Troy Davis was executed last night.

I can’t explain the details surrounding his case better than Jeff Gamso has; I can’t argue with Mark Osler’s article on cnn.com explaining why we should err on the side of not murdering someone. It almost seems like there is nothing left to say… but I can’t sit now and say nothing.

 The Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”) has been construed in Williams v. Taylor, 529 U.S. 362 (2000) and Duncan v. Walker, 533 U.S. 167 (2001) as furthering the principles of finality of judgment, comity and federalism. Which is to say that the law tries to prevent people convicted of state crimes to be able to supplant the state issue with a federal issue in an effort to avoid dealing with the state issue. For example, someone who has been convicted of murder and sentenced to death in Georgia can try to raise the federal constitutional issue that he may, in fact, be innocent. If we allow this purely hypothetical person to continue living based on his federal claim, we are allowing him to supplant the state issue with a federal issue.
So the courts have the difficult job of balancing the interests of federalism with the interests of maybe not murdering an innocent man.

You might be inclined to argue that this law furthering federalism is a general one, and the pesky issue of innocent people being killed is an unfortunate side effect. Wrong! The name of the law has “Effective Death Penalty” in it.

I’m not really being fair, you hardly ever hear federalism as the reason why federal appeals of death sentences are rejected. (After the state level avenues for “relief” are exhausted, that is. Federalism is the excuse used for all federal appeals to be ignored until then, so it does play a large role in this farce.)

The phrase that’s all the rage, though, is “finality of judgment.” What does that mean? Is it simply a way to tell society, to paraphrase Raymond Chandler, “When we screw up a judgment, god damn it, it stays screwed up.”?
Most articles I’ve read about this concept focus on the victim’s family; they need closure, they need satisfaction, they need to know that there is a finality to the judgment. That’s special.
I don’t mean to disparage those people who have had their whole lives ripped apart by a horrific crime; I have nothing but sympathy for them. However, why are we making the victim’s family’s feelings a higher priority than discovering the truth and saving a possibly innocent man’s life? Do they need closure and a sense of finality? There is therapy to help with that, they don’t need laws.

Let’s save our laws for those who need it. Like potentially innocent people who are murdered in the interest of finality.

Like Troy Davis.

This post is something I have been thinking on for a while, but Laura McWilliams prompted me to post it with her Love of the Law, part 2 post.

I went into law school with a gut feeling that I could never defend criminals, and that if I went into Criminal Law it would be as a prosecutor.

Then I was introduced, through the eyes of cases skimmed during class and through the perspective of the Criminal Defense attorneys I “met” through twitter, to the Criminal Injustice system of our country.

I mentioned in an earlier post that my Maryland Criminal Practice class was taught by Judge Dana Levitz. Judge Levitz was the State’s Attorney in Baltimore County for a number of years, and he has many incredibly interesting stories from his time as a prosecutor.

I think the best way I can sum up the way I feel about criminal law now is with the following story:

One particular story involved two young men who were driving in a pickup truck, on their way to rob a colored tile store. While en route, they saw an older gentleman driving a moped. The passenger of the of truck told the driver that “he was going to get that moped” and to pull up alongside the older man. When the truck caught up and was even with the moped, the passenger reached out the window with a gun and shot the older man in the head. At that point, they drove off.

An oncoming car witnessed the truck pulling even with the moped, heard a loud bang, and saw the old man fall. The witnesses called 911 and the police caught the two men in the truck, but they had no idea which of them actually shot the older man.

During interrogation, the driver gave a statement with all of the information — that they were going to rob a store, that the passenger told the driver to pull up and that he didn’t know what the passenger was going to do, and that the passenger shot the older man. It turned out that the passenger had a long history of violent crime, and it was the driver’s first offense. The driver had just graduated college, and was joining the Navy. The prosecution cut a deal with the driver; if he testified, the State would only ask for 20 years. The State asked for death for the passenger.

While hearing this horrific story from the prosecutor of the case, the first thing I felt was pity and sympathy for the victim and his family. I mean, I really felt for them; ever since I had kids, I find myself tearing up whenever family is implicated in anything — hell, cheesy cartoon movies can have me furtively wiping the corner of my eye.

The next thing I felt was outrage. But not towards the defendants. Here’s the prosecutor who recognizes that the driver is a young man with a whole life ahead of him. He graduated from college already. He went to college and graduated — you can imagine how proud his family is of him. He is already enlisted in the Navy and ships in a matter of months. Off to serve his country. The prosecutor recognizes all of this and offers a plea bargain — only 20 years instead of death. 20 years. Is there any doubt in anyone’s mind that those 20 years will completely nullify whatever positive direction his life was going previously? 20 years in jail, where his country will serve him (only in terms of the cost of incarceration, obviously).

I won’t discuss the death penalty; you might like to know that though the passenger was convicted and sentenced to death, he is still alive on Maryland’s death row.

I love justice. I truly and deeply feel for victims and their families and the suffering they are forced to endure, but they are not (or should not) be a party in a criminal case.

Laura says that life without prosecutors would be anarchy, and she is right. But life without Criminal Defense attorneys would be hell.

I submitted my request at http://www.governor.state.tx. us/contact/

I am weighing in on the impending Hank Skinner execution. I believe it would be a shame to allow this to go forward for two main reasons.
The first reason is one of justice. If there remains untested evidence that may exculpate Mr. Skinner, not allowing it to be tested prior to his execution would cast a pall over all aspects of the criminal justice system.
The second reason is one simply of public relations. Allowing a 30 day reprieve, solely for the purpose of testing the DNA, seems like such a minute gesture to combat the serious publicity issue that this has generated.

Please make the right choice, and help guide any others necessary in making that choice.

Moshe Glickman

UPDATE
Please take a moment and read Scott’s and Rick’s posts. I severely abridged their posts to the point of ruining their meanings, and I apologize about that.
This post has been modified in response to Rick’s comment below.

Yesterday brought another interesting post from Scott Greenfield’s Simple Justice. He had been made aware of a blog by a new law school graduate with hopes of entering the world of criminal defense. The author monologued about the moral dilemma a defense attorney has when representing a “guilty-as-charged” client. Her ultimate answer to it was that a defense attorney has a duty to tell her client’s story in order to achieve a fair outcome.

Scott, lodged in a lesson about the dangers of blogging (Loose blog posts Sink egos, or something of the sort), explained that there is no moral dilemma. A defense attorney is there to beat the prosecution and win freedom for his client. It is, after all, an adversarial system. (Disclaimer: This is my summary. Read his comment.)

That was yesterday.

Today I found that Rick Horowitz wrote in response to these posts. One of Rick’s points is that a fundamental principle of American Justice is that a defendant is presumed innocent until the prosecution has proved beyond a reasonable doubt that the defendant is guilty. There should never be a moral dilemma, since a defense attorney is merely maintaining the existing, fundamental, presumption until if — despite his best efforts — the prosecution wins and proves beyond a reasonable doubt that the presumption was incorrect. The presumption was never improper, but it may turn out to be inaccurate. (Disclaimer: This is my summary. Read his post.)

Both Scott and Rick point out that telling a client’s story is not integral to the job of a defense attorney. Rick even mentions that the presumption of innocence exists without the defendant saying anything at all and in some cases that may be the best route to defending a client. In other cases, telling the client’s story may be part of the defense. My real concern was with myself; when I read the instigating blog post, I felt myself nodding in agreement. “Why yes,” my unconscious murmured, “what else is a defense attorney to do?” I had asked Scott to give his explanation, both on twitter and in his comments, because I wasn’t clear exactly where the original author had gone wrong.

I think I finally figured it out. While in Law School (which I am), taking CrimLaw (which I did), the students read a multitude of cases and opinions. I think it’s safe to say that almost every last one is an Appellate Opinion. What is the big difference between Appellate and Trial Court opinions? The facts.
We law students are exposed to criminal law with the facts laid out before us. We have a bird’s eye view on the crime, what happened and whodunit. This almost always plays out when the class discusses the death penalty, and the point made when discussing death penalties is that, when there’s nothing left to do in defense of the client, you tell his story in the hopes of dissuading the jury from handing down the death penalty.

I know, I’m highlighting yet another disconnect between law school and the practice of law. Nothing novel or exciting. Just another reason for me to sigh heavily when I think of my student debt.

This article in the Washigton Post (h/t @marylandmoment) describes how the Maryland House of Delegates have passed a bill to allow Marylanders to create trusts for their pets.

This is truly a groundbreaking piece of legislation; precisely what Maryland needs. Crime? Housing slump? Unemployment? Recession? Death penalty? No, let’s focus our efforts on an important topic — pet trusts. I had dogs growing up, and they were part of the family; I shed tears when they died. There was no burial or memorial service for them.

Do people need trust accounts for their pets? Maybe — according to the article, 39 other states already allow their citizens to create trusts for their pets. However, when our state Senate decides to put the issue of repealing the death penalty to rest for this session by not repealing the death penalty, why is our legislation spending the time on pet trust funds?

I meant to write this post about a week or two ago.

Maryland just heard from its committee to investigate the abolition of the death penalty and the committee’s conclusion is that the arguments are stacked against keeping capital punishment around.  (I first discovered this via Gideon’s blog)

The thing I find fascinating and inexplicable is that the proponents of the death penalty continue to utilize the same arguments in their efforts to evangelize. The Anti-Capitalists… wait, let’s make that the Anti-Capital-Punishmentists (doesn’t sound as snazzy, but it won’t get me an FBI dossier) argue that there remains race bias in capital cases, that capital cases are arbitrarily decided, that the human element defeats the possibility of a truly fair trial, and that the death penalty fails to deter future criminals.

The Capital-Punishmentists (for uniformity’s sake) argue “nuh-uh!”. Scanning the comments in Gideon’s article show similar arguments that I’ve heard all to often — the statistics aren’t accurate. The studies don’t definitively show that. The issues don’t “substantially” affect the determination. I would understand if the arguments were reversed; if the proponents argued statistics and studies and the opponents claimed that the studies aren’t conclusive. After all, this is a question of whether we put someone to death — you’d want to be sure that the studies are reliable and determinative.

But to attempt to make a case for the death penalty by saying that the case against it isn’t strong enough makes no sense to me.