Louisiana v. Barbour: Non-unanimous verdicts hinder justice in the South
Despite showing interest in a cert petition dealing with the issue of non-unanimous juries, the US Supreme Court has again decided to let the issue alone, rejecting to hear Herrera v. Oregon earlier last month. The Court had asked the state of Oregon to file a response to the petition late last year, but passed over the petition in silence on January 10.
Louisiana defendant Troy Barbour is also awaiting a response from the SCOTUS to his cert petition dealing with the same issue. The ABA has filed an amicus in support of his appeal, but it remains to be seen whether Barbour’s case will catch the Court’s attention.
In Barbour’s petition, defendant cites Justice Kennedy in providing an analysis of jury dynamics and the importance of non-unanimous verdicts:
The dynamics of the jury process are such that often only one or two members express doubt as to [the] view held by a majority at the outset of deliberations. A rule which insists on unanimity furthers the deliberative process by requiring the minority view to be examined and, if possible, accepted or rejected by the entire jury. The requirement of jury unanimity thus has a precise effect on the fact-finding process, one which gives particular significance and conclusiveness to the jury’s verdict. Both the defendant and society can place special confidence in a unanimous verdict.
United States v. Lopez, 581 F.2d 1338, 1341 (9th Cir.1978)
The Equal Justice Initiative’s recent report on race and jury selection discusses the importance of the racial diversity of juries in order to promote the inclusion of different perspectives. Compared to diverse juries, all-white juries are more likely to make factual errors, are less likely to correct their mistakes, are likely to spend less time deliberating, and consider a smaller range of perspectives.
Reflecting on Justice Kennedy’s comments, it seems that we should consider the impact of non-unanimous convictions in a state like Louisiana where convictions are handed down by nearly all-white juries. If such juries are more likely to make mistakes and spend less time deliberating, then surely they shouldn’t be able to expedite the deliberative process by leaning on non-unanimous verdicts.
Rational Responses to the Innocence Crisis Go Further Than Death Penalty Repeal
In an exciting moment in the anti-death penalty movement, both houses of the Illinois legislature voted to repeal capital punishment. Now, the decision of whether to abolish the state’s death penalty resides in Governor Pat Quinn’s hands.
The Illinois Senate’s decision on the repeal bill came on the eight-year anniversary of former Governor George Ryan’s announcement that he would commute the sentence of 163 death row inmates and pardon another four. The Governor’s decision was motivated in large part by the concern that the State had wrongly convicted over half of the death row inmates whose cases had concluded with either execution or exoneration between 1978 and 2000. See Lawrence Marshall, The Innocence Revolution and the Death Penalty, 1 Ohio St. J. Crim. L. 573, 578 (2004). Those numbers, the Governor thought, were shocking and unacceptable.
Innocence has proven to be a driving force in the current effort to push legislatures to repeal the death penalty. After all, the question we must ask ourselves is: can we tolerate the risk – any risk – that we will use the power of the State to execute someone who is innocent of the crime for which they have been convicted? The question raises a powerful and unshakeable inference: a human institution – any human institution – is imperfect. Mistakes are a reality. For many, that reality is enough to win the argument that the death penalty is not a policy option to which we should dedicate precious resources to maintain.
But, as critical a tool as innocence has been to the anti-death penalty movement, I wonder why the alarming error rate has not yet inspired many other changes in the criminal justice system. After all, many innocent individuals who were sitting on death row are now sitting in prison, serving a life sentence without the possibility of parole. Innocence undermines the conviction, not just the punishment.
The elimination of the death penalty responds to the worry that an irreversible act, an execution, permanently prevents an inmate from bringing to light his innocence. But, that cannot be our only worry. How many people in prisons across the country will never be able to muster the immense resources it takes to be exonerated? How many inmates have died in prison without vindicating themselves and enjoying the freedom and opportunities they rightfully deserved? How many of those stories will remain unknown?
Surely, Illinois is attempting to take a step in the right direction. But, legislatures, judges, and lawyers must work greater changes in the criminal justice system to curtail the convictions of innocents. A serious look at the reliability of eyewitness identification and quasi-scientific evidence (like “bite-mark” analysis), legal and disciplinary actions against prosecutors who commit misconduct or fail to disclose exculpatory evidence, a commitment to confrontation and the presumption of innocence, and responsible consideration of evidentiary rules governing the admissibility of the other bad acts an individual has committed – these are just a handful of things that could make a meaningful impact upon the innocence crisis.
This is not to say that criminal justice reform advocates have not been pushing for these kinds of changes for years. But, it seems that innocence is most effectively and most often deployed in the battle against the death penalty. There is no doubt that the fight against the death penalty currently relies upon innocence arguments to gain traction. However, does innocence rely upon the death penalty as well?
Deterrence and the Death Penalty
Outgoing Governor of Pennsylvania, Edward Rendell, wrote a letter to the state General Assembly in his final days as governor, questioning the effectiveness of the death penalty. He wrote,
“As a former District Attorney and as a death penalty supporter, I believe the death penalty can be a deterrent – but only when it is carried out relatively expeditiously.”
Dissatisfied by the delays in actual executions caused by the appeals process, the Governor called on legislators to decide if the process could be sped up or otherwise, called them to consider repeal.
There is no doubt that Rendell is a death penalty supporter: he signed six execution warrants on the same day that he issued this letter – bringing the total number of execution warrants to 119 during his term as governor.
Rendell subscribes to Beccaria’s well-accepted theory that deterrence will only be achieved through punishment that swiftly follow on the heels of the crime. His frustration with capital punishment is rooted in his belief that it can deter future crimes – if only the process didn’t take so long.
Last week, the Illinois legislature voted to repeal the death penalty. Some opponents of the bill spoke about the need for capital punishment to protect prison guards and deter murderers serving life from killing inside the prison walls. Others spoke of general deterrence, claiming that without the death penalty, there would be a higher murder rate in the state of Illinois. That will remain to be seen if the Governor signs the bill.
Regardless of whether the death penalty does deter would-be murderers (and we can probably all agree that pursuing a conclusive answer to this question seems much like chasing the white rabbit), the question we should ask is: what weight should we give deterrence in deciding whether or not we want the death penalty?
It seems to me that deterrence is a secondary reason to have the death penalty which is only compelling in conjunction with a primary reason. If we believe that the death penalty is a just, retributive punishment for the taking of a life, then deterrence would provide a further reason for carrying that punishment out.
But deterrence alone should not be a satisfactory reason for our society to ask for the death penalty. We may deter a child from disobeying us by striking her across the cheek, but just because our technique is effective, it does not make it right. You may disagree, thinking “The death penalty is absolutely necessary if it means we will stop future homicides.” But that is to assume it is the only way to prevent future homicides, as though there are no alternative measures we might take. I believe that way of thinking undersells our potential to create positive change in our communities. In Louisiana, for instance, perhaps the money that is spent potentially preventing homicides by putting people on death row could be funneled into education, healthcare and infrastructure to try and turn around Louisiana’s ranking as the 2nd worse state in the U.S. to raise a child. It is not a coincidence that the vast majority of death row inmates in Louisiana grew up in poverty and dropped out of school. While the link between the death penalty and the homicide rate is inconclusive, there is no question that education and poverty plays a key role in the prevalence of violent crime.
Therefore, I submit that we should not simply ask “is the death penalty deterring crime?” as Governor Rendell urged his legislature to do; we should ask “is the death penalty the most effective way to deter crime?”
A Dearth of Precedent: What Happened to Racism?
It turns out that an exhaustive Lexis-Nexis search for Louisiana Supreme Court cases in the past ten years that discuss “racism” or “race discrimination” or “racial discrimination” yields just 31 results. Of those 31 cases, 27 are capital direct appeals over which the Court has mandatory jurisdiction. These death penalty cases have often raised claims that the State discriminated against racial minorities in the selection of grand or petit jurors. Remarkably, only four other Louisiana Supreme Court cases in the past decade even mention “racial discrimation.” One of these cases involves disciplinary action against two lawyers, and only makes a passing reference to a race discrimination lawsuit one was retained to litigate. See In Re Kelly, 857 So. 2d 451 (La. 2003). Another involved a lawsuit by former police officers that alleged racial discrimination and harassment against the Baton Rouge Police Department. However, the Louisiana Supreme Court’s opinion did not deal with these heavy allegations, but instead simply remanded the case to lower courts to allow the Police Department to pursue its argument that the plaintiffs’ claims had prescribed (an argument which no lower court recognized as a winning argument). See Alcorn v. City of Baton Rouge, 863 So. 2d 517 (La. 2004). In the end, then, only two Louisiana Supreme Court non-death-penalty opinions meaningfully discuss race discrimination. In one of those cases, the Court reversed the intermediate appellate court’s finding that a civil service board violated the African-American plaintiff police officer’s constitutional right to equal protection when it imposed a fitness qualification upon him at the time he was up for promotion although no similar previous qualification had ever been imposed on white officers. See Moore v. Ware, 839 So. 2d 940 (La. 2003). The Louisiana Supreme Court was not impressed with Mr. Moore’s claim of race discrimination, holding “the facts of the present case do not establish that Moore carried his burden of proving a prima facie case of racial discrimination.” Id. at 950. In the fourth and final non-capital case, the Louisiana Supreme Court conducted a thorough review of the party’s peremptory strikes to find that the civil defendant has intentionally discriminated against African-American prospective jurors on the basis of their race. See Alex v. Rayne Concrete Serv., 951 So. 2d 138 (La. 2007). Perhaps what is most remarkable about the Alex case is that the Louisiana Supreme Court has never engaged in such a detailed review of a claim of race discrimination in jury selection in a death penalty case, where much more is at stake.
The dearth of recent high court rulings on race in this state is surprising, especially given that: the U.S. Supreme Court in 2008 found that Jefferson Parish prosecutors discriminated on the basis of race in the selection of Allen Snyder’s capital jury; the Jena 6 episode erupted in December 2006; and incidents like the Danzinger Bridge shootings occurred in Katrina’s wake just five years ago. It is undeniable that race and racism still matter in Louisiana. So, why is so little apparently going on in front of the state’s highest court? I can think of a few possibilities, though these are all speculative:
(1) The Louisiana Supreme Court has declined to utilize its discretionary review power in cases which raise issues of racial discrimination, but has been compelled to confront those issues in death penalty cases because state law provides that the Court must decide those cases on the merits;
(2) Civil suits alleging race discrimination are disproportionately settled outside of court;
(3) Potential plaintiffs in Louisiana lack faith in the judicial system’s ability and willingness to decide claims of discrimination fairly;
(4) A paucity of (pro bono/public interest) civil rights lawyers interested in identifying issues and equipped to litigate them means that individuals with legitimate claims can’t afford or find representation;
(5) As some legal commentators recently explained, claims are difficult to mount because systems rather than identifiable and particular individuals perpetuate covert discrimination: “outcomes are rarely attributable to overt racial discrimination; instead, they result from patterns of implicit bias and institutionalized racism that tend to repeat and normalize the status quo.” Eva Paterson, et al., The Id, the Ego, and Equal Protection in the 21st Century: Building Upon Charles Lawrence’s Vision to Mount a Contemporary Challenge to the Intent Doctrine, 40 Conn. L. Rev. 1175, 1179 (2008);
(6) The U.S. Supreme Court’s Equal Protection’s “intent” doctrine has made it nearly impossible to prove that the State has intentionally discriminated on the basis of race. See, e.g., id. at 1190-91;
(7) Individuals are reluctant to make allegations of race discrimination because they “are politically incendiary.” Ralph Richard Banks & Richard Thompson Ford, (How) Does Unconscious Bias Matter: Law, Politics, and Racial Inequality, 58 Emory L.J. 1053, 1103 (2009).
Perhaps the explanation is some combination of these factors, plus others I haven’t identified. Whatever the cause, the result is alarming. The reality is: “While the Jena 6 incident was a disturbing and highly visible reminder of the continued prevalence of racism in America, the equally troubling reality is that far less visible forms of racism and discrimination occur everyday and go largely unchallenged.” Eva Paterson, et al., The Id, the Ego, and Equal Protection in the 21st Century: Building Upon Charles Lawrence’s Vision to Mount a Contemporary Challenge to the Intent Doctrine, 40 Conn. L. Rev. 1175, 1177 (2008). Incremental steps must be taken to address each of the factors contributing to the problem of unchallenged racism. But, there certainly exists an opportunity for the courts to step up and meaningfully analyze the claims that are actually presented to them. At the Louisiana Supreme Court, a logical first step would be to give capital defendants meaningful appellate review when they make substantiated claims that the State discriminated against prospective jurors in their cases. Then, it can step beyond the world of mandatory jurisdiction and provide litigants with a realistic hope that their concerns will not fall upon deaf ears. But, a simple Lexis search leaves one to wonder whether the fight for racial equality is fading, despite clear evidence for its need.
Montejo v. Louisiana (II) Cert Petition
The cert petition asks the U.S. Supreme Court to take a second look at this important case involving a defendant’s right to counsel under the Sixth Amendment. You can access the pleadings here (Cert Petition _ Montejo v. Louisiana II), here (State’s Brief in Opposition), and here (Reply to Brief in Opposition).
To see thoughts on why this is a crucial issue at this time, see Prof. Ron Sullivan’s post here.
Williams v. Louisiana – Cert Conference on May 13th
The previous post contains a link to our cert petition in Williams v. Louisiana, which asks the U.S. Supreme Court to weigh in on the issue of proportionality review of capital sentences in Louisiana. Since the time of that post, the State has filed its Brief in Opposition, and we filed a Reply. The Court is set to meet on the petition on May 13th.
Both the Louisiana Supreme Court and the State have taken the position that race did not play a role in the death sentence in this case because there is no evidence that Mr. Williams intended to kill the victim because of her race. But, there is disquieting statistical evidence that the race-of-the-defendant and race-of-the-victim play a significant role in determining which defendants receive death sentences out of East Baton Rouge Parish. The last thirteen people sent to death row from the parish are African-American, and there is evidence a black man convicted of killing a white woman has a 1 in 2 chance of being sentenced to death, while a white man has never been sentenced to death for killing a black person in the last thirty years (or perhaps ever).
The State’s Brief in Opposition can be found here: State’s Brief on Cert
Our Reply to the State’s Brief in Opposition can be found here: Cert Reply to BIO FINAL
Cert Petition on Proportionality Review in Louisiana
On March 10, our office filed a cert petition in the case Williams v. Louisiana. The petition asks the Supreme Court to review his core claim that the current administration of the death penalty in Louisiana leads to unconstitutional arbitrariness. The question presented is: “Whether the Petitioner’s death sentence violates the Fifth, Sixth, Eighth, or Fourteenth Amendment where: (1) the Louisiana Supreme Court failed to provide meaningful appellate proportionality review; and (2) the jury did not determine beyond a reasonable doubt that death should be imposed.”
The cert petition brings attention to the Louisiana Supreme Court’s woefully deficient proportionality review.
You can view the petition in its entirety right here: Cert Petition FINAL
Autobiography of an Execution
Professor David Dow is the director of the Texas Innocence Network at the University of Houston Law Center and has just released a new book: “Autobiography of an Execution.”
Dow deals with a number of issues in the book – how he reconciles his passion to represent death row inmates with the reality of what his clients have done to victims and their families; how he struggles to balance his emotionally devastating and time-consuming work with his desire to be a good husband and father; and how he battles against a system of courts that overwhelmingly defeats his efforts to save his clients’ lives.
Below is an excerpt from the first chapter of Dow’s book. It’s a good example of the way Dow integrates his personal reflections into an account of his professional life. Though it is unsurprising that he cannot separate the two.
My first client was executed in 1989. Derrick Raymond was an average bad guy who did one very bad thing. He dropped out of high school in tenth grade. Two years later he enlisted in the army to learn a skill. He wound up in Vietnam. He did not talk much to me about the war. I learned about his service record ten years after he was executed, when one of his army buddies tried to track him down but got in touch with me instead. Derrick returned to Houston with a purple heart and a heroin habit that cost him five hundred dollars a week, but still without any job skills. He pumped gas until he got fired for missing too many days. Drug addiction has many consequences. He started robbing convenience stores and fast-food restaurants. After one stickup, which netted him $73 and change, he was running down the street when the security guard gave chase, shooting. One shot hit Derrick in the leg. He fell to the pavement, turned around, and fired five shots at the security guard. The guard took cover, but one shot hit a seven-year-old boy who had just finished having lunch with his mother. There might be nothing sadder than dead children. On top of that, Derrick was black and the boy was white. That’s a bad combination. The jury took less than two hours to sentence him to death.
Derrick’s lawyer fell asleep during the trial—not just once, but repeatedly. The prosecutor was appalled, but the trial judge just sat there. When a new lawyer requested a new trial, the court of appeals said no, because the judges believed Derrick would have been convicted even if his lawyer had been awake. Another court-appointed lawyer represented him for his habeas corpus appeals in state court. That lawyer missed the filing deadline. If you miss a deadline, the court will not -consider your arguments. That’s when I got appointed to represent Derrick in federal court. But the federal courts have a rule: They refuse to consider any issues that the state courts have not addressed first. The state court had said that Derrick’s lawyer was too late and had therefore dismissed his arguments. So the federal court would not hear our appeal either.
My job as a lawyer, therefore, consisted mostly of planning the disposition of Derrick’s estate. Of course, he didn’t have an estate, meaning that my job was to arrange for the disposal of his body. (He did not want to be buried in a pauper’s grave right outside the prison gates in Huntsville, Texas.) Making funeral arrangements didn’t take very long either, so my job was really just to be his counselor, to listen to him, to send him books or magazines, to be sure he would not have to face death alone. My goal is to save my clients, but that objective is beyond my control. All I can control is whether I abandon them.
I would visit Derrick once a week and talk to him by phone another day. He had a son, Dwayne, who was twelve when his dad arrived on death row and nineteen when Derrick was executed. I sat next to them as they struggled to connect. The Internet is ruining society because human relationships are inherently tactile. It’s hard to become close to a man you can’t touch, even (maybe especially) if he’s your dad. I told them I was hopeful that the Board of Pardons and Paroles and the governor would commute Derrick’s sentence, and I was. I am always hopeful. Nothing ever works out, but I always think that it’s going to. How else could you keep doing this work? I watched his execution because he asked me to.
At 12:37 a.m. on Thursday, March 9, 1989, Derrick was put to death in front of me, Dwayne, and two local reporters. Afterward, I hugged Dwayne, got in my truck, and drove with my dog and a case of Jack Daniel’s to my cabin on Galveston Island. I sat on the deck watching the Gulf of Mexico and drinking. The moon was bright. The mullet were jumping in schools and I could see trout in wave curls feeding. I smelled the rain. I left the front door open so the dog could go outside when she needed to and dumped a week’s worth of food in her bowl. At dawn the sky blackened and the storm rolled in. I made sure my lounge chair was under the eave then closed my eyes and slept. When I’d wake up to use the toilet, I’d drink a shot of whiskey and chase it with a pint of water. I intended not to get dehydrated. Other than the birds and the surf, the only sound I heard was the thump of newspapers landing on driveways every morning. On Monday, I opened four papers, to figure out what day it was. I ran for an hour on the beach with the dog and swam for thirty minutes in the surf while the dog watched. Walking back to the cabin for a shower I said to her, Sorry for being a terrible master. She picked up a piece of driftwood and whipped her head back and forth.
We had lunch sitting on the deck at Cafe Max-a-Burger. I ordered four hamburgers, a basket of onion rings, and a lemonade. The dog ate her two burgers so fast that I gave her one of mine. When I paid the bill the cashier said, That’s one lucky dog.
I said, Thanks for saying so, but you have it backwards. That dog is by far my best quality.
Publisher: Grand Central Publishing; Date: February 2010
You can hear an interview with David Dow about the book here (see Feb 9):
Sentencing Law & Policy Blog Features Rob’s Piece on “The Racial Geography of the Federal Death Penalty”
The piece, co-authored by blog contributor Rob Smith and attorney G. Ben Cohen, is available on SSRN. Professor Berman at Sentencing Law & Policy recently spotlighted the piece here.
The abstract states:
Scholars have devoted substantial attention to both the over-representation of African-Americans on federal death row and the disproportionate number of federal defendants charged capitally for the murder of white victims. This attention has not provided an adequate explanation for (much less resolution of) these disquieting racial disparities. Little research has addressed the unusual geography of the federal death penalty, in which a small number of jurisdictions are responsible for the vast majority of federal death sentences. By addressing the unique geography, we identify a possible explanation for the racial distortions in the federal death penalty: that federal death sentences occur disproportionately where the expansion of the venire from the county to the district level has a dramatic demographic impact on the racial make-up of the jury. This inquiry demonstrates that the conversation concerning who should make up the jury of twelve neighbors and peers – a discussion begun well before the founding of our Constitution — continues to have relevance today.
After documenting both the historical and racial relationships between place and the ability to seat an impartial jury, and the unique impact demographic shifts in the jury pool have on death penalty decision making, we propose three possible solutions: 1) A simple, democracy-enhancing fix: a return to the historical conception of the county as the place of vicinage in federal capital trials; 2) A Batson type three-step process for rooting out the influence of race on the decision to prosecute federally; 3) Voluntary measures by the Attorney General to mask demographic and location identifiers when deciding whether to provide federal death-authorization. We explain why a return to county-level jury pools in federal capital cases (whether through statutory construction, legislative change, or through the authority of an fair-minded Attorney General) prospectively limits the impact of race on the operation of the federal death penalty, without establishing the intractability of the federal death penalty as a whole. Finally, we observe that any effort to study the federal death penalty cannot merely address those federal cases in which the Attorney General has considered whether to approve an effort to seek the death penalty, but must also include an assessment of the cases prosecuted in state court that could be prosecuted federally and the prosecutorial decision concerning when and whether to prosecute in federal court.
The piece poses a lot of interesting questions about race, federalism, jury selection, and the geographic arbitrariness of the death penalty. As always, we invite commentary and discussion here.
Guantanamo Detainees Flounder as Europe Averts its Gaze
Being committed to your values is easier said than done. I am all for being green, but when the supermarket charges for recycled shopping bags, I’m tempted to stick with plastic. My decision to work in an anti-death penalty law office in the South was solely driven by my commitment to the abolition of the death penalty. But when I encounter a case involving a horrific crime, I find it hard to imagine the task of attorneys in my office who must dedicate themselves to representing the one who perpetrated it. In the case of capital punishment, though, a defense attorney’s queasiness at their client’s crime is easily reconciled with their queasiness at the state’s desired penalty – in both cases, the taking of life is abhorrent. But what happens when our commitment to our values leads us down an undesirable path with unsettling consequences?
It is eight years today since Guantanamo Bay was first used as a detention center for suspected terrorists. At present, 200 prisoners remain in Guantanamo – the vast majority of whom have never been charged. On this anniversary, it is tempting to point the finger at the United States and ask why Obama’s call for a speedy closure of the facility is taking such a long time. But Amnesty International is asking a different question. What happened to Europe?
On 16 June 2009, the EU-US Joint Statement on the Closure of Guantanamo Bay was issued which expressed the readiness of some EU Member States to receive former detainees on a case-by-case basis. Amnesty purports that while some European states are volunteering to take in Guantanamo detainees, a number of those states that once fiercely argued for the closure of Guantanamo Bay are now disappointingly silent.
Many European governments have condemned the ongoing detention of prisoners at Guantánamo Bay. Now they can do something about it… Actions really do speak louder than words in this case; it’s time to turn the rhetoric into reality and get Guantánamo closed as soon as possible” said Clive Stafford Smith, Director of Reprieve.
Both Amnesty and Human Rights Watch state that other countries must take in detainees that will be tortured, subjected to further detention without charge and other human rights abuses should they be involuntarily repatriated to their country of origin. But nearly seven months since the EU-US statement was issued, only seven former detainees have been accepted by Europe as free men – 50 more await help.
If the worldwide refugee crisis has shown us nothing else, it is that when it comes to international human rights, actions cost much more than words. It is not difficult to see why governments would rather not take in Guantanamo detainees, but their inaction means these men will likely be relocated to once again be held without charge, only this time in a less visible setting.
At the root of the idea of ‘human rights’ is the idea that universal rights should be afforded to all people no matter which state they belong to. The ideal is universal; therefore the burden is international. Those states which once called for the closure of Guantanamo Bay may now realize their objective, but only if they are prepared to back their words with action. Henry David Thoreau’s quote serves as a useful check for us self-righteous moralists whose eyes quickly divert from the paper bag to the plastic when we think no one is looking: “Aim above morality. Be not simply good; be good for something.”
A Criminal Enterprise 
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