Arbitrariness

The Council of the American Law Institute (ALI) recently voted to withdraw a section of its Model Penal Code concerned with capital punishment because of the "current intractable institutional and structural obstacles to ensuring a minimally adequate system for administering capital punishment."  The Council based its decision on a study it commissioned to look into the practice of the death penalty since the recommendations were made in the Model Penal Code.  The recommendations for how to make the death penalty less arbitrary had been adopted in 1962 and were cited by the U.S. Supreme Court in its 1976 opinion allowing a reformed death penalty to be reinstated.  Section §210.6  of the Code defines cases appropriate for capital punishment, aggravating and mitigating circumstances, and special sentencing procedures, and was intended to meet significant concerns regarding the practice.  This move essentially withdraws ALI from any attempt to fashion an acceptable death penalty because the system has proven to be unworkable.

Retired Federal Appeals Court Judge H. Lee Sarokin recently offered a harsh critique of the death penalty, especially challenging the botched execution attempt of Romell Broom in Ohio in September. Citing morality, arbitrariness, and the dim prospects of closure for the murder victims’ families, Judge Sarokin called the imposition of the death penalty an erratic and flawed process that should not be permitted to continue. “The system is too fraught with variables to survive. Whether or not one receives the death penalty depends upon the discretion of the prosecutor who initiates the proceeding, the competence of counsel who represents the defendant, the race of the victim, the race of the defendant, the make-up of the jury, the attitude of the judge, and the attitude and make-up of the appellate courts that review the verdict.“

Regarding Ohio's lethal injection process, Judge Sarokin said it would be unconstitutional to subject the defendant to a second execution attempt: “It is impossible to imagine what it must be like to know that you are going to be put to death, have numerous efforts fail, and then have to face the prospect again at a later date! If that isn't cruel and unusual punishment, I do not know what is!“ He continued, “Double jeopardy prohibits a person from being tried twice for the same crime. Should it not protect a person from being subjected to execution twice for the same crime?“ Read the entire article below.

A recent investigaton by the Fort Worth Star-Telegram uncovered a series of mistakes by medical examiners in Texas. “Medical examiners have goofed up eye color and gender. They’ve made mistakes on the locations of scars or tattoos, described gallbladders and appendixes that had long since been removed – even confused one body for another,” noted the story.  Webb County Chief Medical Examiner Corinne Stern was criticized for an autopsy she performed on an infant while she was working in Alabama. Her report indicated that the infant was suffocated, but other experts concluded “her finding was based on junk science and that the [baby] was stillborn.”  Following the experts' report, the capital murder charge against the baby’s mother was dropped.

In 2007, former Travis County medical examiner Roberto Bayardo recanted his original testimony that helped convict Austin baby-sitter Cathy Lynn Henderson of capital murder and placed her on death row for the death of a baby. Twelve years earlier, Dr. Bayardo had testified that the baby’s cause of death was from receiving intentional blows. His new testimony said it was unclear what had happened and Henderson may have accidentally dropped the child.  "The work of the medical examiner's office is just so slipshod," said Tommy Turner, the former special prosecutor who put a Lubbock medical examiner behind bars for falsifying autopsies.

The Texas Court of Criminal Appeals ruled on September 16 that death row inmate Charles Hood is not entitled to a new trial despite the fact that the judge and the prosecutor from his trial had been having an affair.  In a 6-to-3 decision, the court held that Hood should have raised the argument that the affair tainted his trial in earlier appeals of his 1990 murder conviction.  The court's decision reverses the findings of a district court that held Hood should be given a hearing on a new trial. The case has created concerns among several former judges, prosecutors, and legal experts who have said that it is impossible to know if Hood received a fair trail. "For the state of Texas to ignore undisputed evidence of an improper relationship that violated Mr. Hood's constitutional rights to a fair trial is inexplicable and a betrayal of justice," said Sam D. Millsap, former district attorney in San Antonio, Texas. "It is an irrevocable wrong to put a man to death when a cloud of uncertainty and misconduct looms overhead."  

Former death row inmate Michael Toney was freed from prison in Texas on September 2 after the state's Attorney General asked that his death sentence and criminal charges be dismissed.  Toney was sentenced to death for a fatal bombing in 1985 that occurred at a trailer park in Lake Worth.  He has always maintained his innocence, and there was no physical evidence leading to his conviction.  His conviction and death sentence were overturned by the Texas Court of Criminal Appeals nine months ago after it was revealed that the state had withheld critical evidence that might have led the jury to a different conclusion at his trial in 1999.  The attorney general took over the case after the Tarrant County district attorney's office recused itself in January because of the withheld evidence.