Recently, I wrote about the problem arising from young lawyers, law students and law profs writing in a more mainstream forum on an interesting, topical issue about which they knew nothing. Some people asked for examples, which I was reluctant to give. My purpose wasn’t to out a law student as a dumbass. Their fault, if any, was seizing the opportunity to make themselves appear important at the expense of every reader’s intelligence. Can you blame them?
But an example appeared that’s both opportune and causes no qualms about outing. New York Law School professor Robert Blecker, who has sought to make his scholarly bones as the foremost, if not only, law prof cheerleader of execution, somehow managed to get a piece posted at CNN Opinion.
What readers will remember isn’t the name Blecker, but that someone at the “prestigious CNN” thought the ideas so worthy as to give it space. Little do they know how desperate websites are for content, but that’s another issue. To the uninitiated, if it’s worth space in CNN, it must be true. Or at least credible.
Blecker has come up with a listicle of five ways to improve the death penalty. I will address only one of them, because it reflects the most dangerous message he conveys to people who don’t know any better.
2. Let’s be more certain that they are guilty.
Western culture has essentially committed us to a presumption of life, of innocence and we have long required special proof of guilt before we punish with death. “Super due process” requires vigorous defense counsel challenging the prosecution to prove guilt beyond a reasonable doubt to a unanimous jury.
Death (or life without parole) as society’s ultimate punishment demands even more, however. A jury should not only be convinced beyond a reasonable doubt that the condemned did it, but also that they deserve their punishment.
In the separate penalty phase of a trial, where the question is not guilt or innocence, but life or death as punishment, a jury should be left with no lingering doubt — no real doubt, however irrational — about the convicted killer’s guilt.
Even this should not be enough to condemn a vicious predator to die. A nearly unanimous jury should be convinced with no “lingering or residual doubt” that the convicted murderer did it, and to “a moral certainty” that he or she deserves to die for it. No state has adopted this higher, special burden of persuasion, but they should.
One of the most critical arguments against the death penalty is that the wrongfully executed person can’t be unexecuted when, years, often decades, later, we learn that he’s not guilty. The Innocence Project has made this fact irrefutable, having proven conclusively that innocent people are convicted and sentenced to death. On the one hand, Blecker appears to acknowledge that the system isn’t perfect by including this in his listicle.
On the other hand, Blecker suggests that the solution to convicting the innocent is to tell juries to be really, really certain that the defendant is really, really guilty and really, really deserves to die. Because up to now, it’s just been one big joke, and jurors just flip a coin, or say to themselves, “life, death, whatever. What’s for lunch?”
That’s it? If you toss in the words “moral certainty,” the institutional failures disappear? If you instruct a jury to be convinced with no “lingering or residual doubt,” junk science, concealed Brady, withheld discovery, false confessions and mistaken eyewitness identifications will never again condemn an innocent person to death? No one will ever take the witness stand and lie again? No juror will ever harbor secret prejudices and hatred?
While this may seem like a joke to anyone who tries criminal cases for a living, the lay readers of CNN may not be able to see the humor in Blecker’s listicle. After all, the man is a law professor, and scholars don’t write op-eds that are mind-numbingly absurd. And even if they did, certainly CNN would never publish something that was so inherently ridiculous that it would instantly kill the brain cells of anyone reading it.
Yet, someone, somewhere, will argue the efficacy of the death penalty, and when confronted with the fallibility of the legal system, point to Blecker’s listicle and proclaims, “see, that’s easy to fix. A law professor said so.”
If it was so simple, so easy-peasy to eliminate wrongful convictions by throwing in a few extra words in the jury charge, why wouldn’t we do it for every crime? Don’t we want to be sure that everyone convicted of a crime is truly guilty? Is Blecker fine with wrongful convictions when people are facing a mere 30 years in prison? Are these people throwaways to a fine scholar like Blecker?
It would appear from Blecker’s background that he may have tried a few cases in his early career, as Special Assistant Attorney General, New York State Office of Special Anti-Corruption Prosecutor, where he ” prosecute[d] corrupt lawyers, cops, and judges and saw up close how the rich and powerful were given breaks denied to poor and powerless offenders.”
The one thing he never did was try a death case, even as prosecutor. Then again, young prosecutors are always certain that they’re on the side of truth and justice, so they see no problem with convicting the innocent because no one they prosecute is ever innocent.
With this background, combined with the ascribed credibility of a lawprof and the attributed credibility of CNN, it looks like the problem of wrongful convictions is an easy fix. While you, and I, may not see it as clearly as Blecker, his view appears in CNN, so he must know what he’s talking about.
And that’s the problem.
H/T Doug Berman