. Patterico, for those of you who don't get over there often, is a prosecutor in a large city in Southern California. No, not San Diego. This week he's been discussing the idea of holding the prosecution to a higher standard in death penalty cases--something beyond "reasonable doubt" he's tentatively calling "
".
I don't want to show up and diss the guy on his own blog--that's like...like... banging a guy's girlfriend in his own Firebird--so I'll register my differences over here.
First, Patterico doesn't really offer much reason to justify the change. He had a post a while back about what might have been an innocent man executed in Texas, but I'm not certain how a tougher standard of proof would have saved him. After all, this was someone who according to this account of the case may have known the identity of the real killer, yet refused to disclose it. He could have induced a reasonable doubt about the prosecution's case, but he chose not to.
Second, how would you really quantify a standard stricter than "beyond a reasonable doubt"? Even if you don't use the "possible doubt" construction, you've still changed the rules to require proving reasonable doubt plus...something. What is that something?
It's not really kosher, as a matter of law or as a matter of statistics, to quantify the percentage of doubt about a defendant's guilt. After all, can you really distinguish between being ninety-five percent certain and ninety-nine percent certain about, say, what your girlfriend tells you about how the windshield got broken in your Firebird? She says she hit a bat while driving at night, but the crack might be from the inside, where a shoe heel could...no, no, you're pretty sure you believe her.
Ninety five? Ninety nine? Do those numbers mean anything? Does the difference between them really make a difference?
REASONABLE DOUBT: These eyewitnesses only saw the guy for three seconds on a foggy night. They could be mistaken.
UNREASONABLE DOUBT: Since these three eyewitnesses have Jewish surnames, I think the Mossad is trying to set this defendant up, even though no evidence suggesting that has come up.
I don't think the state should have to defend against less than reasonable theories and criticisms of its case. Just because some hotshot defense lawyer can pull a doubt out of his wazoo does not automatically make that doubt reasonable. But raising the bar on the prosecution will encourage them to try every outlandish scheme and theory in the book. They try them already, sure, but even the defense has an obligation to make utterly fantastic stories into reasonable ones before the state is required to refute them. Besides, quite often the unreasonable is irrefutable.
For example, I remember one of the possibilities hinted at by Mark Geragos in the course of the Scott Peterson murder trial was that a group of Satanists had kidnapped and ritually sacrificed Lacey Peterson.
Possible? Yes. It's not impossible. Reasonable? Not really. It's slightly more believable than aliens, but as a serious alternative to a well-detailed, solidly prosecuted case against Peterson, it's a phantom. It wasn't worth the prosecution's time to answer that baseless theory.
I don't see how Patterico's new standard is going to keep the equivalent of those phantom Satanists out of the courtroom in every death penalty case.
Excuse me. There's some dude outside in a Firebird and he looks peeved.
1
"... a well-detailed, solidly prosecuted case against Peterson ..."
But a case without a molecule of probative evidence against Peterson, a case based solely on slander and in which prosecution witnesses including 'experts' and the prosecutors distorted the truth. This is justice beyond a reasonable doubt?
Posted by: Charles at November 26, 2005 10:43 AM (NocRE)
2
I think a proposal for a heightened standard of evidence in capital cases deserves a lot of consideration, though "possible doubt" is probably a bit too stringent.
One can image a lot of examples where "reasonable doubt" might not exist but "possible doubt" remains. Maybe there are cases where there is not even any POSSIBLE doubt as to guilt, but I can't think of one at the moment. It would seem that every source of evidence brings with it at least some possibility for error, tampering or both.
How about something more than "reasonable doubt," but less than "possible doubt?" "Conceivable doubt," perhaps? While it may, for example, be considered POSSIBLE that a government-spawned clone of the defendant or an alien body snatcher actually committed the crime, it is not really CONCEIVABLE that either actually happened.
Posted by: Eman at November 26, 2005 01:57 PM (wictu)
3
I have said in my posts that I am flexible on the wording. I just want something higher -- but a real-world standard.
And you should have posted this on my site. You're still welcome to, in fact. I explicitly invited the guest-bloggers aboard, since I'm on vacation.
But stay away from my Firebird!
Posted by: Patterico at November 26, 2005 02:04 PM (86rNH)
4
Eman,
I don't know so much about that. The former defense minister of Canada just this week gave a speech in which he accused the US of building a secret moon base in order to attack the intergalactic visitors regularly visiting our planet(hey, who knew?).
You see, President Bush and the Bushcohalibaconburton fringe want to start an intergalactic war just to keep a war going, expecially since it now looks as if the Iraq quigmire might be winding down next year. How can the military industrial complex keep going without a war to enrich the oil giants and munition tycoons?
Posted by: knight templar at November 26, 2005 02:14 PM (rUyw4)
5
So, would banging a guy's girlfriend in his own Firechicken (a feat of some contortion) be grounds for capital punishment, regardless of the standard of proof used?
Posted by: Dana Pico at November 26, 2005 05:32 PM (ywZa8)
6
Any bookie or actuary can tell you there is a difference between 95% and 99% sure. Of course it is hard to be rational and objective when it is your girlfriend and your Firebird but that is why you are not supposed to serve on a jury if you know the people involved.
Anyway we are not acting as a jury here. We are discussing the policy question of the relative harm to society of convicting the innocent as opposed to aquitting the guilty. Or in other words how many guilty men are we willing to free to avoid convicting an innocent man. As I said in Patterico's comments I would vote to convict if I was 95+% sure which means I will free 19 guilty men (but no more) to avoid convicting one innocent man. If and when we agree on the policy question we can try to translate it into jury instructions. However I suspect the existing reasonable doubt standard is vague because there is no agreement at all on the underlying policy question. I also suspect many people have an unrealistic view of what standard of certainty is practical in the real world.
Posted by: James B. Shearer at November 26, 2005 07:01 PM (/LMed)
7
This issue of a heightened standard for capital punishment doesn't necessarily invoke the balance between the freed guilty and the punished innocent. A jury could return a special verdict, specifying whether or not it found evidence of guilt "beyond a possible doubt" (or whatever heightened standard employed). Only where a jury found such evidence would the defendant be in jeopardy of capital punishment. If the jury found the evidence sufficient only beyond a reasonable doubt, life in prison would be the maximum penalty.
Posted by: Eman at November 26, 2005 07:35 PM (wictu)
8
With DNA, the issue recedes. I think it's fine the way it is, it's just a pity more murderers aren't executed. Right now the Hollywood glitterati have their panties in a wad over a multiple murderer scheduled to be toast in Dec. The word is, he's a 'role model,' having written books about gang violence. Good for him. Now let him take his punishment like a man.
Posted by: beautifulatrocities at November 26, 2005 10:00 PM (Ol3Gs)
9
The problem with capital punishment is that we aren't following through with it quickly enough. People change, say that they've atoned, write books, and hug children. That still doesn't remove their act or the very real threat that they've already crossed a BIG line once, what's to say they won't cross it again?
"But a case without a molecule of probative evidence against Peterson, a case based solely on slander and in which prosecution witnesses including 'experts' and the prosecutors distorted the truth. This is justice beyond a reasonable doubt?"
You know, I needed a good laugh tonight. Thanks.
Posted by: kk at November 27, 2005 12:48 AM (Rs5sH)
10
While Paterrico's argument is worthy of having I don't believe any of us could be sure
beyond all possible doubt. The skill and cunning of lawyers on both sides is often something to behold. Jurors are just people like you and me and are subject to the machinations of a defense lawyer who only has to place a niggling doubt in your mind, while the prosecutor must prove guilt beyond a resonable doubt (by current standards).
If the problem lies in the withholding of evidence that may exonerate a defendant then THAT is the problem we must go after. And if eyewitness testimony is truly so questionable then THAT process should be further scrutinized. Not the level of doubt a jury has.
What I mean to say is, why should a jury have to contend with such failings in the system that can be corrected in order to determine their level of doubt? When a jury has to consider the honor of a prosecutor or defender (particularly the prosecutor) or even the judge who determines what is allowed and isn't, they're not putting all their effort in the actual question of guilt or innocence.
Posted by: Oyster at November 27, 2005 05:44 AM (YudAC)
11
KK wrote:
The problem with capital punishment is that we aren't following through with it quickly enough. People change, say that they've atoned, write books, and hug children. That still doesn't remove their act or the very real threat that they've already crossed a BIG line once, what's to say they won't cross it again?
Given that many of the people who were on death row and then exonerated were only cleared after many years of investigation, had we carried out the death sentence much more quickly, we'd have a lot more cases of people executed wrongfully.
Bit, I think a bigger issue is in KK's last sentence. It assumes that the alternative to execution is setting the criminal free, and that's hardly the case: the criminal who is
not executed for murder still winds up in jail, we hope for the rest of his life. In cases where capital punishment is a possible sentence, conviction does mean a life sentence, at minimum. Given that 37 out of 38 death penalty states have the option of life without parole, it seems to me that KK's finally expressed concern isn't a realistic one.
Posted by: Dana R. Pico at November 27, 2005 01:30 PM (M7kiy)
12
I've served on two jury panels, one for murder and another for theft. I assure you that neither I nor any of the other jurors in either case found any fault in the "beyond all reasonable doubt" standard.
As a matter of fact, at first some thought the standard put too much burden on the prosecution, but after going through the trial, listening to the evidence, etc. all of us were sure we had the right man. We voted for conviction. However, we did feel there were mitigating circumstances that prevented us from voting for the death penalty even though the accused was obviously guilty.
All juries have the right to vote whichever way they want, and if there is a holdout, then that person should stick to his or her conviction. Then there will either be a mistrial or the defendant will be found innocent if other people change their mind. I like this standard and would oppose any tampering with our present system with respect to burden of proof.
Posted by: jesusland joe at November 27, 2005 01:37 PM (rUyw4)
13
This entire debate was started by Patterico, after a jailhouse confession exonerated a man of a murder for which he had already been executed. Our good friend Patterico then suggested that perhaps an even higher standard of proof needed to be instituted when it came to the imposition of capital punishment. Given that Pat is a criminal prosecutor, and sees the scumbags every day, that's quite a thing from him.
But we ought to look at some practical considerations:
Most murders are not sentenced to death, and life (or even lesser) sentences are considered apropriate for them; and
Most murderers who are sentenced to death die in prison . . . of causes other than their execution.
Since the death penalty was reinstated in 1976, there have been right at 1,000 executions in the United States. That doesn't cover more than three years worth of murders in Philadelphia, much less all of the murders in all of the states over the last 29 years.
California has executed 11 people since capital punishment was restored in 1976. To be fair, the first execution in California after that didn't occur until 1992. California executes people on death row at slightly less than one per year. With a current death row population of 648, at current rates of execution, if no one else is added to death row, the Golden State will finish up its scheduled executions in the year 2770.
Is that practical? A death sentence is enormously expensive; the additional appeals and legal procedures through which the state must go are very expensive, and several states, starting with North Carolina about a decade ago, concluded studies which demonstrated that it costs hundreds of thousands more dollars to execute a criminal than to keep him locked up for the rest of his miserable life.
Even Texas, which has executed 355 people since 1982, has a death row which is growing faster than it executes people!
Posted by: Dana R. Pico at November 27, 2005 01:59 PM (M7kiy)
14
What do you propose, Dana? I would suggest that the myriad process of seemingly endless appeals be stopped. Every death sentence should be reviewed by a panel chosen by the governor of each state, and if the circumstances warrant, the punishment should be reduced to life without parole. This, I think, would do two things. It would speed the appeal process and it would address the burden of proof issue.
Posted by: knight templer at November 27, 2005 06:16 PM (rUyw4)
15
There are no Phantom Satanists. Dial Triple Six on your mobile and see where the rabbit hole goes.
Posted by: Agent Smith at November 28, 2005 05:51 AM (OM64d)
16
I still think that too much burden is put on the juror. If the process of evidence gathering and presentation is in question then the juror is expected to be somewhat psychic.
what happens when it is found that a prosecutor has withheld evidence that might exonerate a defendant? What happens when it is found later that a "witness" didn't actually witness anything? What happens when a judge decides that certain evidence can't be presented that would have produced, beyond ALL doubt, the guilt or innocence of the defendant?
Are these people then tried? Wouldn't that be a crime in itself? If they were tried for these offences, wouldn't it put the brakes on such practices?
Instead, they wish to put more of the burden on the juror when these things happen and then the monetary cost and anguish of all parties rises.
Posted by: Oyster at November 28, 2005 07:09 AM (YudAC)
Posted by: Taylor Allison at December 08, 2005 12:50 AM (ObPVD)
Hide Comments
| Add Comment
