Tuesday, February 28, 2012

Why The Death Penalty Should Be Banned

The concept of being killed as a form of punishment has been around for a very long time. Individual societies have their own standards when it comes to deciding who deserves to be put to death and who deserves to live. In the United States, the death penalty is a state issue. Thus, each state can decide which factor(s) surrounding a crime have to be present before the death penalty option is triggered.

I don't claim to know the very large case body that covers the death penalty in the United States. Since it's a state issue, there has to be a long history of jurisprudence state by state. However, there are a couple of very important federal cases to be aware of.

In 1972, the U.S. Supreme Court banned the death penalty in Furman v. Georgia. In that case, the Supreme Court decided that imposition of the death penalty was cruel and unusual punishment in violation of the 8th and 14th Amendments. After this ruling, no state carried out a death sentence.

Following the decision in Furman, several states amended their statues to comply with the court's holding. And after their laws were changed, they again began allowing the death penalty to be imposed, but there were no executions. But this wouldn't last long.

In 1976, in Gregg v. Georgia, the Supreme Court decided that the death penalty wasn't always cruel and unusual punishment. Furthermore, the framers of the Constitution were ok with the death penalty, and it had been part of the American criminal justice system since the country was founded [read about Stare decisis].

The Gregg decision, like Furman, consolidated several cases all with the same issue. In Gregg, the Supreme Court held that the states of Georgia, Texas and Florida had constructed death penalty statutes that abided by the constitution. However, North Carolina and Louisiana's death penalty statutes still violated the rights of the condemned because they had certain crimes for which, if convicted, the death penalty was mandatory.

It was also as a response to Furman that the bifurcated trial system came into existence for death cases. What this means was that a death case had two phases of the trial. The first was guilt/innocence (like a regular trial) and the second was for sentencing.

Georgia, Texas and Florida shared some commonality when determining who could be eligible for execution. Killing a cop, hiring a hit man, or committing murder while trying to escape from prison triggered the death penalty option in all three states but in different ways.

Following Furman, Texas narrowed its class of crimes for which the death penalty was an option. It created an objective guide for determining who could be charged for capitol murder, which simply means Texas intends to seek the death penalty at trial. Following a conviction for capitol murder, the jury then had to determine if special circumstances were present.

These special circumstances were, whether the crime committed was deliberate and with the intent to kill, whether the defendant would be a threat to society in the future, and whether the defendant's response to any provocation was unreasonable. If the jury found all three special circumstances to be present, death was automatic. If any were missing, the sentence was life without parole.

If you think about the special circumstances in the Texas model, it's easy to see why so many people have been sentenced to death and executed in that state. Special circumstance 1 is really a no-brainer. So is number 2. And number 3 wasn't applicable to all cases. Essentially, in capitol cases, all the state had to do was convince the jury the murder was deliberate with the intent to kill and the defendant would always remain a danger to society. This is a pretty low standard.

To this day, Texas still uses the special circumstances inquiry to determine sentencing in capitol cases but one rule has changed. The original number 3 has been replaced by a circumstance pertaining to a defendant that was convicted along with at least one other defendant. The inquiry was whether or not the defendant actually caused the death or intended that death would incur when helping commit the crime.

In Georgia, once a guilty verdict was rendered, the jury would then determine if the case was death penalty eligible by determining if any aggravating factors were present. An aggravating factor is simply something written into the law which could make a case death penalty eligible if present, such as killing a police officer. If the jury decided a defendant was eligible for the death penalty, it was allowed, but not required, to weigh any mitigating evidence against the aggravating factor(s).

You might ask what does mitigation mean in this context? Mitigation in a death case is any reason why the newly convicted should be allowed to live as opposed to killed. Examples are but not limited to: if the defendant was a victim of extreme childhood abuse, had a history of mental illness, or really had been a good person but made a bad choice. But keep in mind, under the Georgia system, the jury did not have to consider any mitigating evidence, and the Supreme Court held this constitutional.

The Florida system was similar to Georgia's, but in Florida, the jury had to consider any mitigating evidence. Another difference from Georgia was that the jury's determination about whether or not the defendant should be executed, was only a recommendation to the judge, who ultimately sentenced the defendant.

Since 1976, Texas has executed 478 convicts. Next in line is Virginia with 109 executions. In 10th place is South Carolina with 43 executions. In order, the top 10 states in total executions are Texas, Virginia, Oklahoma, Florida, Missouri, Alabama, Georgia, Ohio, North Carolina and South Carolina. Except for Missouri and Ohio, all of these states were part of the confederacy during the civil war.

Those states, by and large, have disproportionately executed blacks and arguably for racial reasons. Our country as a whole has a very disturbing history when it comes to racism. But it has always been worse in the south. I can say with 100% certainty, that racism is still very alive in the city of Chicago. But that's for another post.

The reasons for opposition and support of the death penalty varies greatly. Some see executions as immoral. Former Supreme Court justices Brennan and Marshall felt that all executions violated the constitution. Some oppose for religious reasons but some also support for religious reasons. But almost everyone has an opinion on this topic, much like abortion.

Prior to the last few years, I hadn't given this topic much thought. In other words, I hadn't done any critical thinking on my own. I lived in Texas for 4 years and executions were so regular, they never made the news, unless for some reason, the execution was stayed. But I was in college at the time. Thus, I was quite removed from this issue.

However, since returning to Illinois in 2002 to attend law school, things have happened that have made me acutely aware of the death penalty. In 2000, George Ryan, then governor of Illinois, put a moratorium on executions in Illinois. Since 1976, Illinois has executed 12 people on death row. However, 20 people were actually released from death row for various reasons. Governor Ryan was faced with the fact that the death penalty system in Illinois was horribly broken. He called a time-out and declared there would be no more executions until the system was fixed.

Ryan's interest in Illinois' death penalty largely arose over the case of Anthony Porter, who spent 15 years on Illinois' death row. A group of journalism students from Northwestern University uncovered evidence that proved Porter's innocence. He was eventually exonerated and released from prison and another person ended up confessing to the crime for which Porter had been convicted.

The fact that a group of undergrads righted this wrong was obviously troubling. The entire Illinois criminal justice system, which is supposed to keep the innocent from being convicted (let alone being sentenced to death) had allowed this to happen. From the local police department to the state's attorney's office to the defense attorneys to the trial judge to the appellate court and to the Illinois supreme court, this innocent man was scheduled to be killed.

No matter your view on the death penalty, I don't think anyone is comfortable with the idea of an innocent person being executed. Governor Ryan convened a committee to look into the matter. The committee uncovered significant problems and recommended changes. But the changes were never implemented. In response, 2 days before leaving office in January 2003, Ryan commuted everyone's sentence on death row to life without parole.

However, the death penalty was still in Illinois law. Thus, state's attorney's offices throughout the state kept seeking the death penalty and, in some cases, got it. In fact 15 people were on death row when Governor Quinn signed into the law the death penalty ban in March 2011.

My objection to the death penalty isn't on moral or religious grounds. I didn't have a problem with John Wayne Gacy being executed. My objection is simply this: the death penalty is an extreme punishment for which no margin of error can be allowed to exist in its imposition and it's been proven time after time to be subject to just that, or worse.

It's one thing for an eyewitness to mistake identification. That's bad enough. But when the police and/or the prosecutors break the law in bringing about any conviction and especially one that ultimately results in a death penalty being imposed, that's something that we cannot tolerate.

Police and prosecutorial misconduct are not a rare or isolated phenomena. In fact, it's a common occurrence. In death cases, it's just more magnified because it seeds the idea that someone was wrongfully convicted and sentenced to death. I think this would bother anyone if confronted.

If you want to learn about a case of extreme police and prosecutorial misconduct, read about Randall Adams. Adams was convicted and sentenced to death in Texas in 1977 for the murder of a police officer. The U.S. Supreme Court later ruled that jury selection in his case violated his rights.

Instead of re-trying Adams, the Dallas district attorney convinced the Texas governor to commute Adam's death sentence to life without parole. Clearly Adams didn't like this and appealed to the Texas Criminal Court of Appeals (the highest state court in Texas), who ruled since the Governor had commuted the death sentence to life, there was no longer any error. I can't say that I really understand the rationale behind this decision.

Adams later filed a state habeas petition again with the Texas Criminal Court of Appeals. This time something didn't look right to the justices and they ordered that the trial court conduct a hearing on the petition and make findings of fact. This time, however, it was a different judge at the trial court level. In 1989, based on the factual findings from the habeas hearing, the Texas Criminal Court of Appeals reversed the conviction and after 12 years, Adams was freed.

The rationale behind the reversal was largely, if not entirely, based on extreme prosecutorial and police misconduct. The court determined that the prosecutor had withheld key evidence from the defense, suborned perjury, and lied to the trial judge. Pretty bad stuff. The prosecutor left the Dallas D.A.'s office in 1981 and set up a private practice in Dallas. However, he testified under oath at the habeas hearing, where he continued to deny any wrongdoing. The appeals court didn't buy it, however.

On top of the shenanigans the prosecutor pulled in order to convict Adams and get him sentenced to death, he goes into court later as a witness in the habeas hearing and according to the findings of the trial court, committed perjury. According to the Texas State Bar, he is still practicing in Texas and has never had any disciplinary action taken against him.

There was a documentary made about the Adams case while he was still in prison called "The Thin Blue Line". Errol Morris created the film and it was released in 1988. It's a very engaging piece of film and I'd recommend it to anyone interested in the death penalty and/or other issues mentioned in this posting.

Adams is but one case. But since 1976, there have been 140 death row exonerations in 26 states. Those are 140 people that were improperly sentenced to death. This doesn't mean that only 140 people were wrongfully sentenced. Who knows how many others were already executed or how many are still on death row that are actually innocent. But the point is that based on what we already know to be true, innocent people have been sentenced to death and some even executed. Thus, the death penalty is not perfect and absolutely must be.

However as long as humans are involved, it will always be subject to error both unintentional and intentional. How would you feel if you were sitting on death row for something you didn't do? And how angry would you be if the government had violated your rights to put you there? I can't really imagine what that would feel like.

When it comes to innate American concepts such as liberty, fairness, and due process, the constitution is a brilliant document. Unfortunately, since it was adopted and put into use over 200 years ago, much of it that deals with criminal justice, just looks good on paper these days. I have handled too many cases where the constitutional rights of my client simply vanished due to police and/or prosecutorial action or inaction.

The government should be the body most concerned with abiding by the constitution. But too often it's the body that cares the least and at times, acts as if it doesn't even exist. A government founded upon a constitution can never be just if it doesn't follow it. We citizens have to follow the law at all times. We are not able to pick and choose when we want to. Or what laws we want to obey.

If we don't follow the law, we are subject to prosecution. This is where the criminal justice system lies. And sadly, we are all subject to what happened to Randall Adams. But what about when the government breaks the law when we are prosecuted? Well, they are mostly immune because of their position and rarely are punished. But at the end of their violations of individual rights are innocent people that have been convicted and, in some cases, executed.

The constitution was created to prevent a tyrannical government. And if followed, it can accomplish just that. But if not followed, the thing that it was written to prevent, can run wild and unchecked.

Tyranny. Bad for everyone except for the tyrannical.



Wednesday, February 22, 2012

Playing Catch Up

Just yesterday, I realized I hadn't written a blog post since September. Every now and then, I do a Google search of my name just to make sure nothing false has been written about me. I am not paranoid, but an attorney is only as good as his reputation. To date, there's been no internet grenades thrown my way. I do always find it odd the corners of the internet where my name or something I've written pops up.

While Google hunting myself, I did find that I was mentioned on Scott Greenfield's blog, Simple Justice. Apparently I was nominated in December of 2011 for Criminal Law Blog Post of The Year by Mark Draughn of Windypunidt. I don't know Mark personally. We've never met. Somehow last year he learned of my blog and threw me a salute on his blog. I was not aware of this until I was informed by a friend. I know I sent Mark some appreciation for his kind words.

Scott Greenfield goes on to spread some niceness my way when he discusses some of the 2011 nominations. I like that Scott also considers 40 years of age to be 'young'. I also appreciated that I was considered for the award. However, the winner was Mark Bennett, a Houston Criminal Defense Attorney. Here is the winning blog post. I've never been much for reading blogs of any kind. I simply don't have the time. Even my Twitter activity has been reduced significantly.

In part, I wish I could blame my busyness on work. But it wouldn't be true. I am busy with life in general. My case load is actually pretty light and has been for over a year. However, the cases I do have are not simple guilty pleas waiting to happen. Nope. I remember those days when most clients had crap cases and chose to plead at the arraignment. I didn't earn a lot per case, but I had a ton of them.

For whatever reasons, at some point I stopped getting hired to negotiate plea deals but was actually retained to litigate cases that needed it. I remember back in the spring of 2009 (my first year doing this), someone called me on the phone and said "yeah, I heard you're a good 'cop-out' lawyer." I think I was a bit offended, but at the time, it was true. I had very litigation experience. I didn't conduct my first suppression hearing until September of 2009 and didn't try my first case until December 2009.

But what a year 2009 was. In early 2009, I was doing misdemeanor cases where I would go to court, the cops wouldn't show up, and the case would get tossed. To the worried client, I seemed like this awesome attorney and would get told as much. But inside, I sort of knew it was smoke and mirrors. To my credit, I never puffed any of that. I never told a client "see, I got your case dismissed. Love me now." No, I would just say "thank you" and walk away. I was just filling a suit and I knew it. But I also realized at the time, I couldn't do much more.

I spent so much time in the fall of 2008 and all of 2009 sitting in court and watching other attorneys conduct hearings and trials. It wasn't hard to figure out who was good and who sucked. I spent most of the time watching the jurors, noting what held their attention and what put them to sleep. I befriended the attorneys I felt were the best. And I am still friendly with them (not like it's been ages).

Though I hadn't tried a criminal case, something innate led me to believe that's what I was supposed to do.  Something told me that I would be good in front of a jury. And just 11 months into my criminal practice, I got my first shot at a jury. My client was charged with a Class X felony (6-30 years). I liked the case. I felt my client would make a very good witness. And I had enough police mess ups on the table with which to design some pretty effective cross.

Counting the day we picked the jury, it took 2 days. The jury came back in about an hour with a 'not guilty' verdict. My client cried. His mother cried. Back in the lockup, my client said "I love you". And that night, after sitting in the county jail for 5 months away from his fiancee and their three children, he went home. I am sure they all had a very nice Christmas.

Some might think I was wrong to take that case and they are welcome to their opinion. However, I wouldn't have taken that case to trial unless I felt I was fully capable of living up to my professional and ethical duties to my client. My ass might be dumb. But I ain't a dumb ass. I felt like I was ready. And I did it. All guts and glory. A little Patton-like perhaps. I never questioned my ability once and not out of arrogance. You see, I am my own worse critic. It keeps me in check.

I left the courthouse that night with a feeling like I was floating. And when I walked back into the courthouse the next morning, I felt like I was finally part of the club. In other words, my cherry had been popped. I was now one of them. One of the felony trial attorneys that have graced, or in some cases, disgraced what's locally known as 26th & California.

That building has a very long history. I admit when I first stepped inside to handle my first felony case, I was a bit awe struck. Somehow I had romanticized the Cook County main criminal courthouse. I actually wanted nothing more than to actually practice in that building. What's that saying...be careful what you wish for....Amen.

These days I see that old courthouse like a black hole that sucks in attorneys and never lets them out. It would be appropriate for a cemetery to be on the grounds where dead attorneys are buried. Yes, I am serious. On the right (or wrong) day, that place takes on a very dark character where it just feels nasty to be inside of it.

But back in the summer of 2009, Kenny Green came into my life. It was my blog posting about his case that was nominated for blog post of the year. When hired, everyone knew I hadn't tried a criminal case. No experience. But apparently I had something equally valuable to families: belief. The fact I was willing to take that case played a role as well. However, I don't think it was a large role. After meeting with Kenny and conducting some research into the case, I met with his family in the law library in the Court's Administration building that's adjacent to the old courthouse.

His family all knew what really happened and that he was not the thug that the media was describing. I am sure their biggest concern was whether or not someone else would believe what they knew to be true. At the time, I wasn't consciously aware of this. Apparently, I said the right things, because despite my lack of experience, they hired me to take Kenny's case. And Kenny, himself, wanted me as his attorney.

My unwavering belief in that case played a substantial part in Kenny's eventual acquittal. Of course, by the time the trial came around, 2 years later, I was no longer a total rookie. I am not going to claim I am some super duper experienced trial lawyer that has nothing but sage advice to shell out.

But I know how to try a case. And as it turned out, I think I am pretty good in front a jury. To contradict myself a little, there's two cardinal rules I follow when it comes to juries: never give them a reason to dislike me and never lose my credibility with them. It won't necessarily seal your client's fate, but it damn well might.

On that Friday afternoon when Kenny was acquitted, he told me he loved me. Knowing him like I do, he wasn't surprised at the verdict. For he knew he had done nothing wrong. He expected the right verdict to be given. Once upon a time, I was that naive too.

Kenny will never know the personal, mental hell his case put me through. He will never know how many nights I had trouble sleeping because I was thinking about his case. He won't know how frightened I was before that trial. He won't know of all of the anxiety and stress I took on by handling his case. He won't know that just a random thought about his case would cause my pulse to quicken, my blood pressure to rise, and make me feel like immediately vomiting. I've learned that all of that ickyness comes with the job. Or at least in my case it does.

After I walked out of that courtroom, his immediate family was in the hallway. His mother was a little teary eyed. I immediately broke down and cried. All of the emotion that had been built up in me was suddenly released. An emotional orgasm, if you will. All I could say was "thank you for believing in me and trusting me to handle Kenny's case." While hugging me, she whispered into my ear "Marcus, we always believed in you." Of course, that just brought more tears, but in a very good way.

I learned a lot through that case. I grew as a person and as an attorney. I realized that some fear is good. But too much fear can cripple. And I also learned that the belief stuff runs in both directions. There's nothing wrong with being an attorney with a heart.

That I regularly show so much of mine has bode well with some clients. Just recently one said "I'll say one thing about you Mark (that's what he calls me and I let him), you practice with compassion. You're not like most lawyers in this business."

Unfortunately, in this business, my compassionate side causes me a lot of grief. When I fail to deliver justice to a client so desperately in need of it, I always feel terrible. Despite all of the bullshit I see in the Chicago criminal justice system, there's still a palpable amount of idealism inside. Not as much as my law school days, but just enough that it still bothers me that our system is horribly broken and that, by and large, black and Hispanic citizens of Chicago don't have the same constitutional protections as I do. In fact, that still really, really, really pisses me off.

It saddens me that Kenny's trial may end up being the pinnacle of my career as a criminal defense lawyer. It was an extraordinary case. One of a kind. I was extremely invested in it. And there was a lot at stake. I was so completely unaware of that cases' magnitude, that the post-trial reactions, both good and bad, were hard to grasp and still are. I had a client with a case that needed to be tried in the right way. That's how I looked at it.

I hear from Kenny from time to time. Not too long ago, I got a text message from him that read "Happy New Year my hero!" I don't think of myself as a hero. I did my job. As expected, not much has really changed. I didn't start waking up wearing a cape. I had a nice weekend after that trial. But Monday came and it was business as usual. I won a suppression motion that week. And then lost one the following week. Up and down. Up and down. For someone that treasures stability and tranquility, I picked the worst job imaginable. Maybe I am a dumb ass, after all.

I want to take a few lines to thank a lot of people in no particular order. First off, thanks to DawnMarie White for leaving a husband in Indianapolis for a week to try Kenny's case with me pro hac vice and for damn near free. I couldn't have done it without you. Thanks to my dear friend, Annie, that stayed with me every night of the trial, brought DawnMarie and I dinner, did my laundry, went to the office store to pick up supplies for us, and kept me calm. Thanks to Mark Bennett for calling me out of the blue the day I was interviewed for the 6:00 news, and giving me advice on how to answer the reporter's questions. Thanks to all of my fellow CDL's on Twitter that shared in that win. Thanks to the bloggers that picked up this story and published it. Thanks to everyone that commented or wrote kind words. And thanks to everyone else fighting the good fight in a tireless effort to keep the constitution alive.

It always amazes me at how unaware I often am of myself. A couple weeks back, I was headed to court to litigate a motion. As usual, I was nervous. I always am. It's one of the worst parts of this job. It messes with my stomach. It jacks up my nerves. It's just not something that's really nice to experience.

I wrote my girlfriend a text message, expressing my nervousness and anxiety. Her response really hit me in the forehead: "You get that way because you care. Your clients are lucky to have you." That's great sentiment and all, but is it true? I think so.

I wrote back: "The only alternative is to just go numb and not give a shit. But then I'd really suck at this job."

In a nutshell, that's who I am. All I've ever been. And all I ever will be.

I'm cool with that.