Patterico's Pontifications


Is a “Beyond All Possible Doubt” Standard for the Death Penalty Workable?

Filed under: Crime — Patterico @ 1:52 pm

In response to my argument that no death sentence should be imposed unless the defendant’s guilt is proved with absolute certainty, some have argued that my standard is unworkable. I disagree. How can we know who is right?

One way is to ask someone who has actually been on a jury that imposed the death penalty on someone. So when commenter George S. left a comment on my blog saying that he had been on such a jury, I sent him an e-mail which said:

Thanks for your comment. I am interested to know whether you would have convicted your defendant, and sentenced him to death, applying a standard of beyond all possible doubt. What about the other members of the jury? Could you leave a comment on the blog, or respond in an e-mail that I can quote in a post? It’s important to the debate. Thanks.

He responded:

This was a case of “Beyond all Doubt.” The first poll of the jury after selection of a leader was 12 for guilty. We played devil’s advocate for a while but all agreed very strongly on the guilt. At the sentencing phase the result of the first poll was death (as opposed to a prison sentence of life) (it wasn’t discussed but I think all the jurors knew that it would be less than “life”). We again discussed it in great detail, the pros and cons and should we or shouldn’t we. Every poll (of several) agreed to the death penalty.

It’s hardly a comprehensive survey, but George S. has more relevant experience than most commenters here on the issue of what it’s like to confront these issues in the real world.

23 Responses to “Is a “Beyond All Possible Doubt” Standard for the Death Penalty Workable?”

  1. It’s an experience I could not have. Were I being considered for a jury in a capital case, I’d be excluded for being opposed to capital punishment.

    Dana R. Pico (a071ac)

  2. No, I haven’t been in the jury room

    but I also see how DA’s evaluate, file and prepare cases.

    And in DP cases, the burden the DDA’s put on themselves in the matter of unrefutable evidence before even seeking a DP is considerable.

    In my corner of So Cal, when a DDA seeks the DP it is because they know they have overwhelming hard evidence of guilt of premeditation. Anything that might lead to a jury balking at the DP and the DDA’s will opt for LWOP.

    Darleen (f20213)

  3. Darleen, apparently you haven’t read Patterico’s excellent post about this.

    Tillman (1cf529)

  4. I would fear that jurors unable to meet a higher standard would be more likely to convict, and give a life sentence, on evidence that is less than beyond a reasonable doubt.

    Therefore, while the effort would be to be less chancy on death cases, more wrong convictions, with life sentences, would be the actual result.

    RJN (c3a4a3)

  5. Tillman

    I read it, and I will repeat that anectodally where I work (over 7 years) and the handful of DP cases I have seen, scrupulous is a term I would use to describe everyone involved. I haven’t seen ONE DP case tossed out or reversed.

    There was ONE almost 20 y/o DP case where the CA Supreme court sent it back for a new trial (based on the defense attorney’s “lack” of competence). We dragged out something like 20 boxes of files from the basement, tracked down witnesses now out of state, endured that one witness was now dead

    AND WON THE CASE all over again. Because the evidence was solid and discovery to defense was clean.

    I don’t dispute there may be different standards or people in other locales, but for my office the standards before even designating a case eligible for DP all “t’s” are crossed and “i’s” are dotted.

    I do not believe the pressure to exclude exculpatory evidence on the part of prosecuters is any greater than the pressure on defense attorneys to cheat.

    Cripes, we even had one defense attorney “slip” and reveal witness information to her client (a gangbanger) and within a few days said witness was dead.

    [We have the highest standards where I work as well, based on my personal experience. My observations regarding the pressures on prosecutors are based on books I have read about cases in other jurisdictions, such as Illinois and the Deep South. The pressures are there in our office too, but my experience is that our prosecutors respond to those pressures honorably. I can’t necessarily say the same about all prosecutors throughout the nation, though I suspect the overwhelming majority are professional and honorable. — Patterico]

    Darleen (f20213)

  6. Even though I don’t agree with Patterico’s main point, I have to say that if someone did agree that death penalty cases deserve a higher level of proof, it shouldn’t give them comfort to know that prosecutors do this.

    I don’t care how honorable the prosecutors are, it is the job of the judge and jury to ensure that justice is done. If we could leave it up to the prosecutors, then we wouldn’t need trials.

    Doc Rampage (b7bb1a)

  7. I don’t know what this example is supposed to prove. “Beyond all doubt” does not mean “beyond all possible doubt,” only that the jury itself does not actually harbor any doubt. A more interesting experiment would be to find a jury that convicted anybody of any felony punishable by a minimum of at least 20 years, on a “proof beyond most doubt, and we decided that the rest of our doubts were unreasonable.”

    Xrlq (428dfd)

  8. “Beyond all doubt” does not mean “beyond all possible doubt,” only that the jury itself does not actually harbor any doubt.

    The issue is how jurors would apply such a standard. I asked the guy how he would have voted using my proposed standard, and he said he would have voted the same.

    Patterico (948bb2)

  9. Darleen,

    What happened to the “slippery” defense attorney who fingered the witness?

    Black Jack (ee9fe2)

  10. Beyond all possible doubt?
    Not possible, so just go back to individual justice.

    Walter E. Wallis (b2dd68)

  11. The issue is how jurors would apply such a standard.

    Maybe that’s your issue, but it’s not the issue. Jury verdicts aren’t worth a hill of beans if they won’t stand up on appeal, and they won’t if your impossible standard ever becomes law.

    [As I have already argued, I intend my standard to be a real-world standard. A single eyewitness ID by a stranger, standing alone without corroboration, would not suffice. By contrast, the guy who grabbed the gun from the bailiff in Atlanta could easily be convicted under my standard. As I say, I’m flexible on the wording. I’m just looking for something higher than reasonable doubt. — Patterico]

    Xrlq (5ffe06)

  12. #9 Black Jack

    Nothing. We had a tape of the phone call from jail of the gangbanger ordering the hit, but we had no tape/witness/written evidence that he got the info from his attorney..even though that was the ONLY person who had that information.

    That’s a big reason we redact ALL victim/witness information on reports we give to defense attorney’s via discovery on gangcases. (if the victim in sexual assault/domestic violence cases wants their info confidential, the defense attorney does not get that either – even the filed complaint names the victim as “John/Jane Doe”

    Darleen (f20213)

  13. Patterico:

    Under the standard “beyond a reasonable doubt,” I would have voted to convict OJ Simpson. Under your proposed standard, I would have voted to acquit. (Or if you want to restrict to the penalty phase, I would have voted for the DP under the real standard and not under your proposed new standard.)

    I don’t see the case of this post as meaningful an any way: George S. cannot tell us whether the other jurors would have convicted under the BAPD standard, only whether he would have. In the case he described, were I on the jury, I would almost certainly have voted guilty, and if asked, I would have said (orally) “I have no doubt that he’s guilty.”

    But were I told that the standard I had to apply was “beyond all possible doubt,” I would balk. When I say (informally) I have no doubt, I mean I have no reasonable doubt. My friend Neil Schulman has a crazy, almost impossible theory about how OJ was framed — not by the cops, but by some other black football player friend of his (I forget the name; I don’t follow football). His theory is entirely unreasonable; but if pressed, I would have to say it’s not impossible — ludicrous, but just barely possible.

    Would you consider a standard of BAPD coupled with a relaxation of the requirement of unanimity? If you can convict and sentence to death with 9 out of 12, would that be enough?

    Otherwise, every time you have a situation where 11 (or fewer) vote guilty BAPD, but one (or more) can only vote guilty BARD — which I suspect would be quite often — then voila, another sentence of “life.”

    And within a few years, he could be out and ready to rack up his second “strike,” assuming Prop 66 version 3 hasn’t eliminated murder as one of the strikes.


    Dafydd abHugh (f8a7be)

  14. Patterico, what chance of innocence do you consider beyond a reasonable doubt? What lower chance do you want to require in capital cases? As I said in another thread as a juror I would vote to convict (under a certain beyond a reasonable doubt standard) if I thought there was a less than 5% chance of innocence.

    If this is too theoretical consider the case of a 12 year old girl living with her mother and step-father. She disappears and is later found raped and murdered. DNA matches semen found in the body to the step-father. Testimony indicates that (1/n) of unrelated individuals would also match. What does n have to be before you will as a juror convict under an unreasonable doubt standard? Before you as a prosecutor will prosecute under an unreasonable doubt standard? Same questions for your proposed higher standard.

    James B. Shearer (fc887e)

  15. In the O.J. Case, Ito and Marsha Clark both should have been disbarred for gross misconduct. Ito never should have allowed in the testimony of conversations unconnected to duty, and the open admission of O.J. “I killed the bitch” should never have been excluded on the flimsy excuse that Rosy Greer was “acting” as a clergeyman at the time. Everyone else in the jail was not, and a “confession” shouted deserves no secrecy. Marsha should have been replaced as soon as she trashed her own witness.

    Walter E. Wallis (b2dd68)

  16. Walter Wallis:

    You may very well be correct; I couldn’t possibly comment.

    But it’s irrelevant to my point.

    My point is that I, personally, would find it virtually impossible to convict on Patterico’s “beyond a possible doubt” standard — for one thing, if he’s consciously rejecting the standard of “beyond a reasonable doubt,” that tells me that his standard means I must acquit even if my only doubt is unreasonable.


    Dafydd abHugh (f8a7be)

  17. Since the trackback didn’t come through, I’ll just link to my post on this idea over at el Jawa.

    Dude, blogs need to standardize and debug this whole trackback technology. cause it just ain’t working for me.

    See Dubya (e11a42)

  18. There are some cases in which only the death penalty will do. What is important to remember is that if anyone can be wrongly executed, you can be wrongly executed. Patterico’s right.

    stevemdfwtx (2b8dae)

  19. I think a proposal for a heightened standard of evidence in capital cases deserves a lot of consideration, though “beyond a possible doubt” is probably a bit too stringent. One can imagine a lot of examples where a “reasonable doubt” might not exist but a “possible doubt” remains. Maybe there are cases where there is not even any POSSIBLE doubt as to guilt, but I can’t think of one at the moment. It would seem that every source of evidence brings with it at least some possibility for error, tampering or both.

    How about something more than “reasonable doubt,” but less than “possible doubt?” “Conceivable doubt,” perhaps? While it may, for example, be considered POSSIBLE that a government-spawned clone of the defendant or an alien body snatcher actually committed the crime, it is not really CONCEIVABLE that either actually happened.

    Eman (0871a3)

  20. Stevemdfwtx:

    There has been no evidence that “anyone can be wrongly executed.” If this guy was actually wrongly executed (that is, if his friend is not simply lying now, ten years after the trial), he was executed because his lifelong history of crime and violence convinced the jury that he was guilty in this particular case.

    Of all the cases where people have claimed someone was wrongly convicted of murder, I don’t know of any where the defendant was just a completely ordinary, innocent guy comparable to Patterico, me, or to Dr. Steve from Fort Worth, Texas.

    Generally, they are lowlife scum who have lived a criminal lifestyle since their early teens… but maybe we’re not quite sure they committed this particular murder, or else not quite certain that the special circumstances were properly proven.


    Dafydd abHugh (f8a7be)

  21. Dafydd,

    If you haven’t read Adams v. Texas, or seen the movie The Thin Blue Line based on that book, I highly recommend one or both. Go to the store my kids like to call Blockmustard, and rent the movie.

    There are other good books about wrongly convicted people that I recommend; I think that I have named some of them in my posts on the issue.

    Patterico (6e4ddd)

  22. Upfront, I want to say I believe the death penalty is an important part of our criminal justice system but that it should be difficult to impose. Accordingly, I am interested in Patterico’s suggested change to a higher standard of proof in death penalty cases.

    Would it be worthwhile to tinker with the defense side before altering the standard of proof? For instance, you could amend the rules so that attorneys who work on death penalty cases must be certified and require extensive criminal law experience and specialized CLE for attorneys who want to be certified. Make the CLE available for free to attorneys who have the requisite criminal law experience and who seek certification. Provide additional resources to the defense, such as enhanced access to labs/DNA, investigators, and research assistants.

    Ultimately, whether you change the standard of proof or tinker in other ways, prosecutors will hesitate to seek the death penalty in all but the most heinous, clear-cut cases. Certainly, some believe that would be a good thing. But at some point it will eviscerate the death penalty to the point it loses all deterrent value.

    I don’t know the answer but I’m glad we’re talking about it. One of the great accomplishments (among many) of the American justice system is that we never stop trying to make it better.

    DRJ (15ed57)

  23. Stevemdfwtx sez:

    Generally, they are lowlife scum who have lived a criminal lifestyle since their early teens… but maybe we’re not quite sure they committed this particular murder, or else not quite certain that the special circumstances were properly proven.

    I fear that cops and prosecutors sometimes think the same way. I think that mindset can readily lead, under the right circumstances, to wrong indictments and wrong convictions. I don’t know that they actually do, but a talented prosecutor with a vendetta would be a very scary thing to be on the receiving end of.

    Eman (5e085f)

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