Sunday, April 27, 2008

The Capital Murder Decision

Harris County has long been synonymous with being the "Death Penalty Capital of the World" and it has always been pretty much the center of every debate on capital punishment since the 1970s. Couple that in with the fact that Mr. Kathryn Kase (AKA Jeff Cohen) is the Editor of the very anti-death penalty Houston Chronicle, and it seems like the District Attorney's Office will always be destined to be portrayed as more blood-thirsty than those it puts on Death Row.

This piece isn't about whether or not the Death Penalty should exist. Former District Attorney Johnny Holmes once told me that there was no point in ever debating the death penalty, because it is too much of a part of a person's moral and religious values to ever change a mind. If you believe in it, then you will, most likely, always believe in it. If you oppose it, you will always oppose it.

But have you ever wondered what goes into the decision-making process behind a capital murder case in Harris County, Texas?

Like almost all other cases, a capital murder is first presented at D.A. Intake. Homicide investigators come in and present the case to a District Court Chief or above for acceptance. Only a person who has attained the rank of District Court Chief or higher has the authority (according to the Operations Manual) to even file a charge of Capital Murder.

And when they do so at Intake, they are simply deciding whether or not the elements of the offense of Capital Murder have been met, and whether or not the case can be proven.

For those of you who don't know, not every murder is a Capital Murder. To be a Capital Murder, it must be one or more of the following:
1. A murder in the course of committing another enumerated felony (such as burglary, robbery, sexual assault, kidnapping, etc.)
2. A murder of a police officer or fireman in the line of duty.
3. A murder of a child under 6 years of age.
4. A murder of another for money.
5. A multiple murder

There are a couple of others, but those are the main ones.

When a Capital Murder is filed at Intake, there is no decision made at that time about the appropriate punishment that should be sought. The case is simply filed and it lands in a court. Once it is there, the Chief Prosecutor of the Court will handle it in most cases (sometimes a "higher up" may actually be the one handling the case).

The Chief Prosecutor will spend the next 90 days working on the case, and will go over it with a fine-toothed comb. The offense report is read multiple times over. The scene photos and videos are reviewed. The autopsy report and photos are reviewed. All statements are read and noted.

If a Defendant has priors, the prosecutor won't just order the Judgment and Sentence reflecting the conviction. They will order the offense report, the old file, and everything else that they possibly can to understand what happened on the prior offense. They often pull the Defendant's school records if he is young. They will talk to the victim's family members and discuss their feelings about the case. They will look at the offense itself and decide how bad the facts of the case-in-chief are. Sadly, in this day and age, a capital murder during a convenience store robbery doesn't really "shock the conscience" like it used to.

The Chief will also talk with the defense attorneys about things that might mitigate, or lessen the Defendant's personal blame-worthiness in the case. Was the Defendant abused as a child? Did the Defendant have a low IQ? Are there any mental issues that might tend to explain what is going on? Was there some form of provocation behind the murder?

Once all of this information has been gathered by the Chief Prosecutor, it becomes his or her duty to write up a "Capital Murder Report", which details the offense. It will contain a detailed narrative of the offense. It will also have a list of "aggravating" factors that might make the case more egregious. It also has a list of the mitigating factors that should be considered as reasons why death should not be sought.

When the Chief has finished the Capital Murder Report, he or she will write a recommendation as to how the charge should be presented to the Grand Jury. Perhaps it shouldn't be a capital. Maybe it should be indicted as a regular murder or even an Aggravated Robbery. Whatever the case may be, they hand-write their recommendation. Although I have heard other Divisions may do it differently, I always included whether or not I thought it should be a non-death or death case at that time. Some say the decision is made a little further down the road.

Once the Chief Prosecutor has made their recommendation, they take the form to their Division Chief, who is usually a prosecutor that has been at the Office over 15 years and has a good feel for what cases are worthy of seeking the death penalty on versus those that are not. They write down their recommendation as well. The Chief Prosecutor and his or her Division Chief then travel to the 6th Floor where they meet with the Bureau Chief of the Trial Division (currently, that would be Lyn McClellan). They review the case with him, and he writes his recommendation.

The Chief, the Division Chief, and the Bureau Chief (this is starting to sound like the Wizard of Oz, now, isn't it?) then travel down the hall to meet with the District Attorney. He reviews the summary and sometimes there is discussion and sometimes the summary is enough. Obviously, the District Attorney has the final say-so in how the charge is filed, and whether or not to seek death.

So, for those out there who believe that prosecutors at the Harris County District Attorney's Office yell out: "Yee haw! Get the gurney ready!" every time a capital murder charge is filed, please rest assured that there is a lot more to it than that.

Mr. Holmes once told me that in making the decision whether or not to seek death on a Defendant charged with Capital Murder, he asked himself the question "would 12 reasonable minds agree that a Defendant deserved to die for what he had done". If you look at how many people were sent to death row during the Holmes administration, it would appear that the man's assessment of those 12 "reasonable minds" was usually pretty accurate.

A senior prosecutor told me that in his mind, the standards at the Office are whether or not the Defendant's actions "shock the conscience". Perhaps the facts of the case-in-chief shock the conscience, or perhaps a Defendant's violent criminal history does. The more the Defendant "shocks the conscience", the more likely the State will seek death.

One last note before I turn this over to the commenters to blast me.

Although the Chronicle likes to make a big deal out of how many people Harris County sends to death row, they seem to pay very little attention to those capital murders where the State does not seek the death penalty. Now, I know that Mr. Kase, uh, Mr. Cohen has his agenda, and portraying the D.A.'s Office as being the slightest bit reasonable would not help his agenda, but the vast majority of Capital Murders are "non-deaths". They get tried with little to no fanfare on an almost weekly basis.

For those who oppose the death penalty, I know that there is no such thing as a case that would change your mind. However, for those who do agree with it, or are, at least, willing to consider it the Conscience Shockers are going to be the only ones on the table for consideration of lethal injection.

Those cases where death is sought are truly the ones that "shock the conscience".

15 comments:

jigmeister said...

A short story about the death decision under Johnny. I once had a police officer shooting that garnered a great deal of press. After reviewing all of the facts and punishment evidence, I came to the conclusion that it did not merit seeking death. However, the office got inundated with petitions requesting that death be sought.

Johnny told me to try the case for death, telling me that we owed it to the police to do the best job we could. I told him that I couldn't do that in good conscience because the defendant didn't deserve it. I could try the guilt phase, but not the punishment phase.

Another prosecutor working the case with me disagreed with me on the punishment decision and agreed to handle the punishment phase if Johnny agreed. He did and we tried the case. When the jury returned with guilty, I left and the punishment phase was tried without me. The jury returned with a Life sentence.

You might think that I would have suffered repercussions from my decision. On the contrary, Johnny congratulated me and told me that he was proud of my stand.

I really miss him.

Anonymous said...

I like your story jig.

It's been my experience that if you were a HC prosecutor who wasn't willing to charge someone with the max, even if it wasn't possibly merited, then you were seen as a word that rhymes with wussy. Maybe Holmes didn't do that to you, but it is part of the ethic at the office.

It's just the attitude with some of the folks there. And part of that comes from the Holmes philosophy of we are just the prosecutors doing what the legislatures want us to do.

My biggest problem with the death penalty is the toll it puts on the jurors and the attorneys involved. All cases are hard on you if you are a human being. Death penalty cases are especially hard.

(Problem A1 with the death penalty is the crime lab issues, and the desire for juries to punish when the crime is bad but the evidence is kind of iffy. People go to jail all the time in cases where I believe there is reasonable doubt. Reasonable doubt is a hard thing for juries to hang their hat on when the crimes are disgusting.)

Anonymous said...

I like your story jig.

It's been my experience that if you were a HC prosecutor who wasn't willing to charge someone with the max, even if it wasn't possibly merited, then you were seen as a word that rhymes with wussy. Maybe Holmes didn't do that to you, but it is part of the ethic at the office.

It's just the attitude with some of the folks there. And part of that comes from the Holmes philosophy of we are just the prosecutors doing what the legislatures want us to do.

My biggest problem with the death penalty is the toll it puts on the jurors and the attorneys involved. All cases are hard on you if you are a human being. Death penalty cases are especially hard.

(Problem A1 with the death penalty is the crime lab issues, and the desire for juries to punish when the crime is bad but the evidence is kind of iffy. People go to jail all the time in cases where I believe there is reasonable doubt. Reasonable doubt is a hard thing for juries to hang their hat on when the crimes are disgusting.)

DWL said...

There is so much unchecked discretion here in making this decision. Indeed, the whole system of checks and balances seems not to be in play when it comes to the charging discretion of the DA. I think there should be some sort of review board to approve or veto the decision to prosecute a capital murder as a death penalty case. Years after Furman, there is still so much arbitrariness in the application of the "worst of the worst" standard, both within and among jurisdictions.

Ron in Houston said...

Not to disagree with Mr. Holmes, but I've always been pretty wishy washy on the whole death penalty question.

On one hand, given the right case, I could see myself as a juror giving the death penalty.

On the other hand, being a lawyer, I see so many flaws in the system, that you know that we're likely executing innocent people.

jigmeister said...

Anon,
I think you are wrong about the capital charging process for the following reasons. As Ahcl indicates: A chief reviews for sufficiency of evidence at intake. (Chiefs normally have 7 to 10 years experience). That decision is reviewed at the probable cause hearing by the magistrate, then reviewed by the chief in the receiving district court by that chief as well as the devision chief. And probable cause is reviewed by the district judge, again normally within 48 hours. It is necessary to do it that way under Texas law to insure that those who commit capital murder have no bond eligibility. And of course, at that point no decision on punishment has been made and any charging decisions can be reversed or changed and have been.

The indictment/punishment decision phase is where you want additional review, if you believe it is insufficient.

And don't misunderstand my story. My problem wasn't with the death penalty generally, but in that case I felt it was not warranted.

Today I do have some reservations about using the death penalty for everyone eligible under the law because the extreme expense and time involved (usually around 15 years) doesn't benefit the public enough to justify it. Sometimes, however, there are cases where the crime or criminal does send that case over the expense/benefit line.

I think Ron's concerns need some addressing because all decisions made by humans are subject to mistake. Though mistakes on actual innocense are far far more rare than the media portrays. In my own mind, I haven't been able to come up with a satisfactory scheme that takes out the human bias or mistake factor.

Non-Harris Co. Prosecutor said...

AHCL,
Thanks for setting out the decision-making process for Harris County. Folks on the outside looking in think that we all get giddy over the prospect of seeking the death penalty. On the contrary, I find it to be the most agonizing decision I have to make as a prosecutor. I personally detest coming to the realization that someone deserves the ultimate penalty. However, every time I have reached that conclusion, after having gone through all of the steps similar to those that you set out, I have been very comfortable standing in front of a jury asking them to give it.

A Harris County Lawyer said...

DWL,
Of course there is a "review board" to prove as a counter-balance to the District Attorney's Office decision to seek death.

It's called a jury.

The law "presumes" that a life sentence is warranted by the nature of the wording of the Special Issues that a jury must decide.

I understand and I can sympathize with anyone's opposition to the death penalty. I really do. Part of me feels that it is a very scary thing that a government can dictate the termination of one's life. However, I've also seen plenty of cases where, to paraphrase Mr. Holmes, no reasonable mind can disagree with the sentence of death.

Anonymous said...

Jigmeister,

I remember the case you are talking about in your blog. Ironically, I even remember the defense attorney on that case. I agreed with you, but I also agree that sometime the jury has to make the call. We believe in the body politic and sometimes we should "punt" to them to make the decision.

AHCL,

There was a time when I was undecided on the death penalty. Then, there was the Eartmen (sp?)/Pena case. After that case I was no longer undecided. Some people just deserve death for their evil deeds. So, you can change your mind and I believe that most anti-DP would have done that if they watched one of those trials. As a parent, I would never recover from something like that.

DWL said...

AHCL,

But Juries are only presented with one case. How are they to know how their case compares to all of the other cases that are charged as death penalty cases and all those that are not charged as death penalty cases?

Without that knowledge, I imagine that juries would have voted for death sentences in many of those cases that your office chose not to try as death penalty cases. Why? Because murder is always terrible. It always leaves horrible things in its wake. When you are a citizen who has little exposure to violent crime prior to your service, it is difficult to get the seasoned sense of perspective that those who regularly review these cases have.

So if we are truly going to mete out this punishment in a way that has any semblance of fairness, we need to ensure that there is a consistency to the kinds of cases that are charged in this way. I'm not comfortable giving that power to the DA without any kind of review by those who have an independent, comprehensive knowledge of violent crime. DAs have that knowledge, but they are fallible; they are subject to pressure from a 'tough on crime' electorate; and, as recent history has shown, they may have biases. Why would some sort of check on their power in this regard be a bad thing? It seems pretty cost free to me...

jigmeister said...

DWL
"without any kind of review by those who have an independent, comprehensive knowledge of violent crime." Kinda sounds like you suggest a panel of homicide detectives.

Seriously though what your suggesting in terms of consistency across state or national lines requires at least a state review board or legislative action. The last thing victims need is something that slows the system down even more. Keep thinking though.

DWL said...

Jigmeister,

So speed should trump fairness? I don't subscribe to the idea, popular for over a decade now, that the criminal justice system is a zero sum game between victims and defendants. Fairness and due process for a defendant is not mutually exclusive to fairness and due process for a victim's family.

I was thinking more along the lines of civilian review boards that exist to hear civil rights violations claims... a board that represents the diversity of Houston.

jigmeister said...

I have no problem with a civilian board to review civil rights claims, ie. police shootings, but not for prosecutorial discretion in the death decision for capital murder. Two different animals.

Perhaps an internal review committee like LA or Austin uses where a rotating number of experienced DAs reviews the decision of the trial prosecutor and division chief and makes an independent recommendation on punishment/indictment to the DA.

jigmeister said...

I see the Chronicle and Lisa Falkenberg had a ridiculous article about how racist HCDA has been in the application of the DP. I read it and re-read it and can't figure out how their numbers show any racism or racial disparity. Anyone else figure it out??

Anonymous said...

I was on Jury Duty in the last couple of days in a criminal court. Now I want to learn more about the system and this page is great. Thanks for putting this information in the hands of the people in the Harris County.
Regards,
AM