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November 12, 2010

Evidence Casts [More Technical Than Actual] Doubt On Legal Sufficiency of Evidence Against Man Executed By Bush in 2000
Update: Not So Horrible, As My Commenters Point Out; See Update

I support the death penalty. As Dennis Prager notes, to honestly support the death penalty, one has to assume that on rare occasions that an innocent man may be wrongly executed -- and yet still find the benefits of the policy to be greater than the downsides. One can't wish that situation away; it will happen, governments being governments and bureaucrats being bureaucrats.

That said, of course, one can hardly be indifferent to such a miscarriage of justice. As with many things, the opponents of this particular policy cannot defeat it; only the supporters of the policy can defeat it, by not treating it with the required level of care and caution, and thus undermining it far, far more in terms of public support than any amicus brief from the ACLU.

Executing the monstrous is a worthwhile policy. Executing the innocent, or at least the doubtfully guilty, is... not.

In this case, the man in question is not proven to be innocent. In fact, based on the way this MSNBC is written (failing to state the government's case against the accused in an appropriate level of detail), I'd say it's 99% certain he is guilty as charged.

However, a key piece of evidence offered against him -- the only physical evidence offered at trial -- is bad evidence. A strand of hair found at the crime scene was said to have only possibly come from the accused, and not from any other person present.

His legal team requested a DNA test on the hair, but Bush wasn't informed of this, and his sentence was not delayed to permit the test.

The test -- now performed years after his execution -- shows that the hair didn't come from the accused at all, but most likely from the murder victim. That is, it's not evidence at all -- it didn't come from the accused, and its presence at the scene of the crime means nothing.

That's critical because most of the evidence against Jones (the accused) comes from his accomplices, and, under Texas law, a man cannot be put to death based only on such evidence. (Which is an absolutely necessary provision, because these guys, of course, lie like there's no tomorrow.)

If there's no other evidence -- as there, you know, isn't -- then the death penalty cannot be imposed. The accused can still be convicted and sentenced to life imprisonment, but no death penalty. Which makes sense -- look, in cases where you're relying on the testimony of criminals and liars to secure a conviction, you can only barely get past the "beyond a reasonable doubt" standard if at all (and I am inclined to think you can't get past that standard at all), and you are going to want to preserve the possibility of a mulligan.

This guy shouldn't have been put to death anyway, DNA test or not -- hair analysis without DNA is one of those sorts of evidence like ballistics where the expert can only say the specimen is consistent with the hair of the accused, not that it definitely came from the accused. It's not like fingerprints where you can say, "No, this is definitely the accused's thumb." You can say that this hair came from either the accused... or like 15% of the population with similar hair. Useful evidence, but in an additive way only (that is, combined with other evidence) and not dispositive in and of itself.

And on top that inherent limitation of the evidence -- the expert was wrong anyway! The hair didn't come from the accused! And it probably did come from the victim, which the expert claimed it couldn't have.

A DNA test would have demonstrated the expert's error pretty quickly.

But Bush wasn't informed of the request for the test and so he was put to death. And this can't be blamed entirely on his staffers; Bush chose them, after all, and should have been more on top of matters such as this, given the profound social and legal consequences of getting it wrong.

Not to mention the personal consequences to the man executed. Although, in this case, I'm not super-bothered by that:

Prosecutors also hammered on Jones' brutal past. While serving a 21-year prison sentence in Kansas, he poured a flammable liquid on his cellmate and set him on fire, killing him.

In this case, the man probably was guilty, and in any event, is definitely not a big loss for society.

But not every error is going to be without harm. One of these errors is going to wind up killing an innocent man -- an innocent as a lamb man -- and then the entire system is going to be in dire jeopardy. Not to mention the fact that death penalty supporters such as myself will be morally culpable in the outrage.

FWIW, Barry Scheck, the lawyer heading this "Innocence Project," is a very credible voice, as far as I'm concerned. He seems like a straight shooter. He's as liberal as all get out, and he's anti-death-penalty, but he is careful to keep the Innocence Project about actual innocence (or at least lack of legal sufficiency of evidence in death penalty cases), and does not claim that every Tom, Dick, and Harry was wrongfully executed just to make headlines or campaign against the policy itself. (In fact, his quotes showing him letting Bush off the hook more than I have -- something he's probably doing to keep this non-political and just about facts and evidence.)

Scheck is, in fact, despite his politics, actually doing more to keep the death penalty on the books than most of its supporters... by keeping the system honest and cautious. Assuming, that is, that the states executing killers are careful to keep in mind they have a credible critic watching over their shoulders -- if they forget that, and lapse into sloppiness, his project is likely to wind up defeating the death penalty.

All governors in death penalty states should have at least a couple of people like him -- skeptics of the policy, but not willing to indulge in nonsensical arguments to spare everyone -- on the boards reviewing this material. And everyone on the board, whether pro-DP or against it, should be skeptical of the evidence in all the cases they review.

We need people who are not going to rubber stamp a death penalty finding; but also people who aren't going to jerk that knee and claim that in almost every case the evidence doesn't support the sentence. Honest brokers, in other words, who are not seeking to undermine the policy by questioning convictions, but who are rather seeking to support the policy by making sure that the cases against the executed will stand up to future scrutiny.

Some of these cases are going to be weak. This one certainly was. It's never a popular decision to commute the sentence of a previously-convicted killer now convicted of a fresh murder, but if the evidence won't support a death penalty sentence, well, it's more important to be right than popular when death is involved.

Update: Not So Horrible? Commenters, including Moi, point out this link:

The evidence at Jones' trial was conclusive. A number of witnesses placed Jones at the scene of the crime, including Leon Goodson, who heard the shots and watched Jones leave the liquor store. A strand of Jones' hair was found at the murder scene. Also, Timothy Jordan testified against his partners in crime. Jones was convicted of capital murder and received the death sentence. Dixon was convicted of murder and received a 60-year prison term. Jordan received a 10-year prison term.

Okay, here's where it gets involved. Robtr asked about this in a comment, and I answered there. I'll repeat the basics.

The felony murder rule says that if an accomplice in a felony kills someone in furtherance of that felony, you are guilty of that murder, even if you didn't participate in it directly. Even if you said, "Hey, put that gun away!" before your accomplice killed a guy.

There is a moral basis for this rule -- if you are creating a situation in which murder is likely (and in any heist-- it's likely, even if not planned), you are morally culpable for the foreseeable consequences of it.

And there is a more practical basis for it: If two men mug a woman in an alley with no other witnesses, and one many kills her, there will never likely be any conclusive evidence pinning the murder on one man while clearing the other. One man will blame the partner; the partner will blame the other. Without the felony murder rule, both would have a perfect, textbook case of reasonable doubt, and no murder conviction may issue. And yet, obviously a murder was committed.

So, the felony murder rule is a good one.

The complication comes in because the Supreme Court has ruled -- in error, I think -- that while the felony murder rule can be used as a basis for conviction, it cannot serve as a basis for death penalty sentence. They have ruled -- again, in error, I think -- that only those persons directly, provably culpable in the murder can get the death penalty.

(Actually, I'm simplifying-- you can get the death penalty for felony murder, but only if you can be proven that you intended the victim be killed (i.e., you agreed that the killing should happen, or otherwise blessed it) or you were both a "major participant" in the underlying felony and acted with reckless indifference to human life). Both of these are very hard to prove, much harder than proving the usual felony-murder case, so the Supreme Court has strongly limited the application of the death penalty in felony-murder cases.)

At any rate: It does not appear true as Scheck said, except in a technicality sort of way, that there is "no evidence" against Jones except his accomplice's say-so. There are eyewitnesses to the fact he was part of the robbery. He was seen entering and exiting the place.

But he's right in that Texas law requires evidence, besides accomplice say-so, to get the death penalty (a very wise and hygenic rule, I think) and apparently there was no evidence besides accomplice testimony proving him as the actual shooter except the hair on the victim's body which was supposedly his (but which in fact wasn't his).

However, that is a much thinner and technicality-oriented case. I agree that you should have more evidence than accomplice say-so (notoriously a font of perjury) to convict a man of the death penalty (or, really, even most crimes).

On the other hand, I disagree with the Supreme Court's attempt to radically reduce the applicability of the death penalty in felony murder cases.

On the basis of what I think the law ought to be -- there would be additional evidence to convict him on felony murder, and thus to impose the death penalty.

But based on what the law actually is, it seems in this case they can't impose the death penalty without proving that Jones actually fired the killing shot, which they can't, really, and so he shouldn't have been convicted.

This last bit -- that it's nearly impossible to say with any certainty whether it was Dixon or Jones who killed the guy -- is the whole reason for the felony murder rule in the first place. And the Supreme Court was basically just excluding a ton of murders from death penalty consideration by imposing their additional rules on it.

Based on all this:

1) Commenters were right about this being more of a technicality-type case than I thought.

2) Scheck is making greater claims here than the situation warrants -- something I had previously credited him for not doing. That is, I thought generally he did not make technicality-based claims. Here he seems to be. He has just forfeit a lot of the confidence I had in him.

3) Both the MSNBC headline and the one I wrote do follow in this error of overstating the case here. I always said in the post I thought the man was guilty, but shouldn't have been executed, because lacking that additional evidence, the death penalty should not be imposed. (Again, I stand by that-- accomplice testimony is so weak as to almost not be worth presenting it in court, and if you are presenting it, if you've got so little you have to rely on that, that's a good indicator you have a weak case and ought not be seeking the death penalty in the first place.)

But... I have never agreed with the Supreme Court on its rule against the death penalty in felony-murder situations. I can see some reason for a safety hatch (some accomplices are much less culpable than others), but if someone wishes to evade the rule they should have to put up an affirmative defense demonstrating they are relatively innocent of the murder. (Like, they didn't bring a gun themselves and actually tried to avoid killing.) They should have the burden of proving that; the state shouldn't be forced into the tough position of having to prove which among three or four perpetrators who actually killed the victim.

As the saying goes: You bought the ticket, enjoy the ride. On top of that, I can make a damn fine case that anyone committing a major felony with weapons is already acting with "reckless disregard for human life," because, seriously? Dude, you really think you or one of your buddies isn't going to start shooting people if the intended victims exercise their legitimate and lawful right to self-defense?

You know there's a good 30-50% chance people are going to get shot when you do a heist. Those percentages are way higher than are usually necessary to prove reckless indifference.

So that last bit makes this a technicality situation for me -- both men are guilty of felony-murder. That case is easily made. This bit about the hair... that only impacts making a standard murder case, which, in my opinion, should not have to be made here at all.

Two men went into the store, shots were fired, a man is dead, there are no living witnesses to the crime except the perps. They're both guilty of felony murder and, to my mind, both eligible for the death penalty. Let both make their cases to the jury that they were not the triggerman, let them prove their innocence of the actual slaying in the penalty phase... but don't require the state prove which among them killed the guy. We know one did. We know both intended an armed robbery in which murder was a likely consequence. It's difficult to prove which one did it, which is the whole reason for the felony-murder rule in the first place.

Scheck Further Eroding The Confidence I Had In The Innocence Project Not Two Hours Earlier: Scheck avoids blaming Bush -- going out of his way to do so -- but then pins blame on Bush's staffers, who, he asserts, did not communicate to Bush that Jones was seeking a DNA test to prove his innocence.

The system failed, Scheck asserts.

But did it?

Jones' appeals were rejected in October by the U.S. Supreme Court but the inmate Thursday filed, and later asked to withdraw, an 11th-hour state court plea seeking DNA testing of evidence. He made no clemency request to Gov. George W. Bush, who had authority to grant him a 1-time 30-day reprieve.

The link doesn't say the guy also didn't request a reprieve -- it just says he didn't request clemency -- but unless I hear otherwise I'm taking that to mean he made no requests for delay for the DNA test.

That being the case, how did the system fail?

Let me tell you, and Scheck, the reason a lot of guilty criminals don't request the DNA test:

Because they know they're guilty and they assume the test will confirm that.

In this case, the hair turns out to have not been Jones', but the guilty mind, of course, would know that it probably would turn out to be his, right? So he doesn't bother with the request. Why delay the inevitable and all that.

So by now I have completely reversed myself. This was always more of a technicality-type case than it was sold to me as, and furthermore, it appears the defendant, who really is in the best position to know if he's guilty or not, didn't even bother asking Bush for a 30 day reprieve to conduct the test.

The guilty man decided he was guilty and that any further testing would likely confirm that and went to death without so much fuss and bother.

And this is the work-product the Innocence Project is pushing out to the media in press releases and press availabilities?

Okay, well, enjoy the cooked-up agitprop, Barry. A mere two hours ago I was a supporter and now I am an opponent. Hope it was worth it.

Even Worse Now: Wow, this story was utterly misrepresented.

I assumed that Jones and Dixon went into the store together -- thus the difficulty in saying if it was Jones or Dixon who shot the victim.

Turns out, no, the eyewitness says it was just Jones who went in.

Thus, there always was additional evidence, apart from the hair, to convict Jones.

Not the strongest case in the world, all told, but it does in fact satisfy Texas' standard that there must be additional evidence, beyond accomplice say-so, to secure a death penalty conviction. There was in fact "additional evidence," beyond the hair.


The other day I was thinking about bluefin tuna. Instapundit linked an article indicating they were overfished and in danger.

It occurred to me that what we really need is a conservative-run environmental group. Why? Because I just don't believe environmentalists. I think they have agendas and etc. I think they make stuff up to advance those agendas.

On the other hand-- I don't want the bluefin tuna to be overfished. Not because I love the fish (it's just a fish) but because, well, we want these guys to remain on earth in good numbers.

In other words, I support environmental goals -- I just have no faith in the people pushing this crap on me. I want an honest broker who can tell me things, after expert analysis, stuff like, "The snail darter isn't in danger but the bluefin tuna is, so yes, take that latter report seriously. Ignore the claims about the former."

I just saw a petition calling for the end of commercial whaling, because one type of whale is about to go extinct. Is that true? If it's true, I care. If it's not true -- well, honestly, I still care, because I'm not a fan of whale-hunting even if they have nice healthy numbers, but it wouldn't be something I would think should be addressed by a major push to get Iceland and Japan to stop whaling.

Again, I need an honest broker. Someone watching out for this stuff who isn't going to give me a big snowjob.

I had thought Barry Scheck was performing that important function with his Innocence Project.

Now I see my faith was misplaced.

Again, hope the one-day story was worth it, Barry.

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posted by Ace at 01:30 PM

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