The Law is an Ass

In the last week, I wrapped up all the projects I had been working on.  The motion for bail that I drafted was heard and our client was granted bail set at $300,000, conditional on his wearing an ankle monitor and regular drug tests.  In an unusual move, the DA has decided, without any proof, that one of our other clients could not have committed the physical act of murder and wants our client to hand over the ‘accomplice’.  Our client maintains that there was no-one else at the scene and claims self-defence.  It appears that the defence lawyers will perhaps have to argue against the prosecution’s case by proving that our client was the murderer.

I said goodbye to two of the clients that I had spent most time with.  In this last visit, I tried to explain to one client the importance of considering a plea.  His case appears to be a strong claim of self-defence, but, as I explained to him, the law is often an ass and rarely fair.  He is up against a Texan jury and his crime is allegedly drug-related.  It could be that they decide one less ‘drug dealer’ around would make the world a safer place.  He has no previous criminal record and, on paper, he has a strong case.  All the evidence supports his story.  This is a non-death case but guaranteed life without parole (LWOP) if he is found guilty.  The client is 24; LWOP does not bear thinking about and if he gets a reasonable plea then he needs to consider it.  The stakes in the American criminal justice system are just too high.

True justice, applied by the law, rarely occurs.  Pleas have been taken by innocent people who had no connection with a crime, never mind a self-defence claim.  The risk of the law failing is too high and too likely an outcome.  Capital defence lawyers are ‘plea lawyers’ because they have grown to have little faith in a system where justice is rarely done.  They cannot risk LWOP for their clients, not to mention death.  It is most certainly not because they do not want to ‘do the work’ and go to trial.

My already vehement opposition to the death penalty has grown exponentially since working in the US.  There are so many flaws and arbitrary inconsistencies, not to mention the fact that, thanks to Columbia Law School, we have solid proof that innocent people have been killed on death row.  In reality, the law is flawed and systemic failings mean that the truth does not matter.  It is a game, based on fear and assumptions of human behaviour, in which our clients are the pawns.  As seen in the example of our client with an imaginary ‘accomplice’, no-one is really sure what happened but the DA is willing to charge a 21 year old with capital murder all the same.  Our other self-defence client has to gamble.  Take perhaps 30 years or risk trial, based on a hope that his story will be believed, with the possibility of LWOP looming.

Evolving Standards of Decency

The jury charged with sentencing decide the fate of the convicted person based on questions of their own personal morality.  In Gregg v Georgia 1976, Justices Stewart, Powell and Stevens explained the rationale for jury sentencing in capital cases.  It is to: “maintain a link between contemporary community values and the penal system - a link without which the determination of punishment could hardly reflect the evolving standards of decency that mark the progress of a maturing society."  How bizarre, then, that only members of the public who accept the death penalty as a legitimate state enforced punishment can serve on capital juries.  If I was a US citizen, I could not sit on a capital jury.  Is this because I am more, or less, evolved?

In reality, the requirement for a ‘death qualified’ jury in a capital trial makes sense.  There cannot be a juror who will refuse at any cost, to uphold the law.  The contention that the use of juries in capital trials reflects the ‘evolving standards of decency that mark the progress of a maturing society’ is just patently false.  By deliberately excluding individuals who oppose state execution, the courts will never know what the evolving standards of decency are. Internationally, the USis already behind in the evolution race for decency.  It sits proudly with China, Iran, Saudi Arabia and Iraq, as the top 5 Executioners for 2011.  All good company.

The trip to Death Row in the last week of my internship was a brutal reminder of why capital defence attorneys require the support of organisations such as Amicus.  The experience has been the most valuable of my life and I have never been so sure that I was doing something worthwhile.  In short, do an internship.  You will work with some of the most incredible attorneys in the world.  It is a truly humbling and inspirational experience.  And, at the very least, you will make a small but positive difference in the day-to-day existence of your clients, who rarely meet a friendly face.

Blog by Aine Kervick, intern at the Amicus Houston office
20 July 2012

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