Tsarnaev, prosecution blood lust and the death penalty

April 1, 2015

I am opposed to the death penalty in all cases, no matter how egregious. I always have been. I oppose the death penalty for many reasons. Today, I’m going to talk about one of them with which most readers may be unfamiliar.

Trying a death case changes people, particularly prosecutors, and not for the better. I’m talking about prosecution blood lust and the desire to kill. Desire to kill the defendant, my client. The human being whose life I am desperately trying to save. I’ve seen prosecutors cheat to win by concealing exculpatory evidence and cutting secret deals with jailhouse snitches to reward them for falsely claiming that my client confessed to a murder he did not commit. I saw it on Monday morning when the prosecution attempted to bury Dzhokhar Tsarnaev beneath a mountain of blood soaked garments and ghastly autopsy photographs.

The prosecution went too far. The desire to arouse and inflame the passions of the jurors to kill Dzhokhar Tsarnaev prevailed over reason. The defense had admitted that Dzhokhar Tsarnaev had committed the crimes charged. The prosecution did not need to literally wave Martin Richard’s bloody, sooty and melted clothes in front of the jury, but they did.

Rule 403 of the Federal Rules of Evidence (FRE) requires the trial judge to weigh the probative value of the evidence against its prejudicial value. When the prejudicial value substantially outweighs the probative value, the judge should exclude the evidence. Judge O’Toole admitted all of it and it was unnecessary.

The ruling is discretionary and will not be disturbed on appeal unless the judge manifestly abused his discretion.

In deciding whether a trial judge manifestly abused his discretion by admitting gory and grisly evidence, an appellate court will consider whether the evidence likely affected the verdict. That is, whether the verdict would have been different but for the evidence.

I think the answer is the error likely will not affect the verdict in the guilt/innocence phase. But I cannot confidently say that about a death verdict in the penalty phase.

I think this is another example of Judge O’Toole navigating perilously close to reversible error.

Just because the government has a slam dunk case does not mean that the court can ignore the rules of evidence on the ground that any error is necessarily harmless.

The government should not be permitted to strip the defendant naked and flog him in front of the jury.

That is what basically happened on Monday and it was wrong.

For more information on what happened Monday, please read my article, Tsarnaev: Government rests after presenting graphic and disturbing autopsy evidence.


Dzhokhar Tsarnaev has a right to allocution

March 15, 2015

Various articles in the Huffington Post, the National Monitor and the International Business Times have discussed whether Dzhokhar Tsarnaev will testify during his trial.

I do not believe he will testify in the guilt/innocence phase or the penalty phase of his trial because that would open him up to cross examination, which he dares not risk. This does not mean, however, that he cannot speak to the jury. He has the right to allocution, which means he has the right to speak before sentence is pronounced. All defendants have this right.

In the first death penalty case that I tried, I had my client read a letter that he wrote to his daughter expressing regret for what he had done and for how that had affected their relationship. He broke down several times but eventually managed to get through it. The jury spared his life and several jurors told me afterward that they voted to spare his life because of his genuine tearful regret.

I am certain Judy Clarke and David Bruck have considered using allocution as a means for Dzhokhar Tsarnaev to speak to the jury about sentencing without being cross examined. Whether the tactic will succeed depends on whether he genuinely expresses remorse and regret.

The keyword is ‘genuine.’ Anything less and he will almost certainly be sentenced to death.


Using Colorado Method of Jury Selection in Tsarnaev Death Penalty Trial

January 2, 2015

Friday, January 2, 2015

Good afternoon:

Jury selection in Dzhokhar Tsarnaev’s death penalty trial is scheduled to start in federal court in Boston on Monday morning. Today I want to introduce readers to the Colorado Method of jury selection in a capital case. Many lawyers have used it to save lives, including myself, and I am reasonably certain that Tsarnaev’s defense team will use it.

18 USC 3593(e)(3) provides in pertinent part,

[T]he jury . . . shall consider whether all the aggravating factor or factors found to exist sufficiently outweigh all the mitigating factor or factors found to exist to justify a sentence of death, or, in the absence of a mitigating factor, whether the aggravating factor or factors alone are sufficient to justify a sentence of death. Based upon this consideration, the jury by unanimous vote . . . shall recommend whether the defendant should be sentenced to death, to life imprisonment without possibility of release or some other lesser sentence.

This statute requires the jury to decide whether the evidence in aggravation (evidence about the crime committed and its impact on the victims) outweighs the evidence in mitigation (evidence about Dzhokhar Tsarnaev’s youth and immaturity and how he was influenced by his dominant older brother and coconspirator Tamerlan Tsarnaev) and unanimously recommend “whether the defendant should be sentenced to death, to life imprisonment without possibility of release or some other lesser sentence.”

The key word is ‘unanimously.’

What happens if the jury is not unanimous?

18 USC 3594 provides,

Upon a recommendation under section 3593 (e) that the defendant should be sentenced to death or life imprisonment without possibility of release, the court shall sentence the defendant accordingly. Otherwise, the court shall impose any lesser sentence that is authorized by law. Notwithstanding any other law, if the maximum term of imprisonment for the offense is life imprisonment, the court may impose a sentence of life imprisonment without possibility of release.

In other words, it only takes one juror to vote for LWOP instead of death to avoid a death sentence.

The Colorado Method was designed to maximize the probability of persuading at least one juror to vote against the death penalty. Michael Rubenstein describes the method this way:

The Colorado Method of capital voir dire is a structured approach to capital jury selection that is being used successfully in state and federal jurisdictions across the United States. Colorado Method capital voir dire follows several simple principles: (1) jurors are selected based on their life and death views only; (2) prodeath jurors (jurors who will vote for a death sentence) are removed utilizing cause challenges, and attempts are made to retain potential life-giving jurors; (3) pro-death jurors are questioned about their ability to respect the decisions of the other jurors, and potential life-giving jurors are questioned about their ability to bring a life result out of the jury room; and (4) peremptory challenges are prioritized based on the prospective jurors’ views on punishment.

Readers who have served on a jury in a non-death penalty case may recall that they were instructed to attempt to reach a unanimous verdict. That instruction cannot be given in the penalty phase of a capital case. Instead, jurors are instructed to vote their conscience after fully and fairly considering all of the evidence.

Therefore, the Colorado Method involves conditioning each juror to,

(1) realize that their decision will determine if the defendant lives or dies;

(2) accept full responsibility for their decision

(3) vote their conscience; and

(4) respect the rights of others to make up their own minds.

As in most death penalty trials, the outcome of the Tsarnaev trial likely will be determined in jury selection before the first witness testifies for the prosecution.


Plea Bargaining in Capital Cases

December 30, 2014

Tuesday, December 30, 2014

Good afternoon:

I am now writing articles for the main page at Firedoglake (firedoglake dot com) during the owner’s hiatus from the site. I am volunteering my time there. My articles are published on Monday, Wednesday and Friday at 6 pm EST. I will continue to publish articles here, although you may not notice any change except I will be posting a little later each day and taking a day off now and then.

This article about plea bargaining was prompted by a comment to one of my posts at the Lake. The person who posts under the name Eternal Vigilance asked the following question:

Would an ethical lawyer still advise an innocent client to go to trial even when the trial might not be fair and the consequence of losing is death?

Here’s my answer:

Great question. Tough question. Please forgive the long response.

You have to keep in mind that the lawyer rarely knows for certain whether the client is innocent, unless there is an exculpatory DNA result, because clients have been known to lie to their lawyers. I went with the flow because I did not judge my clients.

I rarely confronted a client, unless the evidence against him was so overwhelming that there was no chance of success and the penalty for conviction was severe, as in a death case.

Ultimately, it’s the client’s decision to go to trial or not. Even guilty people have a right to go to trial and force the government to overcome the presumption of innocence by proof beyond a reasonable doubt. The lawyer can’t put them on the stand to deny guilt, if they have admitted guilt. That’s unethical and a lawyer who does that can lose his license for doing that.

I used to estimate the probability of success after reviewing all of the evidence and possible strategies to counter it. I would discuss that with the client and let them decide whether to go to trial. I would tell them if there were no realistic chance of winning and discourage them from going to trial, if they could get a better result by pleading guilty. If they couldn’t get a better result by pleading guilty, I told them I was willing to go for it, if they were. Some opted to plead guilty. Others opted to go to trial.

I never counseled an innocent client to plead guilty and never would in any case, including a death penalty case. And this would be true even if I had reason to believe we were dealing with a corrupt prosecutor and cops. If I believed that were the case, I would certainly tell my client and explain why I believed that to be true.

The problem is the criminal justice system is corrupt and no one can reasonably assume otherwise. That’s why I don’t practice law anymore.

Another consideration is a client has to provide a factual basis under oath to support a guilty plea. For example, “On or about (fill in the date) in (fill in the place) I took $50 from (fill in the victim) by threatening him with a knife.” A lawyer cannot ethically advise an innocent client to perjure himself by saying he did something that he did not do.

There is a type of guilty plea, called an Alford plea, in which a defendant concedes that the government has enough evidence to convict him if the case goes to trial, so he is going to plead guilty to avoid a trial and take advantage of the government’s plea offer. I don’t like these pleas, especially in cases where the plea deal requires the defendant to enter and complete a counseling program because the client is likely to be kicked out of the program for being not amenable to treatment because he refused to admit that he committed the offense to which he pled guilty.

Alford pleas (i.e., pleading guilty without admitting guilt) are equivalent to wanting to have your cake and eat it too. They promote avoiding responsibility and the reality is that a guilty plea is a guilty plea is a guilty plea, as far as the record is concerned. There is no real advantage to them.

Probably more information than you wanted to know, but the subject is complex and fascinating and probably should be the subject of a separate article.


First Do No Harm

December 26, 2014

Friday, December 26, 2014

Good evening:

First, do no harm.

The death penalty trial of Dzhokhar Tsarnaev is scheduled to begin in federal court in Boston on Monday, January 5, 2015. This is the so-called Boston Marathon Bomber case (BMB). I say “is scheduled to begin” because the defense has requested (1) a change of venue due to prejudicial pretrial publicity and (2) a continuance of the trial date until next September to review voluminous discovery that the government recently disclosed to the defense. You can reasonably expect both motions will be denied because the jury summons have already been sent out.

Both motions were filed to protect the record should Tsarnaev be convicted and appeal. For example, if he were convicted and his lawyers had not filed these motions, he would be barred from claiming on appeal that he was denied a fair trial due to prejudicial pretrial publicity and being forced to trial in January when his lawyers were not prepared.

Although both motions were previously raised and denied in September, it’s not unusual for them to be refiled because community prejudice toward a defendant can change over time as can the necessity for a continuance when discovery is provided to the defense at the last minute.

The Boston Globe describes the defense motion for a continuance,

Just last week, prosecutors turned over a witness list with more than 730 names, and identified 1,238 exhibits and 413 digital files that could be used as evidence, the defense lawyers complained. The government provided a trove of other digital records, the lawyers said.

“To commence trial as scheduled on Jan. 5 would threaten both the fairness and finality of the proceedings,” the defense team argued. They have asked that the case be postponed until September.

“It [is] impossible for the defense to digest this information, much less attempt to pursue investigative leads it may suggest, in time to make effective use of it at trial.”

The Boston Herald reports the government’s response,

Prosecutors in the Boston Marathon bombing case called accused terrorist Dzhokhar Tsarnaev’s renewed push for a delay in the Jan. 5 trial just more complaints from a defendant who faces the death penalty.

In a Christmas Eve filing, federal prosecutors said a long list of law enforcement investigators ready to take the stand is not unexpected.

“Tsarnaev can hardly have been surprised by a witness list containing a large number of evidence-handling witnesses,” the U.S. Attorney’s Office in Boston wrote in a motion fighting any delay.

“In responding to Tsarnaev’s continuing requests for information, the vast bulk of which is not required by the rules of discovery, the government has gone over and above anything the law requires,” prosecutors added. “Tsarnaev continues to complain about the volume of case-related information provided by the government even as he demands more and more of it.

Welcome to trial by ambush. This is how they do you in federal court. A defense lawyer can’t survive there unless he or she can read extremely fast and recall everything while going without sleep for days. The pressure to be perfect is enormous because any mistake, no matter how minor, could be the difference between the client living or dying.

First, do no harm.

The defense also filed an extremely unusual motion worth noting and discussing. They titled it, Motion to Protect Defendant from Prejudicial Effects of “Supporters” Demonstrations at Courthouse. I have never seen or heard of a motion like this. Most defendants in death penalty cases don’t have many supporters. They come and go quietly.

The defense team apparently is concerned about the following incident and they do not want prospective jurors exposed to similar incidents.

Shortly before the beginning of the final pretrial conference in his case on December 18, 2014, in the immediate vicinity of the courthouse, a group of demonstrators claiming to be “supporters” of the defendant were involved in a confrontation with members of the public, including a man who was severely injured by a bomb at the Boston Marathon on April 15, 2013. The demonstrators held signs and shouted statements to the effect, among other things, that the bombing and the survivors’ injuries were staged. Two news reports described the scene as follows:

His supporters, who claim Tsarnaev was set up and is actually innocent, massed outside the court building armed with provocative signs. Two women caught the eye of marathon bombing survivor Marc Fucarile, who limped by with a cane needed after he lost his right leg in the carnage. “That’s trickery?” Fucarile fumed as he lifted his prosthetic leg to show the damage Tsarnaev is accused of doing to score of innocents.

I think the word ‘aghast’ probably captures the defense reaction.

God only knows how many prospective jurors heard about this incident or read about it on social media. Judge O’Toole, to whom this case is preassigned, and counsel are going to have to voir dire (question) prospective jurors about it without actually mentioning it, just in case they do not already know about it. Better not to tell them about it, if they don’t already know. Jurors should be questioned individually out of the presence of other prospective jurors. That way their answers will not poison others.

Defense counsel expressed their concern as follows:

The continuing presence in the immediate vicinity of the courthouse entranceways of demonstrators–including those who gather to challenge as fabricated the injuries suffered by the survivors as they attempt to attend the proceedings–poses a grave threat to the fairness of the defendant’s trial. Beginning on January 5, prospective jurors and witnesses will be required to enter the courthouse through the same entranceways. Survivors, jurors, witnesses, and members of the public must be able to attend court without being assaulted by inflammatory accusations from any source. If they cannot,the fairness of the defendant’s trial is likely to be gravely harmed, in part because of the natural but false inference that the defendant and his counsel agree with the outrageous conspiracy theories that are being so vociferously advanced by demonstrators claiming to be the defendant’s “supporters.”

This motion is a very clear indication that the defense trial strategy will not involve presenting a conspiracy theory.

First, do no harm.

A life is at stake.

DISCLOSURE: I was a felony criminal defense lawyer for 30 years specializing in death-penalty defense, forensics and freeing the innocent from wrongful convictions. I also taught Criminal Law, Criminal Procedure, Wrongful Convictions and Trial Advocacy in law school. I have known Judy Clarke for close to 20 years dating back to when we were members of the Board of Directors of the National Association of Criminal Defense Lawyers (NACDL).


Why the Jordan Davis murder was not a death-penalty case and update on Jodi Arias

October 2, 2014

Thursday, October 2, 2014

Good morning:

Several readers have asked why the prosecution did not seek the death penalty in the Michael Dunn case.

It is not a death-penalty case.

The death penalty is reserved for the most egregious premeditated murders. In other words, it applies to premeditated murders with “aggravating circumstances” that are listed in the death-penalty statute.

For example, a premeditated intent to kill a witness to a crime you have committed in order to conceal the crime you have committed is an aggravating circumstance that qualifies for the death penalty. A rape murder qualifies where the purpose of the murder is to prevent the victim from reporting the rape and identifying the rapist.

Other examples are premeditated murders of certain people such as police officers, judges, prosecutors, defense attorneys and children under age 12.

Another example that might have applied to Dunn, if he had killed the other boys in the Dodge Durango, is multiple victims. This statutory aggravating factor also would apply to terrorist bombings, such as the Oklahoma City and Boston Marathon bombings.

The Jodi Arias case provides another example. She is charged with killing her former boyfriend, Travis Alexander, with premeditation and the aggravating factor alleged in the indictment is that she killed him in a “cruel, heinous, or depraved” manner. Wikipedia describes the killing:

The killing of Travis Alexander occurred on June 4, 2008. On June 9, 2008, Alexander’s body was discovered by his friends in a shower at his home in Mesa, Arizona. Alexander had been stabbed repeatedly, with a slit throat and a fatal gunshot wound to the head. There have been conflicting reports over the number of stab wounds; some reports state that Alexander had been stabbed 29 times, while others state 27 times. Medical examiner Kevin Horn testified that Alexander’s jugular vein, common carotid artery, and windpipe had been slashed. Alexander had defensive wounds on his hands. Horn further testified that Alexander “may have” been dead at the time the gunshot was inflicted, and that the back wounds were shallow. Alexander’s death was ruled a homicide. He was buried at the Olivewood Cemetery in Riverside, California.

Arias was convicted of premeditated murder, but the jury was unable to unanimously agree that death was the appropriate penalty.

The parties are now attempting to select a new penalty-phase jury. ABC News is reporting that more than half of the 400 prospective jurors have been dismissed because they were too familiar with the case and could not fairly and impartially evaluate the evidence in deciding whether she should be sentenced to death or life without possibility of parole.

The effort to select a jury continues today.

Unfortunately, there is no television or live-stream coverage.

If you like what we do, please consider making a donation.

Thank you.


Justice John Paul Stevens Proposes Changes to the Constitution

May 28, 2014

by Crane-Station (Eighth Amendemnt) and Frederick Leatherman (the rest of it)

John Paul Stevens official SCOTUS portrait cropJustice John Paul Stevens Proposes Changes to the Constitution

Retired United States Supreme Court Justice John Paul Stevens, 94, recently toured with his new book, titled, Six Amendments: How and Why We Should Change the Constitution. He proposes changes to: the Supremacy Clause of Article VI, political gerrymandering, campaign finance, sovereign immunity, the death penalty, and the second amendment.

What does it take to amend the constitution?

Article V of the Constitution sets forth the process to be followed in amending the Constitution.

Here’s wikipedia:

The Congress, whenever two thirds of both houses shall deem it necessary, shall propose amendments to this Constitution, or, on the application of the legislatures of two thirds of the several states, shall call a convention for proposing amendments, which, in either case, shall be valid to all intents and purposes, as part of this Constitution, when ratified by the legislatures of three fourths of the several states, or by conventions in three fourths thereof, as the one or the other mode of ratification may be proposed by the Congress; provided that no amendment which may be made prior to the year one thousand eight hundred and eight shall in any manner affect the first and fourth clauses in the ninth section of the first article; and that no state, without its consent, shall be deprived of its equal suffrage in the Senate.

They made it difficult to amend the Constitution, but not impossible. After the two-thirds vote in the house, then three-quarters of the states have to also agree.

For a complete list of the six changes Justice Stevens proposes, go here.

Justice Stevens on the Second Amendment

The Second Amendment currently provides:

A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.

Justice Stevens has written in several dissenting opinions that our Founding Fathers did not want to maintain a standing army. Thus, their intent was to permit people to keep and bear arms in order to serve in a “well regulated militia,” as needed. They did not intend to create an absolute right to keep and bear arms against neighbors. Since we now have a standing military, there no longer exists any justification to keep and bear arms.

In addition, none of the other rights in the Bill of Rights are absolute, so there is no reason why the Second Amendment should be treated differently.

Justice Stevens’s proposal:

A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear arms when serving in the Militia shall not be infringed.

His proposal is consistent with the intent of our Founding Fathers.

Justice Stevens on the Eighth Amendment and the Death Penalty

The Eighth Amendment provides:

Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.[2]

Justice Stevens adds five words to this and proposes:

Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments such as the death penalty inflicted.

He further comments:

For me, the question that cannot be avoided is whether the execution of only an ‘insignificant minimum’ of innocent citizens is tolerable in a civilized society. Given the availability of life imprisonment without the ability of parole as an alternative method of preventing the defendant from committing further crimes and deterring others from doing so, and the rules that prevent imposing an ‘eye for an eye’ form of retributive punishment, I find the answer to that question pellucidly clear. When it comes to state-mandated killings of innocent civilians, there can be no ‘insignificant minimum.’

There are seven general causes of wrongful conviction. Prosecutorial misconduct is one of them. And yet, prosecutors are not held accountable for anything that they do. Not only have innocent people been executed, but the real criminals have gone on to harm and kill. The idea of an acceptable par level of innocent people killed by state sanctioned homicide does not make sense.

I actually do not believe in prohibition-type things. That includes drugs, alcohol, that sort of thing, because there is little doubt that an underground and lucrative market will develop. Also on guns, there are people who hunt, and that sort of thing.

That said, I am not sure that when the founding fathers crafted the Second Amendment, that they envisioned what is going on today, with taking up arms, to defend against neighbors. On the issue of hunting, however, I believe that hunting was very popular at that time, as it is today.

I do not own a gun, nor do I ever want one, and also, my family was afflicted by gun violence in 1985, when my nephew and his girlfriend were both murdered by a person still unknown. When the Santa Barbara father of Chris Martinez spoke out and said that we think these things will not happen to us until they do- he was one hundred percent correct.

At that time I was a believer in the death penalty. But then, over the years I learned about the system, and I changed my mind. I believe that in many ways, throwing away the key to a locked door can be viewed as a harsher penalty.

Do you agree or disagree with Justice Stevens on these issues, or on the other issues that he proposed in his book? If the constitution were to change, would you, or would you not, support it? Do you believe that if the sale of firearms and ammunition was prohibited, that a black market would develop and grow for nefarious uses of guns, or not ?Are there other areas in the constitution that you believe deserve consideration?

Off-topic and unrelated:

Also note — Crane-Station here. We are currently resolving the power issue, and should be able to return home shortly. We are extremely grateful to anyone who was able to make a small donation, and we absolutely understand that many more are in our position, and that is something that we understand completely. The unannounced electric company sticker shock has left our small apartment community speechless. You can walk up and down the street and certainly not hear the likes of an air conditioner, for example. That said, we have whittled the sky-high bill down quite a lot…I know we are not alone, but I am not sure why these power companies have decided to engage in unannounced gouging. That said, we have turned nearly everything off, will wrap the water heater, move the cooking to a grill outside, and see how much it costs to run two computers and a refrigerator.

Public domain photo by Steve Petteway, photographer for the US Supreme Court, via Wikimedia Commons.


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