Back Story: Let’s fry the bastard

A couple weeks ago, Ohio Supreme Court Justice Paul E. Pfeifer, a Republican, urged state lawmakers to abolish capital punishment in favor of life in prison without parole. Pfeifer told the House Criminal Justice Committee, “The application is hit or miss depending on where you happen to commit the crime and the attitude of the prosecutor in that county.” The proceeding was a legislative hearing on House Bill 160, a proposal to repeal Ohio’s death-penalty law.

This welcome piece of news reminded me of the time when Illinois Governor George Ryan, also a Republican, upon leaving office in 2003, commuted the sentences of 156 inmates on that state’s death row. Ryan had halted all executions three years before, after the courts found that 13 death row inmates had been wrongly convicted, since Illinois resumed capital punishment in 1977. Ryan had campaigned for the governorship as an advocate of capital punishment. Current Illinois Governor Pat Quinn signed a bill in March, 2011 to repeal the death penalty and reallocate funds being spent on defending death row inmates to provide law enforcement with training and services to the families of homicide victims.

In spite of all the evidence that there have been numerous criminal defendants who have been wrongfully convicted, there still remain those who favor capital punishment. “Let’s fry the bastards,” they say, not identifying in any way with those who have been wrongly accused. And why should they, most of those convicted of capital crimes are minorities, mentally disabled and/or economically deprived. Moreover, it has not been shown that capital punishment serves as a deterrent to crime. In fact, states without the death penalty have lower murder rates than those that do.

Those of you who have been following the capital punishment debate will find nothing new in what I have to say here except, possibly, my point of view of having practiced as a criminal defense attorney in Manhattan for 30 years and having tried a number of non-capital murder cases and other cases carrying life sentences, some of them high-profile.

New York State’s death penalty was effectively suspended during the eighties and early nineties. The statute had been ruled unconstitutional by the state’s highest court in 1977. From 1978 – 1994, several measures passed both houses of the state legislature that would have reinstated the death penalty, only to be vetoed by Democratic governor Hugh Carey and his Democratic successor, Mario Cuomo. The legislature passed a new law reinstating the death penalty by lethal injection in 1995, after Cuomo left office and Republican George Pataki took over. However, that version was also ruled unconstitutional in 2004 and New York is once again without a death penalty. Cuomo's son, Andrew, was elected Governor last year, and I doubt he would sign a new bill.

Reinstatement of capital punishment in 1995 sent the New York State Office of Court Administration (OCA) scrambling to create a Capital Defender Panel to represent indigent defendants in murder cases. This in recognition of the fact that there were few members of the bar qualified to try those cases, especially when they bore such serious consequences.

A friend who was a higher up in OCA called me and did her best to sign me up, but I refused to enable implementation of the death penalty in any way. “You are just looking for warm bodies to stand next to the walking dead,” I told her. However, I also had another, more selfish reason, I didn’t want the pressure. I imagined the sleepless nights I’d had whenever I was on trial with other cases multiplied a thousand fold. How can any attorney operate effectively under such pressure? I wondered.

I used to joke about murder cases: How can you lose a case where the main witness is dead? Sure, they are harder for the prosecution to try, but DA’s office and police gear up for the big trials. They pull out all the stops. And sometimes that means going beyond the bounds of legal constraints.

On occasion, a police officer might see no harm in planting evidence, coaching witnesses, or forcing a false confession in order to frame a defendant; because he is certain he’s got the right guy and doesn’t want to see him get off. Or, if he’s not quite sure, he can always justify such actions by telling himself that even if the suspect is not guilty of the crime, he probably did something else he deserves to be punished for. In a classic case of this kind of reasoning, a couple decades ago, two clever New York State Troopers were found guilty of planting fingerprint evidence in multiple cases. Heretofore, it had been thought that faking fingerprint evidence was impossible. What is really frightening to me is the trend in television police dramas and the movies to subtly justify and even glorify this "let's fry the bastard" mentality. Frequently, illegal searches and forced confessions are portrayed as the end justifying the means without consequence to the police officer involved.

It’s not just the cops who are susceptible to misdeeds in criminal cases; the whole system is wrought with pitfalls for the accused. There are politically motivated D.A.s and Judges, prejudiced or inattentive jurors who just want to get it over with and go home, and my particular bugaboo, incompetent defense lawyers.

Procedurally, murder cases are different from most criminal trials. If a defendant is convicted, he faces an additional trial called the penalty phase. Often, in order to retain the same jury, this occurs almost immediately after the conviction. One of the frequent complaints against defense attorneys on appeal is that they were not prepared for the penalty phase. Unless an attorney has the resources to have someone working separately on the penalty phase, and most assigned counsel do not, the trial lawyer may find himself suddenly shifting gears from asserting his client’s innocence to begging for leniency without a whole lot of witnesses and evidence to back him up. In cases where proof of guilt is a foregone conclusion, the attorney is able to concentrate on the penalty phase. But, when the defendant has a good chance at an acquittal, the attorney will naturally focus his efforts on the guilt phase of the trial.

According to the organization Death Penalty Focus, “the most important factor in determining whether a defendant will receive the death penalty is the quality of the representation he or she is provided. Almost all defendants in capital cases cannot afford their own attorneys. In many cases, the appointed attorneys are overworked, underpaid, or lacking the trial experience required for death penalty cases. There have even been instances in which lawyers appointed to a death case were so inexperienced that they were completely unprepared for the sentencing phase of the trial. Other appointed attorneys have slept through parts of the trial, or arrived at the court under the influence of alcohol.” This is not an overstatement. I have personally witnessed this kind of behavior by my fellow members of the bar. As the law secretary to a Judge sitting in a felony trial part in the '70s, I had to blow the whistle on incompetent attorneys by reporting them to the administrators of the indigent defendant assignment panel on more than one occasion. Some of the behavior I reported was bizarre.

These problems notwithstanding, death penalty proponents want to limit appeals and expedite execution. To them it’s all about the expense.

34 states and the U.S. Government have a death penalty. That puts them in a league Afghanistan, Antigua and Barbuda, Bahamas, Bahrain, Bangladesh, Barbados, Belarus, Belize, Botswana, Chad, China, Comoros, Democratic Republic of Congo, Cuba, Dominica, Egypt, Equatorial Guinea, Ethiopia, Guatemala, Guinea, Guyana, India, Indonesia, Iran, Iraq, Jamaica, Japan, Jordan, Kuwait, Lebanon, Lesotho, Libya, Malaysia, Mongolia, Nigeria, North Korea, Oman, Pakistan, Palestinian Authority, Qatar, Saint Kitts and Nevis, Saint Lucia, Saint Vincent and the Grenadines, Saudi Arabia, Sierra Leone, Singapore, Somalia, Sudan, Syria, Taiwan, Thailand, Trinidad And Tobago, Uganda, United Arab Emirates, United States of America, Viet Nam, Yemen, Zimbabwe. According to Death Penalty Focus, “The vast majority of countries in Western Europe, North America and South America - more than 139 nations worldwide - have abandoned capital punishment in law or in practice.”

Justice Pfeifer’s motivation in speaking out against the death penalty in Ohio may come from a different way reasoning. But, it is surely welcome. Plainly put, murder is wrong. Most countries and most religions believe that. Giving the state the power to kill should not be an exception. The execution of an innocent person is a wrong that can never be undone.

-vh