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0:00
LARRY SCHWARTZTOL: Thank you, everyone, for being here. I'm Larry Schwartztol. I'm the executive director of the Criminal Justice Policy program here at the law school, very excited to be hosting this event as part of the program. And this panel is going to be a discussion of capital punishment and the broader criminal justice system. And this is a topic that occupies the final chapter of Courting Death, which has a really fascinating discussion of this question.
0:34
And it's a discussion that looked backward and also looks forward. So it tells a story of the ways in which capital punishment has affected the broader criminal justice system, the way that it has distorted many of its practices and institutions. And it also looks forward and imagines, in a post-death penalty world, what the impact of that might be on the criminal justice system both from a policy perspective and also from the perspective of the politics of the criminal justice system.
1:04
And so we are really excited to be able to explore some of those themes with our panel this afternoon. And I will continue with the tradition of not giving full bios for our panelists. They're in your programs. But just by way of brief introduction, we are joined today by Brandon Garrett, who is the Justice Thurgood Marshall Distinguished Professor of Law at the University of Virginia, Bernard Harcourt, who's the Isidor and Seville Sulzbacher Professor of Law
1:36
and Professor of Political Science at Columbia University and a visiting professor at the Institute for Advanced Studies at Princeton, and by Kathryn Kase, who's the executive director of Texas Defender Service. We were meant also to be joined today by James Forman from Yale Law School who, unfortunately at the last minute, was unable to join us. But we are excited to jump into this conversation with the panel we have this afternoon. So I think we will hear first from Bernard.
2:28
BERNARD HARCOURT: Thank you. It's been a fascinating day so far. And thank you to Carol Steiker and Jordan Steiker-- hi, Jordan-- for writing this book. So I, too, wanted to launch off from the earlier article, "Sober Second Thoughts," that Carol Steiker and Jordan Steiker published in 1995 in the Harvard Law Review. In part because it is one of my favorites Law Review articles, but also because I think that it anchors this book in a very interesting way. So as you'll recall, back in 1995,
3:13
Carol and Jordan advanced a very-- it was a very provocative thesis. And the thesis was that the over- and the under-regulation of the death penalty in the United States very likely served to legitimate certain criminal justice practices and institutions in this country. So in other words, the liberal legal framework and all of the liberal legalism that was coming out of the Supreme Court surrounding the death penalty actually reinforced capital punishment in this country.
3:46
It is a fascinating theoretical insight. It actually drew on [? Vaber ?] and [? Gramsche ?]. It actually takes a page also out of Michel Foucault's Discipline and Punish in the sense that we have to think through failure not as if it's necessarily a failure, but need to figure out what are the productive things that are created? What are the productive effects of failures? And just in certain senses Foucault had refused to stop at the fact the prison was a failure,
4:17
and then turned that upside down to find out what-- if it was a failure, why have we had it for 150 years-- and why have we only had it for 150 years-- to look at what it was producing. And in this case, of course, he argued that it produced a docile body, a certain category of the delinquent as a means of distributing punishment, a way of accumulating men necessary for the accumulation of capital. Here, Carol and Jordan in '95 had turned our attention
4:46
to the productive effects, the unintended, unfortunate productive effects of capital punishment dysfunctionality. And, of course, what they argued was that because there was so much jurisprudence and technicity and technicalities, it had no effects, nevertheless people saw it as something that was legitimating the death penalty system and possibly the larger criminal justice system, as well. And you may recall from that brilliant article they wrote, you can't know that a thing is not
5:21
being done well until you know what it is that is being done. And it turned out that all of this legal structure was doing something well. It was making people feel comfortable with the death penalty. And so there was this question of legitimation-- is it making people feel comfortable with the death penalty or with the broader criminal justice system-- that we needed to investigate. Now at the time, in '95, they offered three levels of legitimation.
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They spoke first about an internal level of legitimation, the way in which the actors within the legal system perceive the system and their role within it. And of course, this is where Robert Cover's brilliant book Justice Accused comes into play. And also Robert Weisberg's brilliant article on "Deregulating Death." Then there was a larger issue of whether or not the fact that all of this existed kind of legitimated the criminal justice system a little bit at a larger level.
6:26
And this was what they called particular external legitimation, the way in which people in general view a practice, like the criminal justice system. And then there was a third level, which is the fact that some people might actually feel more legitimate about the whole political system as a whole. This was external legitimation, the way in which people in general view the social structure writ large. And in that case, they were, of course, much more speculative back in '95.
6:57
But there was some brilliant work done by Douglas Hay, a historian, about the way in which, for instance, the granting of mercy by the kings in England had actually legitimated the whole system. It made it seem as if it was much more of an acceptable system. The political system was more acceptable because they were granting mercy in these cases. Of course, I was always interested in that more speculative and larger claim. But it kind of hung out there.
7:28
And what I wanted to do is to come back to that theme two decades later, which is precisely what Carol and Jordan do in this book in a fascinating way. And given the title of this panel, which is about the broader criminal justice system, I thought that we could focus on that for a few minutes. Now, in the new book, Jordan and Carol take a different view of what's happened since '95, since the writing of that article. The book diagnoses the same over- and under-regulation
8:00
of the death penalty, a system that doesn't really work, that does a lot of work, but doesn't achieve anything. And they argue, as they did in 1995, that, quote, "The death penalty is perversely both over- and under-regulated." And again, they show that the jurisprudence that has been created is one that is so messy and so meaningless. But they take a different position on the legitimating effect over the past 20 years.
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As they did in 1995, they suggest that during that first death penalty period, during those first 20 years, the courts' regulation did inadvertently bolster the revived death penalty. So if you look at page 156, for instance, of their text, they say, "At first, the courts' regulation inadvertently bolstered the revived death penalty by promoting unjustified faith among justice system participants and the general public in the reliability and fairness of the process."
9:01
So that's very consonant with the earlier perspective on that earlier time. And on page 188, they do argue that this operates at the level of the institutional actors-- so that would have been level one in the earlier analysis-- and also at the level of society at large, so at a larger level, as well. But, they argue, all of this changed in the mid-1990s. And so on page 192, they argue that the legitimating effects of the death penalty, while powerful,
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eventually were undermined by a confluence of factors, not least of which was the discovery of numerous wrongly convicted inmates on America's death row. So a number of factors, beginning in the mid-1990s, in some sense changed the situation of legitimation in the death penalty context. And over time, they argued again somewhat unintentionally, as it had been earlier, this has contributed to the destabilization and diminution of the American death penalty. And, of course, that's the notion,
10:11
that the death penalty has been regulated to death, which is, I think, a really powerful argument. And, of course, it sets up, in part, the legal arguments that can be made today about the way in which the over-regulation and under-regulation has led to this destabilization, resulting in the fact that there are, as a result of wrongful convictions, lethal injection litigation, et cetera, fewer and fewer death sentences that are meted out, and, therefore, that we
10:45
have returned to a situation of arbitrariness and capriciousness. Ultimately, it's this de-legitimating effect that may end the death penalty, according to Carol Steiker and Jordan Steiker. And they conclude their book on page 322 by saying, "If the United States arrives at abolition, it will do so not primarily because of noble considerations marking moral advancement, but rather because of particular features of the American terrain, most notably the failed and perhaps
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impossible effort to improve capital punishment with the lofty but limited power of the Constitution." So the book, then, has this new arc, which is different than the earlier piece because, of course, there's 20 more years of the way in which the structure might affect legitimation. It's an arc that, in the first 20 years, '76 to '96 then, is one in which the legal structure actually unintentionally legitimates the system and makes people feel more comfortable about the death
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penalty, possibly about the political system. And then, in the last 20 years, the arc reverses. And this form and this destability, et cetera, de-legitimates the system, leading to where we are today. So I thought, back of the envelope, it might be interesting to look at some numbers and try and look at all three levels and see whether, at least at a very gross level, some of this could possibly be sustainable. Now these are crude numbers, back of the envelope notions, of course.
12:32
And we're not holding anything constant. So it could be that if you throw in an important variable that's not on here-- this is just single time trends. It could be that if you throw in another variable, then it looks all different. But so on the three levels, the first was that somehow the regulation of the death penalty was having effects on the way in which people thought most narrowly about the death penalty. Let's simplify it and say it there. It looks actually that the trends
13:07
corroborate this two-part story to a certain extent. So a lot more work needs to be done. But I think that-- and a lot more work needs to be done, and there are some kinks, particularly in the fact that public opinion was starting to increase kind of before '76.
13:32
But from the period basically '76 to '96, one can have a story that possibly the regulation of the death penalty may have made it easier to support the death penalty in terms of public opinion, and that sometime around '96, which is where the story changes, that it began to have a more de-legitimating effect on overall public opinion towards the death penalty. We'd have to try and figure out what it was that was starting in the mid-1960s-- maybe it was the crime wave, maybe it was Vietnam--
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there were a lot of things going on in the '60s. And, of course, when you think about crime trends, for instance, you know Giuliani took credit starting in '93, but it had started in '91. I've always been jumping up and down about the fact that it started in '91. But I don't know. You'd have to think this through. But it's not-- there's some possible evidence that that might be right. Then I wanted to go to the second level. The second level would be the criminal justice system more broadly.
14:43
And the first interesting thing-- and so here, I'm looking at Gallup poll confidence ratings of the criminal justice system as a whole. Now interestingly, the police-- so this is, 25% say you have a great deal of confidence for the police, and then another 31% say quite a lot. And it's interesting. To me, actually, one of the things that one would need to explore is the relationship between the police and the criminal justice system. Why is it that the criminal justice system as a whole
15:18
is something that receives a lot less confidence by the public and, historically, has received a lot less confidence? There are, of course, lots of issues about these confidence numbers. About last week, I had decided that I would never, ever again ever look at a poll or ever, ever, ever in my life take seriously an American political scientist colleague, or anyone who does any kind of quantitative analyses of anything having to do with surveys. Now the difference here, I suppose,
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is that we're dealing with a constant question over time. And so, as long as there aren't obvious sampling errors, I think what you're going to get is a constant level over time with the same kind of question. So it might be that we can at least compare where people are from one year to the next. In terms of criminal justice trends, we only have-- I only have preliminary confidence levels during the second period of the Steiker hypothesis, really, whic is from about mid-'90s to the present.
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And surprisingly, confidence in the criminal justice system has been increasing over this period, or at least the same kind of question asked to people. Now this raises a lot of questions. And it's not exactly clear how issues like police shootings, and the Black Lives Matter movement-- it's not clear why those aren't adequately reflected here. Maybe 2/13 was a little bit early. But still, it's also odd that mass incarceration being what it is, and having had the effects, and the new Jim
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Crow, and all of the attention to the issues of the larger criminal justice system don't really seem to be reflected in what is overall a pretty upward moving trend in terms of confidence in the criminal justice system. These are the two higher confidence level responses. We don't have any evidence on where confidence was in the earlier period. So we can't say anything about the kind of downward trend. But overall, at least this is somewhat consistent with what Carol and Jordan
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are suggesting in their book. I can't make any claims about causation. But at least, one could say that movement is in the right direction. The third question, then, is whether or not all of this regulation of the death penalty had these effects on the larger confidence in the government or in the political process as a whole. And so looking over those, the numbers are actually-- would support the Steiker hypothesis overall, again, putting aside causation and other things
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that one might want to hold constant. Overall, it's possible that this may have been the case, that this third and much broader level, during the initial period from about mid-'70s towards the mid-'90s, it was a relatively-- I mean, possibly if you look at the trend line from '84 to '96, it's possibly a somewhat downward sloping trend line. So it's possible that the hypothesis could be sustained. And then, if you look over the more recent period
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from basically '96, now this is for executive branch confidence. I got legislative branch confidence and confidence in the Supreme Court. You do see declining trends. Now, unfortunately, we don't have great ways to anchor this. There are three numbers at the beginning. They were taken. This one makes it pretty clear that executive branch was all over the place in the 1970s. So, of course, well, you know, I don't know, 1972, Nixon, high confidence? I don't get that.
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In any event, if you aggregate them all, what you do see is a declining trend, at least in that second period, which, again, is relatively consistent with-- which would be consistent with the hypothesis in the book. So if you kind of take it, a summary of what you've got, I mean, we've got some unknowns-- criminal justice in the early period-- and one where the data would not fit perfectly. But the rest seems to be pretty much confirmed that there have been these effects of possibly--
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that there could possibly have been some effects of this hyper- and non-regulation of the death penalty, this mess, having the kinds of consequences that I think are at the center of the book and of a very interesting, fascinating theory in a fabulous book. My last experience with trying to get attention to these issues of the disfunctionalities in this case that's on rehearing now at the Supreme Court, [INAUDIBLE] case, really did anecdotally sour my opinion
21:34
that actually this death penalty can have traction at a larger national level because it really does seem that we have silos of information and that a lot of times, these questions of is the death penalty being dysfunctional is somewhat siloed to a particular community that hears it, but the larger, broader public doesn't. So I have some anecdotal questions about whether or not there could really be these larger effects. But overall, I think that this is something
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that I think we need to kind of plumb further. And so I wanted to thank Carol and Jordan for pushing us to be thinking this way. Thank you. [APPLAUSE]
22:38
BRANDON GARRETT: So 10 years ago, in 2006, John "Jose" Rogers had just been convicted of capital murder in rural Stafford County, Virginia. He had a hard-fought guilt phase. There were some questions about whether his alibi held up-- cell phone records suggesting he was far from the murder at least earlier in the day, but not so good an alibi into the evening. And so it really mattered what time the death occurred. And coroners, medical examiners disagreed.
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But now, he was on trial for his life at the sentencing phase. And his lawyer was asking the jury to spare his life. His lawyer said that there's no way to make this right. But if you lock this man up in the kind of prison that he'll be in for the rest of his life, no one can say to you that's not justice. It's justice tempered with mercy. The jurors deliberated that evening. And they deliberated for most of the next day. And then they announced their verdict-- life
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without the possibility of parole. A Virginia jury had rejected the death penalty. That didn't used to happen so often in Virginia.
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The wonderful, wonderful concluding chapter of the Steikers' book ends with a kind of whimper and not a bang description of what the Supreme Court might do some day and a discussion of how practical considerations cost, the effect of Supreme Court regulation on the ground, may produce the end to the death penalty. And so probably not some declaration of the dignity of man or Eighth Amendment principles. But I do want to highlight in my remarks today how it's not just practical considerations.
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It's a real show of force on the ground, really admirable work on the ground, and perhaps some lessons for the battles to come to combat mass incarceration and other forms of excessive punishment in this country. So in the Rogers case, the defense lawyers, some of whom had never practiced before in Virginia at all, had imported what they called a "big firm New York" approach to Virginia. They thought of themselves like mafia lawyers. And like in a mafia case, you may not be getting discovery
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from the government. You may not know what forensics the government has. But you can investigate your own client. And they investigated their client intensively. They had a five-lawyer team. They had five investigators searching for information like school report cards, mental health records. They consulted at least six experts. They didn't use all of them, but they consulted six. They had a jury consultant, a number of forensics experts, an enormous role played in their investigation
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by the non-lawyers. And so we shouldn't just be cheering on the lawyers. The social workers, the litigation experts, the non-lawyers played a pivotal role in that case. And the sentencing hearing went on for four days. They presented 21 witnesses, totally outgunned the Commonwealth's attorney in that case. They showed how Roger was the victim of a horrifying abuse by his father, who beat and tortured him. The lawyer put it well. He described Rogers' childhood as a "virtual experiment
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in atrocity and brutality." And in Virginia, there are certain challenges, like in many states, in presenting scientific evidence on the issue of future dangerousness. Virginia is a future dangerousness state. But they presented a corrections officer. He talked about how well-adjusted Rogers was in the confines of a prison environment. And maybe most moving was testimony from Rogers' younger brother, who he tried to shelter from their abuse when they were growing up and, as a result, taking
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on the abuse himself. The jurors deadlocked 6-6 initially. And they finally reached unanimity and decided to exercise their power of mercy and chose life without parole. And, in fact, Stafford County isn't-- I guess the largest town is Fredericksburg. At fredericksburg.com, you can read stories about the trial where some of the jurors are just commenting in the comments below the news stories. One of the jurors even talks about how we were split 6-6.
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And this was an experience I'll never forget in my entire life. But we heard things about this person that you wouldn't have expected to hear. And I'll be haunted by that murder, but this is what we did. There were also ex-girlfriends of the defendant commenting. I mean, it's-- so capital trials in Virginia in the 1990s did not look like that. And as a pack rat, I've been collecting trials. I like to collect trials. 1990s trials, sentencing would be an afterthought.
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And in fact, there are cases that I read where the judge would tell the jury, you found the guy guilty of capital murder. Now there's this one other part of the trial. It's not that important. It'll be over quick. Don't worry about it. We'll get you home. Like, now we're going to do sentencing. And on average, this whole group of 1990s capital trials in Virginia that I studied, the sentencing proceedings lasted on average less than two days long, usually a day.
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And the bulk of the witnesses would be presented by the prosecution, whereas in the more recent trials, the bulk of the witnesses are presented by the defense, twice the experts are presented by the defense. And so you can compare the Rogers case to a case that I know intimately, the case of Earl Washington, Jr., a man who was later exonerated by DNA testing. And his trial in 1984, there was jury selection for a half a day, and a day of trial, guilt and sentencing.
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Sentencing lasted a couple of hours. And there was no particular investigation of any kind conducted by the lawyer, either as to the guilt evidence or any possible mitigation. The mitigation consisted of his mom saying that he was a good boy, and Earl himself saying, I didn't do it. I don't know what they're talking about. And he was in prison for 17 years before DNA testing exonerated him. No effort to consult experts. The lawyer later said, you know, I don't know.
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You know, judge probably wouldn't have given me funds to hire an expert, whic was probably right, actually. Lots of cases like this, lots of just no mitigation at all trials in Virginia. So Virginia had a long way to go. But defense lawyers changed the game in Virginia starting in 2004. Now the law didn't change in Virginia. The death eligibility criteria didn't change. It's not like the Terry Williams case put the fear of god into court-appointed lawyers in Virginia.
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What changed was what enabled the Rogers team to have a team and not the regular court-appointed situation where you get appointed by the court. Then you have to figure out, where am I going to find an expert? Is there a mitigation investigator I can hire? Maybe it takes you a year to put together your team. The reason they could do that work from the week they got assigned to the case was because in 2004, regional capital defenders' offices started taking cases in Virginia.
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And those offices changed the game to the extent that in the 21 trials since 2004 that there have been in Virginia, life was the result at more than half. I guess it's 22. We just had a capital trial a few weeks ago where the result was again life.
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But it's not just happening in Virginia.
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The district attorney from the Aurora Theater shooting case, the Johnny Holmes case, just kindly Skyped into my seminar this fall, talking about what happened in the trial, where the result is obviously not what he wanted. The result was life. The lawyers in that case winnowed down jurors. It may have been the longest jury selection in American history. They winnowed down a jury panel from 9,000 jurors. They used the Colorado method, these elaborate methods of jury selection.
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Actually, the judge ended up doing most of the jury selection questioning. And in that case, you could understand the district attorney's frustration. How could the murder have been any worse? How could mitigation matter in a case where the murder was a mass murder, the worst in modern Colorado history? But mitigation was what affected the jurors. The substantial evidence of Holmes' mental illness. And so no one expected the result in a high profile case like that.
31:55
But no one expected such a result in a case that no one's ever heard of, like the John "Jose" Rogers case in Virginia. I think what happened in Virginia is a microcosm of what's happening nationwide, although not in all states. But we haven't had a death sentence in Virginia in six years now. No one expected Virginia to disappear like that. It was always known as a fast, efficient execution state, shortest wait times from death sentence to execution.
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In my work right now, what I've been studying is this decline, and what explains these patterns because it wasn't like criminologists called it and said in 1999, you know, this is now the turning point of the American death penalty. We're going to be seeing declines from here on out. Nor was there good information about county level death sentencing, particularly in the 1990s, when death sentencing was at its height, and then it starts to decline.
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There are lots of explanations that people have thrown out there for why death sentencing began this inexorable decline. And it's clearly a complicated social trend. A few explanations that I think don't hold up. One is. Well, maybe it was the crime decline. After all, murders went down. And you know, murders are like the supply, and death sentences are a function of that supply, maybe-- fewer murders, fewer death sentences. And, you know, murders go down starting in the mid-'90s, right
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before death sentencing goes down. Seems cause and effect right there. Well, doing statistical analysis with co-authors who know much more about that than I do, we found no relationship between county level death sentencing and homicides. In fact, in the early '90s at least, places with more death sentences had lower homicide rates. There are only two ways that homicide rates, we found, are statistically related to death sentencing. And the first is that counties that death sentence more do
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have more white victims of homicide. So no surprise to us in the room who just listened to the wonderful panel on race in the death penalty this morning. The same pattern that we saw in the Baldus studies, you see replicated nationwide in county level death sentencing. Now the second, the counties that are into death sentencing, the shrinking number of counties that do death sentencing, they themselves respond to more or less murders. They don't have more murders or less murders
34:39
than the counties around them. But just within those counties, they seem to respond. There are prosecutors who just want to sentence a certain number of murderers to death. But it's not because they have worse crime or worse murders than any of the other counties around them. I also wondered, life without parole, could that have some role in the death penalty decline? I was suspicious of that explanation because when Virginia adopts life without parole in the mid-'90s, even
35:04
after they finally start telling jurors about that option, which took them a few years, we saw death sentencing go up to new heights only to decline once these capital defenders' offices were introduced. And we found statistically no association, or very weak associations, nationwide between adoption of life without parole and the decline in death sentencing. And instead, what we've seen is skyrocketing life without parole sentencing in this country, where
35:30
I think Carol mentioned this morning that we have more than 10 times more people serving life without parole than were ever on death rows in this country. We have less than 3,000 people on death row. We have upwards of 50,000 people serving life without parole. Another question was whether exonerations, increasing awareness of innocence, has played some role in the death penalty decline. And it could be that it's affected public opinion in general and affected the practices of prosecutors,
35:59
practices of jurors. That's something that's hard to measure. But it could certainly be possible that that's the case. It might explain some sort of national trend. And I've spent a lot of my time studying the death row exonerations, other exonerations. But whether there's this general effect on public opinion, I can't say. Certainly, some of that Pew and Gallup polling suggest that more of the concern about the death penalty comes from concern about wrongful convictions.
36:28
What I can say, though, is that there's certainly no state by state connection between exonerations in a particular state and a decline in death sentencing. It's not like if a state experiences a spate of death row exonerations, that all of a sudden, people get leery about death sentencing. Instead, what we found statistically was that just the more death sentences a state has, the more exonerations it has. Just it's an inevitable byproduct of death sentencing
36:55
that you're going to send some innocent people, and that some of them will actually get to prove their innocence some day. So that's in some ways more disturbing. The cost questions also seem to be important. We found just a strong association between the few counties that are still doing death sentencing and counties that are densely populated. There are many fewer counties today that are in the death sentencing business. In the 1990s, in any given five-year period,
37:24
there might be 500, 550 different counties death sentencing. The rural counties have almost entirely dropped out of the death sentencing business. You see it in Virginia. You see it in Texas. Last year, only 38 counties sentenced anyone to death. And in these more densely populated counties that are still doing death sentencing, on average, they have much higher black populations and more white victimization for homicide. So costs may be pushing death sentencing out of the rural counties.
37:56
But it's pushing it into places that had always been bastions of death sentencing where the same racially discriminatory patterns persist. And also, path dependency. We see that the counties doing death sentencing today are counties doing death sentencing at any time in the 1990s, too, are just the counties that had been doing. So you're much more likely to get a death sentence in a county that had a death sentence last year, or the year before, or had a higher than average number in the five
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years before. No matter how you look at it, there's just this path dependency and inertia effect. It has nothing to do with the numbers of murders, or anything rational. It's about preferences, path dependency, race discrimination. And so this does help to make the case that harsh punishment in general isn't rational. It doesn't reflect crime patterns. It's biased. More generally, there's more discussion now about how mass incarceration itself in the country
38:47
is due in large part to local decisions by prosecutors that impose harsh sentences that we all pay for in the end, seeking prison terms rather than pursuing rehabilitation. There's more talk about mental health screening, putting mental health systems in place since our incarceration system is in large part a mental health system. The largest psychiatric facilities in many states are our county jails. And you see the work that the lawyers did in cases like the Rogers case
39:16
to just get simple mental health screening for their client, to humanize their client before a jury. Even in the cases that supposedly involve the worst murderers, if you can humanize someone like that, like the Aurora shooter, imagine what a difference it makes to have that kind of mitigation help, that kind of social work help with medical records in regular cases. And there are cost effective ways. You don't have to have these dream teams-- not
39:37
that the lawyers in Virginia are incredibly well-resourced dream teams. You can have some courts where they hire mental health screeners just working for the court. And you can do it cheaply. In fact, these regional offices in Virginia were created for cost savings reasons. It's cheaper to have a lot of non-lawyers doing investigation. So we don't know when it will happen. And the Steikers haven't given us a precise prediction. We don't know how it will happen exactly.
40:02
But the death penalty does seem to be on the road to extinction in the United States, even despite the events of the last week. And I think these forces operating at the state and local level are so ingrained that they're unlikely to turn around. After all, even if crime does go up, murder rates never had anything to do with death sentencing. But I do think that the death penalty's demise will allow us to learn some things from the forces that did drive death sentencing down.
40:28
The improvements in lawyering, the improved investigation, mental health screening, the attention to excessive punishment, to race discrimination. And so I think that there are opportunities, that as we move away from mandatory minimums and strict sentencing, we need to expand those opportunities to humanize people charged with crimes, to investigate the facts in a meaningful way. We all, I think, agree that-- and broad segments of the public agree that-- our super-sized mass incarceration
40:59
system needs a crash diet. And maybe the decline and perhaps someday the death of the death penalty can give the American criminal justice system renewed life itself. Thanks. [APPLAUSE]
41:32
KATHRYN KASE: All day we've been talking about, formally and informally, whether we're near the end of the death penalty. My question is, is the death penalty going to spell the end of the Texas Court of Criminal Appeals? Given that I am a lawyer who practices in Texas, and this court is very present in my life and the life of my clients, this is an important question. And I want to tell you right now the court has been telling people it's been celebrating its 125th anniversary.
42:07
Don't be misled by that. It's actually 140 years old. And as we talk about de-legitimizing forces, and I think that the death penalty is certainly a de-legitimating force where the Court of Criminal Appeals is today, the fact is it was born of an illegitimate process. It occurred as part of post-Reconstruction. And for those of you who don't know Texas history, that's all right. I'm going to give you a brief tour. And what happened in 1867 was the Union Army came to Texas
42:46
and removed the governor, a guy named Throckmorton, because he was refusing to crack down on racial violence. He was refusing to release 227 black convicts who were falsely imprisoned. And, in fact, the state was engaging in these black codes that, although we had all these freed men, many of whom came to Texas, were sent to Texas by their slave owners as a means of protecting their quote, unquote, "property" from the Civil War, which it was believed
43:18
was never going to come as far south as Harris County, Houston, Fort Bend County, south of Harris County, Brazoria. So all of those people come into Texas. All of those slaves come into Texas, enslaved. And then, they're freed. Well, after Juneteenth, because of course it takes a while for Texas to get the news of emancipation, just like it takes a while for us to get the news from the Supreme Court. Which of course, in our state, is referred to as "that liberal eastern court," just in case
43:49
you wanted to know.
43:52
So this takeover by the Union Army has a backlash. And it's the Constitution of 1876, which, in Texas, is the source of our modern day constitution. And you may say, why do I really care about that? Well, because the constitutional conventioneers create this separate Court of Appeals to deal only with crimes. And this court has the right of habeas corpus. And it's only going to deal with criminal cases. Yes, there's a Texas Supreme Court. But it's going to deal only with civil cases.
44:26
And that's where the people that are justices are. We have no justice in the Court of Criminal Appeals. We only have judges. And so this precursor to the Court of Criminal Appeals, the Court of Appeals, overnight changes the character of Texas justice. At that point, in the prison system, we had about 50% whites and 50% African Americans. Virtually overnight, we go to imprisoning 90% African Americans. The black imprisonment rate just shoots up.
44:58
And lest you think that this criminal appellate court was responding to some sort of crime wave, there were, in fact, 601 incidents of white violence against black people per 100,000 people, but only 7.4 incidents of black violence against white people. So here you have all of this racial violence by whites that's not getting punished. And instead, you have a prison system that, by 1890, incarcerates more African Americans than any other place in the United States.
45:40
So in this environment, this Court of Appeals is formalized as the Court of Criminal Appeals in 1891. And this sows the seeds of our present-day court, which has been criticized, and justly so. Because what we see throughout its tenure is the studious avoidance of regulation, particularly when it applies to the dispossessed in Texas society, certainly African Americans, but also poor people, poor white people. And the reason I want to raise this
46:19
is that I was recently reading Carl Moneyhon's book that's somewhat neglected, I think, about Texas after the Civil War. And the point that he makes is that the Civil War, particularly in the South, the Confederacy was strategized by the elite, but the war was fought by the poor. And in Texas, of the 50 wealthiest families, during the Civil War, they lost one member. But if you looked at poor people, white people in Texas, virtually every family lost someone in the Civil War
46:52
who they had sent to fight. So that tells you that there was a great deal of suffering among poor whites which, of course, is utilized in Reconstruction in forms of racial violence against black people. And what do we see? We see that in the early death penalty in Texas, that we're carrying out this violence perhaps more formally against African Americans. And we see the court studiously avoiding any questioning of why we have 63% of those executed
47:34
being African American, only 30%, in the parlance of Texas, being Anglo, and then this smaller amount that are Hispanic. And we see it as well when it comes to executing people for rape. Overwhelmingly, this is an African American cohort, overwhelmingly. And, in fact, overwhelmingly the victims were white in Texas. So I believe Marquardt-- I can't see the statistic on my iPad here, but it was, I think, as much as 97%. So this brings us to this present-day CCA. And we see some change.
48:18
This is who Texas is executing. So we have somewhat of a growth in Anglo defendants and Hispanic defendants. But the fact is they're all poor. They're all from that cohort who, if their families were around in the Civil War, they would have been fighting. They wouldn't have been in the elite, strategizing the war. But also, when we look at victims, we see this holding true, that we continue to execute based on who the victim was, really not who--
48:51
and it's not that the defendant's race is incidental. But this is really driving who we execute for, which is in the name of white people. And what does that lead to? When we keep looking at this court in the death penalty context, it is almost a walk of shame that we're now on. So we have Calvin Burdine case. And we're going to go through just briefly some of the famous misses of this court. Joe Cannon falls asleep during his trial. And what's significant about this decision, Ex parte
49:26
Burdine out of the Court of Criminal Appeals, is that we find the reason for the denial of the writ of habeas corpus really in the dissent. Because the majority really doesn't want to say, hey, he didn't fall asleep during the important parts of your trial. It's the dissent who says, this is the problem here. That's what the majority is saying. And one wonders if one walked across the hall to the Texas Supreme Court and said, my $1,000 lawyer fell asleep during my civil trial,
50:01
and that's a denial of due process, if the Texas Supreme Court would say, wait a minute. You've got to show us it was during the important parts. I don't think the reaction would be the same. And of course, we know that in this case, the Fifth Circuit said there is a problem here. I think we still have four judges on the Fifth Circuit who still think it's not a problem. Anthony Graves-- and this is still good law in Texas. Anthony Graves says, my habeas lawyer was ineffective.
50:31
And by the way, I'm innocent! And this Court of Criminal Appeals says, no, you really don't have the right to a competent state habeas lawyer. The Court has recently been invited to reconsider this misguided opinion. It has declined.
50:49
Charles Dean Hood, I mean, this case is infamous for very good reasons. And as the person who got to depose both the judge and the prosecutor, it was very, very interesting to ask them about their relationship. And so after Charles' execution is stayed for-- was it the second time, Jim? Do you remember? I can't remember whether second or third. And I'm asking this of Jim Marcus, who really is a repository of these cases in addition to Jordan. So after the execution is stayed, we go to the court.
51:29
And we say, look, Charles is entitled to an entirely new trial. Because there is a total breakdown of this criminal justice system, where the judge and the prosecutor are having an affair during a trial. The prosecutor's coming in and arguing significant evidentiary motions. And not only is the defendant not aware of this affair, I mean, this is just a fundamental denial of due process here. And the Court of Criminal Appeals applies latches-- latches!
52:01
It says, you should have known of this sooner! Now as the person who deposed both the prosecutor and the judge, the ex-prosecutor and the ex-judge, who described for me the elaborate methods that they took to avoid detection by people in the community and their own spouses regarding this affair, I am not really clear what Mr. Hood was supposed to have done. He was under armed guard at the jail. This has never been explained. Thomas Miller-El, before Thomas Miller-El's case ever
52:36
got into the Supreme Court twice, the Court of Criminal Appeals had an opportunity to say, these racially discriminatory jury strikes are wrong. And the court instead said, no, they're race neutral. I mean, look, if you're a follower of the Astros, you know that, OK, your team comes up at bat. And it misses a couple of times, maybe a bunch of times because it really doesn't have good hitting. But when you miss consistently, as this court does, you've really got to wonder what's
53:13
going on structurally with it. Then we have Bobby James Moore, whose case is going to be argued in the Supreme Court on November 29, and who says essentially, I'm exempt from execution because I have an intellectual disability. And the court says, no, we're applying these factors that we got from a book by Steinbeck to determine whether you're intellectually disabled. Now I'm as much of a Steinbeck fan as anybody else. But I assure you that when I am investigating
53:44
intellectual disability for my clients on the row, I am not pulling out Of Mice and Men. And yet, this is the [INAUDIBLE] text for the Court of Criminal Appeals. And worse, in the Moore case, his defense team makes a very compelling argument that under the current definition of intellectual disability by the American Association of Intellectual and Developmental Disability and the people who write the DSM-V, that he is in fact intellectually disabled. And the Court says, no, no, no, no, we
54:13
get to define what intellectual disability is. And we're relying on a definition two definitions back. I mean, again, when we talk about structure and regulation, we have to really ask ourselves if this court structure is serving us in the criminal justice system when it engages in this type of legerdemain. We also have, again, in the modern era, studious avoidance of large questions about the death penalty in this court. The racial disproportionality, the fact
54:50
that the death penalty in Texas today is concentrated in urban jurisdictions that can afford the death penalty.
55:00
The Court further does not engage in any proportionality analysis on a case-by-case basis. So we have now, as a result of the tracking that my office engages in, evidence of multiple murder cases where people are sentenced to life without parole. And yet, you murder one person, and you go to the row.
55:23
We also have no seeming interest among a majority of the court to visit the fact that all new death sentences handed down in Harris County, Texas, which is Houston, since October 15, 2004, have been handed down against men of color. And among this group, on the far right on the bottom row, is Alfred Dwayne Brown, who was sentenced to death for killing a police officer and spent 10 years on the row before he was taken off the row through the good work of K&L Gates, and a raft of pro-bono lawyers.
56:02
The state has declined to retry him. But under our current DA, who just was unelected, he has refused to say that he is actually innocent. Although what got him off the row was the discovery of a phone record in a box found in a garage co-owned by a police officer and an assistant district attorney that showed that Mr. Brown was at his girlfriend's apartment on the phone with her calling her at her office. And that document had been subpoenaed before trial and never turned over to the defense.
56:39
And yet, the response from the Harris County district attorney, now unelected, has been, well, we just don't have enough evidence to retry him. We're not willing to say he's innocent. And again, from the Court of Criminal Appeals, a majority of the court, crickets.
56:59
We do have one judge, and it is not unusual that she is a Latina. Now she's a Republican Latina. And she has started to question whether this court's jurisprudence in the death penalty really passes the smell test. And in so doing, she also, I think, is raising questions about whether this court should continue to exist as a separate court for criminal jurisprudence in Texas. And we now are hearing from people who are in the civil justice system about whether we
57:43
shouldn't have one court system for everyone in Texas, and whether we shouldn't let loose of some of the jurisdiction in the Court of Criminal Appeals because they decide habeas cases as well as discretionary direct appeals. And if they stop deciding habeas cases, if they let lower courts say, you know what, you win, and appeals only happen as of permission rather than as of right, they would have a much smaller docket. But this is also more questions that Elsa Okola is raising.
58:20
And furthermore, she's hitting all of the questions that we've been raising. But the effect has been, I think, to add to the voices that de-legitimize this court, that say structurally, should we have it? So as we think more broadly about the criminal justice system, and particularly for you students who think about policy and say, well, I may not want to litigate death penalty case. But I might want to get involved in policy. I might want to talk about what government should look like.
58:54
I think a very potent question in light of the death penalty jurisprudence, in light of the Court of Criminal Appeals' history, is should it continue to exist? My answer, after reviewing the evidence, would be no. [APPLAUSE]
59:16
LARRY SCHWARZTOL: Thank you all. So I want to ask one question to the panel, and then open it up. This morning, in the first panel, [? Corinna ?] [? Lane ?] made a point about the invisibility of executions and the idea that, for lots of reasons, executions are non-events for purposes of the public. And it strikes me that there's this really interesting contrast with the broader criminal justice system where, right now, we have this sort of wave of increased visibility.
59:49
And I'm thinking particularly of the way that videoed encounters of civilian police interactions, and particularly police shootings, have reshaped some of the conversation around criminal justice. And so I'm curious to hear your thoughts on two pieces of that. One is whether the broad reshaping of the discussion of criminal justice that's being driven by that increased visibility has implications for the death penalty. And then the second is that increased visibility
1:00:22
is helping to tell a particular story, and a particular story about police killings, and particularly police killings of unarmed black men.
1:00:33
And that narrative has become central to the conversation on policing and criminal justice. But what is the narrative that should be at the center of continuing a move towards the end of the death penalty?
1:00:50
BERNARD HARCOURT: So I'll just start with one thought, which was something that was coming up in some of the data I was looking at, which was these differences of confidence in the police versus confidence in the criminal justice system, which are marked and sharp and consistent over time. And so I'm just wondering if the police shootings and the controversy surrounding police shootings is more something that will affect people's relationship
1:01:20
to confidence in the police, versus the criminal justice system. So I'm not sure necessarily that those two fit together, or what it is that people think of when they think about the criminal justice system writ large, which is something I think that is probably more related to courts possibly, prisons, incarceration, versus policing narrowly. So it's not entirely clear to me how the horrific video evidence that's coming out regarding police shootings
1:01:59
would affect the larger views on the criminal justice system, and/or how it would necessarily affect the death penalty. So that's just one thought.
1:02:17
BRANDON GARRETT: Just one additional thought is that I do think in general people are seeing evidence from other perspectives which calls into question police testimony, and not just in police brutality cases, but in cases more generally. And so when police hear the testimony that I saw a gun, and that's why I shot. And then, you see these videos which tell a very different story, it calls into question the credibility of police witnesses and points
1:02:46
out how people have highly self-motivated memory of how things happen. And you see the same thing, though, as to guilt phase evidence in murder cases, where you often don't have someone who's caught in the act. Or the eyewitnesses are the people who were murdered. And so traditionally, you had a lot of interrogations in death penalty cases. And a lot of confession evidence in the cases where guilt was disputed. And, obviously, there's a significant chunk
1:03:16
of death penalty cases guilt isn't disputed. But in the persisting group of cases where it is, you still see the same undocumented interrogations. And in cases where there's a video, just like with the police shooting where there's a video of the interrogation, all of a sudden, you can see police are feeding facts and contaminating these confessions statements, which has led to this new awareness of how false confessions can happen in this country. Same thing with forensic evidence,
1:03:41
there's this trust in forensic analysts working for the police, police officers who do fingerprinting, or police officers who do hairs, or more scientific individuals with some training doing other types of more technical work. And now there is this skepticism because we now know that a lot of the things that they had said weren't supported by science, weren't supported by any research. And you have the FBI confessing error. We never should have said what we said in 10,000 or more hair cases.
1:04:09
We were making it up. It was exaggerated. And so people are starting to see that the evidence presented, including in the most serious cases in death penalty cases, wasn't what it seemed. It wasn't accurate. It was exaggerated. And if we can't get evidence right even in death penalty cases, it calls into question the evidence presented by law enforcement in many other types of cases. So it's a crisis of confidence that law enforcement has to respond to.
1:04:39
And some agencies really are trying to respond to it in careful ways. But many others aren't.
1:04:48
BERNARD HARCOURT: Can I just address your second question then also? I think the second question was, going forward, or at this juncture in time, what are the better arguments to make? Or what steps?
1:05:08
So the lethal injection litigation and argument is obviously not over yet. The Supreme Court is going to be considering on December 2 the Alabama, Tommy Arthur's case, whether or not to grant cert in the Tommy Arthur case, which is a question of a single shot, single drug lethal injection.
1:05:32
Although I was thinking that it was all over. So that could put that issue to rest if they decide not to intervene. They stayed his execution a few weeks ago to hear that, at least to consider the petition on [INAUDIBLE]. But I think that it's likely that-- we've seen these different waves of questions on mental retardation, on juveniles, on innocence, on lethal injection. I think the innocence is not going away. And I would say that right now, the fact that there are-- what
1:06:22
was it, 16 executions to date? Michael, was it 16? So far this year? 18? That seems to be a pretty strong argument for the demise of the use and the-- turning it into this kind of lightning, the whole notion of arbitrariness that there is there. I think that would seem to be a powerful argument right now, particularly, although it has its dangers, given the election last week and the way in which that could possibly change things. Also the fact that it is lethal injection that
1:07:06
has been holding up a lot of cases in a lot of jurisdictions. And if that issue goes away, then one might expect an increase in numbers. But I still think that that, probably at this juncture right now in history, and in the electoral cycle, et cetera, is probably one of the strongest arguments, I would think, in the death penalty context. There are so few executions at this point in time.
1:07:43
LARRY SCHWARZTOL: Questions? Jordan? JORDAN STEIKER: Yeah.
1:07:50
I think it's really hard to compare the attention that was brought to policing to the death penalty. Because I think there are these dramatic illustrations of policing that come from video and from people who witness this. And that what's most problematic about the death penalty is sort of it's a system. It's something that you can't observe. And you can have moments of-- snapshots. The Supreme Court increasingly is taking cases that are just snapshots of the failure of the death penalty.
1:08:23
And it's striking how the cases that the court takes all have really broad significance. So the case of [? Bobby Moore ?], where the Court of Criminal Appeals uses Lennie from Of Mice and Men as sort of illustrative of what intellectual disability is. Or the case where they took this term in [INAUDIBLE] where an expert testifies that the defendant will be dangerous because of his race. Or the case that [INAUDIBLE] argued where you have the jurors labeled as B1, B2, B3.
1:09:01
And what's frightening about all of those cases as a snapshot is that all of those folks lost in the state courts. All of those folks were not granted relief. And it's sort of an illustration of a momentary injustice. But I think that the broader feelings of the American death penalty can't be captured in those sort of snapshots. It's the thousands of homicides that are not prosecuted as death cases. It's sort of rare to have-- I would say, it's more the [INAUDIBLE] absence
1:09:31
of death sentences and execution even that reveals the inequality and arbitrariness of the death penalty, the fact that in Texas, we had two new death sentences last year, which isn't just astonishing. As Brandon said, zero death sentences in Virginia, and zero death sentences in Georgia.
1:09:52
This is the best leading indicator of the future of the death penalty. And it's just it's its absence, which you can't dramatically illustrate so much as what can be captured in a good video of violence.
1:10:09
CAROL STEIKER: So just to give you all an example of the inner workings of our process, I disagree with my brother on this in the sense that I do think that there is a parallel to be drawn between policing and the death penalty, that I think there was increasing confidence in the capital process, the legitimation effect that we talked about based on the court's revival, and a Constitutional [? imprimatur. ?] And what really pulled the rug out from under that in the late 1990s
1:10:39
was the discovery of innocent people who had been sentenced to death and were sitting on death row. And those discoveries, the exoneration of people off of death row-- not just one or two, but quite a number of people, of the 25 people who were put on death row in Illinois from 1976 to 2001-- 13 of them were exonerated off of death row. Think about that as a matter of statistics. That was, at the moment, the equivalent of these videotaped shootings of black men on the street. It was shocking.
1:11:15
It was individual people you could point to. And it was a turning point in public attitudes about the death penalty. That said, I don't think that innocence-- and this is something that Jordan and I have argued together-- we don't think that innocence is likely to be-- it is clearly the most powerful lever on public opinion, and therefore may play a very important role in shaping the future of the death penalty. But it's not likely to be the best legal vehicle
1:11:46
for a Constitutional limitation or abolition of the death penalty. The law on innocence in the courts is just terrible. And it's also hard to know how exonerations in some places will yield a full-scale rejection of capital punishment all together. I think, and what we argue in our book, is the most likely route is this, the just incredible withering away of the death penalty revives the argument that was made by Justice White in Furman
1:12:21
in 1972, which is that the death penalty, as it exists and is used today, just can't possibly fulfill any purpose of capital punishment. It can't deter. It's not a meaningful marker of the retributive worst-of-the-worst cases. And for that reason, that seems to be like the Furman [? two ?] argument. Even if innocence is the videotape, the lever on public opinion. LARRY SCHWARZTOL: Michael?
1:12:58
MICHAEL: Thanks. I distinguish between withering away and withering in that you assume some projecting into the future of a level of death sentencing and executions that we've had in the last couple of years. That reminds me of the tension between capital punishment and life without parole, which has been touched on very marginally so far today. And I wonder what you all have to say about the tension between the two. Here in Massachusetts, there is a small but remarkably robust
1:13:40
grassroots movement to do something about life without parole. How does this play out in your heads, in your various roles? LARRY SCHWARZTOL: Thank you.
1:13:56
KATHRYN KASE: In Texas, where we're still killing people, and we're still-- and of course, the growth of life without parole inmates is huge. This is not yet, I think, on the radar screen. Where there is concern is about the overuse of solitary confinement, particularly among life sentenced prisoners. But I think that, in Texas, we still, because we are so actively using the death penalty as compared to other states, have not yet seen real discussions about that,
1:14:38
as you're seeing, say, in California, where there's even a movement on the part of life sentenced prisoners to bring that to the table to discuss it. I think what you see in Texas really is more of using exonerations as impetus for other forms of reform. We had a non-death row exoneration for a life sentenced prisoner and got our first shot at discovery reform in 50 years that was-- we now lead the country in terms of the discovery you get in a criminal case.
1:15:15
We now no longer have the key man system of choosing grand jurors because of the release of Alfred Dewayne Brown from death row.
1:15:26
Which is to say, we're going in a different direction as a result of some of the abuses of the death penalty. And it isn't, as Carol says, sort of this direct line with innocence to changes in how people feel overall about the system. But I think part of that is we seek to use what we have in the environment where we are. Which is, as you can tell, Texas is, as they like to say, a whole 'nother country.
1:15:58
BRANDON GARRETT: It is remarkable the impact that wrongful convictions have had. Not on death penalty abolition efforts, except for in states like Illinois where it's part of the conversation for abolition in states, but lots of non-death penalty impact. Also, the Forensic Science Commissions and Forensic Science Case Reviews in Texas, coming out of concern about wrongful convictions. The Houston Crime Lab, the leading independent crime lab in the country, coming out of exonerations
1:16:27
due to botched forensic science in the lab. And so to have high profile death penalty, death row exonerations, and to have the death penalty in any way leading to positive criminal procedural reform-- the model that we're used to thinking about is concerns about the death penalty leading to the likes of [INAUDIBLE], which cut back rights for criminal defendants in general outside of death penalty cases. So enormous negative spillover from the politics of death
1:16:52
to harm criminal justice more broadly. So the idea that it's starting to have this other effect where concerns about notorious death penalty exonerations lead to positive spillover and reforms that help people in lots of cases that are not death penalty cases, it's odd to think about that. Darrell Washington case in Virginia, not clear it led to any changes in death sentencing in Virginia. But it led to the first writ of innocence to relax and create big exceptions, or some exceptions
1:17:20
at least, to the Virginia 21-day rule so that you can now introduce new evidence more than 21 days after your conviction in Virginia. And so that is a change in the politics surrounding criminal justice. Not exactly the death penalty. But as to LWOP, it's going to be a long road given the size of our LWOP pro in this country. We do have, in this wonderful "Life After Death" chapter, the concluding chapter in the Steikers' book, they talk a little bit about also
1:17:54
the talent that's been focused on litigating death penalty cases. And with fewer death sentences in some of these states, that talent is moving to other things. Some of the great mitigation outfits are now doing more work in LWOP cases. Because in juvenile cases, at least, you can put on that individualized defense at a sentencing hearing. Juvenile LWOP cases are only a tiny part of a problem. But you also have some of these really good mitigation lawyers and mitigation investigators taking
1:18:26
full time positions at PD's offices to work on regular cases. And hopefully-- actually, the lawyers in that John "Jose" Rogers case, great team of lawyers, some of the main lawyers at the heart of that team are now doing regular criminal cases in Virginia. There weren't enough-- there's turnover in those offices, and there just aren't as many death penalty cases to work on as there used to be in Virginia. So some of that talent is moving elsewhere. And some of the tools that they developed
1:18:51
are moving into other types of cases, but that's not a radical change. It's just hopefully a sign of good things to come eventually. LARRY SCHWARZTOL: Judge Gardner? JUDGE GARDNER: I'm not sure where I stand on the Jordan-Carol debate, but I do think that there is a link between the innocence cases and the video of police because, to some degree, the legitimation factor that we talked about was the belief that somehow due process would lead to truth.
1:19:21
And the innocence cases and the videos cast doubt on that. We now see truth. And it is inconsistent with accounts and inconsistent with the process. I also think that there is a chink in the armor with respect to LWOP. Massachusetts only has, as was said, life without parole. And what you see now is the beginning of litigation carving out categorical exceptions to life without parole that mirror the categorical exceptions that the Supreme Court is trying to get to the death penalty.
1:19:55
And finally, I don't want to trivialize the horrible presentation about the Texas Criminal Court of Appeals, but, to some degree, I want some academic to do what I've never had the time to do, which is I actually believe that you see the same thing in district federal litigation around the country, which is to say district courts turning down constitutional challenges of various kinds, being affirmed by courts of appeals. And ironically, it takes the Supreme Court
1:20:23
to revitalize sentencing, to suddenly come up with Crawford. These things, rather than a common law system percolating from the bottom, are really top down. And given the changes in the Supreme Court, we should be very frightened. So I think, I wonder, I don't think it's as bad as what you described in the Criminal Court of Appeals. But I do think that there is a version of that that you see nationwide.
1:20:51
LARRY SCHWARZTOL: I think we have time for one more question or comment.
1:21:04
AUDIENCE: I'd like to ask you, Brandon, how do you deal with situations where the technology-- obviously, we're seeing a lot more technology come into play in these cases. And in some cases, these cases are quite old in terms of balancing the interest of the finality of the conviction versus situations where you know that the testimony was not accurate because you now have scientific advances to prove that. BRANDON GARRETT: Well, the biggest problems that we're
1:21:33
encountering are situations where it's not like a new technology, per se, like a new type of DNA test that no one's ever heard of, no one had heard of 10 years ago, but the problem of changed science, where what the fingerprint examiner said, or the hair examiner, or the arson investigator said is just not supported by research. The claims made were false. It's not like it's a new type of evidence that one would present today. It's just that the conscientious arson examiner today would say,
1:22:03
we have no idea what caused that fire. Or the conscientious fingerprint examiner would today say, these prints have a lot of things in common. But I can't say it's his print to the exclusion of all other persons' prints in the entire universe. And so you have like two states now that have passed statutes to address this concern about changed scientific research, Texas being one of them, including in response to death penalty cases-- enormous, enormous, and influential change.
1:22:27
California's the other state. But you know, no stranger to mass, mass forensic audits here in Massachusetts. And the court systems are just really poorly equipped to deal with these scientific failures on a grand scale. You can identify the universe with some difficulty of cases with death sentences in this country. But to identify the universe of cases affected by scientific fraud or misstatement, it's really, really challenging to do. And we don't have the tools to do it really.
1:23:01
And so that's just a huge and horrible problem. And we don't have a system that's good at thinking about connections between cases or about evidence. And in some ways, it traces back to the rejection of thinking about criminal justice as a system in cases like McClusky. So it's a problem that's not going to go away. We keep having these mass system failures where we discover that evidence was falsified in 10,000 cases, or 20,000 cases. And a couple dozen people get relief.
1:23:34
KATHRYN KASE: That's because-- and I want to add. The reason that so many people don't get relief is there's no mechanism to provide them counsel. I sit on the Harris County Public Defender Board. We had a lab scandal where a man named Salvador falsified lab results in thousands of cases. The argument that broke out between one of the sitting district judges, a judge who has now been elected to the Court of Criminal Appeals-- there goes that court again-- was that the Harris County Public
1:24:03
Defender was engaging in some sort of barratry by writing to these poor defendants who had been convicted based on this falsified lab evidence and saying, hey, we don't know if you've heard the news. This guy was dry labbing results. And you may have the right to have your conviction overturned. And if you're indigent, you can ask the court for a lawyer. The letter did not say, you can have us, you can have our friend Joe who's taking court appointed cases. It's basically laying out his rights.
1:24:31
And this judge refused to allow the public defender to represent anyone in her court on any of these cases where the defendants wrote back and said, yes, I really do want a lawyer. I want to have my case looked at, et cetera, et cetera. And that's because in Texas law, we don't have a mechanism for how to get counsel to these people who weren't convicted of capital crimes, but have been subjected to falsified evidence in their cases. We have no mechanism for getting them counsel.
1:25:04
And so I'd like to tell you that all those defendants who were the victims of Salvador have gotten relief. And I can't tell you that. I can't even tell you that they've gotten counsel. BRANDON GARRETT: I have the same story. In every state, they're always notifying people. In Virginia, the AG sent-- it was discovered that an analyst in the Virginia crime lab was saving evidence by stapling it in the manila envelopes that she would take in to testify in court because it was
1:25:32
cool to be able to point to it as a demonstrative and say, I blood tested this, this right here. It was a courtroom demonstrative. And since those were saved, since they were stapled into the folders, they weren't destroyed because the lab's policy in Virginia was to absolutely-- everything gets destroyed once the conviction is final. So by accident, these tens of thousands of swabs were saved. And Governor Warner at the time ordered testing done,
1:25:55
like pick 30 cases where people are still in prison and test them. Exonerated three people. So they said, well, OK, test the rest. Then they said, we'll test maybe 5,000 with people still in prison. Then the number kept getting reduced. And then we'll test maybe 600. And then they had these cases where the test results looked like they might be helpful. They sent letters to people. The letters were like, a letter from the Attorney General's office.
1:26:18
We'd like to contact you about something important. Of course, people were not eager to respond to letters like that. There was a person that our Innocence Clinic represented at UVA where he actually never got the letter because he had a different address when he came out of prison. And he was terminally ill by the time, two years later, he finally heard the news that he was exonerated. It took two years. And so, there's no due process interpretation or notice requirements for reopening
1:26:48
cases like this, much less. And how do you get lawyers in the bar? I mean, you send emails out to the local bar associations. So what court appointed lawyer is going to say, oh, I remember the case where the fingerprint analyst was the same one, the same one, one of the 600 cases that I pleaded out in three months when I was taking court appointed cases back in 1993. The lawyers aren't going to remember. They don't track anything. KATHRYN KASE: And it's worse. Because in Harris County, Texas, we
1:27:15
push 90,000 misdemeanor cases through the system every year. And do you want to know how much is spent on investigation in the court appointed cases?
1:27:27
$0.10. And I'm not sure what that's going for.
1:27:33
Those are not my numbers. Those are the Texas Indigent Defense Commission's numbers. And I think that the cost of representation is like-- the average is $80. So this means lawyers are meeting their clients in court and saying, hi, my name is. And the offer is. And wouldn't you like to get out today?
1:27:52
LARRY SCHWARZTOL: I fear we are yet again ending a panel on a sobering note. But please join me in thanking our panelists. [APPLAUSE]
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