United States? Well the arguments put forth for the abolition of the death penalty are like saying that the climber’s harness working as designed is the reason rock climbing should be abolished. When I hear a story where a man has been truly exonerated for a crime he was convicted of I see it as another example of the ability of our system to rise above the fallibility of the human condition. The system worked. Now, the other side of this debate hangs on every reversal and claims exoneration anytime a conviction is overturned.

When a conviction is overturned it is usually sent back to the original trial court so it can be retried without the presence of the error found or in the light of new evidence. The investigation is renewed, and the District Attorney’s office then must re-file the case. Over the years, evidence deteriorates, evidence is lost, witnesses are hard to locate, and witnesses forget over time. A good portion of the time, the decision not to move forward has little to do with the new evidence or the difficulty overcoming the technical issue. In these cases, the defendant is not truly exonerated.

With the number of appeals afforded death row inmates today, the opportunities abound for a prisoner who is facing death to show the error and the proof that he was in fact innocent. With the advent of technology like DNA analysis, it is becoming easier than ever to gather new evidence. The truly innocent get a do-over, and are eventually (if not immediately) exonerated.

The other consequence of the advancing technology is an increased accuracy investigating new crimes. As time goes on the accuracy of the system will undoubtedly increase, which will lead to less innocent people being incarcerated. Unlike most proposed remedies for saving the innocent, the accuracy will come with only a limited number of guilty going free. Thus, protecting the community while ensuring the accuracy of the justice system.

In the end, the arguments for abolition actually end up proving that the death penalty in the United States is procedurally sound with increased accuracy of technology in investigation and the system of checks and balances employed today. This is further evidenced by the inability of Death penalty abolitionists to cite the name of one person who was actually proven to be wrongfully executed since the death penalty was reinstated by the U.S. Supreme Court in 1976.

Texas Justice? An Oxymoron.

Texas Justice. The phrase elicits thoughts of the state's frequent use of the death penalty, or the old west justice in a Texas saloon. One thing that never crosses our minds is probation for murder. You might think that a negligent homicide could be punished with probation, and a true negligent homicide in most jurisdictions can carry a light punishment. However, Texas is the only state I know of that will allow probation as a punishment for an intentional homicide, otherwise known as murder. If an offender has no prior record, and he stabs someone intentionally to kill him, he may be sentenced to probation.

How can that be? The state that is in the top 5 in executing murderers, could be your best bet in staying away from prison if you intentionally take the life of an innocent human being. The Dallas Morning News investigated and found 120 cases between 2000 and 2006 where murderers were actually sentenced to probation. That is an average of 17.1 probation sentences per year, roughly 3 less than the average of death sentences per year of 20.4 during that same time period (Analysis on the table found at http://www.tdcj.state.tx.us/stat/offendersondrow.htm) . With the defendant's option of having a jury hand out the sentence, this option allows the defense to paint the defendant in a sympathetic light to avoid any jail time once convicted. On the other hand this option makes it easier to plea bargain. Those who know me know that I am a fan of the plea deal, but a policy of pleading guilty to murder and receiving probation seems like an old time bait and switch on the voters in the Biggest State in the lower 48. The District Attorney can show all the convictions she has secured, and the voters see a District Attorney that is tough on crime. All the while the public is oblivious to the murderer next door and his weekly appointment with a probation officer. With roughly a 40% recidivism rate for homicide nationally this law arguably has put the public at risk.

In the 2009 Texas Legislative session, Representatives Hochberg, Edwards, and Gallego authored House bill that would raise the minimum sentence for murder to 2 years. It isn't much, but the families that have seen their loved one's killer go free would most likely welcome the change. When the bill emerged from the House Criminal Jurisprudence Committee the wording had been changed from ". . . by making defendants charged with the offense of murder . . . "to". . . by making certain defendants charged with the offense of murder . . .."The change was subtle, but it guaranteed that some defendants could still be sentenced to probation. The revised bill was very popular, passing the House vote with flying colors. The Senate Criminal Justice committee has subsequently sat on the bill. The session ended, and the bill secretly placed on a back burner never to be seen again.

For each committee the legislature will hear testimony from both sides: pro and con. The only testimony offered was by David Gonzalez from the Texas Criminal Defense Lawyers Association who was accompanied by Kevin Petroff from the Harris County District Attorney's Office. Both were there in opposition of the bill. No one was asked to testify in support of abolishing leniency for convicted murderers. Where were the families of those killed by those currently on probation? They simply were not asked to participate. The victims apparently were considered irrelevant.

Other states have much higher minimum sentences for murder, yet it appears the Texas Legislature believes it is necessary to have a probation sentence for intentional murder. For this law to change now would require starting over. The language must be amended to eliminate the ambiguity added by the House Criminal Jurisprudence Committee, and it must get through the committees and be voted on by both bodies in the legislature then signed by the governor. The people of Texas must be heard or the politicians will continue to let murderers go free.

If you live in Texas and care about what the state is doing with convicted murderers, please contact your state representative and senator and call them to action. Until this law is changed Texas Justice will continue to be an oxymoron.

Observations on Impact Statements

Nicholas Christopher was stabbed in an attempt to kill. The boys survival was a miracle, as he had to hold his intestines in his body as he was transported to the ambulance. Payne v. Tennessee, 501 U.S. 808, 815 (1991). He was the only person to survive Pervis Payne's attack, his mother and sister succumbed to the injuries Payne had inflicted. Id. at 812. At trial, a jury convicted him of murder, and the Prosecutor sought the death penalty. This requires the jury to hear additional testimony in a sentencing phase of trial. In his final statement the prosecuting attorney said:

You saw the videotape this morning. You saw what Nicholas Christopher will carry in his mind forever. When you talk about cruel, when you talk about atrocious, and when you talk about heinous, that picture will always come into your mind, probably throughout the rest of your lives....

. . . . .
... No one will ever know about Lacie Jo because she never had the chance to grow up. Her life was taken from her at the age of two years old. So, no there won't be a high school principal to talk about Lacie Jo Christopher, and there won't be anybody to take her to her high school prom. And there won't be anybody there-there won't be her mother there or Nicholas' mother there to kiss him at night. His mother will never kiss him good night or pat him as he goes off to bed, or hold him and sing him a lullaby.
. . . . .
[The Defense] wants you to think about a good reputation, people who love the defendant and things about him. He doesn't want you to think about the people who love Charisse Christopher, her mother and daddy who loved her. The people who loved little Lacie Jo, the grandparents who are still here. The brother who mourns for her every single day and wants to know where his best little playmate is. He doesn't have anybody to watch cartoons with him, a little one. These are the things that go into why it is especially cruel, heinous, and atrocious, the burden that that child will carry forever.

Id. at 815-816 (quoting App. 13-15).


Payne was sentenced to death.

Payne appealed to the Supreme Court of the United States on the grounds that victim impact evidence should have been barred by two supreme court decisions: Booth and Gathers. Booth specifically barred a victim of the crime to testify to the impact the crime had on her. Gathers barred the prosecutor offering such evidence herself. See Booth v. Maryland, 482 U.S. 496 (1987); See South Carolina v. Gathers, 490 U.S. 805 (1989).

The Supreme Court in Payne ruled that victim impact evidence was not barred by the U.S. Constitution in a death penalty case, and overruled both Booth and Gathers. Prior to and since that decision victim impact evidence has been admissible in criminal trials across the United States at sentencing. The question decided in Booth, Gathers, and Payne is limited to the death penalty case, where a jury must decide the sentence.

Opponents to impact evidence claim that it is arbitrary and prejudicial because it is emotional in nature. These arguments falter due to the defense being able to offer mitigating evidence with very little limitation. If a victim decided she wanted the defendant to be spared the death penalty the court would have to allow it. To bar the victim who does not want the victim to be spared capital punishment would create a systemic bias for the defense.

The second main argument used to oppose this evidence is that the evidence is emotional and therefore prejudicial. There are a couple flaws in this argument. First, prejudicial evidence may be admitted if it has probative value. When sentencing the defendant, the court attempts to find the punishment that is just for the crime actually committed. Justice in this sense is impossible without knowing the result of the actual crime. Fortunately, the jurors (more than likely) have not been a victim of such a crime. For a layperson to understand the impact of homicide is impossible without victim impact evidence. The emotional nature argument is absurd due to the type of evidence the defense may use, often a defense attorney uses pure emotion to sway the jury from death.

The nature of a sentencing phase is not to determine guilt or innocence. It is to determine the punishment that the crime deserves. It is impossible to understand what punishment is deserving without knowing the harm of that actual crime.

As a victim of crime these statements are difficult to write. The victim typically relives the trauma of the crime all over again. However, this reliving of emotions linked with horrible events does not deter all victims, because they seek a just punishment for the crime.

During the sentencing phase Nicholas Christopher did not speak, he was three years old at the time of the attack. Instead the prosecuting attorney spoke for him:

Somewhere down the road Nicholas is going to grow up, hopefully. He's going to want to know what happened. And he is going to know what happened to his baby sister and his mother. He is going to want to know what type of justice was done. He is going to want to know what happened. With your verdict, you will provide the answer.

Payne v. Tennessee, 501 U.S. 808, 815 (1991)(quoting App. 12).

Victim Rights Videos

Every Victim Every Time

Department of justice video promoting the Crime Victims' Rights Act



Hearing Testimony from Crime Victims United of California

Testimony against altering of parole policies, namely the early release of "non-violent/non-serious" offenders. Includes a good example of the misrepresentation of the term "non-violent" by statute.



New Directions from the Field: Victim's Rights and Services

This is a video produced by the Office for Victims of Crime, that promotes a publication that raises awareness of and promotes a unified approach to victim rights in criminal justice throughout the state and federal systems. It is a bit long, and is not designed to entertain, but is interesting.



The News Media's Coverage of Crime and Victimization (28 Minutes)

This video outlines the issues surrounding media coverage of crime from the victim's perspective. This video is designed to train victim service providers of the sensitivities surrounding this type of coverage. Media coverage is one of several areas that promote re-victimization, by claiming that their coverage is helpful to the victim, reporting innuendo, glamorization of the offender, use of euphemism, etc.



Justice League of Ohio Videos

Videos produced by the Justice League of Ohio.

National Crime Victims' Rights Week

Although final exams are upon me here in Tulsa, I would be remiss if I did not post this week. National Crime Victims' Rights Week began last Monday and runs until Saturday. This week here in Tulsa the District Attorney's office sponsored an event, dedicating a garden to the victims of homicide. People all over the nation have had similar remembrance ceremonies for victims of homicide. Some state officials have given awards to the men and women who have assisted victims deal with what they have been through.

I would like to honor my brother Bryan. He was a good brother, don't get me wrong we didn't always see eye to eye, but I admired his loyalty. He was loyal to his family and friends. There are few men as honest as him. He was always there for his friends that may not have been given the things he was given in life. I remember an instance where a friend of his was too intoxicated to drive. Bryan snuck up behind him and took the keys from the guy's pocket. When I was in Oregon, he was the one that called me to tell me our father was in surgery due to an apparent heart attack. He was always so calm under pressure. I tried to live up to his example when he died. His example got me through each step of the way. Every exam I take I think about him, and that ability. I didn't say it much when he was alive (in the name of bravado), but I love him.

Every survivor of homicide has a story, and every crime victim has a voice. Please support organizations in your area that support victim rights.

Victims and Due Process

Originally Published January 4, 2009 by yours truly on the BDL Victim Rights Blog.

Victim by definition denotes injury. Most criminal laws in the United States are based on the Jeffersonian ideal that we have a right to life, liberty, and ownership of property. The Fifth Amendment to the U.S. Constitution states that no one can be “deprived of life, liberty, or property, without due process of law.” U.S. Const. amend. V. Criminal defendants since the ratification of the Constitution have enjoyed the protections of the due process clause, and rightfully so. Without enforcement of these protections, it would be more likely that an innocent man would be punished while the guilty man remains free. However, there are many today who believe that this clause was intended only to protect a criminal defendant, and that all men and women are entitled to this protection only when accused of some crime. These people say that a victim of crime has no place within the criminal justice system, and that the defendant’s rights must in every instance be protected even at the expense of the victim’s constitutional rights. When a criminal takes another’s life there is no due process of law, even in the criminal law system the victim is not allowed representation. The prosecuting attorney does not represent the victim directly. Listening to survivors of homicide recount their stories, the trials that took place prior to a Crime Victim Bill of Rights in that state (Homicide is mostly governed by state law in the U.S.) show the extent of the division between prosecutors and the victims of crime. In several instances the prosecuting attorneys never contacted the victim, and those that did made it clear that they did not need input. At that time a Victim Advocate’s main duty was to prepare witnesses (most of whom were not victims of the crime). The victim of the crime was right where the defendant wanted: on a deserted island where no one could hear from or see the injured party.

Justice Benjamin Cardozo in his opinion in Snyder v. Commonwealth of Massachusetts states, “Justice, though due to the accused, is due to the accuser also. The concept of fairness must not be strained till it is narrowed to a filament. We are to keep the balance true.” Snyder v. Mass., 291 U.S. 97, 122 (1934). This concept of justice is slowly being restored. In 1982, President Reagan commissioned a task force to examine the issues of crime victims in the criminal justice system. The report led to states amending their constitutions to reflect rights that the state needed to preserve for crime victims. Things are better than they were in the 1980s, but there is still injustice out there. Whether it is in the violation of state constitutional rights, or in rights not yet protected by law, injustice is injustice and should be remedied.

Personal Struggle

Originally Published November 25, 2008 by yours truly on the BDL Victim Rights Blog.

On February 5, 2007 my brother, Bryan, was killed outside a bar in Denver, Colorado. We sat silently through a trial, listening to the defense smear my brother’s name with innuendo. My family, myself included, has had a hard time reconciling the idea that Bryan isn’t with us. Since that time I have left a promising career in Business to attend Law School, with my aim being to assist victims of violent crime. Victims of crime are put in a spot where they have to fight for their rights each step of the way. Victim Rights Legislation has been passed in most jurisdictions in the USA, several of which are amendments to the various state constitutions. In 2004 the Crime Victims’ Rights Act, 18 U.S.C. § 3771, was passed and it expanded the rights of crime victims in the Federal court system. As time goes on the constitutionality of the simple rights victims of crime have been given, will be tested by defendants on appeal. They will cite the Constitution to attempt to silence one side of the story. The Defendant’s rights are protected by the U.S. Constitution. One of the lofty ambitions of this blog, and the work I will do in the future, will be to convince the government that the rights of crime victims should be protected by the U.S. Constitution.

Welcome to Awaiting Justice

The vision of this blog is to educate and advocate from the perspective of crime victims within the U.S. criminal justice system. All across America right now violent crimes are being committed against victims that represent all races and all walks of life. There are Millions of lives that have been affected by these crimes. New Criminal Trials start everyday in the cities of this great land, and the victims watch silently as the defendant parades his friends on the witness stand and testify to his character. Politicians have given victims rights (as long as they do not impede on the rights of the defendant), but the remedies are impractical or inadequate. The 14th Amendment to the U.S. Constitution says that where our Life, Liberty, or Property can be taken that we are guaranteed Due Process. In America a victim of violent crime is not entitled to due process. So here we are as innocent victims of violent crime left forever Awaiting Justice.