Time to end death penalty prosecutions of the mentally ill

August 9, 2015

In light of the life-without-parole sentences imposed on Theodore Kaczynski (the Unabomber), Jared Loughner (who shot and killed Congresswoman Gabriele Giffords and a federal judge) and James Eagan Holmes (who shot and killed 12 people at a movie theater in Aurora, Colorado), that “mark the progress of a maturing society,” I believe our society’s “evolving standards of decency” have reached a point where Congress and our state legislatures should pass legislation that prohibits executing the mentally ill for murders they committed. At long last, have we not reached the point where reasonable and thoughtful people can conclude that executing the mentally ill violates the Eighth Amendment prohibition against cruel and unusual punishment?

In Trop v. Dulles, 356 U.S. 86, 100-101 (1958), Chief Justice Earl Warren wrote,

This Court has had little occasion to give precise content to the Eighth Amendment, and, in an enlightened democracy such as ours, this is not surprising. But when the Court was confronted with a punishment of 12 years in irons at hard and painful labor imposed for the crime of falsifying public records, it did not hesitate to declare that the penalty was cruel in its excessiveness and unusual in its character. Weems v. United States, 217 U.S. 349. The Court recognized in that case that the words of the Amendment are not precise, and that their scope is not static. The Amendment must draw its meaning from the evolving standards of decency that mark the progress of a maturing society.

(Emphasis added)

Each of these men committed atrocious and heinous multiple murders. Each of them was schizophrenic and delusional when they committed the murders. When a person kills another human being while gripped by delusions caused by a severe mental illness such as schizophrenia, it makes no sense to hold that person accountable for what he did by executing him. Indeed, such an execution serves only a desire for vengeance, which is not a legitimate societal interest. Moreover, since they have lost the capacity to reason through no fault of their own, it certainly does not deter other mentally ill people from killing.

I previously warned that the James Holmes death penalty trial is a colossal waste of time and money. Let us join together and vow to never again make this mistake.


James Holmes death penalty trial is a colossal waste of time and money

July 11, 2015

James Eagan Holmes was arrested on July 20, 2012 shortly after killing 12 and wounding 70 people at the midnight premier of a new Batman film in the Century 16 movie theater in Aurora, CO. He was eventually charged with 152 crimes, including 12 counts of premeditated murder, 12 counts of depraved heart murder (charged in the alternative) and 70 counts of attempted murder. The prosecution is seeking the death penalty even though there is no question that Holmes was mentally ill but legally sane at the time of the shootings — one psychiatrist diagnosed him as suffering from schizotypal disorder while a second psychiatrist diagnosed him as suffering from shizoaffective disorder — and he offered to plead guilty to a life-without-parole sentence. After the prosecution rejected the defense offer, Holmes changed his plea to not guilty by reason of insanity. The trial began with jury selection on January 20, 2015. Both sides rested yesterday. Closing arguments for the guilt phase are scheduled to start on Tuesday.

We who have experience representing clients in death penalty cases* refer to the guilt phase in a slam dunk case like this as a slow-motion guilty plea. That is, when we lack a defense, instead of pleading guilty, we use the guilt phase to introduce evidence that mitigates the seriousness of the offense. Holmes’s insanity defense is doomed because he admitted to police that he knew killing was wrong. But there is no dispute that he was mentally ill. While not a defense, mental illness is a powerful mitigating factor and, as I’ve said previously, I think the jury will likely vote for a life-without-parole sentence after the penalty phase for the simple reason that killing somebody who was mentally ill through no fault of their own is morally and ethically repugnant to most people.

I’ve said this before and I will say it again, this trial has been a colossal waste of taxpayer time and money.

*I was a death penalty lawyer until I retired in 2005.


Tsarnaev: To testify or not to testify, that is the question

January 13, 2015

Tuesday, January 13, 2015

Good morning:

The Fifth Amendment provides in pertinent part,

No person . . . shall be compelled in any criminal case to be a witness against himself.

This means that a defendant in a criminal case has a right to remain silent and not testify during his trial. The prosecution cannot call him as a witness or comment on his silence during closing argument, if he decides not to testify. See Griffin v. California, 380 U.S. 609 (1965). Since the defendant is presumed innocent and the burden is on the government to prove guilt beyond a reasonable doubt, the court also will instruct the jury that it cannot assume the defendant is guilty, if he exercises his right to remain silent. Silence is insoluble because there may be any number of reasons why a defendant may decide not to testify.

Unless my client’s testimony was necessary to win a case, I always recommended he remain silent. Terrible things can happen when a skilled prosecutor cross examines an innocent defendant. Chief among them is the evaporation of the presumption of innocence. Juror focus changes from examining weaknesses in the government’s case to looking for and speculating about inconsistencies in the defendant’s testimony.

Generally, the defendant’s testimony is going to be necessary when the government can prove he committed the acts charged in the indictment, but he can provide an innocent explanation for why he committed those acts. For example, he may have delivered five kilos of cocaine to an undercover cop, but he did it because the source of the drugs kidnapped his daughter and threatened to kill her, if he did not deliver the drugs (duress) or he may have believed he was performing a favor for a friend who asked him to deliver a large wrapped package containing rice for a wedding (lack of knowledge). Entrapment by government agents is another example (to show inducement by the government and absence of predisposition to commit the crime). A defendant claiming self-defense in a murder case usually has to testify in order to explain why he believed he was in imminent danger of death or serious injury such that it was reasonably necessary to use deadly force. Defendants claiming consent in a rape case usually have to testify as does a defendant who wants to deny that he confessed to committing the crime charged or testify that police coerced or beat him into making a false confession.

Since the defendant has a constitutional right to remain silent or testify, he must make the choice. If you have watched a criminal trial, you probably have seen the judge advise the defendant outside the presence of the jury regarding his right to remain silent or testify. This colloquy creates a record for appeal that the defendant’s decision was knowingly, intelligently and voluntarily made after fully discussing the matter with his lawyer.

Dzhokhar Tsarnaev will not have to decide whether to testify until after the government rests its case-in-chief.* That might not happen until after Memorial Day. That distant day will not dawn until after his attorneys have extracted as much beneficial evidence as possible, which usually comes in the form of testimony by defense witnesses, if any, and admissions on cross examination by prosecution witnesses to bias, prejudice, lack of knowledge, uncertainty, or testimony inconsistent with prior statements. Only then will his lawyers be able to offer him sound evidence-based advice.

They also will have to consider whether the government will be able to impeach him with evidence that he admitted committing the crimes charged when the FBI interrogated him in the hospital after his arrest. Although he apparently was not Mirandized (advised that he had a right to remain silent and a right to counsel), statements obtained in violation of Miranda are admissible as impeachment if they were voluntary and conflict with his testimony.

Because this is a death penalty case, he and his lawyers also will have to consider what effect his testimony might have on the jury, if he testifies and they reject what he says, catapulting the case into a penalty phase. Denial of responsibility and absence of remorse are unlikely to evoke mercy.

He can testify in the penalty phase, even if he does not testify in the guilt/innocence phase. He also has the right to allocution, which is to make a statement to the jury after both sides have rested that is not subject to cross examination.

Finally, because the rules of evidence strictly limit the scope of what may be presented at trial to evidence that is probative of the elements of the crimes charged and any defenses asserted by a defendant, trials are poor vehicles to implement social change. What the FBI did in other cases probably isn’t going to be relevant in the Tsarnaev trial.

As I’ve said before, I believe attempting to prove the existence of an FBI conspiracy to entrap an innocent Dzhokhar Tsarnaev is likely to evoke anger, scorn, disbelief and a death sentence, unless it can be proven beyond a reasonable doubt. Gerry Spence did that with case-specific facts while representing his client, Randy Weaver, in the case involving the government siege at Ruby Ridge.

A more appropriate comparison might be to Timothy McVeigh, the convicted Oklahoma City bomber whose complaint about government misconduct in the siege of the Branch Davidian compound near Waco, TX did not evoke much sympathy.

Assume for the sake of argument that you are representing Dzhokhar Tsarnaev. Imagine that his life is now in your hands. Would you recommend that he testify or not in the guilt/innocence phase and why?

*I see no possibility of resolving this case with a plea bargain because I believe the government has rejected Tsarnaev’s offer to plead guilty in exchange for an LWOP sentence. That ship has sailed and jury selection is underway. The government obviously believes it has an ironclad case or it wouldn’t have rejected the offer. Only a significant and unanticipated development altering that perception would bring the government back to the bargaining table.

Other Resources:

Dzhokhar Tsarnaev: Coconspirator and Accomplice Liability

Dzhokhar Tsarnaev Death Penalty Trial Started Today


Using Colorado Method of Jury Selection in Tsarnaev Death Penalty Trial

Plea Bargaining in Capital Cases
Tsarnaev: Death penalty cases are won or lost during jury selection


Tsarnaev: Death penalty cases are won or lost during jury selection

December 29, 2014

Monday, December 29, 2014

Good evening:

Most death penalty lawyers will tell you that a death penalty case is won (i.e., LWOP) or lost (i.e., death sentence) during jury selection. That is because we have seen and done it all and have generally mastered the art of trying cases so that we know to a reasonable certainty whether the jury will convict or acquit the client.

Today we are going to learn about and discuss jury selection in a federal death penalty trial. As you will soon discover, jury selection is more aptly described as deselection. Each side attempts to get rid of the prospective jurors they do not want by challenging them for cause or by peremptory challenge.

1) Challenge for Cause: No limit to the number of challenges, but you have to satisfy the judge that the prospective juror whom you challenge cannot fairly and impartially try the case or follow the court’s instructions. Your challenge will be denied, if you fail to convince the judge.

2) Peremptory Challenge: Each side gets 20 challenges. You don’t have to give a reason to support your challenge, but you cannot use your challenges to exclude prospective jurors solely on the basis of race, gender or religion. For example, the prosecution cannot use peremptory challenges to exclude Muslims. They would have to genuinely have other reasons or the challenge would be denied. The defense has a pending motion to increase the number of peremptory challenges to 30 per side because of extensive pretrial publicity. The government opposes the motion and it will likely be denied since the rule is quite specific about 20.

Jurors will be questioned in three ways. First, they will be asked to fill out a questionnaire. Then they will questioned together as a group and thereafter individually, depending on their answers to some of the questions on the questionnaire or during group voir dire. BTW, voir dire means to question. Attorney voir dire occurs when the lawyer do the questioning.

1,000 prospective jurors have been summoned in the Tsarnaev case. The goal is to seat a jury of 12, plus alternates who will well and truly try the case according to the instructions given by the court.

The first task in the selection process is to go through the questionnaires and excuse people who cannot serve because of the length of the trial, economic hardship, poor health, bias (related to or know victims, witnesses, lawyers or court personnel), prepaid vacations, etc. This usually reduces the pool of prospective jurors by about 50% or more.

Since this is a highly publicized death penalty case, the two major areas of inquiry during voir dire will be: (1) effect of pretrial publicity on ability to fairly and impartially try the case based only on the evidence introduced in court and, assuming the defendant is found guilty, (2) effect of opinions about the death penalty on a juror’s ability to follow the jury instructions that require weighing the aggravating evidence and mitigating evidence in deciding whether to sentence the defendant to death or to LWOP. Jurors will be questioned individually out of the presence of the others to avoid influencing them with their responses regarding these topics and possibly religious beliefs, since Dzhokhar Tsarnaev is allegedly a Muslim jihadist.

More specifically,

1) Pretrial publicity: The test is not whether someone has heard or read about the case. The test is whether they have formed an opinion about the guilt or innocence of the accused such that they would not be able to fairly and impartially try the case. They will be excused for cause, if the answer is “Yes.” If the answer is, “No” they will be questioned individually out of the presence of the others for more information to challenge or pass the juror for cause on the subject of pretrial publicity. If a challenge for cause is denied, the party asserting the challenge likely will use a peremptory challenge later on to get rid of that person.

2) Opinions about the death penalty: Jurors are told that they have to be questioned regarding their opinions about the death penalty before the trial starts because there will not be an opportunity to question them later, if the defendant is convicted. Therefore, they are told to assume guilt when they are questioned. Invariably, a majority of the time spent selecting a jury involves the death qualification process. The test is whether the prospective juror could weigh the aggravating and mitigating evidence and render a verdict according to the jury instructions. Anyone who would automatically vote for the death penalty, if the defendant is convicted as charged, will be excused for cause, Same is true for anyone who would automatically vote for LWOP because they are opposed to the death penalty. This is called death qualifying a jury and it inevitably produces conviction prone jurors because so-called scrupled jurors (who oppose the death penalty) are more likely to vote not guilty than guilty. This feature is another major reason why it’s so difficult to win a death penalty trial.

The goal will be to get a panel of probably 75 or more people who have been passed for cause by both sides. The size of the panel has to be large enough so that there will be enough people left to seat a jury of 12, plus the alternates. If each side uses its full complement of 20 peremptory challenges, that would reduce the panel by 40 people, and possibly a few more, if one side or the other successfully challenges the other side’s improper use of a peremptory challenge to get rid of people based solely on race, gender or religion. Each side also gets a peremptory challenge to assert for each alternate.

It’s OK to end up with a few too many. It’s not OK to end up without enough because then you have to bring in another group of people to question.

One of the extremely bizarre aspects of the death qualification process is the effort by defense counsel to save scrupled jurors from being excused for cause by getting them to admit that they could follow the instructions and impose the death penalty despite their opposition to it, if the aggravating circumstances outweighed the mitigating circumstances. Similarly, prosecutors befuddle jurors who would automatically vote for the death penalty by attempting to get them to admit that they could vote LWOP despite their support for the death penalty, if the mitigating circumstances outweighed the aggravating circumstances.In either case, the object is to force the opposing counsel to use one of their precious silver bullets (i.e., peremptory challenges). The hope is they will run out of ammo before you do and you’ll get some scrupled jurors on the jury.

That is more likely to happen in Massachusetts where a majority of the voters are against the death penalty than would be the case in Texas or Florida where you would be lucky to find a scrupled juror in a group of 1,000 people.

Last but not least, both sides will be on the lookout for possible ‘stealth jurors.’ They are agenda driven people who will lie to sneak on a jury and vote for a particular outcome, regardless of the evidence. This is called jury nullification when the stealth juror votes contrary to the evidence and the instructions. Both sides are likely to have support staff checking social media for potential stealth jurors.

It took 3-4 weeks for me to select a jury in every death penalty case that I tried. Then it took 6-9 months to try the cases.

Since federal court does not allow cameras or audio recordings in the courtroom, we will not be able to watch this fascinating process that is so critically important to the outcome of every trial.

And there you have it.


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).


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