Time to end death penalty prosecutions of the mentally ill

August 9, 2015

In light of the life-without-parole sentences imposed on Theodore Kaczynski (the Unabomber), Jared Loughner (who shot and killed Congresswoman Gabriele Giffords and a federal judge) and James Eagan Holmes (who shot and killed 12 people at a movie theater in Aurora, Colorado), that “mark the progress of a maturing society,” I believe our society’s “evolving standards of decency” have reached a point where Congress and our state legislatures should pass legislation that prohibits executing the mentally ill for murders they committed. At long last, have we not reached the point where reasonable and thoughtful people can conclude that executing the mentally ill violates the Eighth Amendment prohibition against cruel and unusual punishment?

In Trop v. Dulles, 356 U.S. 86, 100-101 (1958), Chief Justice Earl Warren wrote,

This Court has had little occasion to give precise content to the Eighth Amendment, and, in an enlightened democracy such as ours, this is not surprising. But when the Court was confronted with a punishment of 12 years in irons at hard and painful labor imposed for the crime of falsifying public records, it did not hesitate to declare that the penalty was cruel in its excessiveness and unusual in its character. Weems v. United States, 217 U.S. 349. The Court recognized in that case that the words of the Amendment are not precise, and that their scope is not static. The Amendment must draw its meaning from the evolving standards of decency that mark the progress of a maturing society.

(Emphasis added)

Each of these men committed atrocious and heinous multiple murders. Each of them was schizophrenic and delusional when they committed the murders. When a person kills another human being while gripped by delusions caused by a severe mental illness such as schizophrenia, it makes no sense to hold that person accountable for what he did by executing him. Indeed, such an execution serves only a desire for vengeance, which is not a legitimate societal interest. Moreover, since they have lost the capacity to reason through no fault of their own, it certainly does not deter other mentally ill people from killing.

I previously warned that the James Holmes death penalty trial is a colossal waste of time and money. Let us join together and vow to never again make this mistake.


Jury sentences James Holmes to life without parole

August 8, 2015

CTV reports,

Twelve jurors failed to agree on a death sentence for Colorado theatre shooter James Holmes, prompting shocked sobs from victims, police officers and his own mother. Holmes will instead spend the rest of his life in prison for fatally shooting 12 people.

The nine women and three men said they could not reach a unanimous verdict on each murder count. That automatically eliminates the death penalty for Holmes, who blamed the killings on mental illness.

/snip/

One juror told reporters outside court that there was a single juror who refused to give Holmes the death penalty and two others who were wavering. The key issue was Holmes’ mental illness.

“All the jurors feel so much empathy for the victims. It’s a tragedy,” the juror said, refusing to give her name. “It’s a devastating result no matter what. I am deeply, deeply sorry — that isn’t even the word.”

The verdict was a surprise because a week ago (before the victim impact testimony) the jury decided that the mitigation evidence did not outweigh the aggravation evidence. I was surprised since that is the legal test for deciding whether to impose the death penalty or life without parole. I suspect the change might be the due to the difference in believing you can kill someone versus actually doing it. Someone on that jury could not pull the proverbial trigger.

A month ago, I predicted this result when I wrote, James Holmes death penalty trial is a colossal waste of time and money.

The prosecution is seeking the death penalty even though there is no question that Holmes was mentally ill but legally sane at the time of the shootings — one psychiatrist diagnosed him as suffering from schizotypal disorder while a second psychiatrist diagnosed him as suffering from shizoaffective disorder — and he offered to plead guilty to a life-without-parole sentence. After the prosecution rejected the defense offer, Holmes changed his plea to not guilty by reason of insanity.

/snip/

We who have experience representing clients in death penalty cases* refer to the guilt phase in a slam dunk case like this as a slow-motion guilty plea. That is, when we lack a defense, instead of pleading guilty, we use the guilt phase to introduce evidence that mitigates the seriousness of the offense. Holmes’s insanity defense is doomed because he admitted to police that he knew killing was wrong. But there is no dispute that he was mentally ill. While not a defense, mental illness is a powerful mitigating factor and, as I’ve said previously, I think the jury will likely vote for a life-without-parole sentence after the penalty phase for the simple reason that killing somebody who was mentally ill through no fault of their own is morally and ethically repugnant to most people.

I’ve said this before and I will say it again, this trial has been a colossal waste of taxpayer time and money.

*I was a death penalty lawyer until I retired in 2005.

 


James Holmes death penalty trial is a colossal waste of time and money

July 11, 2015

James Eagan Holmes was arrested on July 20, 2012 shortly after killing 12 and wounding 70 people at the midnight premier of a new Batman film in the Century 16 movie theater in Aurora, CO. He was eventually charged with 152 crimes, including 12 counts of premeditated murder, 12 counts of depraved heart murder (charged in the alternative) and 70 counts of attempted murder. The prosecution is seeking the death penalty even though there is no question that Holmes was mentally ill but legally sane at the time of the shootings — one psychiatrist diagnosed him as suffering from schizotypal disorder while a second psychiatrist diagnosed him as suffering from shizoaffective disorder — and he offered to plead guilty to a life-without-parole sentence. After the prosecution rejected the defense offer, Holmes changed his plea to not guilty by reason of insanity. The trial began with jury selection on January 20, 2015. Both sides rested yesterday. Closing arguments for the guilt phase are scheduled to start on Tuesday.

We who have experience representing clients in death penalty cases* refer to the guilt phase in a slam dunk case like this as a slow-motion guilty plea. That is, when we lack a defense, instead of pleading guilty, we use the guilt phase to introduce evidence that mitigates the seriousness of the offense. Holmes’s insanity defense is doomed because he admitted to police that he knew killing was wrong. But there is no dispute that he was mentally ill. While not a defense, mental illness is a powerful mitigating factor and, as I’ve said previously, I think the jury will likely vote for a life-without-parole sentence after the penalty phase for the simple reason that killing somebody who was mentally ill through no fault of their own is morally and ethically repugnant to most people.

I’ve said this before and I will say it again, this trial has been a colossal waste of taxpayer time and money.

*I was a death penalty lawyer until I retired in 2005.


SCOTUS rules against Oklahoma inmates challenging executions with midazolam

June 29, 2015

The SCOTUS held today by a vote of 5-4 in Glossip v. Gross, that three Oklahoma inmates awaiting execution failed to establish a likelihood of success on the merits of their claim that the use of midazolam as the first drug administered in a three-drug execution cocktail violates the Eighth Amendment prohibition against cruel and unusual punishmen because it “fails to render a person insensate to pain.”

Midazolam is a Schedule IV controlled substance, a benzodiazepine in the same class as diazepam, lorazepam, alprazolam and clonazepam. It has been approved for use in treating epileptic seizures, anxiety disorders and agitation. It is normally administered to patients to relax them before undergoing surgery or a medical procedure. It has never been approved by the manufacturer and the FDA for use in rendering people unconscious before administering a paralytic agent to inhibit all muscular-skeletal movements and potassium chloride to induce cardiac arrest.

Oklahoma and other states started using midazolam after the manufacturer of sodium thiopental, the barbiturate used to induce a state of unconsciousness before administering the other two drugs, objected to it being used to execute people and refused to sell it to any vendor who would sell or transfer it to states to use in executions.

The inmates based their argument on several botched executions where inmates appeared to be experiencing considerable distress before dying. They contended that midazolam failed to render those inmates unconscious while inducing a feeling described by one victim as burning up inside.

After a three-day evidentiary hearing, a United States District Court judge held that the inmates failed to identify an available alternative method that presented a substantially less severe risk of pain. The judge also held that the inmates failed to establish a likelihood that the use of midazolam created a risk of severe pain. The Tenth Circuit affirmed the decision.

Writing for the majority, Justice Alito affirmed the district court decision holding that the inmates failed to establish a likelihood of success on their Eighth Amendment claim.

Justice Sotomayor dissented, joined by Justice Breyer and Justice Kagan. Condemning the execution with midazolam as the equivalent of burning someone to death on a stake, she said,

The Court’s determination that the use of midazolam poses no objectively intolerable risk of severe pain is fac­tually wrong. The Court’s conclusion that petitioners’ challenge also fails because they identified no available alternative means by which the State may kill them is legally indefensible.

/snip/

“By protecting even those convicted of heinous crimes,the Eighth Amendment reaffirms the duty of the govern­ment to respect the dignity of all persons.” Roper v. Simmons, 543 U. S. 551, 560 (2005). Today, however, the Court absolves the State of Oklahoma of this duty. It does so by misconstruing and ignoring the record evidence regarding the constitutional insufficiency of midazolam as a sedative in a three-drug lethal injection cocktail, and by imposing a wholly unprecedented obligation on the con­demned inmate to identify an available means for his orher own execution. The contortions necessary to save this particular lethal injection protocol are not worth the price.

I dissent.

Justice Breyer also wrote his own dissenting opinion, joined by Justice Ginsburg. He wrote,

I would ask for full briefing on a more basic question: whether the death penalty violates the Constitution….Today’s administration of the death penalty involves three fundamental constitutional defects: (1) serious unreliability, (2) arbitrariness in application, and (3) unconscionably long delays that undermine the death penalty’s penological purpose. Perhaps as a result, (4) most places within the United States have abandoned its use.

Breyer and Ginsburg with Sotomayor and Kagan close behind appear ready to stop tinkering with the machinery of death and decide that the death penalty violates the Eighth amendment, regardless of the underlying facts.

Read the slip opinion here: PDF


Orange County California DAs’ Office disqualified from seeking death penalty against Seal Beach murderer

June 1, 2015

Since the 1980s, the Orange County District Attorney’s Office (OCDA) in California and the Orange County Sheriff’s Department (OCSD) apparently have been routinely violating the constitutional rights of incarcerated defendants awaiting trial to remain silent (Fifth Amendment), to counsel (Sixth Amendment) and to due process of law (Fourteenth Amendment) by placing jailhouse informants in adjoining cells with instructions to elicit confessions from them in return for extra privileges, reduced sentences and cash payments. When they testified about the confessions, the jailhouse informants denied requesting or receiving any benefits in exchange for their testimony and the OCDA and OCSD concealed the existence of the agreements. The polite description of this arrangement is subornation of perjury.

Dahlia Lithwick reports for Slate,

Prosecutorial and police misconduct are often dismissed as just a few bad apples doing a few bad apple-ish things. But what happens when it’s entrenched and systemic and goes unchecked for years? That looks to be the case in Orange County, California, where the situation got so completely out of hand this spring that Superior Court Judge Thomas Goethals issued an order disqualifying the entire Orange County District Attorney’s Office (that’s all 250 prosecutors) from continuing to prosecute a major death penalty case.

The death penalty case is People v. Scott Dekraai, who is in custody awaiting a penalty phase hearing after pleading guilty last year to killing his ex-wife and seven others at a beauty parlor in Seal Beach in 2011. Dekraai’s attorney is Santa Ana assistant public defender Scott Sanders, who realized that a jailhouse informant who had produced damning evidence about Dekraai had done the same thing to another client he was representing. Sanders smelled a rat, so he commenced an investigation that resulted in the discovery of “60,000 pages of records indicating that the county sheriff’s office routinely used and coordinated with those informants to get around the constitutional prohibition on eliciting incriminating statements from defendants who had lawyered up and should not have been interrogated.”

Sanders also found out “that the Orange County Sheriff’s Department has maintained a massive, secret, 25-year-old computerized record-keeping system called TRED. These TRED documents were full of potentially exculpatory data, but the agency officials had systematically refused to turn any of them over, or even acknowledge their very existence, to defense counsel.”

Judge Goethals refused to dismiss Sanders’s motion to dismiss the death penalty but he granted the motion to disqualify the OCDA and its 250 prosecutors. Kamala Harris, the Attorney General for the State of California, is appealing his order.

The alleged misconduct, if true, is not only an egregious violation of three constitutional rights, it’s a 25-year practice of concealing what they were doing. The rules are clear. After a suspect/defendant is represented by counsel, the prosecution and the police are prohibited from contacting him without permission from the attorney. They are also prohibited from attempting to get around the rule by using inmates to obtain confessions from defendants represented by counsel. In that situation, the inmate becomes an agent of law enforcement acting under their direction and control. A violation of this rule is a violation of a defendant’s right to remain silent and his right to have counsel present during an interrogation. The remedy for violating this rule is exclusion of the confession.

This rule does not prohibit inmates from acting on their own, which often happens when an inmate seeks to lighten his load by obtaining a confession from the defendant. If successful, he will contact law enforcement or the prosecutor assigned to the case and play, ‘Let’s Make a Deal.’

Unfortunately, if he is unsuccessful, he may invent a confession containing inside information about the offense. There are ways to obtain that information, for example, by contacting a clerk or paralegal in the prosecutor’s office and misrepresenting himself to be a reporter or a lawyer calling about the case. The OCDA and the OCSD apparently decided to make it easy by streamlining the process and lying about it afterward. Rewards, including promises to reward informants in the future are considered exculpatory evidence that must be disclosed to defense counsel. Failure to do so is a violation of the Due Process Clause of the 14th Amendment.

Why did they do that? To get the conviction, of course.

Easy to do when you believe everyone is guilty and constitutional rights are mere impediments to convicting the guilty.

Orange County now has an enormous mess to clean up and God only knows how many innocent people have been wrongfully convicted and sentenced to prison behind this institutional misconduct. Perhaps they will find out an innocent person was executed.

I have said many times that criminal defense attorneys are liberty’s last champions. If they do their job, as Scott Sanders did in this case, they force everyone else to follow the rules. Unfortunately, it took 25 years for that to happen in Orange County.


Dzhokhar Tsarnaev has a right to allocution

March 15, 2015

Various articles in the Huffington Post, the National Monitor and the International Business Times have discussed whether Dzhokhar Tsarnaev will testify during his trial.

I do not believe he will testify in the guilt/innocence phase or the penalty phase of his trial because that would open him up to cross examination, which he dares not risk. This does not mean, however, that he cannot speak to the jury. He has the right to allocution, which means he has the right to speak before sentence is pronounced. All defendants have this right.

In the first death penalty case that I tried, I had my client read a letter that he wrote to his daughter expressing regret for what he had done and for how that had affected their relationship. He broke down several times but eventually managed to get through it. The jury spared his life and several jurors told me afterward that they voted to spare his life because of his genuine tearful regret.

I am certain Judy Clarke and David Bruck have considered using allocution as a means for Dzhokhar Tsarnaev to speak to the jury about sentencing without being cross examined. Whether the tactic will succeed depends on whether he genuinely expresses remorse and regret.

The keyword is ‘genuine.’ Anything less and he will almost certainly be sentenced to death.


Riveting testimony in the Boston Marathon bombing trial hurts Dzhokhar’s chance to avoid death penalty

March 13, 2015

During the past two days, the prosecution presented evidence about the murder of MIT police officer Sean Collier and the kidnapping of Dun Meng, a Chinese businessman, and his Mercedes vehicle by the Tsarnaev brothers.

The Boston Globe reports,

Dr. Renee Robinson, a state medical examiner, told jurors that the 26-year-old Collier was shot three times in the head, including once between the eyes, and three times in the hand, and he would have died instantly. Robinson said the shots were fired at close range, at least one with the muzzle pressed against his skin, based on the pattern of the bullet’s entry wound.

Two people were captured on campus security video approaching Collier’s vehicle from behind after he pulled over and stopped. They are visible leaving the scene from the same direction that they approached. The apparent motive for the murder was to steal his gun, but they were unsuccessful because it was locked in his holster. Police discovered that the holster had been damaged in an apparent effort to remove the gun.

Dun Meng, the Chinese businessman, testified about his encounter and escape from the Tsarnaevs. Here’s the Globe again,

Sitting at the edge of his seat, he described how he took several turns, and pulled his car to the side of the road on Brighton Avenue to send a text message to a friend. Suddenly, a sedan pulled up behind him quickly. A man stepped out of the passenger side of the car, approached his passenger side window and tapped. He asked him to lower the window. Deng thought he was going to ask for directions, but the man instead reached inside and opened the door, stepping inside his car.
“He pulled the gun to me, to my head,” Meng told jurors, describing how he thought he was being robbed. The man pulled out his magazine, to show he had bullets.

“I’m serious, don’t be stupid,” the man told him.

Then he said, “Do you know the Boston Marathon explosions? I did it, and I just killed a police officer in Cambridge.”

Meng identified Tamerlan Tsarnaev as the man with the gun. Dzhokhar Tsarnaev was following behind them in a green Honda. He eventually parked the car and joined them sitting in the back seat behind Meng. Dzhokhar used Meng’s ATM card to withdraw $800. Meng escaped when they stopped at a Shell station for gas while Dzhokhar went inside to pay for the gas and Tamerlan was distracted fiddling with a GPS device.

Meng unbuckled his seatbelt with one hand and unlocked and opened the door with his other hand. He tumbled out onto the ground and took off in a crouching sprint across the street to a Mobil station where he called 911.

Police were able to find the Mercedes because it was equipped with a sophisticated GPS positioning system that located it precisely. The shootout ensued.

So far the evidence has shown Dzhokhar to be a willing participant and that is going to hurt his chance to beat the death penalty.


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