So much window dressing

“In many areas, Texas appears out of step with better practices implemented in other capital jurisdictions, fails to rely upon scientifically reliable methods and processes in the administration of the death penalty and provides the public with inadequate information to understand and evaluate capital punishment in the state.” -- ABA report on the death penalty in Texas

On Wednesday the American Bar Association released a report to policy makers detailing their analysis of the death penalty in Texas. (As of this writing, the report has not been released to the public.)

Click here to review the report.

The ABA, showing its antipathy to the defense bar, assembled a group of former judges, prosecutors, legal scholars and elected officials to examine the way in which Texas decides who lives and who dies. Was there anyone on the panel who even questioned the very existence of the death penalty?

According to the ABA the purpose of the analysis was to find ways to restore public confidence in the murder of inmates after a string of exonerations due, in large part, to prosecutorial misconduct and inept (or corrupt) police investigations.

The problem isn't that public confidence in state-sponsored murder is declining. The problem is with the death penalty itself. Capital punishment serves no useful function. It serves only to feed the bloodlust of the state. There isn't one documented case of a murder victim being brought back to life as the result of an execution.

The game is rigged when it comes to death penalty cases. Jurors who have objections to the state killing inmates are excluded from capital juries because they are unable to consider the entire range of punishment. Thus, a jury in a death penalty case is made up of 12 men and women who support strapping inmates to a gurney and pumping poison into their veins. This guarantees a jury that is state-oriented and predisposed to convict.

If one wants to make the death penalty more "legitimate" in the eyes of the public, excluding defense attorneys from the panel is a fatal mistake. Judges and prosecutors certainly aren't going to put the blame for wrongful convictions on themselves. Maybe they can pin the blame on defense attorneys who are underpaid for the work they do on capital cases. Surely Anthony Graves was convicted because his attorney screwed up. Michael Morton's wrongful conviction is certainly due to his attorneys not trying hard enough to have biological evidence tested. Cameron Willingham went to his death because his attorneys didn't question the junk science of the arson investigators.

How much insight can judges, prosecutors and academics have into the (often) futile struggle to defend a person accused of capital murder? It's the judges who let junk science into the courtroom. It's prosecutors who fail to disclose Brady material and who stonewall attempts to conduct biological tests on evidence. And what experience do the academics have working in the trenches? When is the last time an academic challenged evidence on the basis of violations of the 4th or 5th Amendments?

The ABA study is but window-dressing. But no matter how nice you make the windows look, the back room is still filthy.

Click here for the typically vapid report from Houston's NPR station, KUHF.

Remember to think before you post online

The ABA Journal ran a story on its website yesterday about Galveston County District Judge Susan Criss and the dangers of Facebook and other social media sites.

Judge Criss has a Facebook page and is known to respond to comments by her "friends" from time to time. I've even got a nice message or two from Her Honor. She said that in order to avoid the appearance of partiality, she will "befriend" any attorney who asks her.

In a talk at the ABA's Annual Meeting she reminded the attorneys in the room that what you put up on Facebook, Twitter, MySpace or a blog is out there for all the world to see. She recounted the time an attorney asked for a continuance due to the death of a family member -- the only problem was the attorney had been posting updates on Facebook about quite the rowdy weekend.

Just as I warn my clients to watch what they put up on their Facebook pages while a case is pending, we need to be careful what we put up for the world to see. Much like those pictures your client posted of his drunken weekend on the beach, your comments will linger in the ether of cyberspace long after you've forgotten what you were talking about.