The Death Penalty: Casey Anthony and Humberto Garcia

Those who oppose the death penalty are not qualified to serve.  Those who would consider the death penalty are qualified to serve.

According to Death Penalty Policy Director Natasha Minsker of the ACLU, “Research shows that our prejudiced “qualification” process produces juries that are more likely to convict. Prospective jurors who make the cut to serve are more likely to believe prosecution witnesses and less likely to ask probing questions.”

She writes, “Jurors who are pre-selected in this way are also more likely to sentence someone to death. That is, after all, the point of the current qualification system. But it’s not just that all the people with moral qualms about the death penalty have been removed from the jury.”

She continues, “The prospective jurors left after death qualification are more likely to view evidence as ‘aggravating,’ meaning it supports sentencing the person to death, and less likely to view the same evidence as ‘mitigating,’ meaning it supports imposing a sentence of life without possibility of parole  instead. Death qualified jurors view the facts and the evidence differently than do the jurors excluded from serving, differently in a way that favors the prosecution across the board.”

Despite this, some analysts believe that the death qualification process may have helped Casey Anthony.

Douglas Berman, a lawyer who writes “Sentencing Law and Policy” Blog, noted that while Casey Anthony’s chief defense lawyer, Jose Baez, attacked the death penalty, arguing that this case showed why the death penalty ought to be abolished, in this case it may have actually helped Ms. Anthony that they sought the death penalty.

The key, in part, was the death-qualification process that in this case, he argued, proposed the opposite result of what we might expect.  “Though sometimes death-qualified juries may show a greater willingness to convict,” he began, “here I suspect that the death-qualification process could have primed the jurors to expect a forensic smoking gun showing conclusively that Casey Anthony murdered her daughter in cold blood.”

“When no such smoking gun was presented by the prosecution, the jurors may have ultimately been much more willing (and perhaps even eager) to find reasonable doubt on all serious charges,” he added.

Furthermore, “By seeking a capital conviction, prosecutors made it that much harder for the jury to return a compromise verdict in which Casey Anthony got some (but not complete) blame for her daughter’s death.”

That is because the prosecution’s theory was that Ms. Anthony intentionally killed her daughter. In order to support the capital charge, Mr. Berman writes, “Jurors believing that Caylee Anthony’s death was perhaps an accident would be pushed to vote not guilty in response to the prosecution’s contentions.”

Meanwhile, while the Caylee Anthony case gets all of the press, we have another debacle that has developed in Texas.

The Supreme Court issued a 5-4 decision along ideological lines to rebuff a request from the Obama administration to stay the execution of Humberto Leal Garcia, who was then executed in Texas an hour later.

President Obama asked the Texas court to delay the execution so that Congress could pass legislation legislation that would provide fresh hearings on whether the rights of Mr. Leal and about 50 other Mexican citizens on death row in the United States had been violated.

It is a complicated matter but it stems from a 2004 International Court of Justice in The Hague ruling that found that inmates who are foreign nationals have been denied the right to contact their consulate.  Mr. Garcia was one of dozens directly impacted by the suit.

In 2008, the Supreme Court acknowledged that ruling, but argued that it needed Congressional action in order to compel the states to comply.  On Thursday, the Supreme Court argued that Congress had enough time to act and therefore they would not  “prohibit a state from carrying out a lawful judgment in light of unenacted legislation.”

“Our task,” the majority wrote, “is to rule on what the law is, not what it might eventually be.”

The majority also noted that “the United States studiously refuses to argue that Leal was prejudiced by the Vienna Convention violation,” suggesting that a fresh hearing would do Mr. Leal no good.

However, the ACLU this morning following the execution had a very different take. “Most agree his sentence would have been different if he had been given that access. It is certain that his lawyer would have been different – Mexico pays for experienced lawyers to defend against death penalty cases for its citizens.”

Texas violated Leal’s rights under Vienna Convention on Consular Relations when it neglected to inform him of his right to consult the Mexican consulate upon his arrest.

According to the ACLU, “The Texas authorities don’t even deny that – they simply say, in legalese, ‘too bad.’ Because of their ability to rely on the hypertechnical timing requirements of state and federal law, Texas prosecutors can afford to ignore a legitimate legal claim. Not deny the claim, mind you – just ignore it.”

“We decline,” the majority wrote, “to follow the United States’ suggestion of granting a stay to allow Leal to bring a claim based on hypothetical legislation when it cannot even bring itself to say that his attempt to overturn his conviction has any prospect of success.”

I would argue that that is precisely the wrong argument.  An individual should be granted his or her rights whether the action itself helps or not.

“In reaching its contrary conclusion,” Justice Breyer wrote in a dissent joined by Justices Ruth Bader Ginsburg, Sonia Sotomayor and Elena Kagan, “the Court ignores the appeal of the president in a matter related to foreign affairs, it substitutes its own views about the likelihood of congressional action for the views of executive branch officials who have consulted with members of Congress, and it denies the request by four members of the Court to delay the execution until the Court can discuss the matter at conference in September. In my view, the Court is wrong in each respect.”

—David M. Greenwald reporting