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« From the Department of Misleading Headlines, re global warming | Main | CBS' "The Amazing Race": ugly Americans vs. abusive Americans »

December 13, 2004


Kyle K.

Well, and one has to wonder if "OJ-itis" wasn't going through the jurors' minds, too. Don't let the guy with the high-powered lawyer get away... we don't want to look like fools.

Why is S.P. condemned? Well, because the jury found more aggravating factors than mitigating factors. That is, after all, the legal standard, right?

REMEMBER that California is a "symbolic" death penalty state -- (see William S. Lofquist, "Putting Them There, Keeping Them There, and Killing Them: An Analysis of State Variations in Death Penalty Intensity, 87 Iowa L. Rev. 1505, 1522 (2002)). California has a high number of inmates on death row, but is in no hurry to execute them. See Lofquist at 1542:
California has conceived a fiendishly clever way of satisfying the competing demands of the death penalty: We sentence vast numbers of murderers to death, but execute virtually none of them. Simply having many death sentences can satisfy many proponents of the death penalty who demand capital punishment, because in a vague way they want the law to make a statement of social authority and control.
In the absence of a history of race-based legal violence or high levels of racial threat, expending the effort to push cases through the levels of appellate review and toward execution is unnecessary. Also, these states make larger investments in capital defense, generally as part of a compromise with anti-death penalty legislators or as a concession to judicially-imposed higher standards. As a result, post-conviction litigation is extremely expensive, and reversals are likely. The result is a de facto moratorium on executions coupled with aggressive death sentencing.
Thus, it's not surprising that in a high profile, high publicity case in California, where death is factually unlikely, that a jury would make such a recommendation.

I, of course, take great issue with much of what Buster has said... not the least of which is the speed by which forensic evidence can be analyzed (and re-analyzed by the defense experts, whose depositions must be taken, etc. etc.). But I think the time issue can really only be understood by one who understands the slow, steady progress of justice (and that lawyers for death-eligible clients rarely get big bucks). It's difficult for people who have not seen the system work to see why it takes so long for us, as a society, to prove that we're so sure about a decision that we're willing to stake someone's (heh, not our own) life on it. In T.J.'s day, a trial was a very different kind of animal, and standards of proof were very different. Plus, the death penalty was no big deal because conviction of a felony (which, of course, was much more limited in scope than today's felonies) meant execution. BY the same token, there would be many cases that simply would never come to trial back then because there were fewer investigative methods -- so juries would just have to decide on whom to believe rather than what the evidence really showed. It doesn't take 10 years, 2 appeals and 3 habeas petitions to say "well, I believe Mr. X when he said he heard the defendant say 'I'm going to kill him' and then saw him with blood on his hands... that's enough for us." But I think most people would agree that our system, with its slow speed and flaws, is superior to the one of the Framers. Our concern over _accuracy_ is generally more important than our concern for _brevity_. Would capital punishment in 72 hours for assault, drug sales, or traffic violations deter some criminals? Sure. Is it a good idea in our modern society. No.


I used to live in Illinois, the poster boy state for the need for long appeals processes. Since reinstating the death penalty, the state has had to free as many death row inmates as it has executed because those inmates were wrongly convicted in the first place. Science is a wonderful tool, but ultimately the decisions are still made by human beings (both rational and irrational, the world is filled with both so get used to it), and human beings make mistakes. If the state is going to kill somebody in my name, I want to make sure that person actually committed the crime. Then make sure again. And again. And maybe one more time, just to make sure. If that process takes 10 or 15 years, so be it. I can wait.

Kyle K.

by "standards of proof" of course, I mean not the standard of proof beyond a reasonable doubt, but rather the sum total of proof that a prosecutor must offer that a jury would accept for proof of guilt. It's changing, even today. You have no idea how many prosecutors tell me that jurors are surprised when no DNA evidence is introduced in the ordinary felon-in-possession or small-time drug conspiracy cases (where you have some physical evidence, maybe a fingerprint or records expert, the case agent, and maybe an eyewitness or co-conspirator testify). Jurors see CSI and expect that every case has a team of scientists working to crack it. Yeah, I don't think so.
Sorry for the digression, but I wanted to clarify my previous post.


Just to clarify something upthread, as I recall the Baldus study noted that while flat "race of offender" did not have a statistically likely correlation, the combined races of the offender and victim DID.

A black killing a white was statistically more likely to get death than a white killing a white, which was statisitically more likely to get death than anyone killing a black.

And Tung, remember that under current SCOTUS precdent, someone who's mentally ill or mentally retarded at the time of execution can't be executed. Of course, this does not prevent you from drugging an offender up to make him "sane" before killing him.



Where is the self-interest? Not everyone can be a super-lawyer. So, by dragging the process out, you make money.

While not the norm, "show" trails do have the habit of making the lawyers very wealthy from the "aura" driving business in the door - if nothing else. Tell me Shapiro and Cochrane didn't up their rates significantly after the O.J. Trial! Tell me the "side" money that didn't make up for what O.J. may not have paid them - several times over! Tell me Geragos won't reap tremendous benefits.

I am interested in the part you didn't bring up - the appeals. Yes, it may be true that the "initial" lawyer doesn't make a dime, but my understanding is the State picks up the legal bills on all appeals. Unless I miss my guess, the State is not paying $350 per for that defense. And I don't think anyone is touching a ten-year job with no pay. So, if a case now takes you 5 hours instead of 1, you make up the difference, no?

And yes, if you do something stupid behind the wheel of a car you should pay for it just as if you used a knife, or gun. The means of inducing death is immaterial. The victim of your stupidity is dead, and the means is not going to change that fact.

As for lawyers not looking for the least intelligent juries they can, I still have personal experience that says you are wrong, and I offer up the entire sham known as the O.J. trial. 'Nuff said.

I have still found NOTHING to indicate why it takes one or two decades to prove guilt, or find someone innocent. Science doesn't take that long. So if you want me to believe it isn't self-interest, then what is it? Do we have a legal system of people that can't read above two words per minute? What? What is it?

Kyle K.

Buster, Buster, Buster...
You're confusing a few high profile murder trials with the vast majority of criminal defense (especially death penalty) work done in this country.
Yes, the OJ "dream team" benefited from their representation. But public defenders and most other defense attorneys are not "high profile" and do not receive any collateral benefit (except maybe a later suit for ineffective assistance of counsel!)
Most criminal defendants do not have private attorneys; they're either public defenders or court appointed attorneys. Their fees are set at a (VERY) low rate. In fact, in some state court systems, their fees are set at a "contract" rate -- which means you get $X per felony. In those situations, it works against self interest to examine files long-term.

You said, in relating to appeals, "Unless I miss my guess, the State is not paying $350 per for that defense."
Well, you're not far off. In some states, hourly rates are as low as $50 an hour. Now that may sound high, but consider that those attorneys also have to pay their light bills, research bills ($35 or more per search) paralegals, etc. etc. from that. My friend, who's a second year associate at a law firm in chicago, bills out at $185 an hour. Believe me, it would be much more efficient for those attorneys to be taking a higher quanitity of less time consuming cases than working on a death penalty case.

Also, as mentioned above, many cases in which the defendant has exhaused his "direct" appeal and then files for a writ of habeas corpus in federal court employ counsel who are working for free -- pro bono. Some work in law firms (who feel guilty about being corporate whores all the time) some work in legal clinics (where students can learn) and some are professors -- in each instance, there are better, and more profitable, ways for time to be spent, but these lawyers give of their time. Shorter would be better.

Now, your "one or two decades" answer -- well, some states take longer than others (because the states aren't really interested in executing) and some cases take longer than others because ERROR is found, and some of the trial or sentencing has to be redone, and then it must be re-appealed, etc, and some cases have to be reopened after many years because someone finds something new. Did you hear about the criminal defendant from Maryland who was released after 36 years' imprisonment for a crime he did not commit?
He had a three witness trial where only one witness (poorly) tied him to the scene, and a defense attorney who bragged about how poorly he could be prepared. He was convicted because the trier of fact thought he was involved with some sort of conspiracy; based on the evidence, that was completely wrong. It was a (volunteer) legal clinician who helped free him.
Now, what if this person was in prison for capital murder and was executed before anyone could look at his case. The point is, time is necessary to ensure fairness, and more to your point, it is not self interest that drives the slow speed of the capital system.


He deserves the death penalty for murdering his pregnant wife, that is just synical.


I am not against the death penalty-- if the case is proven.
The Peterson case is upsetting-- Scott was tried and convicted by the media.

-No Crime scene
-No physical evidence
-No time or cause of death

Lastly in trial the DA brought up a slew of motives.. which changed depending on the day. The jury could pick and chose why they thought may have done it.

After tossing 2 jurors off they come back in 4 hours w/ a guilty??
Book deals and movies came out before he was formally sentenced...

He was guilty for having an affir.. that was the only thing they proved..and for that he got death.


I don't see how Scott Peterson can be sentenced to death for killing someone when every year there are millions of young girls who have abortions and kill unborn babies. To me that's just wrong. And some guy in Wisconsin killed six people but he gets life sentence, not death.

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