Death Penalty Article

[David Sklansky]

"David's initiative is already part of our legal system, at least in some jurisdictions. For instance in the Scott "Peterson trial, the jury was instructed that it must give a sentence of life in prison if it had any "lingering doubt" about his guilt. Apparently it didn't.

A related issue will soon be before the Supreme Court in Oregon v. Mazek -- whether or not the court is required to allow the defense to present evidence of innocence in the penalty phase. The purpose of this would be so that the defense can try to create lingering doubt in the minds of the jury."

In that case I think it is necessary to bring in the Horribleness Points Argument. The idea that there is a different risk versus reward ratio for death vs. life compared to innocence vs. guilt.

[HDPM]

[ QUOTE ]
David's initiative is already part of our legal system, at least in some jurisdictions. For instance in the Scott Peterson trial, the jury was instructed that it must give a sentence of life in prison if it had any "lingering doubt" about his guilt. Apparently it didn't.

A related issue will soon be before the Supreme Court in Oregon v. Mazek -- whether or not the court is required to allow the defense to present evidence of innocence in the penalty phase. The purpose of this would be so that the defense can try to create lingering doubt in the minds of the jury.

[/ QUOTE ]

I thought the idea of residual doubt was well established and was definitely allowed in all jurisdictions since pretty much any mitigating factor can be used. Have not paid attention to the mazek case you mention tho.

David, I did hear a talk recently by a guy who was innocent and had his life spared by a judge applying a residual doubt analysis at his second death penalty trial. It took more to get him out of prison, but he was alive to get out later at least.

[David Sklansky]

"I thought the idea of residual doubt was well established and was definitely allowed in all jurisdictions since pretty much any mitigating factor can be used. Have not paid attention to the mazek case you mention tho."

How come you never hear about it then? Can someone answer this for sure?

What effect would this actually have in practice? As previously stated jurys must convict on the basis of guilty beyond reasonable doubt. I have no hard evidence to back it up but I suspect that this is flexed slightly and (one would hope) that where the death penalty is concerned, the jury would consider any doubts very seriously before convicting (perhaps already applying David's standard or something close to it).

So why do innocent people get executed in the US? This is after all what is to be avoided as much as possible. Feel free to disagree, but my thoughts are:-
(i) false eyewitness testimony (either inadvertant or deliberate)
(ii) police corruption or incompetence (anything from planting evidence, "losing" evidence, not interviewing witnesses properly, not following up other leads)
(iii) jurys being misled by experts

This last one is particularly important. There have been many miscarriages of justice in the UK and US in murder, terrrorism and child abuse/death trials where experts have given what appears to be very compelling testimony. Jurys give tremendous weight to scientific experts. Current understanding is sometimes superseded and sometimes the experts are just wrong. A classic example was with early DNA testing, where jurys were told that the chances of an innocent person matching a sample were millions to one. Who wouldn't convict on that basis? However, because the test only looked at small chunks of the DNA, the true probability was only 1000's to 1.

What these factors have in common is that a jury may have no reason to question the evidence. On that basis, they would have no reason to add the caveat to the guilty verdict. The same innocent people would therefore still be sentenced to death.

[HDPM]

well David, you may not hear about it because the coverage of trials doesn't get into details. If you get into the details of death cases you do hear about it.

I've advocated a nearly identical proposal to the one in this article. The main problem with this proposal is pragmatic: The justice system would not like admitting directly, of any "shadow of a doubt". So having this as a mitigating circumstance or a verdict of "guilty, with a shadow of a doubt" will not happen.

For political reasons, it would have to presented as a toughening of the death penalty conviction standard. The current verdict of "guilty beyond a reasonable doubt" would be kept, and a new verdict of "guilty beyond a shadow of a doubt" would be added. This is functionally equivalent to your proposal, but politically more palatable.

[revots33]

My feeling is that eliminating any "shadow of a doubt" would prevent so many executions that you might as well just outlaw the death penalty entirely. Which would be a good idea anyway, IMHO.

Besides, many of the people who are later exonerated from death row are found innocent due to technology that didn't exist when they were originally sentenced to death. In other words, at the time there was no shadow of a doubt in the jury's mind. So I don't see how this proposal would eliminate the same thing happening in the future as technology changes.

Finally, this logical argument would not work to sway those who think that the government has no right to take a life, even if the person is in fact guilty.

[jj_frap]

Mr. Sklansky,

While I can appreciate your intellect and your immense contributions to the world of poker and of profit gaming in general, I hardly think that an article like this is appropriate for a poker magazine. (And I probably have a greater fascination with politics and stronger ideological convictions than virtual everyone else in this forum.)

How about doing something relevant to 2+2's sphere of influence and reason for existing? You could lead a campaing to oust Arizona GOP Senator Jon Kyl (the pathetic asswipe leading the charge to get Internet poker banned in the U.S.). You could write intellectually sound yet accessible dissertations to discredit the anti-gambling extremism of the religious lunatics and the PC thugs who constantly [censored] up your country. In concert with my second suggestion, you could also propose and get passed ballot initiatives and legislation to liberalise gambling laws in the U.S at the local, the state, and the federal level, remembering that anyhing done by Washington, Beijing, or Moscow tends to be followed by other regimes in the world, for good or for ill.

The idea of galvanising American demographic groups that lean strongly towards civil libertarianism (whether they be social democrats like myself, radical Trotskyists (love or hate the guy, far-left parties that identify with Trotsky tend to be very anti-authoritarian) and anarcho-leftists, or libertarian conservatives, classical liberals, and anarcho-capitalists) is long overdue, so why not work towards this goal in a way that is pertinent to issues that directly affect and appeal to 2+2 and to your customers?

[patrick dicaprio]

i am very curious to hear what other lawyers think about it. i havent practiced criminal law but i have litigated for ten years in NYC and can tell you for sure that there are so many corrupt judges on the take and know instances of the DA's office hiding exculpatory evidence in death penalty cases, which is required to be disclosed to teh defendant in NY law, that i completely changed my stance on teh death penalty. i used to be gung ho about it but now i have no confidence in it at all. not because of the theory behind it but in practice you can very rarely be sure that you are convicting a guilty man. my initial thought though is that perhaps there should be some evidentiary requirements, such as no one can get the death penalty where the primary identification evidence is the ID of the victim alone with no forensic evidence. perhaps other lawyers who have actually practiced criminal law can chime in.

I think that david's idea is an excellent one and would be happy to support it.

[jj_frap]

As for how I feel about the death penalty, I feel that humanity -- like everything that exists -- is too imperfect to ever make imposing irreversible sentences a just thing to do. (That being said, I'm disgusted that Maurice Duplessis' far-right, pro-Nazi Quebec government allowed French Nazi collaborators to flee to Quebec in order to escape De Gaulle's guillotine...And as somebody disgusted by the French interfering with the God-given sovereignty of the Vietnamese people, I don't even like De Gaulle much. :-P)