Monday, November 22, 2004

Shades of Gray...

On November 21st, 2004 an article was published in a local newspaper that included some statements from various persons on different sides of the issue of capital punishment. No news article, study or resource can ever fully accomplish the task of explaining why some cases are tried capitally while others are not. In the end, District Attorneys have been given the authority to use some discretion in what penalties to pursue and juries make a decision after guilt is established about whether or not an execution is appropriate.

Some persons object to the idea of an execution no matter how heinous the crime or violent the murderer might be. These persons who advocate for condemned murderers often associate a punishment for another crime or equate an execution with another murder. They also demonstrate what is arguably an “abbreviated attention span for facts” or lack of appreciation for the system even when it works to the benefit of a condemned murderer. When an occasional case is reversed or remanded or results in an acquittal after a new trial, they only find fault. Some persons never distinguish between presumed (or assumed) innocence and proven (or actual) innocence. The idea that our courts might occasionally be overly conservative, careful or cautious, and as a result wrongfully release murderers, escapes their attention.

Many factors are considered prior to trial when officers of the court decide on which punishment to pursue. The issue concerning what punishment a defendant might deserve really should lie with a jury. This does not mean that allowing at least some prosecutorial discretion is wrong. District Attorney’s have a first responsibility to do what they believe is in the best interest of the State. They hold elected positions and can be replaced if their performance is less than the public expects.

The State’s (or District Attorney’s) interests can conflict at times with the needs or desires of the friends or family members of homicide victims, but that does not mean that they are not considered (or shouldn’t be) when a case goes to trial. If a jury recommends a death sentence or "life without parole" in an individual case or there appears to be some unrelated pattern of increasing or decreasing death sentences (or other statistics), or some persons merely find these events/observations to be amusing, it doesn't mean they deserve special notice. Each case should be decided on it's own merits. All of these verdicts and sentencing recommendations deserve the reverence of the public. If additional evidence or facts happen to "change things", we should be supportive of the judicial process, not merely attack it. The public deserves to be notified too.

The idea of offering up disparate (and very recent and real) high profile cases as examples of the decisions that prosecutors face when deciding whether or not to try a case capitally is not necessarily new (Ann Miller-Kontz, Matthew Grant, Scott Peterson). The different sentences or prosecution strategies don’t indicate intentional or obvious unfairness. Persons, who object to instances where an execution was or was not considered, question if the process is fair for different reasons. Efficacy of prosecution is only one factor that should be considered before going to trial. Each case presents its own unique set of facts, circumstances and evidence; all have different levels of quality or present-ability in court. If prosecutors are influenced by the likelihood of a conviction and the efficacy of attaining an actual death sentence, that notion is not "new" either.

Attorneys who represent condemned or condemnable defendants work for the State, as do the prosecutors, on the other side of the courtroom. What makes them different from prosecutors is their primary task is to provide for the best interests of their clients (murderers?). This is a necessary part of the process. An effective and vigorous defense is required to maintain fairness (or that perception) in our courts. If a defense attorney conceded that any murder case deserves to be tried capitally, it might be perceived as a sign of weakness (by his or her peers, or those who depend on their services). So an occasional and public conclusion that a murder case doesn’t demand to be considered in a “capital way” should be considered with at least some reservation when made by certain trial lawyers (defending death row inmates). One should note that such persons rarely miss an opportunity to promote their clients and often engage in pubic appraisals of the judicial system or law enforcement, especially when their cases are particularly weak. One has to wonder how some of these persons sleep at night.

Even the most avid supporters of capital punishment wouldn’t propose to execute every single murderer, yet execution abolitionists believe that all murderers should be treated the same. If all murders and murderers are unique, how can sentencing all murderers to life without parole be considered fair?

Persons who support and oppose executions agree and disagree on almost every other issue. Each victim and defendant is unique. Each crime is unique. To treat all convicted murderers the same dismisses the notion that each murderer represents a unique risk to other persons (or himself) and that each victim represents a different kind of loss. Yes, all murder victims are “equally dead”, but victims all endure different pains and humiliation as they die. These are factors for jurists to consider, along with the desires of the friends and family members of the victims, not just the attorneys.

It’s a logical assumption that the primary issues of deciding whether or not to pursue a case capitally revolve around guilt and culpability, and strength of presentable evidence in terms of proving such things. The conclusion that a jury would “call it quits” or that unreasonable doubts might somehow become “reasonable” in capital cases because a death sentence is considered, fails to account for the fact that sentencing and guilt phases in murder trials are separate events. Special attention given to sentencing is evident in every capital case not just by a jury at trial but later on in the courts (appellate process).

The special attentions that condemned murderers receive are often criticized. Family members of victims are confronted with a State that frequently assumes an almost adversarial role by protecting an offender’s best interests first. Family members of the condemned demand more access to their loved ones, among other things. The fact that many victims and perpetrators are poor indicates some of the motivations that are behind the crimes, which require the ultimate punishment. “Righteous victims” are less prevalent in these populations too. This does not mean that victims or the condemned are being discriminated against in the courts.

If a family chooses not to repeatedly (and publicly) endure the disclosure of the checkered past of their loved one (or victim) and decides not to support pursuing an execution, one shouldn’t find fault with a prosecutor who respects those needs and desires. This doesn’t demonstrate that some families love the ones they’ve lost any less than others who support executions. At times, victims and defendants are closely related and families often wish to preserve what remains of their family, despite what has happened. Some surviving family members of murder victims seek executions because they feel threatened by the murderer. These needs and desires, whatever they are, should be respected.

Murder cases aren’t to be compared with games (playing horsehoes) or gamesmanship. They involve real persons who should be treated (and sentenced) individually. Arguments relating to such things, as “affirmative action” don’t apply to capital murder or executions. Statistical disparities should not be mistaken for actual bias. Issues of bias should be addressed based on logic and fact (not supposition or statistics). The murderers who happen to be on death row are there as a result of their proven behaviors and the results of a process that deserves more respect.

Yes, there are many shades of gray... and when readers, columnists or advocates for the condemned turn the issue into "blacks and whites" or "blacks versus whites" (with no "grays") consider what that means in terms of getting justice. Wouldn't it be wise to consider the motivations that influence these things? Don't we owe it to ourselves to decide each case individually based on the facts (evidence and testimony) on hand and not to mix them all up into indistiguishable shades of gray?

Raleigh News and Observer, Capital cases offer shades of gray, say prosecutors, Oren Dorrell, , Viewed Online November 22, 2004.