I remember sitting in school in 7th grade, counting down the seconds to the execution of Caryl Chessman. I was not one of those who cheered when the clock struck the hour. I think even at that age, I was uncomfortable with the whole idea of the state killing someone. Today I’m against capital punishment for most situations, partly because I’m come to realize how incompetent the state and justice system usually are and that most punishment in this country, at least, has less to do with justice than it does with getting revenge.
This book has two stories: one the history of capital punishment in the United States; the second, the railroading of a minimal IQ black man in Greenwood, S.C. (why is it always South Carolina?) who was charged with the murder and rape of an elderly woman. The trial included perjury, incompetence and withheld evidence.
Charges for which capital punishment could be applied have changed drastically over the centuries. It used to be you could be put to death for stealing a loaf of bread or even marrying a Jew. Hangings were still public entertainment in the colonies and the Founding Fathers approved of it conceptually (Thomas Jefferson and Benjamin Franklin being opposed to it,) the eighth amendment provides interesting latitude in its application by the states. There is a movement in the legal community now to regard capital punishment as not so much cruel as “unusual” and therefore should be declared unconstitutional. Certainly, it’s become more rare, fewer and fewer states glorying in their toughness and celebrating their “frontier justice.” Michigan was the earliest to abolish it (1846) followed shortly thereafter by Wisconsin (1853,) Maryland being the latest (2013.)
The background of Elmore’s innocence project lawyers makes a fascinating story in itself. Diana Holt, for example, had been sexually abused by her stepfather, involved with drugs, done poorly in school, generally a mess, when she had something of an epiphany. She went to community college** where she got straight A’s followed by continued academic achievement at Texas A&M and then also in law school while raising children. According to her colleagues she was a tenacious investigator and brilliant at getting people to talk. She discovered all sorts of malfeasance in the prosecution of Elmore. For example, pubic hair samples linked to Elmore had been collected *after* he was arrested rather than from the crime scene. Exculpatory hairs, one being from a Caucasian collected at the scene, was never presented and later found in the back of a drawer. Holt worked on his case for 20 years, beginning first as an intern at the Center for Capital Litigation in South Carolina.
It should be noted that innocence is not grounds for overturning a conviction. Appellate courts look not at fact, but at errors of law. The dissent in Elmore v Ozmint reiterates that sad state. Justice Wilkinson writes that Elmore had been tried three times and been convicted each time. <i>My distinguished colleagues in the majority respond to the dissent with rhetoric and a protestation that they are not doing what in fact they are doing—overturning factual findings and credibility determinations of the state system that painstakingly heard the evidence in this case. But at the end of the day, our system is indeed grounded on facts and evidence. If the state courts had defaulted in their job, that would be one thing, but it is hard to find a case that received a more thorough review under the well-settled Strickland standard than this one did. Now, I suppose Wilkerson may be right aqs a matter of law. </i> Or, as Justice Scalia put it in Re Troy Anthony Davis, a writ for habeas corpus: <i>This Court has never held that the Constitution forbids the execution of a convicted defendant who has had a full and fair trial but is later able to convince a habeas court that he is “actually” innocent. Quite to the contrary, we have repeatedly left that question unresolved, while expressing considerable doubt that any claim based on alleged “actual innocence” is constitutionally cognizable.</i> (http://www.supremecourt.gov/opinions/08pdf/08-1443Scalia.pdf) Yet, it seems to me that innocence should trump just about everything and when trial courts engage in malfeasance, no matter how many trials someone has, shouldn’t exculpatory evidence best all else?
Justice is a concept everyone wants but is all too often defined as revenge rather than fairness. As of May 2014, 14,000 people have been executed in the United States and 3,000 remain on death row. It has been estimated that 4% of those executed were innocent. http://www.pnas.org/content/early/2014/04/23/1306417111 and more information at http://www.deathpenaltyinfo.org/innocence-and-crisis-american-death-penalty#ExSum
Highly recommended supplementary reading is the decision of the 4th Circuit Court of Appeals which could be found at http://www.ca4.uscourts.gov/Opinions/Published/0714.P.pd and this story in the Atlantic regarding the death penalty and Diana Holt: http://www.theatlantic.com/magazine/archive/2012/03/the-last-line-of-defense/308875/
** This is another example of why I am such an advocate of community colleges. They provide second chances for many people who would otherwise be lost to society. I know personally of several cases of women, divorced or deserted by their husbands, married too early, who held down as many as three jobs while raising two or more children AND taking a full load and making the Dean’s List beside. I had one student who got up at 3 a.m. to milk cows, took care of the kids, went to class, and then had an evening job as well. First rate student in her thirties.
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