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.

RAMON LOPEZ

v.

 STATE OF MARYLAND

http://mdcourts.gov/opinions/coa/2011/24a08.pdf

This is a pretty straightforward issue involving a defendant who did not trust his lawyer and thought he could do a better job.

The Court of Appeals found that Lopez didn’t knowingly and intelligently waive his right to counsel. The interesting thing to me is that one of the main points that the court looks to when trying to determine whether the waiver was intelligent is whether he was made aware of his maximum possible sentence.

So for a defendant to make an intelligent decision, he needs to know what the worst possible outcome of the trial could be. That makes sense.

Why is it that we assume that juries can make intellgient decisions without even knowing what the smallest sentence for the defendant could be?

The rationale for telling the defendant the maximum penalty is that he has to make a decision that directly impacts his case. Before making such a decision, he needs to consider exactly how FUBAR it could get. Juries don’t make decisions that impact the case, they merely decide whether the defendant is guilty or not. So the rationale is that they need not consider the possible penalties if they only need to worry about the truth of the facts.

But let’s take a look at that sideways. What about knowing the max penalty makes us think that a defendant is making a more intelligent decision? Is it just a checklist of things we need to tell him, without a reason for him knowing it? No, the defendant needs to know how bad it could get because he needs to think really friggin hard about waiving his right to counsel. We tell him how bad it could get to try to force him to really think about it.

Juries are fallible. Do we assume that all juries are made up of people who are listening to everything and taking it all extemely seriously? Or do we think that juries could do with a wake up call, letting them know eactly how bad the defendant could get screwed if they don’t take their duty seriously. By even letting the jury know the minimum penalty the defendant is facing we could try to get them more invested in the case and more invested in their deliberations.

I know, people will claim that the jury shouldn’t take the penalty into account; that jurors who believe the state’s case will acquit out of pity. That might be true, but that’s something I could live with.

And consider this: If a defendant is facing a sentence that is so horrible that jurors are willing to acquit despite believing him guilty then maybe we need to take a look at our sentencing.

ELROY MATTHEWS, JR.
v.
STATE OF MARYLAND
http://mdcourts.gov/opinions/cosa/2011/2801s09.pdf

Another opinion by the Court of Special Appeals, another opinion by Judge Moylan — this time focusing on what constitutes an “illegal sentence.“

Judge Moylan explains that while there could be numerous sentences that are referred to as “illegal,” the type of sentence that courts are permitted to correct “at any time” regardless of whether the objection is preserved, as per the Walczak decision, is specifically a “sentence which is beyond the statutorily granted power of the judge to impose.” Termed a substantively illegal sentence. For example, a judge sentencing someone to 75 years, when the statute allows a maximum of 30.
This is distinguished from the “illegal sentence” in appellant’s situation, when the judge sentenced Matthews to pay restitution for a crime he was not convicted of which is a procedurally illegal sentence.

Sentencing is hard.

I know, it’s an incredibly difficult line to toe; trying to balance public safety, public opinion, victims’ expectations, deterrence, rehabilitation and equity. How much deference is due to any of those factors? When politicians decide to get involved in the sentencing, it muddies up the already murky pool.

There are some things, even among hard decisions, that should be no-brainers. If I were to ask you whether a convicted criminal should get 5 or 15 years in prison, it’s not always an easy decision to make. If I were to ask you if the leader of a violent drug gang should receive a lighter or harsher sentence than a young woman who placed a 13-yr old boy’s hand on her “brasier-covered breast,” as Scott Greenfield put it, that’s not such a hard decision.

One would think.

Yes, there is legislation that is in play. And yes, these are different states. But this type of arbitrary disparity occurs day in and day out.

I’m not offering any solutions. I’m just pointing out how broken it is.