Dear Governor Brown,

Welcome back. I offer here a few thoughts for your consideration.

After you were gutsy enough to appoint me, a right-wing Republican, to the Superior Court of Orange County, I served there from 1978 to 1993, after which I sat on assignment on death cases throughout California. In all, I presided over more trials than I can possibly recount. Among those I do remember, however, were ten murder trials in which I sentenced the convicted men to die in our state's execution chamber. As a result, I became known as "the hanging judge of Orange County," an appellation that, I will confess, I accepted with some pride.

The ten were deemed guilty of horrifying crimes by their peers, and in the jurors' view as well as mine they deserved to die at the hands of the state. However, as of today, one has died of natural causes in prison and none of the others has been executed, a fact that stirs deep anger within me.

Let me explain:

I am angered by the fact that our system of laws has become so complex and convoluted that a decision I was put in the position to make, one that I then believed promised resolution for the family members of the victims of those crimes, has been made a mockery.

I have followed the development of legal thinking and understand why our nation's Supreme Court, in holding that "death is different," required that special care be taken to safeguard the rights of those accused of capital crimes, especially those sentenced to death. Such wisdom protects our society from returning to the barbarism of the past. And while I find it discomfiting and to a significant degree embarrassing that appellate courts have found fault with some of my statements, acts or decisions, I can live with the fact that their findings arise out of an attempt to ensure that the process has been scrupulously fair before such a sentence is carried out.

I can live with it and, apparently, so can the men I condemned. The first one, Rodney James Alcala, whom I sentenced to die over 30 years ago for kidnapping and killing 12-year-old Robin Samsoe, was, just last year, again sentenced to death for killing little Robin Samsoe and four other young women who, it has subsequently been determined, were his victims at around the same time.

I need not here go into the permutations of Mr. Alcala's legal journey. Behind bars since 1979, he has not harmed, nor can he harm, any other young women. That's instructive because harm has been done and that's what infuriates me. Robin Samsoe's mother has been re-victimized time and time again as the state of California has spent millions upon millions of dollars in a series of unsuccessful attempts to fulfill its promise that her daughter's murder can be resolved and she can go on with her life.

Had I known then what I know now I would have given Mr. Alcala and the others the alternative sentence of life in prison without the possibility of parole. Had I done that, Robin's mother Marianne would have been spared the pain of 30 years of misery, wondering if her daughter's murder would ever be finally resolved. She could have dealt then and there with the fact that her daughter's killer would be shut away, never again to see a day of freedom, and gone on to put her life together. Had I done that, the State of California would not have put her through the torture of hearing after hearing, trial after trial. Had I done that, the people of California would have been spared the hideous expense of hundreds of millions of their tax dollars that were squandered in this meaningless and ultimately fruitless pursuit of death.

It makes me angry, Governor Brown, to have been made a player in a system that is so inefficient, so ineffective, so expensive and so emotionally costly to those to whom it promises peace but delivers only pain.

I watch today as you wrestle with the massive debt that is suffocating our state and hear that you don't want to "play games." But I cringe when I learn that not playing games amounts to cuts to kindergarten, cuts to universities, cuts to people with special needs and I hear no mention of the simple cut that would save hundreds of millions of dollars, countless man-hours, unimaginable court time and years of emotional torture for victim's family members waiting for that magical sense of "closure" they've been promised by prosecutors once the perpetrator has been killed by the state.

You and I know, Governor, that there is no such thing as "closure" when a loved one is taken. What family members must find is reconciliation with the reality of their loss, and that can begin the minute the perpetrator is sent to a prison he will never leave. But to ask them to endure the years of being dragged through the courts with the promise that the state will end their pain by causing the death of another is a cruel lie.

So I agree that we should no longer play games, Governor Brown. You and I are both older now, so let's stop playing the killing game. Let's use the hundreds of millions of dollars we'll save to protect some of those essential services now threatened with death. Let's stop asking people like me to lie to those victim's family members.

I'm told you don't have the power to end the death penalty by yourself, but you can point the way. You can have a huge financial impact on California by following the lead of Governor Ryan of Illinois and commuting the sentences of all the men and women on California's death row - all 700-plus of them - to life without parole. And you can direct the millions you save to making some of our citizens' lives brighter and more promising.

Let's stop playing games, Governor. Let's stop lying to the people; let's stop being politicians and start behaving like the grownups we've become.

With Respect,

Donald A. McCartin,

Judge, Superior Court (Ret.), Orange County

Illinois Governor Pat Quinn signed a bill today which made his state the 16th to abolish its death penalty (Take action to thank him now).  The bipartisan bill, which passed the state legislature in January, commutes the sentences of Illinois’ 15 death row inmates to life without parole, and reallocates the funding previously slotted for capital defense to law enforcement training and increased restitution for victims’ families.  

Quinn’s decision is the culmination of years of public debate that has been raging since at least 2000 when then Governor George Ryan declared a moratorium on executions.  For Governor Ryan, the state’s system looked increasingly broken, and the probability that innocents would be executed was too great to keep moving forward with capital punishment absent serious modifications. In the following eleven years, the state created two study commissions and attempted to implement multiple reforms to resolve these concerns, but found that such efforts were both ineffective and too costly.  Governor Quinn’s decision marks an awareness of the diminishing returns intrinsic to the already extremely expensive system, as attempts to make capital punishment ‘fair’ were always going to be more costly and less effective than abolition.  As Quinn put it, “Since our experience has shown that there is no way to design a perfect death penalty system, free from the numerous flaws that can lead to wrongful convictions or discriminatory treatment, I have concluded that the proper course of action is to abolish it.”  He went on to note that in a world of limited resources, it was wiser policy to take “the enormous sums expended by the state in maintaining a death penalty system [and spend them] on preventing crime and assisting victims’ families in overcoming their pain and grief.”

Quinn did not make this decision lightly, as shown by the two-month wait between the bill’s passage and his signing it into law.  He carefully considered arguments from supporters and opponents, taking a particularly hard look at the feelings of the family members of murder victims.  In his statement, the Governor acknowledged the unimaginable heartache that accompanies losing a loved one and made clear that he understood and could not blame families for desiring retribution.  His decision to sign the bill, however, was motivated by numerous conversations with families who felt that the death penalty only prolonged their pain and suffering.  By ensuring that murderers are locked away for life, Illinois’ policy will help victims avoid years of painful hearings while also providing the state with the funding necessary to prevent similar crimes before they happen.

Illinois decision to abolish should be understood as part of a national trend away from capital punishment, as it is the fourth state in as many years to end its death penalty.  New Jersey and New York both removed all their prisoners from death row as of 2007, with New Mexico following suit two years later.  Today finds the fewest number of states’ practicing capital punishment since its reinstatement in 1978, and it appears as though the number could drop even lower as several other states are currently considering abolition with bills in various stages of debate in Connecticut, Florida, Kansas, Maryland, Montana, and Washington.  

Governor Quinn’s decision should provide inspiration for death penalty opponents nation-wide, as his actions show that there is nothing inevitable about capital punishment.  As concerns over the cost and fairness of the death penalty rise, public opinion has swung increasingly against it, suggesting that a post-death penalty America may soon be a reality.  Illinois is not the first or last step in the process, but it is an important one nonetheless, as each victory adds momentum to the push for more effective alternatives to capital punishment.

The Texas Court of Criminal Appeals has decided to permanently stop the hearing in Texas v. Green, which examined the constitutionality of Texas's death penalty in light of the frequency of wrongful convictions.

The Court ruled that District Judge Kevin Fine did not have the jurisdiction to hear arguments on capital punishment's constitutionality, especially at the pre-trial stage of the process.  The Court did recognize the seriousness of Green's concerns and urged the legislature to look closely at the problem.

While it is good to hear the Court recognize the seriousness of the risk of wrongful conviction, it is unfortunate that they were unwilling to take their responsibility to ensure that Texas's judicial system does its part to prevent the execution of innocents.  The two days of testimony prior to the original stay represented an attempt to honestly and thoroughly investigate Texas's death penalty.  This is a conversation that must be continued both in the legal system and in the court of public opinion.

The new year has breathed fresh life into the cases of Damien Echols, Jason Baldwin, and Jessie Misskelley Jr., collectively known as the West Memphis Three. The three men were convicted in 1994 for the killing of three West Memphis children, though there has been persistent doubt about their guilt dating back to the original trial. The campaign to prove their innocence scored a serious victory last November when the Arkansas Supreme Court ruled that a lower court must hold an evidentiary hearing to examine whether new DNA evidence which potentially exonerates the West Memphis Three, as well as accusations of jury misconduct in their original trials, sufficiently calls into question their sentences such that a new trial must be held.

January 4th marked the beginning of the preparation for the evidentiary hearing. Circuit Court Judge David Laser took meetings with attorneys for both sides, and set February 18th as a deadline for the submission of pre-hearing briefs. Judge Laser has replaced David Burnett as the appeals judge, which itself represents a positive development as Burnett had repeatedly upheld the original verdict. Judge Laser has made it clear that this case represents a top priority, and he stated plans to "get this done as soon as possible."

Among the issues discussed last week were concerns about scheduling the hearing in light of outstanding Rule 37 appeals for Mr. Misskelley and Mr. Baldwin which contest the adequacy of their representation at the original trial. Judge Laser agreed with arguments made by Mr. Echols attorney who said that while the Rule 37 appeals are certainly important, they cannot delay the evidentiary hearing for Echols as he is the only prisoner facing the death penalty. There was also discussion of new standards for DNA testing which included a commitment to greater transparency in the process. This point is of great significance in the case as the District Attorney's office had previously conducted secret tests when their original screenings of crime scene material appeared to clear Echols, Baldwin, and Misskelley. Judge Laser has also issued a gag order surrounding the case, in part to help create a new jury pool in the case of a retrial.

These developments represent significant gains for the West Memphis Three, who have persistently professed their innocence. We should all be thankful that it finally seems as though the courts will give them a real chance to prove it.

A hearing to determine the constitutionality of Texas' death penalty was stayed yesterday by the Texas Court of Criminal Appeals. The hearing, which began on Monday in Houston as a pre-trial proceeding in the case Texas v. Green, sought to determine whether or not a high probability of wrongful conviction meant that capital punishment violated the Eighth Amendment's prohibition of cruel and unusual punishment.

The case concerns John Edward Green, a Houston man charged with fatally shooting a woman in a 2008 robbery. Because Texas is seeking the death penalty, Mr. Green's attorneys have challenged the constitutionality of the punishment, and Judge Fine has provided the hearing as an opportunity for both sides to plea their case.

Prosecutors have declined the invitation to defend capital punishment, deciding instead to "stand mute." The Harris County District Attorney's office has repeatedly objected to the hearing, arguing that it concerns law which is settled and thus irrelevant to the Green case. They have also challenged Judge Fine's impartiality, and have claimed that the hearing is premature, as the question of sentencing will be relevant only if Mr. Green is convicted. Mr. Green's attorneys have responded to these claims by arguing that the high likelihood of wrongful conviction, combined with the impact of Texas death penalty laws which set an unreasonably high barrier for appeals, make taking the death penalty off the table before trial begins an imperative. The Court of Appeal's stay is meant to provide each side with the opportunity to file briefs arguing whether or not the hearing should occur.

The hearing itself represents a new and important turn in the death penalty debate, as it is the first time a Texas district court judge has heard arguments regarding capital punishment's constitutionality. The defense called on several prominent legal experts who spoke about the risk factors that lead to wrongful conviction, including flawed science and unreliable testimony.

Before the stay was issued, the hearing was meant to feature testimony regarding the cases of Cameron Todd Willingham and Claude Jones, two prisoners who were executed on the basis of evidence which has been undermined. The prosecution's unwillingness to use this hearing to defend the death penalty speaks to their fear that it will not stand up to careful scrutiny. Even if their legal objections are correct, the hearing still represents an opportunity for a much-needed public debate about the problem of wrongful conviction and the legitimacy of capital punishment. If it is true that the death penalty system does not wrongfully convict people, then its proponents should be able to offer evidence to support that claim. If, on the other hand, innocent people are at risk of being executed, this is a fact that cannot be buried. Instead, this problem must be faced full on and should prompt a complete overhaul of the system to eliminate the risk of the wrongful convictions, or better yet, an agreement to move beyond the death penalty in search of more effective alternatives.

Damien Echols

I was thrilled to learn this morning that Damien Echols, Jason Baldwin and Jessie Misskelley, who were convicted in the 1993 deaths of 8-year-olds Michael Moore, Christopher Byers and Steven Branch, may have a chance to finally prove their innocence.

A few months ago, we launched a postcard campaign calling for a new trial for Damien Echols, who is on death row.

This statement was released by Damien Echols' spokesperson Lonnie Soury:

"We are very pleased that the Arkansas Supreme Court ordered a new evidentiary hearing to review the convincing evidence of the innocence of Damien Echols, Jason Baldwin and Jessie Misskelley...These young men were convicted of a brutal crime someone else committed, and we hope the state moves quickly to overturn their convictions and seek to prosecute those responsible."

Let's hope this hearing is the first step in correcting what we believe is tragic miscarriage of justice.   

Check out this review of FRONTLINE's special Death by Fire by Ken Chan on the Justia.com: Law, Technology & Legal Marketing Blog.

Chan writes:

FRONTLINE recently examined the controversial execution of Cameron Todd Willingham. The State of Texas had executed Mr. Willingham in 2004 for the death of his children in a fire, which the State Fire Marshal had concluded was intentionally set by the defendant.

**** 

Regardless of where you stand on the death penalty, this provocative documentary raises many concerns. The issue is not whether an innocent person can be wrongfully convicted. That question has been answered long ago by successive exonerations of persons formerly condemned to death row. The truth is, despite all the constitutional protections afforded to defendants in our system of justice, mistakes will occur. So, knowing that our current system has flaws, do we accept the possibility that an innocent person may be executed as a permissible trade-off or do we take the only punishment that is irreversible off the table?

 It is an interesting read. 

Human beings are fallible, right? We're not perfect. Therefore we might deduce that human institutions are equally fallible and imperfect. This is the nature of the human condition. AND YET some people believe that the death penalty - a final and irreversible condemnation of one human being by others, can be immune from human error. An exemplar case of human imperfection and the dangers of the death penalty is that of Anthony Graves, who spent 18 years in prison for a crime he did not commit.

Mr. Graves was falsely accused at his trial in 1994 of assisting in the murder of a mother, daughter and four children. He was incriminated by the actual murderer, Robert Earl Carter, who afterwards confessed that he had lied. Nevertheless, the prosecutor, in an extremely flawed and imperfect case, manipulated the jury into finding Graves guilty, despite the fact that there was no physical evidence linking him to the crime. Graves, an innocent man, was condemned to death.

Carter once again confirmed Graves' innocence while on his death bed in 2000, but the prosecution refused to concede that they could possibly have gotten anything wrong.

Graves spent 12 years on death row in Texas until his sentence was reversed in 2006 because of "prosecutorial misconduct." Since then, Graves and his attorney, with the assistance of the Texas Innocence Project and students of St. Thomas University, had been collecting evidence to support his claim of innocence. Meanwhile, a new district attorney was also re-examining the case and finally on Wednesday, October 27th, dropped all charges against Graves, claiming that his office could find no evidence against him and conceded that Graves "is an innocent man …. There is nothing that connects Anthony Graves to this crime."

Unfortunately, it was relatively easy to get Graves convicted and much more difficult to establish his innocence. This is quite alarming, and one has to wonder how many more innocent people are losing their lives, waiting behind bars--hoping to prove their innocence.

And how many innocent people have been and may be killed for crimes they did not commit? Nationally, including Graves, 139 men and women have been released from death rows across the country.  Allowing the agents of the state to kill a man or woman in the name of justice ignores human fallibility.

It is dangerous to allow human beings to act like God. Better to act like mere mortals and avoid using the ultimate penalty altogether, leaving room to correct human error.

"Conviction", a film starring Hilary Swank and Sam Rockwell, about a real-life wrongful conviction case hits local theaters today! There is a good review in the San Francisco Chronicle. Let's hope this film stirs people and opens their eyes to the serious problems in our criminal justice system.  

Last night PBS debuted it's new season of "Frontline" with an episode about the case of Texas death row prisoner Cameron Willingham. The show titled "Death by Fire" has generated a tremendous amount of buzz.  It is widely believed that Willingham was executed for a crime he did not commit.  I encourage you to watch and decide for yourselves.  

Damien Echols

Last night Larry King spoke with Eddie Vedder of Pearl Jam and Natalie Maines of the Dixie Chicks about the wrongful convictions of the West Memphis Three.  Damien Echols, one of the three, is on death row in Arkansas.  Watch a clip of the show.

It is so great to see some attention being paid to this case, especially just days before the Arkansas Supreme Court is set to hold a hearing on Echols' case.

Last month, supporters sent Arkansas Governor Mike Beebe 4462 printed postcards and 4515 email-cards pleading for him to support a new trial for Damien Echols.

I'll be posting updates about Damien's case as new developments occur.

On August 24, U.S. District Judge William T. Moore Jr. rejected Troy Davis' claims of innocence, arguing that, although the new evidence presented casts some doubt on Davis's guilt, it mostly lacks "probative value" and is not enough to prove innocence. He called it "largely smoke and mirrors."

Davis's lawyers presented the evidence during a hearing on June 23 and 24 of this year. This federal evidentiary hearing was ordered by the U. S. Supreme Court (the first time the Supreme Court has ordered such a hearing in 50 years) after reviewing affidavits provided by Davis's lawyers that stated that seven of the nine original witnesses against Davis recanted their testimony. As there was no physical evidence connecting Davis to the shooting, the majority of the case against Davis was built around eyewitness testimony, so the recantations were a significant development.

However, Judge Moore said that of the seven witnesses to admit to falsely testifying, only one was completely credible (although not important to the conviction) and two were partially credible (but would "only minimally diminish the state's case"). The other four, he said, would have had no impact on the state's case.

Davis's lawyers had wanted to call several witnesses to the stand who had signed sworn declarations stating that Sylvester "Redd" Coles, who was present at the scene of the crime, admitted to them that he was the true killer. However, Judge Moore refused to allow them to testify, arguing that in order for their testimony to be valid, Davis's lawyers must have first subpoenaed Coles so that he could testify on his own behalf.

Judge Moore did, however, state that executing an innocent person would violate the Eighth Amendment against cruel and unusual punishment. He then reiterated that he does not believe that Troy Davis is innocent.

Davis was convicted of shooting an off-duty police officer who tried to intervene in a fight between two men. Davis claims he was just a witness who ran away when he heard shots fired. Coles (armed with a lawyer by his side) almost immediately went to the police station to clear his own name and implicate Davis as the shooter. Although there was no physical evidence, the police arrested Davis for murder.

Due to the lack of evidence and the sheer number of witnesses who have recanted their testimony, Troy Davis's case has garnered international attention. Even the Pope has spoken out in support of Davis.

After 19 years, Davis's case has been heard by every level of the court and he has received a stay of execution three times. In his order, Judge Moore suggested that Davis appeal directly to the U.S. Supreme Court. Meanwhile, Davis' lawyers are doing everything they can to make sure their client is not executed before he is able to prove his innocence once and for all.

Click here to take action.

This is the face of man whose life you helped save.

"It feels like the world has stopped...Our family has gone through a lot...I'd like to thank Governor Strickland for being a just man," said Kevin's older brother Charles upon hearing the news that his younger brother would live past September 15th--that he would live to embrace his family one more time and celebrate another birthday. 

Thanks to supporters and activists like you, Ohio Governor Ted Strickland spared Kevin Keith from execution yesterday.

Strickland, who is facing a tough reelection battle and was presented with an 8-0 recommendation against clemency from the Ohio Parole Board, managed to see past political ambition and expediency and summoned the courage to do what was right.  He recognized that the execution of an innocent man could not be undone. He weighed his options and cast his vote for life.

This heroic decision is a reminder that committed individuals can make a difference--that each and every one of our actions matter--that one life matters.  If you feel moved to thank Governor Strickland, his contact info and a sample letter are below.

Thank you for standing with us as we work to end the death penalty. Thanks to you, the tide is turning.

Please consider supporting the crucial work of Death Penalty Focus. We could not do it without you.

Contact Info and Template Thank You Letter to Governor Strickland

Governor's Office
Riffe Center, 30th Floor
77 South High Street
Columbus, OH 43215-6108

Phone/Fax

General Info: (614) 466-3555
Fax: (614) 466-9354

Online: http://governor.ohio.gov/Default.aspx?tabid=150

Dear Governor Strickland,

Thank you for granting clemency to Kevin Keith.

As you noted in your commutation statement, many legitimate questions have been raised regarding the evidence in support of Mr. Keith's conviction. This evidence of innocence was never presented in its entirety before any court or jury. It would have been a tragic mistake to execute Mr. Keith when such grave doubts linger about his guilt.

This year, you demonstrated your commitment to improving the fairness and accuracy of Ohio's criminal justice system by signing into law comprehensive reform legislation to combat wrongful convictions. By granting clemency to Mr. Keith, you upheld that commitment.

I commend you for recognizing that there is no room for error when a life is at stake.

Sincerely,

Kevin Keith

A possibly innocent man will die unless Ohio Governor Ted Strickland heeds the concerns of numerous law enforcement officials and tens of thousands of concerned citizens. Kevin Keith is scheduled for execution September 15th for a crime he likely didn't commit.  

Mr. Keith's conviction centered on flawed eyewitness identification. The key witness against Mr. Keith first told four people he could not identify the shooter because the shooter was wearing a mask. It wasn't until the police showed this witness a highly suggestive photo lineup, with Mr. Keith's face made larger than the others, that the witness picked out Mr. Keith.

This blog is continued on CARE2...

Damien Echols

Check out my blog post about Damien Echols on Care2 today.  Please add a comment and vote in the poll. We are trying to generate as many letters as we can to Arkansas Governor Mike Beebe before Damien's September 30th hearing.  Take Action here.

It has been my good fortune to serve as a judge in New Hampshire for thirty-seven years. For thirteen of those years I was presiding justice of the Durham District Court. I served as a justice of the Superior Court for eighteen years, nine of which I spent as chief justice. And I sat on the Supreme Court for six years before retiring in December of 2005. I am proud of our judicial system and the effort of judges in all our courts to treat people fairly and equally, and to protect their individual rights.

While serving as a judge, I rarely expressed my opinion on capital punishment privately, and until now I never expressed my opinion publicly. Nor did I let my personal opinions influence my judicial decisions. In fact, in 1998 I presided over the capital murder case of Gordon Perry, and on every motion filed on his behalf challenging New Hampshire’s capital punishment statute, I ruled he had not established that the law violated our constitution.

Last week, I appeared before the New Hampshire Commission to Study the Death Penalty, whose members I commend for their willingness to undertake the important and challenging task assigned to them by the legislature . My purpose in speaking to the commission was not to talk about facts and statistics or trials and cases but to address the moral issue of death as punishment.

The way we have been dealing with the death penalty for years is to talk about enacting laws, adopting procedures, establishing practices and providing mechanisms, as if by creating an elaborate process we could somehow sanitize the death penalty and thereby ignore the moral issues that capital punishment presents. We cannot.

I appeared before the Commission to answer one straightforward but complex question: Do I believe the systematic killing of another human being by the state, in my name, is justified?

My answer to that question is, No.

During my tenure as a judge, I met many people with strong opinions about capital punishment.  Through most of that period, over two thirds of those polled in the United States regularly supported the death penalty. Some people I respect still do. So you would think that anyone looking for answers based upon public opinion or strongly held views should have an easy task.

What is the problem, then?  In the face of these odds, why do we continue to struggle with the acceptability of death as punishment?  I believe one reason we engage in this process is that no matter what some people say publicly about capital punishment, deep inside many are not as certain as they proclaim.

I believe another reason is that our thinking evolves, as people, technology, and societies progress. And what is acceptable at one time in our history may become unwelcome at another. If that is true then, we are encouraged to re-examine our core principles and to consider whether death continues to be an acceptable punishment in New Hampshire.

I have great respect for the offices of the Attorney General and the Public Defender and for the integrity and competence with which the attorneys in those offices handle homicide cases. The primary source of my continuing concern about the death penalty, however, is not New Hampshire’s limited capital murder experience but my own professional exposure to criminal justice issues.

There is no question that people who commit murder must be punished and should be removed from society. Life in prison without parole does both. It is interesting to note that two states, New Hampshire, which has not employed the death penalty since before Pearl Harbor, and North Dakota which does not condone capital punishment, did not need death to achieve the lowest murder rates in the nation every year of this century.

No legal system is perfect. Human beings make mistakes. That is one reason we accept the notion that occasionally the guilty will go free and the innocent will be convicted.  But I do not believe anyone accepts the notion that it is alright for a person to be wrongfully executed. So with the most respected judicial system in the world, how can we willingly embrace a sentence which cannot be reversed after it is imposed; and how can we continue to believe that it is morally acceptable for the state to take a human life?

My answer is, we cannot.

As most of us, I have never experienced the emotions felt by a murder victim’s loved ones, and I may never know for sure that I could not be persuaded by the desire for personal revenge to seek the death penalty for a person I knew killed someone I love. But for me, neither of these deficiencies makes opposition to the death penalty any less compelling.

I am not a death penalty expert.

I am not a spokesperson for the judiciary.

I am one New Hampshire citizen; one person, who believes it is not necessary to kill to show that killing is wrong.

So after thirty-seven years on the bench; after presiding over hundreds of jury trials; after sitting on numerous criminal cases; after listening to witnesses in scores of sentencing hearings; after considering information in thousands of probation reports; after imposing sentences upon countless convicted defendants; after entertaining the arguments of lawyers at every level of skill; after talking with a host of judges and corrections officials; and after continued personal reflection; this is what I believe about capital punishment:

• The threat of its use is not a deterrent to the commission of a homicide, because those who kill do not consider the sentence before they act or do not expect to be caught, or both.
• The threat of its use is not necessary to protect the people of New Hampshire for the same reason.
• Its abolition does not dishonor those who serve in law enforcement because honor comes from personal pride and earned respect, not from the ability of the state to execute a human being.
• Its abolition does not diminish the voice of murder victims because the right of all victims to be heard is intended to come at the time defendants are sentenced not at the time they are charged.
• It provides no more justice than life in prison without parole because justice is not measured by the sentences we impose.
• To seek and carry out the death penalty costs the state much more in time and taxes than to prosecute and confine a person to prison for life.
• To seek and carry out the death penalty consumes inordinate resources of courts, prosecution, defense and law enforcement.
• The decision whether to seek the death penalty is too easily swayed by public opinion, political pressure and media attention.
• Its potential as a prosecutorial tool is outweighed by its capacity for misuse.
• It is too easily subject to selective prosecution.
• It is too likely to be imposed upon minorities and the poor.
• It is too likely to depend upon the persuasiveness of lawyers.
• Its imposition is too readily subject to the emotions of individual jurors.
• Its imposition is too clearly dependent upon the composition of the particular jury empanelled for each case.
• It inevitably leads to disparate sentences.
• It creates the unacceptable risk that a person may be wrongfully executed.
• It exalts rage over reason.
• It diminishes our character as a people.
• And in the end, I believe it serves just one purpose: vengeance.
  

John F. Terzano of The Justice Project just posted this blog "Crime Labs Need Independence and Robust Oversight to Ensure Justice" which discusses the recent crime lab scandal in San Francisco. 

I think the most interesting section is this: 

The majority of publicly operated crime labs are part of a law enforcement agency. As a result, crime lab employees may come to see themselves as part of a crime fighting team, rather than objective agents of science. Given that many forensic examinations involve subjective interpretations of data, the risk for bias is greater when the lab is structurally part of law enforcement.

I look forward to watching how the situation unfolds in San Francisco. I hope the upshot of the scandal is that real, much-needed reforms are adopted.

On Saturday, 48 Hours Mystery featured a program on the West Memphis 3.  Damien Echols, Jason Baldwin and Jessie Misskelley, known as the West Memphis 3, are serving prison terms in Arkansas for murders they most likely did not commit. Echols is on death row.  Here's a brief case overview. 

It is great to see Johnny Depp getting involved in this case. He can bring much needed attention to this injustice.  

Mike Farrell, President of Death Penalty Focus

Friday's Opinion piece by Gary Lieberstein and John Poyner in the San Jose Mercury News contains so many factual inaccuracies and politically inspired half-truths that I'm surprised they attached their names.

The tired-- and soundly demolished-- idea that state killing is a deterrent to violent crime only maintains currency because people who should know better -- and probably do -- continue to repeat it. They do so, it's clear, because all the other excuses for supporting capital punishment have been exposed as baseless.

Purporting to state "facts," Lieberstein and Poyner misstate and
twist them embarrassingly. Citing two infamous cases ¬ one based
solely on circumstantial evidence that made the retired "Hanging
Judge" of Orange County volunteer to testify for the defense ¬ they
claim that "Prosecutors have reserved the death penalty for the worst
crimes." They know better. California's death penalty law allows for
33 separately enumerated "special circumstances," not the 22 they
claim, and their range allows almost any murder to qualify for death
if an ambitious prosecutor feels it personally advantageous.

The statistics they cite, while not correct, indict their own thesis.
If the small percentage of death charges they claim are responsible
for the waste of $135 million in California's taxes every year ¬ as
reported by our state's Commission on the Fair Administration of
Justice-- then over 95% of those convicted of murder serve out their
time in our state's prisons, clearly punished, but at a fraction of
the cost to the people.

They selectively cite one of two or three studies, all of which have
been soundly denounced by criminologists and statisticians, claiming
that killing people actually deters murders. It must be embarrassing,
even for these authors, to go through the gymnastics necessary to find
and reproduce a repudiated report while knowing that so many experts
have trashed it.

The assertion that great care is taken by their colleagues before
charging and prosecuting for death, while certainly the least one
might expect, seems to be contradicted by the fact that over 40% of
California's capital convictions are overturned on appeal. Their
claim that "a death verdict must be unanimous" conveniently ignores
the fact that no potential juror who opposes or has questions about
the appropriateness or efficacy of capital punishment is allowed to
sit on a capital case.

The statement that "There has never been a single finding of
prosecutorial abuse-- including an improper motive such as race, bias
or vindictiveness -- in the history of California's death penalty," is
astonishing -- and false. One need look only at the case of Thomas
Thompson, after whose execution Judge Stephen Reinhardt of the 9th
Circuit Court of Appeals referred to him as "the first person in the
nation ever to be executed on the basis of a trial that an unrefuted
decision of a United States Court of Appeals had held to be
unconstitutional."

As to the question of cost, the authors try valiantly to skirt the
issue by attempting to cast blame on an overwhelmed and under-funded
defense bar with a juicy quote from a pro-death organization. The
cost of death penalty politics, which is what their opinion piece
reeks of, is outrageous. Taxpayers in California, as is the case in
the 34 other death-dealing states in our country, are paying two to
three times as much for every death case as they do for one that seeks
life in prison without possibility of parole. This fact was one of
the determinants in the recent decisions of New Jersey and New Mexico
to take state killing off the books. The simple expedient of
eliminating the death penalty in California would save us $1 billion
in the next five years -- this in a state with a $20 billion budget
deficit.

Lieberstein and Poyner, whose job gives them the power to decide which
penalty to seek while capital punishment remains on the books, should
put away empty, tired and false clichés like the threat of "increased
violence" and truly consider the needs of the people. Their defense
of such an outdated, ineffective, inefficient, racist and hugely
expensive process demeans those they claim to serve.

As the newest member of the Death Penalty Focus team, I am constantly discovering new reasons why I oppose the death penalty. I have always been morally opposed to capital punishment, but day in and day out, I read appalling statistics and hear incredible stories that have allowed me to develop my position by embracing a wide variety of compelling reasons why the death penalty must be replaced with permanent imprisonment in California and throughout the United States.

This weekend, my position developed even further. At a Death Penalty Focus fundraiser (if you couldn't attend, you can still donate at www.deathpenalty.org/donate), Aaron Owens, a resident of Alameda County, spoke to a room packed with 75 people.

Below is a bit about Aaron:

Convicted of: 1st Degree Murder (2 counts)
Year of Conviction: 1973
Sentence: Life (if he were convicted a few years earlier, or a few years later, it would have undoubtedly been a death sentence)
Year Released: 1982
Years Served: Almost 10 years
Wrongful Conviction Factors: Mistaken eyewitness identification

One of Aaron Owens' best friends is John Taylor, the man who sent him to prison for two life sentences for a double murder he did not commit.

"Twelve people thought that I was the man who committed the crime and they were wrong." Owens said. John Taylor was the prosecutor who convinced the jury that Owens was guilty. And Taylor is also the man who is responsible for Aaron now being free. "If John were not the kind of man he is, I never would have gotten out of prison. Nobody was going to listen to me. Nobody did. It took a man with a conscience like John to do what he did: see a mistake and rectify it."

Though Aaron's conviction was for a capital offense, it came at a time when California had a moratorium on the death penalty as a result of the U.S. Supreme Court ruling in Furman v. Georgia. That stroke of luck meant he was sentenced to life instead. "If not for the moratorium, I would have been dead in '76 because that's when they affirmed my conviction," Owens said.

Aaron's conviction was simply a case of mistaken eyewitness identification. Owens said that the pivotal testimony came from a victim who survived and testified "I would never forget the eyes of the man who threatened to kill my little boy." The jury asked to hear that testimony again, and convicted Owens a short time later. But the witness simply made a mistake. Indeed, when Aaron later saw a picture of the true killer, he said "I thought it was a picture of me."

Thanks to John Taylor, Aaron received a full pardon and was released in 1982 after 10 years in prison. But that's all he got. He never received any compensation at all. The conviction still appears on his record, which has made life after prison even more difficult.

Aaron now works for John, doing investigation and legal work. Both fan's of the Oakland A's, you will often find them sitting at the ballpark together, friends with a unique bond.

I was so moved hearing Aaron speak. I am equally inspired and energized by the realization that if we can spread his story, and the many other stories like his, there is no way we can not win this fight.