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The presidential aspirations of Rick Perry are (ironically enough) bringing with them a fresh awareness of the very real existence of wrongful convictions.  In the tragic case of Cameron Todd Willingham, the Texas man erroneously convicted and executed for a non-existent arson-murder, the Governor completely failed in his duty as chief executive of the state by failing to halt the execution despite being provided scientific evidence of Mr. Willingham's innocence (not that surprising, given Mr. Perry's disdain for science).  

The failure of governors and/or parole boards to appropriately exercise their powers of commutation joins a long list of reasons why those charged with murder are particularly vulnerable to being erroneously tried and convicted.  Those reasons include such well-known causes as dishonest prosecutors, inept defense attorneys, and political hacks posing as judges.  There is one deep-seated cause, however, that cannot be eradicated with institutional reforms, and that, standing alone, is a compelling argument against the use of the death penalty.  That is the fact that in murder cases (and other serious felony prosecutions), the jury does not presume the defendant innocent.

It presumes him guilty.

I want to make it clear that I am not advocating against the jury system, but against the death penalty.  There are various reasons why a juror is more likely to start with a presumption of guilt in a serious case despite what the judge instructs him about the law.  First, jurors are  the generally more frightened of wrongly releasing a rapist, child molester, or murderer than of wrongfully convicting someone of a heinous crime.  It's easy to apply the presumption of innocence to a case involving a drug sale or a commerical burglary.  It is much harder for most people to give the benefit of the doubt to someone who might, if the jury erroneously releases him, commit further violent crimes.

Second, defendants in serious cases tend to look different from the jurors and to lead different lives from theirs.  People are much more likely to ascribe criminal behavior to "others" than they are to people to whom they relate.  Generally speaking, people who end up charged with serious criminal charges are poor, or people of color, or people with drug or alcohol issues, or people with psychiatric issues, or people who lead very different lifestyles from those of the jurors.  The wrongful conviction of the West Memphis Three had more to do with the way that they dressed and the music to which they listened than to any actual evidence of guilt.  The ways in which they were different from other children in the community caused the jurors to presume them guilty.  Conversely, the attractive appearance of Casey Anthony ensured that the jury did not feel threatened by her, and was thus willing to give her the benefit of the presumption of innocence.  The acquittal of O. J. Simpson can be at leastly partially explained by the fact that he came into the trial with a peaceful, non-threatening public persona that alleviated any concerns jurors might have about wrongfully freeing him.

Third, in capital cases the deck is further stacked against the defendant by the process of "death-qualifying" the jury.  Potential jurors who can not, or who would find it difficult to, impose a death sentence cannot sit on the jury in a capital case.  People who believe in the death penalty usually can (or at least claim to be able to, according to my cynical self) commit to giving a life sentence in an appropriate case.  People who do not believe in the death penalty usually cannot commit to sentencing someone to die.  The result is that the guilt of the accused in a death-penalty case is always decided by a jury that excludes that segment of the population that opposes capital punishment.  It is, I'm sure, no surprise to learn that jurors who support the death penalty also tend to have a higher trust of law enforcement and a greater fear of crime than thise who do not.  Multiple studies have established that such jurors are much more likely to convict a person charged with murder.  Thus, the guilt of defendants standing trial for their lives is judged by the segment of the population most likely to presume them guilty from the beginning.

Finally, the culture has devolved from one in which 12 Angry Men was a popular dramatization of the courage and rationality expected of jurors to one in which rabble-rousing mediocrities make a fortune while tirelessly promoting the concept that anyone charged with a crime is guilty of that crime.  The result is that jurors who presume the defendant guilty find their mindset celebrated in popular media, while those who actually take their oath seriously are vilified and threatened by the public.  The result is that the safest thing that a juror can do in a serious case is vote for a guilty verdict.  

These factors create the anomaly that the more serious the case, the lower the quality of justice the defendant can expect from his jury.  This is the reason that Cyrus Vance's decision in the Dominique Strauss-Kahn case was so honorable.  If a prosecutor does not believe the defendant guilty beyond a reasonable doubt, ethically he should not subject him to the palpable risk that a jury will not give him the benefit of the presumption of innocence.  Unfortunately, most prosecutors presume all arrestees guilty, and few have the political courage to drop charges even in the cases in which they may harbor personal doubts about the defendant's guilt.

The fact that innocent people have been released from prison makes it absolutely certain that people other than Cameron Todd Willingham have been executed for crimes they did not commit (it is simply too unlikely that somehow students and journalists have managed to identify all of the wrongfully convicted people in this country prior to their executions).  We will never know the identity of all of them because there is not much pressure to re-examine cases in which the true victim is a person who was vilified in life and forgotten in death (although sometimes there is pressure not to).  The presumption of guilt with which most jurors enter into their duties on serious cases raises the risk of erroneous convictions to levels which are frightening in cases involving lengthy prison sentences, and unacceptable in cases involving the execution of the defendant.  It is the inability of the average American to follow the Constitution in the judgment of criminal cases, particularly ones involving serious crimes, which is perhaps the strongest argument against the use of the death penalty.

 

Originally posted to DParker on Sun Sep 04, 2011 at 08:23 PM PDT.

Also republished by Abolish the Death Penalty.

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Comment Preferences

  •  Tip Jar (13+ / 0-)

    We were somewhere around Barstow on the edge of the desert when the drugs began to take hold.

    by DParker on Sun Sep 04, 2011 at 08:23:27 PM PDT

  •  You're missing something fundamental (9+ / 0-)

    Criminal defendants can waive their right to a jury and proceed solely before a judge (bench trial). Why do you think many don't do so?

    •  Because state judges (15+ / 0-)

      are usually elected officials.  The political pressure to find defendants guilty is enormous.  In my county, commissioners run for judgeships by touting their conviction and sentencing records, and prosecutors run for judgeships by touting their convictions.  Nobody runs by publicizing the times that they have upheld the rights of criminal defendants.  Judges only get removed for office by voters in California when they are popularly perceived as being too defense-oriented.  Add in the fact that judges are only human, and you are left with the grim reality that as bad as juries are, most judges are worse

      We were somewhere around Barstow on the edge of the desert when the drugs began to take hold.

      by DParker on Sun Sep 04, 2011 at 09:00:12 PM PDT

      [ Parent ]

      •  The Willingham Murder (3+ / 0-)
        Recommended by:
        eglantine, MrJayTee, esquimaux

        is gut wrenching and agonzing.
        my god. he lost his children.
        and then they killed him.
        an innocent man.
        when i first read about this i was devastated that i was ever conflicted on the DP.

        Texas horrifies the bejesus out of me.
        I don't think anyone should be allowed on a jury that does not understand what the defense will be arguing.
        I've had it with this system - and i know I sound ignorant and naive.
        But I can't take reading about another ignit TX jury sentencing someone to death.
        Because they are clueless morans.
        Who do not pay attention of care.

        I mean really?
        You're going to convict Andrea Yaeger of cold blooded calucated murder?
        I mean really?
        That trial changed my opionions forever too.
        TX needs to have special rules.

        They are a murdering thug state.
        And if they played by their own rules.
        They would be exectued for all the killing they have done.

        I know how stupid I sound. Trust me.
        But I think our system is broken.
        Government and courts alike.

        You are not an Environmentalist if you support the brutal, cruel, inhuman life and slaughter of animals in Factory Farms which produce 18 percent of greenhouse gas emissions worldwide.

        by Christin on Sun Sep 04, 2011 at 09:29:08 PM PDT

        [ Parent ]

      •  No. As an attorney who has represented (0+ / 0-)

        accused persons at the trial and post-conviction levels on death penalty cases, I would much rather have a jury decide the penalty than a randomly selected judge--or judges.  In Colorado, there are three people sitting on death row, in spite of several attempts every year by prosecutors to obtain death verdicts.  I am quite sure that the number would be higher if judges were making the decisions; and judges are appointed, rather than elected, here.  It is a well-known "secret" that willingness to impose a death sentence has been a litmus test prospective judges must pass in their interviews with the Governor.

    •  I waved a jury (2+ / 0-)
      Recommended by:
      DParker, esquimaux

      and trusted the judge to see the truth ,
      not only did he not see the truth
      but he got in his dirty licks also .

      "Drop the name-calling." Meteor Blades 2/4/11

      by indycam on Sun Sep 04, 2011 at 09:14:54 PM PDT

      [ Parent ]

    •  No judge ever lost election for (4+ / 0-)
      Recommended by:
      DParker, CaliSista, Euroliberal, Adam B

      being too tough on crime.  

      Republican Platform = Fear, Anger, and Hate. Oddly their God preached against those very traits.

      by TexDemAtty on Sun Sep 04, 2011 at 10:42:18 PM PDT

      [ Parent ]

  •  And also, the judge can reverse the verdict (0+ / 0-)

    instantly in the courtroom.

    "Nothing in all the world is more dangerous than sincere ignorance and conscientious stupidity." --M. L. King "You can't fix stupid" --Ron White

    by zenbassoon on Sun Sep 04, 2011 at 08:37:14 PM PDT

    •  But, he rarely, if ever, does n/t (4+ / 0-)

      We were somewhere around Barstow on the edge of the desert when the drugs began to take hold.

      by DParker on Sun Sep 04, 2011 at 09:00:52 PM PDT

      [ Parent ]

      •  About never that I have seen. Election issues. (3+ / 0-)
        Recommended by:
        DParker, Wayward Wind, seeta08

        Republican Platform = Fear, Anger, and Hate. Oddly their God preached against those very traits.

        by TexDemAtty on Sun Sep 04, 2011 at 10:43:14 PM PDT

        [ Parent ]

        •  I saw it once..sort of... (3+ / 0-)
          Recommended by:
          CaliSista, DaNang65, DParker

          Negligent homicide charge arising out of a traffic accident on high school graduation night.  Witnesses all over the block, forensics supported the defendant, but the small town cops wanted a conviction badly, fearing a lawsuit.

          The judge, who had a very strong law and order reputation, denied my motion to dismiss at the conclusion of proof, and sent the case to the jury.  The jury came back in 30 minutes with an acquittal.  

          The judge then asked me and the prosecutor to chambers, where he proceeded to sternly tell the prosecutor that the case never should have been brought in the first place and that the only reason he didn't grant my motion was that he didn't want the prosecution to have the opportunity to appeal his decision, unless absolutely necessary.  

          He made it clear that if the jury had convicted, he would have set it aside, which would have been a first in over twenty years on the bench.

          I am a warrior for peace. And not a gentle man... Steve Mason, 1940-2005

          by Wayward Wind on Mon Sep 05, 2011 at 12:28:22 AM PDT

          [ Parent ]

  •  I think the verdict by the jury of your peers (0+ / 0-)

    here on DKos will not be in your favor on this.

    I mean the right to a jury trial is one of the fundamental principles of America enshrined in the constitution.  This really is one of those rare times when I would tend to agree with those who would say, "America, if you don't love it, leave it."  It will be a sad day that the right to a jury trial is not a given.

    Rail against prosecutorial misconduct, or the rightward swing of the judicial branch over the last 30 years... or the unequal outcomes of our system, but leave the fundamental right to a jury trial alone.

    I am the neo-con nightmare, I am a liberal with the facts.

    by bhfrik on Sun Sep 04, 2011 at 08:42:07 PM PDT

  •  I have served on two juries (3+ / 0-)
    Recommended by:
    myboo, sberel, CaliSista

    very different charges (drug sales / statutory rape), very different places (large city / small town 3000 miles apart), different outcomes (one of 3 defendants convicted / hung jury). But in both cases the jurors took their roles very seriously and did not for the most part come in prejudging the case. There were a small number in each that I think seemed inclined to vote a certain way based on who the defendant was (in one case innocent, in the other guilty). But based on my limited experience I think people recognize the significance of their actions.

    Actually what bothered me more than your concern was the weirdly limited and circumscribed version of the story you hear as a juror, where there are a lot of loose ends that don't seem to add up. That happened in both trials and there are big question marks at the end.

    •  But doesn't that kind of thing happen (1+ / 0-)

      due to the rules of evidence or because of rulings made by the judge? In my experience, lawyers will answer of lot of those questions once the verdict is in.

      "Someone just turned the lights on in the bar and the sexiest state doesn't look so pretty anymore" CA Treasurer Bill Lockyer on Texas budget mess

      by CaliSista on Mon Sep 05, 2011 at 12:06:24 AM PDT

      [ Parent ]

  •  The justice system is flawed... (5+ / 0-)
    Recommended by:
    DarkLadyNyara, marina, myboo, sberel, DParker

    not just the jury system.  I see more potential benefit in doing away with capital punishment than eliminating juries.

    •  I must have really (5+ / 0-)

      messed up.  I am not advocating against the jury system, but against that system sitting in judgment on human lives.

      We were somewhere around Barstow on the edge of the desert when the drugs began to take hold.

      by DParker on Sun Sep 04, 2011 at 09:05:47 PM PDT

      [ Parent ]

      •  It might have been the title (3+ / 0-)
        Recommended by:
        Christin, CaliSista, jgilhousen

        It seemed pretty clear to me what you meant, but I can see where the title would lead to someone thinking you were against the jury system as a whole. /2cents

        The law, in its majestic equality, forbids the rich as well as the poor to sleep under bridges. - Anatole France

        by DarkLadyNyara on Sun Sep 04, 2011 at 09:14:49 PM PDT

        [ Parent ]

      •  You didn't mess up at all (3+ / 0-)
        Recommended by:
        DParker, eglantine, jgilhousen

        Some people are a little too nit picky and there are some very serious problems with the whole legal system including the jury system.

      •  Not really...It's clear that you are arguing (2+ / 0-)
        Recommended by:
        DParker, jgilhousen

        against the death penalty but much of the reasoning you use speaks to all jury trials.

        First, jurors are  the generally more frightened of wrongly releasing a rapist, child molester, or murderer than of wrongfully convicting someone of a heinous crime.
        I can't provide numbers but I'm fairly certain that prosecutors did not seek the death penalty for the overwhelming majority of people charged with these crimes. Even if they did, there seems to be a gaping hole between death penalty and release which leads the reader to presume you mean jurors can't be trusted not to wrongly imprison due to their fears.
        Generally speaking, people who end up charged with serious criminal charges are poor, or people of color, or people with drug or alcohol issues, or people with psychiatric issues, or people who lead very different lifestyles from those of the jurors.
        True of all trials - not just death penalty ones.
        The result is that jurors who presume the defendant guilty find their mindset celebrated in popular media, while those who actually take their oath seriously are vilified and threatened by the public.
        Again, true of all jury trials.
        Third, in capital cases the deck is further stacked against the defendant by the process of "death-qualifying" the jury.
        This reason, which is the first one to directly address death penalty cases, is buried a bit in your diary. I believe that the above are why people are misunderstanding your main intent.

        As an aside, the case you cite as an honorable decision by a prosecutor is likely seen by some to be the mirror image of your second argument

        Second, defendants in serious cases tend to look different from the jurors and to lead different lives from theirs.
        Here we have a White well off potential defendant against a poorer women of color who may have gotten in the country by dishonest means and whose story has been called into question.  Much easier to brush her off rather than get embarrassed by a defendant with means to mount a vigorous defense, right?

        "Someone just turned the lights on in the bar and the sexiest state doesn't look so pretty anymore" CA Treasurer Bill Lockyer on Texas budget mess

        by CaliSista on Mon Sep 05, 2011 at 12:44:25 AM PDT

        [ Parent ]

        •  You are right, CaliSista (2+ / 0-)
          Recommended by:
          jgilhousen, CaliSista

          I did muddle the point, which was that juries are more likely to get it wrong in serious cases, capital or non-capital, and that that dynamic is tragic in life cases, but unacceptable in death ones.  I was not nearly as clear as I should have been.

          I hesitated about putting the Strauss-Kahn reference in, but I do believe that the prosecutors did what they thought was right.  The facts that the defendant is privileged and the complaining witness is not is no more a reason for subjecting him to a trial than would be those facts in reverse. Finally,  I'm not sure it was easier for them to drop the case than to try it.   Certainly there would have no political fallout from proceeding with the prosecution.

          We were somewhere around Barstow on the edge of the desert when the drugs began to take hold.

          by DParker on Mon Sep 05, 2011 at 07:09:30 AM PDT

          [ Parent ]

          •  I have to disagree somewhat about DSK. (0+ / 0-)

            None of us can be sure what the prosecution had or didn't have in the way of evidence. Would their decision have been the same if they were facing a public defender instead of the best lawyers money can buy? In the wake of the Duke Lacrosse case, the bar on these type of prosecutions has been raised.

            Say there was enough evidence to go to trial but the case is weak. I see two scenarios:

            If the prosecution goes forward, they are guaranteed months or years of media attention and scrutiny by the HLN ambulance chasers, using up tons of scarce resources, defense lawyers digging up every bit of dirt on the alleged victim, continuous insinuations that she's in it for a paycheck, all winding up with a likely acquittal.

            They decide against prosecution and there are a few rumblings by Black people or the Caribbean immigrant community that say DSK is only getting off because he's rich and the alleged victim is Black. No one pays much attention because "they're always whining about race". DSK leaves the country and the prosecutors wash their hands of the whole mess.

            What's the downside?

            "Someone just turned the lights on in the bar and the sexiest state doesn't look so pretty anymore" CA Treasurer Bill Lockyer on Texas budget mess

            by CaliSista on Mon Sep 05, 2011 at 11:03:28 PM PDT

            [ Parent ]

      •  I very well may have read too quickly... (1+ / 0-)
        Recommended by:
        DParker

        and being somewhat preoccupied.

        To be honest, I have some serious issues with the jury system.  I just don't know what would be a better substitute.  So, there may have been some serious projection on my part going on during my read, as mixed feelings on these topics are very much aroused.

  •  My brush with jury duty left me concerned for (4+ / 0-)
    Recommended by:
    DarkLadyNyara, indycam, DParker, dnpvd0111

    the system.  On the day we were required to report, we were all herded into a room and told what to expect.  We were there for traffic cases.  After basic instructions the judge came in and told us that it was important for us to be there because the defendants had to know that the county was serious about prosecuting cases.  I was aghast, because he was throwing the presumption of innocence out the window.  The system seems designed to convict those accused of a crime rather than trying to determine who is truly guilty.

    •  My concern (2+ / 0-)
      Recommended by:
      dnpvd0111, eglantine

      is that people who have not had your experience may think that juries are infallable.  They are not.  Although I think that the jury system is the best that we can devise, I also believe that it is too flawed for us to trust it with human life.  The only alternative is to do away with the death penalty.

      We were somewhere around Barstow on the edge of the desert when the drugs began to take hold.

      by DParker on Sun Sep 04, 2011 at 09:34:20 PM PDT

      [ Parent ]

  •  This is why I oppose the death penalty so strongly (6+ / 0-)

    Because juries (and judges and prosecutors) are fallible, and innocent people are sentenced to death. We haven't figured out a way to prevent that. Imprisoning the innocent is bad enough, but at least you can theoretically correct that. Once someone is dead, that's it.

    The law, in its majestic equality, forbids the rich as well as the poor to sleep under bridges. - Anatole France

    by DarkLadyNyara on Sun Sep 04, 2011 at 09:10:44 PM PDT

  •  Juries get to make decisions based on the (1+ / 0-)
    Recommended by:
    eglantine

    information that they hear.  Having served on juries, as well as having seen all the stories about all the various flavors and colors of misconduct by prosecutors in their single-minded quests for conviction at all costs, I suspect that there is more that needs to be done to address your concern than repealing Article 3 Section 2 and the Sixth Amendment would accomplish...

    The failure probably isn't in the process, but rather is in the G.W. Bush's and Rick Perry's of the world who want to curry favor with the hard-line winger Right by killing people convicted of capital punishment crimes, whether or not those convicted individuals are actually guilty.  For all his other massive failings, George Ryan seemed to be able to figure out what Gee Dub and Gov. Good Hair can't quite seem to grasp. Maybe the solution lies in crafting some more creative, notable, and meaningful punishment for prosecutorial misbehavior...

    "In a nation ruled by swine, all pigs are upward mobile..." - Dr. Hunter S. Thompson

    by Jack K on Sun Sep 04, 2011 at 09:25:12 PM PDT

  •  Blagojevich is innocent of trying to sell a senate (1+ / 0-)
    Recommended by:
    DParker

    seat.  I don't know about the rest of the charges, but on this charge I researched all the evidence and all he did was say some stupid things in a private conversation.  If people are to be convicted for saying stupid things in private conversations than nobody would be left unconvicted.

    And not only did the jury convict Blagojevich but so did a prosecutor that is supposed to seek the truth and our media and our politicians ignored the obvious fact that he was innocent.

    Blagojevich has far more resources than the average shmoe so when our legal system goes after someone the victim of the legal system has no chance.

  •  I got called once to serve on a capital case (1+ / 0-)
    Recommended by:
    DParker

    I am adamantly against the death penalty for the simple reason that I know innocent people have been executed.

    Naturally, I didn't qualify for the jury after filling out the questionnaire. I followed the case in the paper, all the while being grateful that I was not on the jury. The defendant was convicted but to a lesser degree with no death penalty. Still got a really hefty prison sentence.

  •  Brilliant diary (3+ / 0-)
    Recommended by:
    Wednesday Bizzare, MrJayTee, DParker

    Thank you, DParker.  This is informative, eloquent, and persuasive.  

    It was clear to me that your target wasn't the jury system per se.  I'm puzzled by the misreadings in the comments up-thread.

    There are several catastrophic flaws with our criminal justice system, and many of them end up perverting the jury trial, especially, as you note, in death penalty cases.  You lay out the reasoning with remarkable clarity and wisdom.   Thank you.

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