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America Is Stuck With the Death Penalty for (At Least) a Generation

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With Justice Anthony Kennedy's retirement, the national fight to abolish capital punishment will have to go local.
When the Supreme Court revived capital punishment in 1976, just four years after de facto abolishing it, the justices effectively took ownership of the American death penalty and all its outcomes. They have spent the decades since then setting its legal and constitutional parameters, supervising its general implementation, sanctioning its use in specific cases, and brushing aside concerns about its many flaws.
That unusual role in the American legal system is about to change. With Justice Anthony Kennedy’s retirement from the court this summer, the Supreme Court will lose a heterodox jurist whose willingness to cross ideological divides made him the deciding factor in many legal battles. In cases involving the Eighth Amendment’s prohibition against cruel and unusual punishment, his judgment often meant the difference between life and death for hundreds of death-row pr…

Utah: Capital punishment system unfair to defendants and attorneys

Court room
When asked if I would be willing to represent a Utah death-sentenced inmate, Floyd Maestas, I said absolutely not. I was well aware of the emotional, physical and financial toll the representation would place on me and on my practice. Yet I eventually agreed because I believe those on death row deserve good representation.

Floyd insisted he was not there during the murder, even though at trial 2 eyewitnesses placed him there, his fingerprint was at the scene and there was DNA under the victim's fingernails. But I took my charge seriously and worked feverishly to find evidence of innocence.

The United States Supreme Court has consistently held that post-conviction lawyers must diligently scour the evidence, investigate the case for innocence, and search for any evidence that could "mitigate" or reduce a defendant's death sentence. These efforts have resulted in the reversal of death sentences around the nation, where innocent people have been exonerated.

Given a shoe-string budget of $30,000, our investigators discovered serious evidence to support Floyd's innocence. This included a letter from 1 of the eyewitnesses, saying he and his friend framed Floyd and that his friend was the real murderer. The DNA "match" was not a match at all, but a Y-chromosome test that would match 421 of 591 Hispanics, Floyd's race. Our fingerprint expert also believed there were serious problems with the fingerprint identification.

We discovered a very traumatic family history. Floyd was raised in the ghetto in a cardboard house with no running water. His father froze to death from alcoholism and 2 of his siblings were murdered. As a boy, Floyd held his dying sister in the living room after her boyfriend stabbed her. A few days after Christmas, police found 13-year-old Floyd passed out on the street from extreme intoxication.

Before his trial, all but one expert concluded Floyd was intellectually disabled, a finding that prohibits his execution. While the judge sided with the one expert at trial, even that expert has now indicated that under newer diagnostic criteria, he also believes Floyd is intellectually disabled.

But we were out of money and time. I had exhausted our limited budget. My investigators had fronted $17,000 of their own money for evidence and the court would not reimburse them. They told me that they could no longer work on the case. I still had not read all Floyd's file given its enormity and asked the court for more time. The request was denied.

The court denied funding for almost all of my work, resulting in around $100,000 of losses. My co-counsel has never been paid for hundreds of hours of donated time. I had to put my expenses on credit cards and my wife took a 2nd job. The stress culminated when I woke in the night feeling chest pain and ended up in urgent care. My doctors believed the heart stress was related to the case and asked me to withdraw. I asked the court to let me off and was denied. In desperation, I reached out to the American Bar Association, who located a large firm who was willing to assist on the case on a pro bono basis.

In capital cases, states provide counsel to the lowest bidder and encourage attorneys to do little work and then get out. And courts don't fix the problems either. They have refused to find that a defendant was deprived an effective attorney, even if he sleeps or is drunk during trial. In my case, the state believes my client has no right to an effective attorney at all and that he should be grateful they even gave him someone.

The system is full of errors. Since 1976, we have executed 1,452 nationally but exonerated 159, a shocking number for so serious a penalty. An astonishing 47 of 100 death sentences are reversed at some point. These reversals happen because of good lawyering, but this safety net is often lacking. Nationwide, public defenders work under enormous pressure, with massive caseloads and have seen little sign of reprieve.

Our capital punishment system is a charade. We provide a "defense lawyer" but either give someone with no experience or refuse to give the necessary resources to experienced attorneys. In Utah, a state with one of the lowest death penalty populations in the United States, which has not executed a defendant since 2010, almost every attorney to take a death penalty case has suffered extreme personal loss. The result is a crisis-level lack of qualified attorneys willing or able to take on capital cases.

If we have the death penalty, we must commit to protecting the innocent from execution. We must also commit to adequately support the attorneys who are called upon to perform these difficult tasks.

Source:  Salt Lake tribune, Commentary,  Samuel Newton, November 3, 2017. Mr. Newton has been a criminal defense attorney since 2003. He has worked as a public defender in Salt Lake City, a professor of criminal justice at Weber State University and as a private practitioner focusing on criminal appeals and capital litigation


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"One is absolutely sickened, not by the crimes that the wicked have committed,
but by the punishments that the good have inflicted." -- Oscar Wilde

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