Will the U.S. Finally End the Death Penalty?

In the past, abolition efforts have faced a backlash—but Gavin Newsom’s moratorium may be different.
The American death penalty is extraordinarily fragile, with death sentences and executions on the decline. Public support for the death penalty has diminished. The practice is increasingly marginalized around the world. California, with its disproportionately large share of American death-row inmates, announces an end to the death penalty. The year? 1972. That’s when the California Supreme Court declared the death penalty inconsistent with the state’s constitutional prohibition of cruel or unusual punishments—only to have the death penalty restored a year later through popular initiative and legislation.
On Wednesday, again, California walked back its commitment to the death penalty. Though not full-fledged abolition, Governor Gavin Newsom declared a moratorium on capital punishment lasting as long as his tenure in office, insisting that the California death penalty has been an “abject…

Does Parkland shooter, a ‘broken child,’ deserve death? The legal battle looms

Nikolas Cruz
When, just two days after the 17 killings at Marjory Stoneman Douglas High School, accused school shooter Nikolas Cruz's legal team offered to plead him guilty, right then and there, if prosecutors would waive the death penalty, that giant gasp you heard was the breath of South Florida defense attorneys.

Publicly admitting your client did it is not exactly conventional defense strategy, especially when the “it” is 17 counts of murder. And if the bold public attempt at a plea bargain gets turned down — as most legal observers expect — some attorneys think it may damage Cruz’s defense.

“In a case this serious, nothing should be waived or agreed to at such an early stage,” said Miami defense lawyer Philip Reizenstein. “Admitting he committed the act is one step removed from saying he 'knowingly' killed those children. And that would damage an insanity defense.”

But longtime Broward Public Defender Howard Finkelstein, who offered the plea deal, says he’s just being realistic.

“This is not a whodunnit,” Finkelstein told the Miami Herald. “There’s 120 witnesses who saw him do it. These are witnesses who know him. They went to school with him. What am I going to do, say I’ve got a secret witness who’ll say the real killer was hiding inside the bag with the guns? …

“This isn’t Mr. Mustard in the library with the candle. This is trial with real people as jurors who see reality as it is.”

Finkelstein said the terms of the plea bargain — 17 consecutive life sentences without possibility of parole — would keep Cruz behind bars forever while sparing the victims and the community a trial that might not take place for years, not to mention even more years of appeals.

And, of course, he wants to keep his client off Death Row. “That’s my job, to save his life,” Finkelstein said.

Not unheard of

While unorthodox, quick guilty pleas — in the face of a potential death sentence — are not unheard of in South Florida criminal court.

In 2011, a Miami drifter named Reynerio Alonso Rivero pleaded guilty to second-degree murder for the stabbing death of a West Kendall woman. He agreed to life in prison, less than one month after his arrest, before prosecutors could indict him for first-degree murder.

The victim's family, wanting closure and to avoid years of hearings and appeals, agreed to the plea, which spared Rivero from a possible death sentence. “This is the best way to preserve Mr. Alonso’s life,” his lawyer, Patrick Nally, said at the time.

The quick-draw approach didn't work, at least at first, in the case of Miami's Nelson Santoni. Four years ago, Santoni tried to plead guilty and take a life sentence, just one month after his arrest for the drug-fueled strangulation death of his neighbor. But a Miami judge refused because the next of kin had been unable to attend court hearings.

Florida school shootingAn appeals court later agreed, saying Florida rules do “not permit a defendant to unilaterally dictate when the trial court can accept a plea.” In the end, though, Santoni got the outcome he was hoping for. Last year, prosecutors agreed to waive the death penalty and he was indeed sentenced to life in prison.

The likelihood of that working out for Cruz, though, is small, most South Florida legal experts agree. The prosecution will be watched closely, not just in Florida but across the entire country, and Broward State Attorney Michael Satz may handle the case himself. Friends and foes alike regard him as a fierce prosecutor.

“Mr. Satz's office has a reputation of taking a hard line in plea negotiations,” said South Florida criminal defense attorney David Weinstein, a former prosecutor. “Whether facing a misdemeanor or a life felony, his plea offers are among the toughest in the state, especially in cases involving identifiable victims.”

And even if Satz were inclined to be forbearing, there would be pragmatic difficulties for a plea bargain that excluded the death penalty. Among the biggest: Prosecutors almost always want the victims’ families to agree to such a deal. “It’s not a legal requirement, but it’s a practical one,” agreed Finkelstein. “And it’s a moral one.”

Consulting with survivors

For a prosecutor to secure that agreement from the survivors of one murder victim can be difficult. To do it with 17 families, plus the surviving victims, becomes a task of Herculean proportions.

Satz must also consider the deal’s long-term implications for death-penalty prosecutions.

“The problem for Satz is that if he agrees to waive death on a case where 17 innocents are slaughtered, he can never ask for it again,” said retired Miami-Dade major crimes prosecutor Abe Laeser. “Every future case would include the phrase by the defense: ‘If Parkland did not deserve death, how dare they even ask on my client?’”

“Sometimes prosecutors need to take a case to trial for reasons of future equity. Accept the guilty plea — then ask a jury to make the tough call.”

Satz has yet to make a definite response to Finkelstein’s plea offer, telling reporters that “now is the time to let the families grieve and bury their children and loved ones.”

But he pointedly added: “This certainly is the type of case the death penalty was designed for. This was a highly calculated and premeditated murder of 17 people and the attempted murder of everyone in that school.”

Inheritance a question

Finkelstein’s plea offer may not remain on the table for long. Cruz would be in line for a substantial inheritance from his dead parents — perhaps as much as $800,000. If he’s able to access the money, Broward Circuit Judge Elizabeth Scherer may require Cruz to hire his own attorney rather than rely on the public defender’s office, which would knock Finkelstein off the case.

Nikolas CruzWhile Finkelstein understands criticism of his plea offer, he rejects the claim that he might have damaged Cruz’s chance to try and claim that he was insane at the time of the crime.

“Three or four years from now, in a trial, the jurors are going to be talking about what the mental health experts had to say, not about something I said to the Miami Herald years earlier,” Finkelstein said.

The insanity defense would be a tall order. While Cruz had a long history of mental illness — he was diagnosed with autism and attention deficit and hyperactivity disorder — an insanity defense would require proving he did not know right from wrong at the time of the shooting. And Cruz’s spree was calculated and methodical. He brought extra ammunition, fired over a hundred rounds and planned his escape by blending in with escaping students.

Still, odder things have happened. “John Hinkley shot President Reagan on TV. Everyone saw it,” said Reizenstein, the Miami defense lawyer. “Twelve jurors in D.C. found Hinkley not guilty by reason of insanity.”

Cruz’s tormented life story would probably be more crucial at a sentencing.

He could plead guilty to the crimes and proceed to the “penalty phase” of the trial — 12 jurors would then be tasked with deciding whether he should be executed for the murders, or instead be sentenced to life in prison. Jurors would still hear the gory details of the crime, along with anguished testimony from relatives of the dead.

They would also hear about Cruz’s life, dissected in detail: how he was adopted as a child along with his brother, about the death of his parents, his history of lashing out at teachers, threatening fellow students and preening with guns on social media.

‘Broken child’

From the day of his arrest, his legal team has told the media that Cruz is a “broken child” whose troubling behavior should have stopped any number of times in recent years.

Nikolas Cruz
Given the magnitude of the case, the Broward Public Defender's Office was wise to quickly begin talking publicly about Cruz's mental-heath woes and troubled past, according to legal experts. Even if Cruz's sentencing doesn't happen for years, it helps to have Cruz's narrative out amid changing softening attitudes about the death penalty.

One case Cruz can look to: that of James Holmes, the mentally ill shooter who dressed in black and shot up a Colorado movie theater in July 2012, killing 12 and injuring 70. Three years after the shooting, a jury heard testimony on his mental state and could not agree on the death penalty. Holmes was sentenced to life in prison.

And in Florida, under recent changes in the law, jurors must be unanimous in meting out the death penalty. All it takes is one juror to reject the death penalty. Then, Cruz, too, would get life.

“There is much greater awareness of mental illness than there used to be,” said Stephen Harper, a former Miami-Dade public defender who now teaches about capital litigation at Florida International University. “If someone is truly, provably mentally ill, I think juries are more reluctant to give them the death penalty.

Source: Miami Herald, David Ovalle, Glenn Garvin, February 22, 2018

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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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