Commentary on Alabama Law and Society

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Location: Birmingham, Alabama

Wednesday, May 03, 2006

Death Penalty News

Here is an editorial on a case recently decided by the Alabama Court of Criminal Appeals.

I would link to the case, but it is not available on-line. Here are the basic facts. The defendant was convicted of capital murder for two separate robbery/murders. In each instance, someone forced their way into a restaurant after closing, robbed the manager at gunpoint, and then shot the manager twice. In both cases the attacker left the victim to die in the cooler. A third robbery victim survived a similar attack and identified the defendant as his attacker. The state's forensic experts said the bullets from all three attacks came from the same gun, which the cops then found in the defendant's home.

Obviously, the central issue at the trial was the forensics. If this guy owned the gun that shot all three people, he was going to be found guilty of capital murder. If the gun did not shoot all three, then because of the identification the state had him for the last robbery, but with no other evidence on the first two, the defendant would not have been guilty of capital murder.

So the defense attorney hires an 'expert' who had spent about eight months of a 25 year career examining bullets. He was woefully unqualified and the state fully exposed that during cross-examination and in closing arguments. Not surprisingly, the jury found the defendant guilty.

Now he has several real experts who strongly dispute the state's findings. He is using these guys to prove his trial counsel was constitutionally ineffective. The court of criminal appeals said no way, you had your chance to offer expert testimony and you do not get another one.

The dissent, rightly I think, would grant a new trial. Trial counsel dropped the ball on the central issue in the case. Funds were available for a real expert. Experts are not hard to find. This guy just did not get it done. I can not think of a reason why an attorney would do such a lousy job on the most critical issue in a capital case. The prejudice to the defendant is obvious. The attorney's work, or lack of it, left the state's arguments basically unchallenged. And it is not hard to challenge bullet identifications. It is not an exact science. These guys just compare the two and then subjectively decide if they match.

There are two things I find interesting about this case.

First, it is not possible to overstate the importance of having a good attorney. For the defendant, even when mistakes are obvious it is tough to get another chance. This case illustrates that. For the state, we ought to do more (i.e. $$$$$) to ensure appointed lawyers are well qualified. The the long term benefits exceed the short term costs. This appeal would be quickly dismissed had trial counsel done his job. As things are, the state has to spend plenty of resources defending it, and maybe even more on a new trial. For all of us, competent counsel is essential to a reliable verdict. In an adversary system, if only one side is functioning properly the results will be skewed. The system needs both sides arguing at full strength if it is to produce the truth.

Second, cases like this are why folks question the death penalty. I do not think many people are sympathetic to arguments that equate the death penalty with barbarism. They do not think there is anything inherently wrong with capital punishment; some crimes deserve death. The problem is how to determine which crimes, and, in a particular case, whether or not the defendant committed it. The penalty is severe, so the process must be more reliable than it was in this case. I doubt many people would feel comfortable seeing this guy executed, knowing he was convicted on unchallenged and questionable forensic evidence. He may be guilty, but are we sure enough of his guilt to execute him?