By Raymond Warren
When I retired, presenters at death penalty conferences were referencing the 27 people who had been released from death row after extensive reviews of their cases resulted in their being exonerated. While many of the releases were for DNA exonerations, there are several other reasons why death row inmates have been exonerated. More recently, I read that the number of exonerated death row inmates in Florida is now 30.
Each time a new death row inmate is exonerated, it establishes that a detective erred, a prosecutor erred, a jury erred and a judge erred. Sometimes, they just didn’t do it; in Florida that number is 30 erroneous allegations of murder and accompanying announcements of intent to seek the death penalty, and counting.
In three of my eight first-degree murder trials, juries returned a not guilty verdict to the charge of first-degree murder. (I have posted comments on each of these three trials in these pages previously.)
One was a complete not guilty.
Another resulted in a DUI manslaughter conviction, which was our defense argument from opening statements throughout the entire trial.
The third jury returned a verdict of guilty to second-degree murder, but that client refused to allow me to ask for or argue in favor of any lesser included offenses on the verdict form (I can talk about this as the trial judge released me from the attorney-client privilege during a post-conviction hearing, during which the former client agreed that I had repeatedly asked for permission to argue for a vehicular homicide verdict). She wanted guilty as charged and not guilty as the only choices on the verdict form. The prosecution asked the trial judge for the second-degree murder option on the verdict form.
Since the jury rejected the prosecution’s argument for first-degree murder, there is the possibility that the jury would have convicted of vehicular homicide if given the opportunity and the argument. I will never know.
During that trial, the traffic homicide investigator, on cross-examination, repeatedly admitted that what he had just told the jury during direct examination was “garbage.” My co-counsel told me that each time the investigator said his previous testimony was “garbage”, the lead prosecutor, who was also the homicide division chief for all four counties, would clench his fists. All I did was play the prosecution’s video-surveillance footage a half-second at a time and ask the investigator to explain what each frame depicted. He hadn’t done that before trial, so he didn’t know that point after point (at least 10 points) in his traffic homicide report was rebutted by the State’s own video-surveillance evidence.
Why no one in their entire prosecution team looked at the surveillance video that way before trial remains a mystery to me. I deeply felt that the jury would never come back with a complete not guilty verdict under the undisputed facts, but I still strongly believe the jurors were more than willing to return a verdict for vehicular homicide if they had had that option. When an investigator admits that his impact point as depicted in his direct-examination presentation to the jury is off by approximately 27 feet, it sort of undermines the rest of his testimony.
He also admitted that he just selected an acceleration mark on the bank parking lot pavement from several other acceleration marks without comparing it to the tires on the giant SUV, even though the witnesses had told him that the SUV had backed into a parking space and one said its tires chirped as it was accelerating through the bank parking lot, which was far from the tire mark the investigator selected as the vehicle’s starting point.
Remember, this is a first-degree murder prosecution–where the penalty is up to life in prison without parole–not a theft of hot dogs case.
I don’t know if the investigator is still with the agency. But years after the trial I read that he and a couple of other deputies had been suspended pending investigation of a severe beating of a suspect that a bystander had video-recorded.
Florida’s sentencing guidelines statute details the primary purpose of sentencing is to punish, not to rehabilitate. Indiana actually has a clause in its constitution that preserves the primary focus of its criminal justice system as rehabilitation. I have previously commented on the difference between honor-based societies and respect-based ones. Honor demands vengeance. Respect commands justice. Two significantly different approaches. There really is a vengeful America and a just America. Guess which approach Florida’s government promotes!
Somehow, western European societies have a murder rate of significantly less that one person per 100,000 per year (generally at or below 1 persons per 100,000; the European Union average for 24 countries, including east European outliers, is 1.4), while America’s murder rate hovers at 5 per 100,000 per year.
Raymond Warren was a long-time Assistant Public Defender in the Seventh Judicial District, which includes Flagler, Volusia, Putnam and St. Johns counties.
James M. Mejuto says
Just because prisoners are rightly exonerated doesn’t mean the death penalty is not justified.
Our justice courts have to convict those guilty of murder and execute them.
What this means: all current cases/inmates’ records have to be re-read, investigated and a decision.
No person guilty of murdering another should not be executed.
Janet Sullivan says
Being FOUND guilty in many cases doesn’t mean one IS guilty. That’s the problem with the death penalty.
the guilty says
who do we execute when an innocent man is killed for a crime he did not commit? the jury? the judge? the officers involved in the investigation? a guilty verdict was read and established for all those who have been later exonerated. did they deserve to be executed? we should not be so quick to deal in death and judgment.
Dudley Sharp says
We are not quick, with either death or judgement.
There are huge blocks of time within pre trial, trial and appeals, as we all know, an average of about 20 years of appeals for those executed in 2020.
In the US, since 1973, we have had about 1500 executions, 900,000 murders, about 500,000 of which were committed by KNOWN criminals that we allowed to harm, again
The US solves about 25% of our crimes.
Mike Cocchiola says
I see you are a sensitive person. Death is the only option for someone rightly or wrongfully convicted of murder. No excuses. No quarter given. No looking back. I get that.
But, what does this cult of revenge killing say about our society? Is state-supported murder any less onerous than the crime of murder? Have we not learned that the death penalty does nothing to curb violence? Don’t we have ample proof that we have wrongfully executed numerous innocent people?
The death penalty, no matter how much deserved, must be abolished across America… even in Florida and Texas.
Tell that to the families that had their children murdered or a loved one brutally killed. Sure one can set in jail and go the jail movies, what TV, read books, play sports, get medical care , while the family will suffer forever for what that person did to their family.
There is a time and place for the death penalty.
You know, in every death row case, a jury found those individual(s) guilty. Now the sentencing aspect that was what the prosecution & judges came up with. When DNA exonerates, I think the state of FL should be held accountable & responsible for lives ruined. If you’re wrong after decades on death row, somehow we’re sorry just doesn’t cut it. Turning those folks free after taking the best years of their lives has to be worth something more than a low skill career at the end of their lives to live in mismanaged poverty. When the system gets it right, is a few decades on death row just too long & too much invested to find no evidence that would reverse anything ? So the system is what it is, imperfect. The other day a man got 45 years for killing another. He admitted his guilt for that. If anyone deserves to be executed, that one does.
Ray W. says
Both the United States Supreme Court and Florida’s Supreme Court repeatedly rule that the death penalty is reserved only for the “worst of the worst” murders. By definition, very few murders qualify as the “worst of the worst.” Every commenter who disagrees with this definition simply has to admit they do not understand how the death penalty process works. The issue is not whether one “deserves” death, because everyone has their own definition of what “deserves” means and the death penalty will become a capricious exercise depending on the whim of whoever is elected to the position of State Attorney in each of the 20 circuits and the statewide prosecutor, which is exactly why the death penalty was abolished in the late 60’s. The issue became whether a review of all of the facts in the case at hand establishes that the case falls within the parameters established by prior death penalty cases that have been upheld on appeal. One now-retired Florida Supreme Court justice remarked that 50% of that court’s business was occupied by deciding whether a death penalty sentence falls within the parameters established by prior death penalty decisions. As for James J. Mejuto, he exemplifies the type of citizen that our founding fathers feared, which is why they built checks and balances into every power delegated to any person willing to swear an oath to follow the Constitution. They hoped their experiment in a liberal democratic Constitutional republic would foster virtuous men (and women) who would seek to hold public office, but they also knew that many, many others less suited to the effort would also seek public office.
If anybody should be on death rowe it should be white cops for murdering unarmed people, especially my people of color. I think the police dept. is designed to protect the Whites and murder the African American Men in cold blood calling it control. White cops kill innocent people everyday and not held accountable. The P ridon system should be full of white murdering cops.
Dudley Sharp says
81% of black Americans want police to spend same amount of or more time in their area. (Gallup, 8/5/2020, https://news.gallup.com/poll/316571/black-americans-police-retain-local-presence.aspx)
” . . . a recent Harvard study (by a black professor) concluded that 1,332 police shootings over the 2000-2015 time frame reveal that blacks are actually 20 percent less likely to be shot at by police than whites, despite the fact that blacks and whites are just as likely to be carrying a weapon.” (1)
” . we find no evidence of racial discrimination in officer-involved shootings.” In Houston, Texas ” . . . blacks are 27.4% less likely to be shot at by police relative to non-black, non-Hispanics”. (2)
“Officers’ use of lethal force following an arrest for a violent felony is more than twice the rate for white as for black arrestees, according to one study (3).”
“Another study showed that officers were three times less likely to shoot unarmed black suspects than unarmed whites.” (3).
” . . . John Jay College of Criminal Justice Prof. Peter Moskos, . . . when the homicide rate is adjusted, “whites are 1.7 times more likely than blacks [to] die at the hands of police.” (1)
1) 7 Statistics That Show That ‘Systemic Racism’ Doesn’t Exist In Policing, Daily Wire, AARON BANDLER July 11, 2016, https://www.dailywire.com/news/7-statistics-show-systemic-racism-doesnt-exist-aaron-bandler
2) An Empirical Analysis of Racial Differences in Police Use of Force, Roland G. Fryer, Journal of Political Economy, Apr 22, 2019, https://www.journals.uchicago.edu/doi/full/10.1086/701423
earlier version (1/2018) , free https://www.nber.org/papers/w22399.pdf
3) The Myth of the Racist Cop, Heather Mac Donald, The Wall Street Journal October 24, 2016, https://www.manhattan-institute.org/html/myth-racist-cop-9391.html
The Unvarnished Truth says
In the 30 minutes, it took you to write that specious tripe – two of my people of color were murdered …by my people. I tire of the narrative of our lives only matter to other people and how we ignore the macro while concentrating on the micro.
The dude says
Anytime you are asked to guess which direction Florida will choose… simply look at the options and select the shittiest option for the sure win.
OK, where are the voices of the “Right to Life” bunch? It’s now time to speak up!
Concerned Citizen says
My question is this.
What becomes a deterrent for murder? Regardless of race? When you have a solid conviction with an admission of guilt why should that person continue to live after taking a life? Didn’t his/her victim have a right to live?
It would be interesting to see how much of a deterrent the death penalty has been.
It’s also interesting to see the focus shift from victims rights to perpetrator’s right’s. Here in this country you can take a life. And have far more right’s and judicial protection than you ever gave your victim.
Ray W. says
One of the few things that really frosts me is the ignorance of a person who insists that other people need to be killed because the commenter thinks other people are guilty and deserve death. Here is the frosted response:
Tipped confessions: One of the presenters at one of the many death penalty seminars that I attended was a working municipal detective in a Virginia suburb just outside our nation’s capital. He provided an excellent presentation, complete with snippets from an interview he had conducted years before while investigating a robbery/murder. He was initially convinced that a young woman had committed the crime, based on her confession. As he investigated further and further into the case, he came across records from a homeless center that revealed that the suspect had signed in for the night at a time just before the murder was committed, a time that prevented her from traveling from the center to the murder site. As I recall, the locked facility was staffed and the staffers remembered her being there. It was her signature. So, the detective went back through his interview, carefully looking for the possibility that he had slipped and revealed to her details of the crime. Sure enough, everything she admitted to had been revealed to her by him, inadvertently, such as the type of meals ordered at a Chinese restaurant at a particular location, records that were reflected on a receipt found at the murder site. The detective had been presenting this case at law enforcement seminars for years, cautioning police officers to take great care in how they conduct their interviews; he had been persuaded to present at a criminal defense seminar.
Coerced evidence: I am reminded of my having to watch a detective interview an alleged victim of a sexual battery in the presence of her roommate. The detective and the two young women were in the company of an SAO victim advocate. The roommate was interviewed first. When shown a six-photo lineup, the roommate selected one of the photographs from the standard six-photo lineup, with the alleged victim listening and watching from another table in the large interview room. When the alleged victim was interviewed, she hesitated when shown the same lineup. Pressured by the detective, she again hesitated. The detective tried a third time, tapping one of his fingers on one of the six photographs. She picked that photograph.
Coerced confessions: Then, there is the documentary of a murder trial of a 15 year old Jacksonville Black male, titled: Murder on a Sunday Morning. A woman was murdered near a Jacksonville restaurant where she had breakfasted with her husband. During a lengthy interview, the juvenile suspect was taken to a wooded area. The detective took him into the woods alone. When the juvenile emerged from the woods, his face was bloodied and swollen. Shortly after his time alone in the woods with the detective, the juvenile confessed to the murder. Photographs taken after his arrest revealed the bruising and swelling. Eventually, the jury returned a not guilty verdict. Months later, the lead defense attorney received a call from the jail from a different client who advised that another inmate had confessed to the murder. The assistant public defender called prosecutors who had investigators go through the evidence again. In the deceased woman’s wallet, found over a mile away in a garbage receptacle, were pieces of paper that had the new suspect’s DNA on it, supporting the argument that the inmate who had confessed to the defense attorney’s client had handled the wallet and inspected its contents before throwing it away. The State prosecuted the new inmate for murder. As an aside, in one of life’s great moments of wit, after the prosecution directly examined the detective, the court took a short break. The defense would begin its cross-examination of the detective after the break. The assistant public defender walked by the detective towards an exit with an unlit cigarette in his fingers. The detective sneered that the attorney was going to smoke a cancer stick. The assistant public defender looked straight at him and commented that he always smoked before sex.
Wrongful prosecutions: Then, there was Volusia County’s equivalent to the Casey Anthony trial, where a young mother was tried for allegedly murdering her two very young children in a trailer fire; it was a death penalty prosecution. I have posted about this before.
The state’s theory of prosecution was that the young mother, needing money, had burned her trailer down with her children inside for the insurance money. The problem was that the mother had been outside talking to a neighbor for at least 20 minutes about hiring a contractor to pour a concrete slab and concrete steps up to the trailer’s front door, as required by a new city ordinance. The neighbor had already had the work done and she told detectives that the mother had been asking her how to get the permits, who to hire, how much it cost, and many other questions. She insisted that it had taken at least 20 minutes. The State could not get around this interval of time.
The neighbor noticed smoke first, as she was the one who was facing the trailer. According to the State Fire Marshall, the only way the mother could have burned her trailer and then talked to the neighbor for at least 20 minutes would have been by setting the fire first, closing all the doors and windows and then going outside to talk to the neighbor, a process that requires a measure of sophistication to understand. The mother was a stay-at-home mom who had not completed high school; her husband worked three part-time jobs as he could not find one job that would give him much needed overtime. Due to the 20 minute time frame, the fire had to have been constrained by a lack of oxygen until the mother ran up to the trailer and opened the front door, allowing oxygen to rush into the structure, creating the “backdraft effect.” The superheated carbon-monoxide, needing more oxygen to complete the burning process, would then flame quickly through the entire trailer. The high level of carbon-monoxide inside the trailer would have killed the children long before the conflagration that erupted upon the mother opening the door, according to the State Fire Marshall.
During the first 8 1/2 week long trial, the prosecution focused on an enamel-painted metal saltine can that was found on the ground under a hole burned through the trailer’s kitchen floor. The prosecution argued that vapors taken from the can were consistent with weathered gasoline and that the mother had poured gasoline in the can, lit it on fire, and walked outside to talk to the neighbor. The State Fire Marshall testified about how this explained the fire. I was still in law school and began assisting in trial during summer break. I heard my father examine witness after witness to determine the temperatures at which aluminum would melt, steel would melt, enamel would burn, plastic would ignite, paper would ignite, etc. During closing argument, my father held up the State’s enamel-painted can. You could see the burnt enamel all around the can except where the lid would have covered the enamel if it were affixed to the can. The entire rim at the top of the can was unburnt, with a creamy yellow color. Somehow, the brain trust of the entire prosecution team had failed to see the unburnt enamel paint around the upper rim of the can. Their entire case was built on gasoline being poured into the can, without a lid on it and the mother lighting the gasoline on fire. It being the hottest part of the fire, it burned a hole in the floor, dropping the can to the ground. The jury hung 10-2 for acquittal. One juror told a News-Journal reporter that two older women told the rest that they had made up their minds about the mother’s guilt during opening statements and no amount of talking by all the other jurors would change the pair’s minds.
In the next 4 1/2 week long trial, the new prosecutor, an arson specialist out of Tallahassee, argued that the fire started in a back bedroom, because there was a “V” mark burnt onto the wall behind a dresser. I helped in that trial, too, during Christmas break. A key state witness was testifying on a Friday afternoon. My father insisted he had read the name somewhere in the file, amidst our three bankers boxes of documents. As my father cross-examined the witness, I couldn’t find the witness’ statement, but I found a State Fire Marshall document, typed by a secretary, with the date of the interview set the day after the fire. It’s title contained the name of a different witness and it referenced a second witness who was identified as “unidentified white male.” As I read the document, the second witness identified himself by name to the State Fire Marshall; he was the witness who was on the stand. My father asked his last question and walked back to our desk. I grabbed his arm and showed him the document. The witness left the courtroom as my father continued reading what I had just read. The witness had told the State Fire Marshall, under oath, that when he rushed up to the trailer, he saw flames “roaring out the open windows.” My father asked the judge to recall the witness. The bailiff rushed out of the courtroom. Minutes later, he returned and announced that he had caught up to the witness as he was backing out of his parking space. The witness told the jury that when he ran up to the trailer, he saw flames roaring out the open windows. If the windows had been open at the time of the fire, the prosecution’s theory could not work, as there would always have been enough oxygen to feed the fire. In other words, the State Fire Marshall had known from the day after the fire that his theory of prosecution could not ever have worked, yet he testified in two different death penalty trials that conditions existed to produce a backdraft effect. Two prosecutors in two different trials possessed a document containing a sworn statement that undermined their very theory of prosecution, complete with the name of the witness, yet the cover of the document hid the witness’ name. The insurance company wanted to sell the trailer for scrap, so the initial prosecutor had obtained a judge’s order allowing the evidence to be released to the possession of the insurance company. During the first trial, the prosecutor told the court he didn’t know where the trailer was. When the Evening News published that comment, my father’s office received a call at about 5:30 that evening from a scrapyard owner in South Daytona. He told my father that the prosecutor knew exactly where the trailer was, because he had sent an SAO investigator out to the scrapyard the day before to inspect the trailer. About 20 minutes later, I was tromping through a scrapyard with my father and its owner as he pointed out the various parts of the trailer that had not yet been scrapped. The window frames had been scrapped. Had we found the frames, we would have known if the windows were open or closed, as the trailer burned at a temperature hot enough to melt aluminum, so the cranks would have been melted in their open or closed state. I have to believe that if the window frames had been melted in a closed state, the State would have preserved the evidence.
One day, people like Concerned Citizen will have the light of understanding flicker on. Let me help him. Right now in Florida, there are people on an investigative agency’s payroll who will testify in a death penalty case that his investigation revealed evidence that supports the killing of a human being, all the while knowing that the defendant did not commit the crime. I have seen it with my own eyes. Right now, there is a State witness who will tell a jury that a child cannot present to an emergency room with certain injuries unless they were shaken, even though I have seen a video-recording presented at a seminar depicting a child falling from a height of approximately four feet and dying after presenting to an emergency room with the same injuries that the State’s expert will testify can come only from a shaking episode. The State’s expert will testify that it is impossible for a child to die from a short distance fall. I know of a study that details 23 such deaths from children falling from playground equipment, all witnessed by other people. If Concerned Citizen cannot accept that fact, he is fooling himself. There will never be a shortage of people who are willing to kill other people in the name of justice. Some of them work for the state. Some of them testify for the state. Some of them identify themselves to us as James M. Mejuto. Just kill them all, he proclaims. I have to admit that Jimbo99 is growing on me. I seldom agree with him, but at least he presents some of his arguments as if he is willing to go through the process of thinking things over and changing his mind if persuaded.
Here are the basics. If the prosecutor were a witness to a crime, he or she would not be allowed to prosecute the case, because you can’t be the prosecutor and a witness at the same time. If the defense attorney were a witness to a crime, he or she would not be allowed to defend the case, because you can’t be the defense attorney and a witness at the same time. If the judge were a witness to a crime, he or she would not be allowed to preside over the trial, because you can’t be a judge and a witness at the same time. If a juror were a witness to a crime, he or she would not be allowed to be part of the jury, because you can’t be a juror and a witness at the same time. In that way, it is assured that everyone involved in deciding the outcome of the case does not know what happened until after listening to all of the witnesses and reviewing all of the other evidence. It is believed that this process will better prevent convictions of innocent people. The weakness of this type of trial is that witnesses lie and evidence can be manipulated and distorted, and the people who weren’t there can be deceived by those who claim they were there. This, perhaps, explains in part why 30 Florida death row inmates have been exonerated after a detective arrested them, after a prosecutor filed charges against them and filed notices of intent to seek death, after jurors returned verdicts of guilt against them, and after judges imposed death sentences on them. The system failed for each of those 30 people at each of the four steps that could have stopped the error. We just do not have a system capable of achieving the type of certainty that would satisfy Concerned Citizen’s standards.
For over 30 years spent prosecuting and defending people, I have seen far too many things, including a number of particularly ambitious prosecutors who should never have been given the power to decide who should live or die in the Seventh Judicial Circuit. I would be remiss if I did not acknowledge those many prosecutors who work hard and are conscientious in their jobs and are trustworthy in their decisions. In all my years, I am proud to have worked alongside and competed against such worthy people. I often disagreed with them, but I always respected them. After decades of doing this type of work, I have come to the conclusion that very few people possess the requisite knowledge, experience and wisdom to decide who should live or die. Even fewer of them work for the State Attorney’s Office.
And you could add:
“…IN England around 1800, more than 200 offenses, including forgery, poaching, cutting down somebody else’s tree and associating with gypsies, were punishable by death.
Women and children were hanged for petty theft. In 1801, for example, Andrew Brenning, 13, was hanged for breaking into a house and stealing a spoon.
Hangings were attended by huge crowds, and since spectators were preoccupied with watching the gallows, hangings were favorite hunting grounds for pickpockets, even though picking a pocket was a capital offense. If opponents of capital punishment had to sum up their entire case in one tableau, it would be a scene showing a 19th century English pickpocket reaching for the pocket of a spectator at the hanging of a pickpocket…”
“…The tenet that harsher penalties could substantially reduce crime rates rests on the assumption that currently active criminals weigh the costs and benefits of their contemplated acts. Existing and proposed crime strategies exhibit this belief, as does a large and growing segment of the crime literature. Using a new approach, this study examines the premise that criminals make informed and rational decisions, presents findings on the influences affecting criminals, and discusses crime prevention strategies that respond to the apparent roots of criminal behavior. The results suggest that 76 percent of active criminals and 89 percent of the most violent criminals either perceive no risk of apprehension or have no thought about the likely punishments for their crimes. Still more criminals are undeterred by harsher punishments because drugs, psychosis, ego, revenge, or fight-or-flight impulses inhibit the desired responses to traditional prevention methods…”
And so it goes.
Ray W. says
Thank you, Pogo.
If we are ever to lose our experiment in a liberal democratic Constitutional republic, don’t think for a second that public hangings and extrajudicial killings won’t recur. I have long been haunted by the story of a Muslim father and husband during the Serbian siege of Sarajevo and surrounding Muslim communities. He told of working alongside a man in a factory for years. His children played with the coworker’s children. They ate in each other’s homes. They shared holidays. When the war began, he and his family were rounded up by Serbs, some led by his former friend. His watched as his former friend killed Muslims, including some of his family members. He couldn’t believe his former friend had ever been capable of such brutality. Do not underestimate those who say they want to cut off Democrat’s heads. They really mean it, all in the name of honor.
I have commented to you about this before, but it bears repeating. Years ago, before Trump announced his candidacy, I talked with my oldest daughter about emerging signs of discontent across America. I told her that every once in a while America gets a stomachache and needs to throw up. After watching a few months of the Trump candidacy, I called my daughter and apologized to her, saying that we were about to enter an age of violence the likes of which we had not seen since the wave of assassinations, bombings, random murders and other acts of violence that swept through Western Europe and America from roughly 1890 to 1915, as detailed in Tuchman’s “The Proud Towers.” I still think we are in the infancy of that building wave of violence. It may be decades before it plays out and exhausts itself.
It takes a tremendous amount of effort to force order onto the natural state of chaos. Some ancient Greek philosophers argued that government was the best way to implement the desired order, with the family unit being the foundation on which such a government could be built. A significant portion of our society no longer thinks it necessary to expend the effort. We may all suffer the consequences, despite our best efforts.
Concerned Citizen says
I appreciate you putting me in my place.
I thought I asked legitimate questions. I have worn the badge. I have seen things first hand that made me question humanity. Did I advocate the death penalty? No. I questioned it. But you went to treat me as a peon with little understanding of the process. It’s all good.
I still ask where are the rights of the victims. Who speaks for them.
Not to sound ever the contrarian, but ‘victims rights’ are a made up emotional tactic developed to increase public support of the death penalty. Where, in law, do you find anything which addresses ‘victims rights’? Compensation possibly but nothing more. “Who speaks for them”? The prosecutor speaks for the victim, The prosecutor has the responsibility to make sure the case was properly investigated, that the accused is properly charged and that the witnesses he presents are beyond reproach, that is who speaks for the victim, the law. If we forget that, we have reverted to paganism.
As someone ‘who wore the badge’, you should know this. A cop who is predisposed towards the death penalty can never be an impartial servant of the public, which of course leads to another topic that should be reserved for another day.
What you are really talking about is revenge, or vengeance, whichever you like. Justice is served when the perpetrator of a crime is arrested, tried, convicted and the sentence is carried out. Justice is cold, hard facts, no emotion.
For over 40 years my wife and several friends had told me that if they are ever murdered that the best way I could honor them would be to testify against the death penalty for their murderer. And that I will do, regardless of my emotions.
If nothing else Leroy Jethro Gibbs taught us that vengeance is wrong. From murdering the drug lord who killed his wife and kid to his foray into punishing an animal abuser. But Lordy I wish he would quit cutting his own hair . . .
Ray W. says
First, I agree with Concerned Citizen when he writes that he asked: “When you have a solid conviction with an admission of guilt why should that person continue to live after taking a life?” As phrased, this type of question allows the inference that Concerned Citizen is advocating that all murder defendants who confess to murder and are later convicted should be executed, without exception. I responded to Concerned Citizen’s use of that form of advocacy.
I encourage all FlaglerLive readers to watch “Murder on a Sunday Morning.” There was an “admission of guilt” even though the juvenile suspect did not commit the crime. I also wrote of the presentation by a working law enforcement officer who was surprised that he was the person who provided the information to a suspect who then gave a detailed confession, even though it was impossible for her to have committed the crime.
Concerned Citizen’s second point, that the legal system’s focus is shifting from victim’s rights to perpetrator’s rights is simply and completely wrong. Our Bill of Rights, adopted by our first Congress after our Constitution was ratified by enough states to permit a new form of government to replace the older Confederation, contained a number of protections in favor of the accused. Our first Congress wanted to protect all accused persons against powers wielded by the new government. In this way, it is not possible for there to be any shift towards perpetrator’s rights, because we focused on perpetrator’s rights from the very beginning. Concerned Citizen is simply repeating a false political mantra that has long been designed to mislead those who do not understand how our justice system works. In over 30 years of practicing law, I have never seen a time when our courts did not provide an opportunity for every victim to announce their position on what should happen to the person about to be sentenced, but I have read of a death penalty prosecution in which the prosecutors fought long and hard to prevent a surviving victim (she was stabbed and lived. Her father was stabbed and died) from testifying during the penalty phase that her religious beliefs prevented her from asking the jury to impose death. She wanted to tell the jury that she forgave the defendant and didn’t want him executed. Just imagine for a moment that a prosecution team worked long and hard to keep a victim from testifying to a jury about what she believed God wanted her to do.
But there remains a similar question implied in Concerned Citizen’s comment? Should our criminal justice system allow the victim to make the ultimate sentencing decision? Or, should the court be a buffer between the victim and any defendant? Therein lies the vengeance vs. justice conundrum that has been with us for a long time and occupies the heart of my column. I have written about Aeschylus’ Oresteia Trilogy several times, though I do not claim to be a scholar of ancient Greek tragedy. Perhaps, I am an intrigued student. The play was first performed some 2500 years ago, but it is set during the time of Troy, believed to have taken place some 300 years earlier.
The Trilogy is set to the background of an ancient Greek law requiring the debt of blood vengeance that family members must repay upon the murder of a relative.
Agamemnon’s son, Orestes, is the center of the tragedy. Agamemnon’s grandfather dies, leaving two sons. Atreus slays his brother, Thyestes, (one version has Atreus tricking Thyestes into eating two of his sons) and all of Thyestes’ male offspring, save an unborn son, Aegisthus. By Greek law, Aegisthus grew up owing a debt of blood vengeance against the House of Atreus. Atreus died before the debt could be carried out, so the debt transferred to Agamemnon, the elder of Atreus’ sons. Menelaus married Helen. Agamemnon married Clytemnestra. When Paris took Helen to Troy, Agamemnon gathered the fleet to seek revenge on the Trojan’s, but one version of the tragedy has the fleet bottled up in port with strong winds blowing out of the northeast (another has the fleet becalmed in port). Agamemnon tricks one of his daughters, Iphigenia, into attending a festival staged at the port, during which he sacrifices her to appease the gods. The winds shift and the fleet sails. The sacrifice requires Clytemnestra to satisfy the debt of blood vengeance by murdering her husband.
While Agamemnon was attacking Troy, Aegisthus grew up and began a relationship with Clytemnestra.
After 10 years, Agamemnon finally sacks Troy and returns home, bringing with him a slave, Cassandra, who was one of King Priam’s 300 children. Cassandra, blessed with the capacity to see the future and cursed with the knowledge that no one will listen to her, tells Agamemnon not to enter his home, knowing that death awaits within. He doesn’t listen and they both are murdered by Aegisthus and Clytemnestra.
The debt of blood vengeance then transfers to Orestes and his other sister, Electra. Both Orestes and Electra murder Aegisthus, but Electra cannot carry out the law against her own mother, though she encourages Orestes to do so. Orestes kills Clytemnestra.
The Greeks, having seen enough of revenge killing by relatives of victims, abolish the law of blood vengeance. Social anthropologists refer to the law of blood vengeance as honor killings, where family members must avenge the deaths of their relatives. Hence, “honor demands vengeance.”
Aeschylus writes that the Greeks then hold the world’s first documented jury trial, with Orestes standing trial for the murder of his own mother. Electra never stands trial for killing her cousin, because she complied with the old law. Matricide, however, was still forbidden. Prosecuted by the Furies and defended by Apollo, 12 Athenians comprise the jury, which deadlocks 6-6. Athena, presiding in the role of judge, casts the deciding vote of not guilty, introducing the concept of mercy into what social anthropologists now refer to as a respect-based justice system. Athena rules that all future trials will be by jury instead of revenge killings carried out by family members. Hence, “respect commands justice.” This is the first recorded instance of a shift from a honor-based society to a respect-based society.
Priests travelling in King Richard’s Third Crusade found the Trilogy in an Arab library in Damascus and brought it to England late in the 12th century, translating it from Greek to Latin. I accept the assertions of those legal historians who argue that there is a link between bringing the Trilogy’s concept of a jury trial to England and King John’s signing the Magna Carta some 25 years later.
Those among our founding fathers who were educated in the style of the Scottish Enlightenment (Princeton, Harvard, Yale, King’s College, etc.) were fluent in Latin, with some also fluent in Greek (Thomas Jefferson, among many others). It would be a stretch to believe that this well-read collection of citizens did not know of the Oresteia Trilogy. They created a justice system that acts as a buffer between the victims and the defendants. Judges decide which evidence is admissible and which laws are to apply and, ultimately, what sentence is appropriate. Juries decide if the defendant committed the crime. Victims and family members of victims are never allowed to be jurists or jurors in their own cases.
Concerned Citizen, please stop thinking of our justice system as shifting from a focus on a victim’s rights to a focus on a defendant’s rights. While it is a very old belief, it was not one shared by our founding fathers and it hasn’t been used by our justice system for over 200 years, though it is fostered by one of our two political parties for personal, financial and political gain. For approximately 2500 years, societies here and there have struggled between focusing on giving victims the right to impose vengeance and focusing on giving judges the power to confer justice. In 1789, we chose justice. Do you really want to return to a vengeance-based justice system?
I am reminded of a juvenile vehicular homicide prosecution in 1996. I have commented on this case before. A high school student drove from the high school on the north causeway in New Smyrna Beach, accompanied by two friends. They bought food at a McDonalds and headed towards Airport Road in Edgewater. In what a witness described as a wall of water, the driver drove southbound into a rainstorm while on the then-unpaved portion of Airport Road. It was raining so heavily that the witness didn’t see the taillights of the Camaro until passing the tree into which it had crashed. The front passenger died. The rear passenger said he warned the driver to slow down just before the crash. The rain was so heavy that there all roadway markings had washed away by the time first responders had arrived. The case went to the office’s juvenile division chief, who direct-filed against the driver as an adult and then called to tell me that I had a vehicular homicide case coming. I soon spoke with the victim’s father, who introduced himself and then told me that I would be seeking the maximum sentence allowed by law. I replied that I had not even seen the file yet and, therefore, I could make no decision as to sentence. He told me that I didn’t understand. He said he was ordering me to seek the maximum sentence. I replied that I had taken an oath to seek justice and that I could not make that decision until I had reviewed the file. Crying, he told me that I didn’t know what it was like to lose a loved one. I told him that I had lost two brothers, including one whose official cause of death was by automobile accident while serving in the Peace Corps in Honduras. He replied that I had not lost a son. I had to agree, as both of my sons were then and still are alive, though the idea that the father was suggesting that I was unable to sufficiently feel the pain of the loss of two brothers was not pleasant. Later, I engaged in numerous lengthy conversations with the mother, who repeatedly insisted that a second witness existed. Eventually, my office’s investigator, Walter Carr (a truly decent man) found a surveyor who had been driving behind the Camaro, accompanied by his helper. Both men described the Camaro’s driver as driving at or below the speed limit as the Camaro entered the storm; they too described it as a wall of water. All I had was a young man driving at or below the speed limit on a dirt road with no evidence of how the driver lost control and a witness telling the driver to slow down. The witness could not estimate how fast his friend was driving when he lost control. There is a significant difference between simple negligence, which cannot sustain a criminal conviction, and culpable negligence, which is at the heart of vehicular homicide. Right at this time, the Democratic challenger to John Tanner, who had just defeated my boss in the Republican primary, dropped out of the race for State Attorney. Governor Chiles reopened the Democratic qualifying period. I raced down to the elections office and changed my party affiliation to Democrat and waited to see what happened. Within several days, the head of the Volusia County DEC was soliciting my run and I jumped into the race, having to resign from my position. I later learned that my replacement dropped the vehicular homicide charge (Judge Zambrano frequently and correctly comments that prosecutors are fungible), though I would have done the same, given enough time to do so. My former victim advocate told me later that the mother and father divorced over the death; he just couldn’t maintain a relationship with her. I understood, as I watched my father spiral downward for five years after my oldest brother’s death in 1978. My father’s long-time secretary commented that if he came into the office in the morning and put his head on his arms on his desk and started sobbing, she would begin cancelling all of his appointments for the day. Nearly all the judges understood and went along with all the schedule changes, but seven years later, my youngest brother suddenly died on a Friday morning. A Putnam County judge presiding over a Flagler County arson case refused to continue a trial set for the following Monday morning, so my father had to defend a client in a serious felony case while my brother lay in a funeral home pending burial. The jury acquitted the defendant. My brother was then buried. Decency abandons us all from time to time, including judges. One day, literally, my father quit drinking cold turkey and turned his life completely around, becoming once again the father that I had long known and wistfully remembered during his lost years.