I have read this article and the entirety of the posts on this board with interest. Besides being a poker player and avid reader of David Sklansky, I am a lawyer who until last September worked as a public defender representing criminal defendants in trials in state court. Furthermore, between 2000-2002, I had a fellowship which brought me to Montgomery Alabama where I assisted approximately 48 death row prisoners with direct appeal, state postconviction, and habeas corpus petitions. As such, I interviewed death row prisoners, jurors from capital cases, family members of both victims and defendants, and witnesses of capital crime. The death penalty and its administration is a subject that I have studied and thought about a great deal.

Personally, I am opposed to capital punishment in all cases. This is both for moral and practical reasons. However, it is my moral objections to the death penalty which present the biggest obstacle to my support of David's proposal. Since I believe that in this day an age it is immoral for the government to execute a prisoner under all circumstances, I would have a serious problem supporting any proposal which provided a mechanism by which execution could take place, albeit at a (presumably) reduced rate. However, I take this as a proposal for reform designed to reduce the number of executions of innocent persons, without taking a stand on the propriety of the death penalty itself.

Innocence and the death penalty is a very serious issue. The facts are that since 1973, 121 people in 25 states have been released from death row with evidence of their innocence. My opinion is that this number represents only a fraction of the innocent people who are convicted and sometimes executed. Resources to investigate innocence are scarce, and it is rare for resources to be spent on cases where a execution has already occurred, since the resources are insufficient to devote to the cases of individuals who are still on death row. Furthermore, it is only in a fraction of cases that innocence is scientifically testable. If no evidence of biological samples is available which could provide a DNA exclusion, then this recourse is not available to the defendant. This is why innocence is most often proven in cases involving rape. It is not because wrongful convictions are particularly likely in those cases, but because it is more probable that evidence capable of excluding the defendant will have been collected and preserved. It is often surprising, even when this evidence exists, how much resistance there is to the (relatively inexpensive) procedure of performing the tests.

I agree with David's idea that it is possible to distinguish cases where the question of guilt may fall into the gray area of "beyond a reasonable doubt" from cases where the guilt can be described as "beyond a shadow of a doubt." To a large extent, the category a case appears to fall into will depend on the skill of the defense team. However, there are many cases in which innocence is not a serious issue. Take for example a case in which the defendant has confessed, has possession of the murder weapon, property of the victim, and is wearing clothes spattered with the victim's blood at the time of arrest (other issues, such as self defense, insanity, or duress might still be in play, but you can take my word for it, when you read two dozen transcripts from death penalty trials there are some cases in which you raise innocence as an issue, and some cases in which you don't).

I don't really challenge David's logic or the theorectical soundness of the proposal. In fact, I would be willing to bring it to the attention of others who still work in the death penalty field. I do question whether the proposal would be effective, because of two factors which are outside the scope of the article. These are the psychology and the politics of the death penalty.

Psychology is factor which may be overrated at the poker table, but it would be hard to overrate its significance in the mechanism of the death penalty. Jurors are given all kinds of instructions, but the actual deliberation takes place behind closed doors, and it is anything but a dispassionate process. Many people have concluded that the complexity of jury instructions in capital cases is already well outside the ability of a well meaning juror to apply. It is possible that juror response to these new instructions would be less predictable that it would appear.

Politics also cause the public discourse about the death penalty is also highly charged, which is apparent even reading through posts on this forum. Because of this minefield, death penalty opponents and proponents think very strategically about what they say and what they support. It is optimistic to think that an initiative in this arena, however phrased, would be viewed or accepted as being "solely related to logic and probability." Frankly, I would be fascinated to see what would happen. However, if this was an arena in which logic held any sway, I believe we would have joined Europe and 90% of the civilized world in abolishing the death penalty a long time ago.

One area in which the proposed change of standard could have a dramatic effect is in reducing the number of cases in which the prosecutor decides to seek death. It is no exaggeration that every death penalty trial costs the public many times more money than would be spent on a non-capital trial resulting in a sentence of life without parole. In the small communities in which capital trials often arise, the cost of one death penalty trial could be the largest budget item for the county that year, without even examining the cost of appeals. Which is reason enough to give this serious thought.