You just gotta love the Chronicle.
What other major city has a newspaper that writes an article and then actually pays a columnist to write her own version of what the article means? It's cute really. It's kind of like Lisa Falkenberg has the journalistic equivalent of an Easy Bake oven where she writes a little column that corresponds to what the grown-up article is.
Today's topic is about a recent study created by Scott Phillips, a University of Denver sociology and criminology professor, which analyzed those cases where Harris County sought the death penalty, broken down by race. (NOTE: I haven't seen the entire report (although I would very much like to), so I'm relying on what was reported in the articles for my article.)
An interesting idea? Absolutely.
The results? Probably rather disappointing to Mrs. Kase (I mean, Jeff Cohen).
Turns out that between the years 1992 and 1999, Harris County sought the death penalty on 27% of white defendants charged with capital murder, 25% of Hispanics charged with capital murder, and 25% of African-Americans charged with capital murder. As a white person, I plan to protest around the CJC tomorrow based on the 2% increase in my likelihood of getting the death penalty if I'm ever charged with capital murder, because clearly, it is based solely on my race.
The beautiful thing about statistics is that you can "statistify" pretty much anything. As a matter of fact, on the drive home today, I realized that out of the restaurants that I frequent, only about 2% of them start with a vowel. Yep, I discriminate when I eat. I frequent Burger King, Taco Bell, Chuy's, McDonald's, and Whataburger. I realize that I am clearly not frequenting Escalante's and Imperial Palace enough.
The above listed statistic is about as useful to you in your day-to-day life as Dr. Phillips' study on when the Harris County District Attorney's Office sought death on capital cases.
Don't get me wrong, I'm not faulting the study for being created. If the statistics had come out with something dramatic, like say, the State sought death on 60% of African-Americans charged with capitals, versus 15% of white defendants, that would have been extremely alarming.
Frankly, I'm glad that he did the study. But the results aren't likely what he was hoping to find.
The statistics end up showing that a white defendant is slightly more likely to have the death penalty sought against him or her than an African-American or Hispanic person.
Not that such information would slow down an intrepid journalist such as Pippi Longstocking. Her article ran under the headline of "Remedying unequal punishment". To support her mathematically illogical position, she notes that Phillips had somehow miraculously quantified those cases which were "serious" or "heinous". Phillips concluded that under the definitions of "serious" or "heinous", African-Americans were disproportionately sought out for the death penalty.
In a related note, it appears that Phillips studied statistics under Republican D.A. candidate Pat Lykos.
Look kids, if the criminal justice system was so easy that we could put a meaningful statistic on it, 95% of the attorneys would be out of jobs. Each case is different and complex. There is a difference between the convenience store robbery where the defendant panics and shoots the clerk and leaves, versus the one where he shoots the clerk multiple times and seems to be enjoying every last minute of it. There are countless factors that juries assess.
And speaking of juries, Falkenberg cites cases where the juries returned life sentences (even though the State was seeking death) as some sort of proof that the community was trying to somehow rectify the State's erroneous decision to seek death. I wonder if the Journalistic Genius figured into the equation that jurors come from all walks of life and just a single juror's refusal to give the death penalty will ultimately result in a life sentence via mistrial?
The bottom-line is that this study didn't come out the way that the death penalty abolitionists had hoped.
I don't blame people for being against the death penalty. I really don't.
What I have an issue with is trying to mix and adjust statistics to try and prove a point that they don't actually support.
For future reference, a little intellectual honesty would go a lot further with me.
Showing posts with label Death Penalty. Show all posts
Showing posts with label Death Penalty. Show all posts
Thursday, May 1, 2008
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".
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".
Sunday, January 20, 2008
Lakewood Church & Rick Casey
I woke up earlier than I usually would this Sunday morning in an attempt to watch the TV broadcast of Lakewood Church services that air at 10 a.m. I wanted to see what, if anything, was said about Kelly Siegler's comments. While I was waiting for the show, I took time to read Rick Casey's column which listed Kelly's comments as part of a three-part column bashing Republican disingenuity in our county officials.
I came to a conclusion: Backseat Drivers irritate me.
Casey's column cites the fact that the juror that Kelly struck off of her panel had listed that he was "in favor of capital punishment, except in a few cases where it may not be appropriate". Casey then argues by inference that Kelly would only want a juror who would be so strong on the death penalty that they would even give the death penalty where it was inappropriate.
For those of you out there who have worked on death penalty cases, you know that Casey is twisting things that he clearly doesn't know enough about. He's backseat driving just like his comrade Lisa Falkenberg likes to do in her articles.
Here's a pop-quiz for both Falkenberg and Casey:
1. In capital jury selection, what does the terminology "5/5", "1/1", or "4/3" mean?
2. Name one prosecutor or defense attorney who would accept a juror on a death capital based solely on their questionnaire, without interviewing them?
3. What keys on a court reporter's machine capture tone and inflection?
I've been involved with multiple capital murders over my career (NOTE: the term "involved" can mean a lot of different things, and I acknowledge that). I know that attorneys on both sides go through the numbers "5/5" through "1/1" first off before even reading a juror questionnaire. It isn't unusual at all for a questionnaire to not even be read at all, if they are a "5/5" and a "1/1". They usually become the victims of trades.
A prosecutor or a defense attorney would be absolutely incompetent if they accepted a person based on questionnaire only and didn't talk to the potential juror. I don't know how many of the seasoned attorneys are reading this blog, but I'd love to hear from you if you've tried a DP case. How many times has a juror that seemed to be a "2/2" ended up being a "5/5" or a "4/3" ended up being a "2/1" after individual voir dire? My point is that for those who have worked on these cases know that the questionnaire is often a good preview of what you are going to get when you speak to them, but it is (by no means) dispositive, is it?
Finally, a record is a flat recording of words. I've never read one that illustrated the tone of someone speaking while they were talking. It would be pretty damn funny if they did, because a record would read more like a romance novel.
Picture two situations:
#1 - A prosecutor asks the prospective juror "Can you consider the death penalty as an option in the appropriate case?" and the answer is an emphatic "Yes."
#2 - A prosecutor asks the prospective juror "Can you consider the death penalty as an option in the appropriate case?". The juror frowns and then takes a deep breath. Looks at the defendant, who is looking at him, and then looks down at their hands, before softly answering "Yes."
How do they both read in the record?
Q: Can you consider the death penalty as an option in the appropriate case?
A: Yes.
Until we get a transcript written by Danielle Steele, I don't know that you can properly catch the mood of what is going on through just a transcript.
After watching Lakewood Church this morning, I came away with a couple of conclusions.
#1 - Pastor Joel Osteen may be just about the best public speaker that I've ever watched.
#2 - the show made me feel good and it made me feel optimistic and good about my fellow man.
#3 - these feelings conflicted very much with my usual jaded personality.
#4 - I'd be concerned over whether or not this was the type of outlook I'd want on a DP jury.
Folks, the people of Lakewood are good people. Probably better people than I am. I'd gladly have them on the vast majority of my juries.
I just don't know how I would feel about putting them on a death penalty case. I'm much less ambiguous about whether or not I'd put Rick Casey on.
Sorry dude.
I came to a conclusion: Backseat Drivers irritate me.
Casey's column cites the fact that the juror that Kelly struck off of her panel had listed that he was "in favor of capital punishment, except in a few cases where it may not be appropriate". Casey then argues by inference that Kelly would only want a juror who would be so strong on the death penalty that they would even give the death penalty where it was inappropriate.
For those of you out there who have worked on death penalty cases, you know that Casey is twisting things that he clearly doesn't know enough about. He's backseat driving just like his comrade Lisa Falkenberg likes to do in her articles.
Here's a pop-quiz for both Falkenberg and Casey:
1. In capital jury selection, what does the terminology "5/5", "1/1", or "4/3" mean?
2. Name one prosecutor or defense attorney who would accept a juror on a death capital based solely on their questionnaire, without interviewing them?
3. What keys on a court reporter's machine capture tone and inflection?
I've been involved with multiple capital murders over my career (NOTE: the term "involved" can mean a lot of different things, and I acknowledge that). I know that attorneys on both sides go through the numbers "5/5" through "1/1" first off before even reading a juror questionnaire. It isn't unusual at all for a questionnaire to not even be read at all, if they are a "5/5" and a "1/1". They usually become the victims of trades.
A prosecutor or a defense attorney would be absolutely incompetent if they accepted a person based on questionnaire only and didn't talk to the potential juror. I don't know how many of the seasoned attorneys are reading this blog, but I'd love to hear from you if you've tried a DP case. How many times has a juror that seemed to be a "2/2" ended up being a "5/5" or a "4/3" ended up being a "2/1" after individual voir dire? My point is that for those who have worked on these cases know that the questionnaire is often a good preview of what you are going to get when you speak to them, but it is (by no means) dispositive, is it?
Finally, a record is a flat recording of words. I've never read one that illustrated the tone of someone speaking while they were talking. It would be pretty damn funny if they did, because a record would read more like a romance novel.
Picture two situations:
#1 - A prosecutor asks the prospective juror "Can you consider the death penalty as an option in the appropriate case?" and the answer is an emphatic "Yes."
#2 - A prosecutor asks the prospective juror "Can you consider the death penalty as an option in the appropriate case?". The juror frowns and then takes a deep breath. Looks at the defendant, who is looking at him, and then looks down at their hands, before softly answering "Yes."
How do they both read in the record?
Q: Can you consider the death penalty as an option in the appropriate case?
A: Yes.
Until we get a transcript written by Danielle Steele, I don't know that you can properly catch the mood of what is going on through just a transcript.
After watching Lakewood Church this morning, I came away with a couple of conclusions.
#1 - Pastor Joel Osteen may be just about the best public speaker that I've ever watched.
#2 - the show made me feel good and it made me feel optimistic and good about my fellow man.
#3 - these feelings conflicted very much with my usual jaded personality.
#4 - I'd be concerned over whether or not this was the type of outlook I'd want on a DP jury.
Folks, the people of Lakewood are good people. Probably better people than I am. I'd gladly have them on the vast majority of my juries.
I just don't know how I would feel about putting them on a death penalty case. I'm much less ambiguous about whether or not I'd put Rick Casey on.
Sorry dude.
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