It is not a huge shock that Yolo County is moving in the opposite direction of the rest of the nation. More and more jurisdictions and states are moving away from the death penalty, for a variety of reasons including costs. They are also taking into consideration problems with the judicial system that result in the inequitable application of the death penalty, and also calling into question certainty about guilt and innocence.
Defense Attorneys, in what will likely be our first death penalty case that we will cover, the Topete case, have argued that “The excessive delays in California’s death penalty system constitute cruel and unusual punishment in violation of the Eighth Amendment and results in a denial of due process. Based on this violation, the Defense respectfully requests that this Court preclude the People from seeking the death penalty in this case.”
And, given the numbers of people currently on death row, the state would have to execute five prisoners a month for the next 12 years just to carry out the sentences of those currently on death row.
So, once again we are left to wonder, given the expenses involved, why bother to try this as a death penalty case? The defense would likely take a plea for life without the possibility of parole, and it would save the county and state huge amounts of money.
But we all know that is not going to happen. A law enforcement officer was brutally killed and the culprit must at least theoretically pay for his crimes.
This once again moves Yolo County away from where the rest of the nation is going – even Texas. Perhaps one saw the frontline episode last fall on Cameron Todd Willingham. He was executed for setting an arson fire in his home that killed his children.
Unfortunately, the forensic science used to determine it was arson was flawed and was actually known to have been discredited before his execution. But the Texas Governor, Rick Perry, who was the last resort, refused to grant a stay in this case. That was in 2004.
A lot has come out in this case since then, of course, and perhaps Governor Perry feels a bit guilty. Additionally, Anthony Graves spent 18 years in a Texas prison for murders he did not commit.
According to a Texas newspaper, he was convicted of killing six individuals back in 1992. “The conviction depended, in part, on testimony from co-defendant Robert Earl Carter, who implicated Graves in the horrendous crime.”
But, reports the paper, Mr. Carter, who was convicted for the same murders, recanted moments before he was executed on May 31, 2000. Upon his death he said, “To the Davis family, I am sorry for all of the pain that I caused your family. It was me and me alone. Anthony Graves had nothing to do with it. I lied on him in court. … Anthony Graves don’t even know anything about it.”
Often, that is not enough to free someone. But six years after the execution of Mr. Carter, the 5th U.S. Circuit Court of Appeals overturned Graves’ capital murder conviction on the basis that “prosecutors improperly withheld information that defense lawyers were entitled to know about. The court also said prosecutors elicited false testimony.”
Moreover the paper reports, “There was no retrial because special prosecutors brought in to handle the case determined there could be no fair retrial because of grievous errors during the initial investigation.”
Mr. Graves is entitled to $1.4 million in compensation, and the authorities are trying to deny that compensation because he has no declaration of actual innocence, but Governor Perry, to his credit, is fighting to get compensation for the exonerated man.
There are certainly cases, and perhaps the Topete case is one of them, where we have a good deal of certainty that the convicted man is the one who actually committed the crime. But the system does not do a good job of discerning those cases from the ones that are more questionable. Our system treats all jury verdicts as the same – when in fact, they are not.
Newsweek has an article this week that reports that more and more, courts are starting to question the facts proved by scientific evidence. The problem, as we have noted in the past, is that often forensic techniques are never themselves scientifically tested to see if the claims made by science are indeed accurate. Thus, we have false findings of positive matches for bullet-lead analysis, that are baseless in science.
Reports Newsweek, “In the age of CSI and Dexter, we’re led to believe that forensic science is a high-tech discipline, powerful and sophisticated enough to catch any criminal.”
Instead they find, “As it turns out, whether blood-spatter analysis and disciplines like it qualify as ‘science’ at all is a matter of increasing debate. In a sharply critical report issued in 2009, the National Academy of Sciences said, ‘The simple reality is that the interpretation of forensic evidence is not always based on scientific studies.’ Taking aim at disciplines as varied as ballistics, hair and fiber analysis, bite-mark comparison—[and] even fingerprints—the report declared, ‘This is a serious problem.’ “
There are cases where elite crime labs all over the nation have been involved in various scandals that involve the mishandling of evidence or false or misleading forensic testimony.
We got a bit of a taste of this a few weeks ago with the Frontline discovery of Thomas Gill, the Forensic Investigator that worked hundreds of autopsies in Yolo County for the private company, Forensic Medical Group. We still do not know which autopsies that investigator performed and how it might impact notable cases in Yolo County.
As Newsweek notes, “A year-long investigation by the independent journalism non-profit ProPublica revealed major problems in the nation’s coroner system: pathologists not certified in pathology, physicians who flunk their board exams, even coroners who are not physicians at all. ‘In nearly 1,600 counties across the country,’ the investigation found, ‘elected or appointed coroners who may have no qualifications beyond a high-school degree have the final say on whether fatalities are homicides, suicides, accidents or the result of natural or undetermined causes.’ “
In the meantime, Newsweek reports, “This past summer, a North Carolina attorney general’s audit discovered that the state’s Bureau of Investigation had withheld or distorted evidence in more than 200 cases.”
They add, “Even some of the best funded and most sophisticated crime-fighting organizations are being taken to task for their use of forensic evidence. This week, the New York Times reported that the Federal Buerau of Investigation had ‘overstated the strength of genetic analysis’ during the investigation of Bruce E. Ivins, who allegedly mailed anthrax to newsrooms and Senate offices in the wake of the 9/11 attacks.”
Newsweek cites the forthcoming book, “Convicting the Innocent: Where Criminal Prosecutions Go Wrong,” where University of Virginia law professor Brandon Garrett examined the trial transcripts and other legal documents of the first 250 people to be exonerated by DNA in this country.
They note that Professor Garrett discovered that, in more than half these cases, trials were tainted by “invalid, unreliable, concealed, or erroneous forensic evidence.”
“The errors ranged from analysts making up statistics on the fly, implying that their methods were more scientific than they actually were, and exaggerating or distorting their findings to support the prosecution,” according to the Newsweek article.
Peter Neufeld, a lawyer in New York and co-founder of the Innocence Project, which has helped to facilitate many of these exonerations, calls it the “elastic expert: no matter what you see, I can distort it so that it would be a match.”
The troubling nature of this research is that defense attorneys are powerless, often, in the face of “science.” It is difficult for a lay person to question the objective findings of a scientist. And it is impossible to know for sure when the science backing the findings is correct and when it is not.
There are few standards in courts for the scientific examination of evidence. And yes, the system may eventually get it right in the case of Anthony Graves, but it cost him 18 years of his life. In the case of Cameron Todd Willingham, it was too late to save his life.
This may seem bad, but the news is actually far worse. On February 16, 2011, Iowa State in Ames, Iowa, released a study to examine why innocent suspects may confess to a crime. The statistics are alarming, as since 1989 there have been 266 post-conviction DNA exonerations. 25 percent of those involve a false confession.
According to a new study from Iowa State, “In two experiments simulating choices suspects face in police interrogations, undergraduate subjects altered their behavior to confess to illegal activities in order to relieve short-term distress (the proximal consequence) while discounting potential long-term (distal) consequences”
“The thing about these exoneration cases is that they all pertained to heinous crimes; that’s why there was DNA evidence available. And so we wanted to determine why someone may be willing to falsely confess to one of those crimes,” said Stephanie Madon, an ISU associate professor of psychology and the study’s lead author. “We thought it might have to do with the pay-off structure of police interrogations. Some interrogation methods — like physical isolation and the presentation of false evidence — have immediate consequences for suspects that encourage them to confess. Though they also face consequences that encourage them to deny guilt — such as the possibility of conviction and incarceration — these consequences are more distal.
“So the suspect is weighing these two consequences at once and that’s going to shape their behavior,” she continued. “That’s what we were interested in understanding. Which of these consequences is going to influence confession decisions — those that are happening right now, or the ones that may happen in the future?”
The problem that this poses is that a lot of convictions are built on confessions. The stress of the interrogation and sloppy interrogation techniques play a huge role in this problem. Investigators often test validity of confessions based on the suspect being able to provide details of the crime, but they often inadvertently drop enough clues for the suspect to put together a good enough description to convince them of his guilt – something they obviously were predisposed to believe in the first place.
According to a report, “The researchers say these results may help explain why some suspects confess to crimes in order to avoid a police interrogation — even though they increase their risk of conviction and severe penalties by doing so. The study’s authors theorize that innocent suspects so strongly believe that the truth will eventually be borne out, they may perceive the distal consequences facing them — conviction, prison, or even a death sentence — to be remote and unlikely.”
“One of the things we wanted to do in this research was to identify an underlying process at play during interrogations, so it can apply to a variety of police interrogation methods,” Professor Madon said. “Our findings have implications for any [police interrogation] method that causes suspects to focus on immediate consequences over future consequences.”
All of this weighs heavily on the increasing movement away from the death penalty. We have elsewhere talked about the unequal application of the death penalty, which tilts strongly towards minority suspects and those who lack the resources to hire private counsel.
Marco Topete faces another huge obstacle, in that the victim was a law enforcement officer carrying out his lawful duties at the time of his murder.
However, given the costs of trying a death penalty case (something that perhaps could be avoided altogether) and the costs of incarcerating an individual on death row, providing automatic appeals, etc., and the length of time that he will likely spent on death row and the unlikelihood of his ever being executed, it seems from a fiscal standpoint, Yolo County would be better off having him take a plea and receive his life sentence.
Unfortunately, that will not happen. And Yolo County and the state will have to pay for it.
—David M. Greenwald reporting
[quote]While the defense is unlikely to prevail on these issues, it is worth noting that since 1977, only 13 people have been executed on death row in California, while 52 have died from natural causes, 18 from suicide, and 5 from other causes. In other words, an individual on death row is six times more likely to die from other causes than to be executed.[/quote]
yea but what about all the free publicity for the DA? Come on David, keep your eye on the ball.
As for all the negative things you mentioned, an often over-looked casualty is the victim’s family. The family is encouraged and often manipulated to appear in court each day, listen to difficult testimony, they are told things from the DA like, we need you in court, your appearance will help the jury sympathize with you, they are often met and escorted by the DA and DA personnel “to provide security” when really it ensures they are on time and where the DA needs them to be.
The family’s emotions and loss are used to get their buy-in to the death penalty so the DA can use that. In the opening and closing arguments the DA will talk about the victim’s family and their lost and about their pain and grieving, to try and pull at the hearts of the jury and make this case about emotions and publicity. Since these cases are sensitive in nature, no one will want to disagree or stop this for fear of seeming insensitive or mean.
Doing this and using the family’s loss is mean and cruel to me. And it will not end there. The family has no idea that this is only the beginning, all the time they will be told by the DA that will give them closure. In fact, this only opens the door to appeals, years of battles, years of future court appearances only to have to hear, over and over again, the same horrible details of death of their loved one. Of course by then the DA will have moved on, this is just another case to him, but the family will never be told that this just the beginning of a 20 year battle, their lives will never be the same, they future plans to try and move on and deal with the loss will not be allowed.
The family will not be told that for the next 20 years they will need to be available for all future court cases, scheduled execution dates and appeals, they will have to continue to read about the appeals and challenges, the news reports, the interviews, the protest to stop the death penalty, the last minute stay of executions that will be grated, the constant up and downs of getting death execution dates that will be changed or postponed. Last minute appeals to Federal Judges to stop the execution and on and on, the family will have no idea.
Until you have seen this process played out and the toll it takes on the family, you have no idea of the pain a family continues to endure for years and how they are never allowed to get closure or grieve. It really is sad how the victim and their family is used up by this system.
And lastly, lets not forget the money, many lawyers will make million over the next 20 or so years filing appeals, donating time for tax deductions, donations against the death penalty and donations for it, it gives the press stories to write about and frontline stories to tell about and of course the DA’s office gets all money reimbursed by the state if they get the cost of the trial over one million, no incentive there.
To end, I was a strong supported of the Death Penalty for years.
Anyone want to weigh in on alternatives to the current system? It is opined that the convicted criminal facing the death penalty may be innocent… is that much different from those innocent folks convicted to life in prison with no possibility of parole? Will these choices be made on “moral” (and whose ‘morals’?) or on economic/fiscal sustainability bases? Many authors have said that a public employee should either contribute significantly to their pension/retiree benefits or lose them, particularly if they are less than 65-67 years old. How then, do we compare that to a 23 year old murderer who is either subject to the death penalty or life without the possibility of parole? They (convicted murderers) will be housed, fed, given medical care for all their remaining natural life. Is that sustainable? I do not claim to know the answers. I do recognize that there are incongruities in the arguments by certain individuals. Going one step beyond… many convicted felons have mental illness issues… should society expend funds for those who are mentally ill in different proportion to public employees or felons (and I STRONGLY support early intervention for mental illness BEFORE the individual becomes a felon (or worse, a public employee [just kidding]).
We’re facing hard choices… there are no simple answers on the horizon.
dmg: “This once again moves Yolo County away from where the rest of the nation is going – even Texas.”
Yolo County moves away from the rest of the nation based on one case? Please name me one other case in any other county or state, in which the perp purposely killed a police office the way in which Topete is alleged to have done that did not ask for the death penalty if it was available?
As for forensic evidence, one of the big problems w the legal system is paid expert evidence. The prosecution pays for the forensic analysis, defense pays an expert to present the opposite view. We need forensic evidence from competent labs that are independent from either side.
As for confessions, the police are permitted to lie to suspects to obtain confessions. This practice can be ripe for abuse. I had one client accused of embezzlement who said the police got her into a room alone, grilled her for several hours, to the point she had no idea what she did or didn’t say, what was true or not true. They tried to convince her she did embezzle bc they insisted they had the proof and she thought the police had to tell the truth. So she assumed she must have made a mistake somewhere or done something wrong when in fact she never embezzled anything. How do I know this? Her boss had signed off on everything she turned in, so it was clear if there were any embezzlement, it had taken place farther down the line…
Just as an aside, when I clued my client in that the police could lie, and that she needed to stand on her rights to remain silent, she did just that when the police came around again to subject her to more grilling. The police never came back.
And I believe the police never came back bc there was no evidence…
It’s pretty amusing to watch the cop shows that comprise about 85% of shows presented on corporate media television. They constantly portray fantastic forensic techniques that do not exist in the real world.
When you get interviewed as a potential juror for a criminal trial, the first thing the defense tells the jury pool is that shows like CSI Miami, are pure fantasy, and that jurors should not expect such evidence to be presented in this trial.
These shows consistently portray suspects being interrogated without their lawyer being present, as if that is the norm. Naive viewers are being taught not to demand their Miranda rights. These viewers are being taught that it’s acceptable for police to extract a confession without the presence of a suspect’s lawyer.
On one show they actually have shown law enforcement doing things like hanging suspects from the edge of tall buildings, strapping them to the hood of a moving vehicle, waterboarding them etc., in order to extract information. This illegal law enforcement behavior is being portrayed as normal police behavior. It makes great television, but has nothing whatsoever to do with reality- at least not yet
To me, it seems like viewers are being barraged with the false reality
that law enforcement is infallible, that cops are superheros who can solve the most difficult case with only the smallest scrap of evidence.
The overall message is that ; You better not even think about breaking a law because the forces of good are overwhelming, and you are going to get caught every time.
It used to be Hellfire and brimstone that kept the peasants in line. That doesn’t work very well any more. So now it’s the infallible, omnipotent forces of a government police state that we are supposed to respect and fear. Television is teaching us that it is normal for us to fear the government that is funded by our tax dollars!