I Never Forget A Face

Words uttered from many an eyewitness. Scientific studies however would prove otherwise. And if you doubt science, just look at the overwhelming number of exonerated inmates, put in prison by eyewitnesses and released by DNA. Of the first 40 exonerations by DNA, 90% were convicted on the basis of eyewitness testimony (according to a study by Wells et al in 1998), and one particular individual had five witnesses erroneously identify him as the culprit. The Sheck, Neufeld & Dwyer study of 2000 examined 62 exoneration cases and found 52 of those had been convicted by mistakenly confident eyewitnesses.

To exemplify the unreliability of an average person’s recollection of faces consider the results of the1995 study Cutler and Penrod. They sent an individual into a convenience store who then performed a memorable action (e.g. paying with pennies). The store clerk was later presented with a photo spread and asked to identify the individual. A mere 34-48% made a correct identification. Should justice really hang on such a balance?


The problem however is not just unreliable memories – it’s the undue weight a jury is willing to give to such recollections. Loftus and Doyle (1992) cite a study in which a mock trial was presented to three juries. Evidence presented before the first jury included eyewitness testimony, and 72% of those jurors returned a guilty verdict. For the second jury the eyewitness was impeached (shown to be unreliable) and yet still 68% were prepared to rely on the conviction of the witness that the defendant was responsibly. All this in comparison to the third jury who were presented the same case, with the same facts, but without an eyewitness – and only 18% of the jurors found the defendant to be guilty. Looking at such statistics it is impossible to ignore the glaring reality of the unfounded extent to which jurors rely on eyewitness testimony.

There’s only one type of person a jury might believe over an eyewitness – a qualified and certified expert. In 2001 the New York Court of Appeals held in The People v Lee that a Judge must consider admitting expert evidence whenever it is offered unless they consider it not to be helpful to the jury. When would expert evidence ever not be helpful to the jury? When the expert is calling into question the very expertise that gives the jury the authority to determine guilt or innocence. The jury is made up of ordinary people who experience day-to-day life; they are ‘our peers’. Experts are called to educate jurors about matters outside the day–to-day experience of the ordinary citizen. Evidently the ordinary citizen’s day-to-day experience guides them to give greater weight than they should to eyewitness testimony. By calling into question a jury’s ability to properly weigh evidence, we are in effect saying they are ill equipped to do the duty imposed on them.

“Trial by jury is a safeguard against oppression. As the Lee case shows, however, it comes with a cost. The ordinary citizens we trust to protect us against potentially overzealous government are, by virtue of their very ordinariness, often inexpert at the tasks they must perform.” (Michael C Dorf)

Short of abolishing jury trials all together, or at the very least when only witness testimony is available as evidence; the system must find and produce a mechanism to differentiate between poor and valuable eyewitnesses. And to do so we must ask – why are eyewitness accounts so unreliable? Apart from the general fact that humans are poor at facial identification, particularly when looking at faces of another race, there are a number of factors to consider; including visibility conditions and the procedures used to obtain an identification.

Considering the latter in particular: studies have revealed that identifications by witnesses are relative and not absolute. That is, they will compare photos to each other and not each individually to their recollection. If they recall seeing a very tall, longhaired man in a red sweater – they will look at the photos and determine between the tallest which ‘best fits’ their memory. Rather than determine if any of the images individually represent the same features they recalled. They are likely therefore to make a selection from the lineup even if the culprit is not in it. To prevent this, at the very least, all photos in the lineup should be identical as much as possible apart from the subject – that is, the lighting, size, color, angle, background, and clothing etc should be the same in each photo. None should particularly stand out. For example if one photo in the lineup shows an individual wearing a red sweater, and the witness indicated they recalled seeing the culprit wearing a red sweater, it will instantly guide them to identify that individual as the culprit. It would also help to prevent false identifications if the witnesses were made aware that it is possible the suspect is not in the lineup, giving them an alternative to measuring the photos against one another.

The human mind has a tendency to create memories by supplying missing information in a recollection with expectations (e.g. general laws of physics) and external sources (e.g. by picking up on descriptions from other people). In the mid-seventies Elizabeth Loftus did a study about the effect on memory after the introduction of false facts. Subjects were shown a slide of a car at an intersection with either a ‘Yield’ or ‘Stop’ sign. They were then asked questions as the examiner deliberately inserted the wrong sign in the questions. For example those who had seen the slide with the ‘Stop’ sign, were asked questions beginning with ‘When the car approached the yield sign…’ The results indicated a propensity to remember erroneous events either by the influence of direct false information, or creating memories from the implication or indirect guidance. In the same study other subjects were shown a slide of a car accident. Those who were asked by examiners about how fast cars were traveling when they ‘smashed’ were more likely to recall seeing broken glass than those who were asked about when the cars ‘hit’. Again showing how the mind all too eagerly will use collected information to fill gaps or fuzzy areas in memory as the introduction of false cues altered the participant’s recollection.

With this concern and consideration it is important that when a witness is being questioned the examiner use careful and non-leading language. It would be ideal that the examiner knows nothing of the incident so ask questions without any natural bias. The same could be said of an officer presenting a line up, because even unconscious changes in body posture can signal identification to the witness. One only need to watch Darren Brown (who admittedly gives signals intentionally, which one would hope an officer would not do) to see how subtle and limited the signals can be to direct a witness to the desired result. The witness should at least be told the examiner does not know who the suspect is, because even if the examiner is not giving subconscious directions, the witness will look for confirmation of their selection. Any affirmation from an officer will only work to cement the decision and give the witness more confidence, and it is according to the witness’s confidence that jurors will measure the value of the identification (Cutler et al 1990).

“Bias creeps into memory without our knowledge, without our awareness. While confidence and accuracy are generally correlated, when misleading information is given, witness confidence is often higher for the incorrect information than for the correct information. This leads many to question the competence of the average person to determine credibility issues. Juries are the fact-finders, and credibility issues are to be determined by juries. The issue then arises whether juries are equipped to make these determinations. Expert testimony may not be helpful. Indeed, since the very act of forming a memory creates distortion, how can anyone uncover the “truth” behind a person’s statements? Perhaps it is the terrible truth that in many cases we are simply not capable of determining what happened, yet are duty-bound to so determine.” (Laura Engelhardt, Stanford Journal of Legal Issues)

Execution by British Drugs

You may recall from an earlier post that the United States has run out of sodium thiopental – a drug required for the execution by lethal injection procedure. The only FDA approved supplier in the States, Hospira, cannot provide any more until January 2011 due to a shortage of an ingredient. It was thought that this meant all executions would be put on hold until next year. Arizona however found a solution to the ‘problem’.

At 10.26pm on Tuesday October 26th, Arizona executed Jeffrey Landrigan using sodium thiopental manufactured in Great Britain.


While the State was not required to disclose their source for the drug, they did announce that it would be coming from Great Britain in order to dispel any concerns that it was unsafe. The Arizona Chief Deputy Attorney General Tim Nelson said the drug comes “from a reputable place”, and not “a third-world country”. While we would all like to think of a ‘first world nation’ like GB being a ‘reputable place’ – the country of origin provides no greater assurance of the quality of drug without knowing at least who the manufacturer is and if they are sanctioned by said nation.

Landrigan’s attorneys argued that he could be painfully suffocated by the subsequent potions of the lethal injection if the sodium thiopental doesn’t render him unconscious. In Baze v Rees (2008) the US Supreme Court held “It is unconstitutional that, failing a proper dose of sodium thiopental that would render the prisoner unconscious, there is a substantial, constitutionally unacceptable risk of suffocation…and pain from the injection.”

Initially a Federal Judge issued a stay of execution on Monday the 25th, concerned that this drug from an unknown source might not be effective. The stay was upheld by the 9th Circuit US Court of Appeals on Tuesday morning as they implied that without further information about the drug the defense would be unable meet the burden of establishing that use of the drug might cause a "substantial risk of serious harm". However, the United States Supreme Court, by a slim majority of five to four, lifted the stay just after 7pm.

It was the first decision for Justice Elena Kagan, the US Supreme Court’s newest member. She found herself in the minority – voting to uphold the stay of execution. She was in good company with Ruth Bader Ginsburg, Stephen Breyer, and Sonia Sotomayor. I think its particularly interesting that not only did the two newest members of the bench vote to uphold the stay, but also all the female members of the bench. (I’d like to note further that in the case of Teresa Lewis - the woman recently executed, the only women on the bench at the time dissented from the majority and voted to grant her appeal. In short – I think we need more women on the United States Supreme Court Bench).

The US Supreme Court determined the Federal Judge had erred in his reasoning, because Baze v Rees sets a high standard of proof that an execution method would cause harm. Now who am I to say a bench of nine well respected, experienced and knowledgeable judges are wrong – so instead I’ll limit it to: the five judges who maintained this position were wrong. I can’t help but wonder how long it has been since Anthony Kennedy, Clarence Thomas, Samuel Alito, Antonin Scalia and John Roberts, read the wording of the Baze v Rees decision. To me, their intention in that case was quite different to what they claim today.

“There is no evidence in the record to suggest that the drug obtained from a foreign source is unsafe. The district Court granted the restraining order because it was left to speculate as to the risk of harm… Speculation cannot substitute for evidence that the use of the drug is ‘sure or very likely to cause serious illness and needless suffering.’” Said the Supreme Court. I suppose they determined the drug was ‘innocent until proven guilty’. If speculation was their concern they should have required the necessary information from the State in order to reach an informed decision. Without that information, is it not better to err on the side of safety?

You may also recall from my prior blog regarding drugs that Judge Fogel had stayed Albert Greenwood Brown Jr’s execution on question of California’s execution protocols. It’s unlikely now that any protocol will fail under this new ‘sure or very likely’ standard, and Fogel will be forced to allow executions to proceed.

“There was no showing that the drug was unlawfully obtained, nor was there an offer of proof to that effect.” The US Supreme Court noted. However they had also ruled that the State were not required to disclose the supplier of the drug because such information fell under state law concealing the identities of those involved in executions. How then could the defense possibly have a hope of prove that the drug was unlawfully purchased if they did not even know from whom the purchase was made?!

The manufacturer of the drug has since been revealed in The Guardian: Archimedes Pharma UK. They are the only licensed manufacturer of sodium thiopental in Britain, though they specialize in pain relief, and developed PecFent a breakthrough in relief for cancer pain. The company claim that once they have produced the drug they give it to a supplier have no further control over or knowledge of what happens to it. “The company neither exports the product to the US for any purpose, nor is it aware of any exports of the product,” a spokesperson said.

The Sodium Thiopental produced by Archimedes “is used as an anesthetic, in convulsive disorders and for reducing intracranial pressure,” said the Medicines and Healthcare Products Regulatory Agency (MHRA) – the agency responsible for licensing Archimedes. MHRA must be informed and give approval before the drug can be exported to Europe by a manufacturer or wholesaler, but the same restrictions do not exist for exports beyond Europe.

It appears California has also bought a batch of the same sodium thiopental (it has the same expiration date as that which Arizona used) in order to proceed with executions which had been stayed due to the lack of the drug as usually provided by Hospira.

Although we cannot put upon the manufacturer a legal burden to oversee how their product is used, just as we cannot hold a pharmacist responsible for how a patient uses prescribed drugs, it seems to me that the company should be more concerned about how such a lethal drug is dealt with.

Amnesty International is concerned that this incident “raises serious questions about whether there are proper controls on equipment that could be used to torture and kill.” And they have called for tighter EU controls to prevent the drug being exported again for use in executions. The European Union has resolved to work towards the universal abolition of the death penalty and prepared Council Regulation (EC) No 1236/2005 which concerns “trade in certain goods which could be used for capital punishment, torture or other cruel, inhuman or degrading treatment or punishment.” However the regulation means little unless they intend to fully implement it and reprimand and penalize those who break it.

And while the EU needs to enforce their regulations, so do their members. The British Government must at least take a visible stand against products from their country being used to execute people. To ignore it is to consent to it. How can a country which holds a firm position against the death penalty permit anyone within their jurisdiction to profit from executions?

If Archimedes do not know which of their suppliers sold the drug to the States, they can at least provide a complete list of all their suppliers which handle sodium thiopental. Under enough pressure from Amnesty, the EU, the British Government, the media etc, perhaps they will have no other choice but to hand over such a list. The British Government and/or the EU could then conduct an investigation to determine Arizona’s source and hold them accountable.

On a side note regarding the execution: Landrigan was convicted of the 1989 murder of Chester Dyer. His defense team said that preliminary DNA results disclosed last week indicated that blood at the crime scene came from Dyer and another person which was not Landrigan. Prosecutors explained this with the argument that another person participated in the killing. There is also evidence that Landrigan is severely brain damaged, probably a result of his mother’s drug abuse during pregnancy. The US Supreme Court ruled that the quality of Landrigan’s “alleged mitigation evidence” was not good enough to make “a colorable claim” that the trial judge would not have sentenced him to death. However, the Judge who sentenced Landrigan to death has sworn an Affidavit saying that he would not have done so had he known about Landrigan’s mental defects.

Did Britain inadvertently aid the wrongful execution of a possibly innocent man?

New Orleans Police Department

On Sunday night I had a lovely dinner at Dante’s Kitchen (great restaurant – amaaaaazing food, and comic waiters) with a friend. After dinner, perhaps fueled by a glass of wine and chocolate high, we took a wrong turn and found ourselves in the less than desirable neighborhood of Holly Grove. Picture shanty shacks and broken street lights; and if that doesn’t help – Lil Wayne claims to be from this area because it enhances his bad ass persona.

We drove past what looked like a hang out joint, with cars carelessly parked around, and people hanging out on the street swigging from bottles. “Lock your door,” my friend advised, “I’m sorry, I think I’ve driven us into the wrong part of town.”
“No worries,” I assured her, “It’s just a mini-adventure.” – my typical, perhaps in this case unwise, attitude to wrong turns.

A few blocks further and we passed four police cars blocking off a street with their lights flashing. “We could ask them for directions, but the NOPD aren’t the most reliable people.” My friend joked. I think perhaps they overheard her because as we drove past they jumped into their cars and two vehicles followed us, lights flashing, and pulled us over. The vehicle immediately behind us was unmarked. “How do we know they’re really police and not con artists trying to rape us?” My friend (the New Orleans resident) asked me.

“Because they’ll be wearing uniforms?” I proffered. But alas they were not. An officer approached each side of the car and rapped on the window. All I could see was the gun clearly displayed at the officers hip. It took me more than a few seconds to react, perhaps encouraging their suspicions. We left our doors locked and rolled down the windows only far enough to exchange words.

“Do you have any id on you?” We were asked. While both silently considering asking the same of these men we placidly handed over our identification, figuring if they were police it was better to do as they ask, and if they weren’t they could keep the ids for all we cared right now. If they had asked us to step out of the car however – we would have dealt with that rather differently.

“What are you doing in this neighborhood?” They questioned.
“We had dinner at Dante’s Kitchen and then got lost.” I blurted out.
“This is a bad neighborhood,” the officer on the driver’s side announced (as though we couldn’t see that), “you girls shouldn’t be driving around here. We were just called out on a robbery down the road.”

It seemed they were considering running our licenses, until the officer checking my British id decided he believed us. “I think they just got lost.” Our ids were returned and we were permitted to drive on – without directions they sent us back into the maze of dark streets.

My first run in with the law and naturally in Louisiana it was race related – had we been two black girls driving around we probably would have gone unchecked. Two white girls driving around Holly Grove on a Sunday night – they probably suspected we were cruising for drugs. Why they deemed us so dangerous as to send two vehicles away from a crime scene to chase us down, Im not sure. And why four white cops believed they were undercover wearing tracksuits and driving an unmarked car is also beyond reason. The NOPD hardly improved my opinion of them – although they were not threatening or violent to us, they were certainly intimidating, and not at all helpful. They typically thought they are "the law" and pulled us over with no probable cause, then sent us back off into the neighborhood they had deemed dangerous without directions on how to get out.

Executioners Scramble for Drugs

Sodium Thiopental was designed to be used as an anesthetic. It is also however the first drug administered in the typical cocktail of three for execution by lethal injection. 2-5grams of sodium thiopental streams into the body to induce unconsciousness, followed by 100milligrams of Pancuronium bromide which causes muscle paralysis and respiratory arrest, and finally 100 milliequivalents of potassium chloride to stop the heart.

Since the botched execution of Romell Broom in Ohio, a new one-drug method has been developed – a lethal dose of sodium thiopental. It costs Ohio $350 for the drug alone to execute someone. Washington has also elected to apply this method.

The sole American producer of Sodium Thiopental is an Illinois company called Hospira. It was designed, they say, solely for medical purposes, and they do not know how it has found its way into execution chambers. The company, who sells all three of the drugs involved in execution by lethal injection, has even come out against the death penalty. “Hospira manufactures this product because it improves or saves lives, and the company markets it solely for use as indicated on the product labeling,” Mr. Rosenberg, the company’s spokesperson, said in a statement. “The drug is not indicated for capital punishment, and Hospira does not support its use in this procedure.” Particularly interesting in light of the fact that very few hospitals use Sodium Thiopental, choosing rather to use alternative anesthetic drugs, so really the majority of the drug which is sold goes towards executions. Other uses for the drug include euthanization of animals and assisted suicide.

The FDA reported a shortage of the drug in March. Hospira acknowledged a shortage last spring, first promising fulfillment in July, then October, now pushed back to January 2011. A spokesperson with Hospira has said the issue relates to the shortage of an active ingredient/ raw material and they hope to have the product back on the market at the beginning of the New Year. There is some speculation, however, that this is all a stunt to prevent further executions.

States are now scrambling to collect enough of the drug to carry out scheduled executions. The governor of Kentucky has postponed signing further death warrants until such time they know the executions will be able to proceed, as their one remaining does expires this weekend.

California will have to stop executions from Friday because their stock of Sodium Thiopental expires, though not until after they have put to death Albert G Brown Junior, who has been sitting on death row since 1982 and will be the first person California has executed in four years. It seems this impending drought of necessary drugs has put some pressure on, apparently after four years of no executions and keeping Brown waiting for 28 years, they are rushing to ensure his execution before an expiration date of drugs which will ultimately kill him.

Initially Brown’s attorney’s requested a stay of execution because their client had not decided whether to be executed by the one drug or three drug cocktail (as mentioned before, both methods require the drug soon to expire). The Federal District Court denied the stay. Upon hearing about it the United States Court of Appeal of the Ninth Circuit ordered the Federal District Court Judge – Jeremy Fogel - to reconsider his denial of a stay of execution. “It is incredible to think that the deliberative process might be driven by the expiration date of the execution drug,” the Appeal Court wrote.

In 2006 Judge Fogel halted executions pending a review of the three drug cocktail procedure and deficiencies in the State’s methods and their antiquated facilities. The State then built a sparkling new death chamber at San Quentin and redrafted new regulations which were approved earlier this year. However Judge Fogel indicated he had not had the opportunity to carefully consider the new execution protocols due to the looming execution date and deadline the expiration date provided. Without giving proper time and consideration to the new protocols his own actions had required, how could he possibly deny a stay of execution?

Virginia successfully executed Teresa Lewis last week with the last of their supply, though they have no further executions currently scheduled. It’s a shame to think if that small amount of a chemical had only ‘gone bad’ a little quicker, or evaporated… or whatever, she might have been reprieved.

In Oklahoma the scheduled August 17th execution of Jeffrey Matthews was stayed when the State attempted to substitute another drug after running out of Sodium Thiopental. They have since managed to ‘borrow’ some from another State, though the stay does not expire until October 16th.


Texas, the busiest State for executions, have refused to indicate what their supply of the drug is, claiming it is because they are concerned for the welfare of the protesters outside the death house – such news might apparently ‘inflame them’ and ‘people could get seriously hurt or killed.’ Personally I think they are just trying to keep as much of it for themselves so they won’t have to put on hold any of the many executions they constantly have lined up.

There is currently a total of 17 executions scheduled throughout the country between now and January when the drug is expected to be released again.

I wonder what happens when Sodium Thiopental expires. Does it cease to be effective or does it become ‘too potent’ – if the latter, what are the concerns given the circumstances? I could understand the importance of an expiration date in hospitals, but really what’s the worst that could happen when they are being used to kill someone?

Ethical guidelines preventing the medical profession from involvement in executions extends to barring Hospitals from supplying prisons with the drug. There are no FDA approved sellers of the drug overseas, and changing drugs is hardly an option. It took lengthy court battles for some States to adopt the current procedures involving Sodium Thiopental and any alteration would invite further lawsuits (like in Jeffrey Matthew’s case - because naturally ‘we’ take any opportunity we can get to prevent executions, however temporarily) possibly suspending further executions beyond the next availability of Sodium Thiopental.

Death for the worst of the worst?

The death penalty is allegedly reserved for the worst of the worst. Would it be fair for a man to be executed for a crime less horrific or more justifiable than that committed by a man sentenced to life? Surely not, and yet if you take the United States of America as a whole it happens all the time. Take for example a man who lives in West Virginia and a man who lives in Virginia – they might commit exactly the same crime, but the man in West Virginia is not eligible for the death penalty because he has the good fortune of residing in and committing his dreadful deeds in a state which does not have the death penalty. His next door neighbor however is not so lucky. The simple fact of geography, and not merely the nature of the crime, may determine whether someone lives or dies.

In 1972, in the case of Furman v Georgia, the Supreme Court made void the death penalty statutes throughout the country. It is unfair, they cried, that this most serious of sentences be ‘freakishly’ imposed. Justice Stewart likened being sentenced to death to being struck by lightning, because it is a sentence handed out to a “capriciously selected random handful”. The Supreme Court determined the death penalty was in violation of the 8th Amendment in being cruel and unusual punishment because it was administered arbitrarily and discriminatorily. Four years later, after some rewriting of the laws, in the case of Gregg v Georgia 1976 the Supreme Court determined the new death penalty statutes were constitutional and the effective moratorium was lifted.

The new statutes reflected the concern that juries were not given the proper guidance in how to reach the decision of whether or not to kill a defendant they found guilty. Juries would henceforth be directed to consider the gravity of the crime, the aggravating factors involved in the crime, and the mitigating factors affecting the culpability of the offender. There are however additional factors which need to be addressed to prevent the death penalty from being arbitrary and capricious; as mentioned above, geography comes into play, consider also the fact that very few women are sentenced to death even when considered proportionately to men convicted of similar crimes. But perhaps more significantly is the issue of finance; those without money are forced to rely on overworked and underpaid public defenders, intelligent as such attorneys may be, they cannot always provide the most adequate of counsel. As Justice Ruth Ginsburg stated in 2001, “People who are well represented at trial do not get the death penalty… I have yet to see a death case among the dozens coming to the Supreme Court on eve-of-execution stay applications in which the defendant was well represented at trial.” Justice should be blind should it not? How is it then that the system seems to see where a defendant lives, what race he or she is and how much money he or she has?


I mentioned above that women are rarely sentenced to death, but in order to exemplify how relevant these additional factors are to the ‘freakish’ nature of the death penalty I am going to present you with two women: Gaile Owens and Mary Winkler. These Tennessee women were both diagnosed by the same psychologist with battered woman’s syndrome, and they were both responsible for the deaths of their respective husbands. In 2006 Winkler shot her husband in the back, she was indicted for first-degree murder, convicted of voluntary manslaughter and is now free with custody of her children. Owens on the other hand hired someone to kill her husband, and is now on death row. Winkler testified to the abuse she suffered, Owens did not. Winkler’s friends hired for her an experienced criminal lawyer. Owens’ first attorney withdrew from the case due to lack of funding. Winkler plead not guilty due to being a battered woman, Owens attempted to plea bargain for her life but was unsuccessful. Two very similar cases with drastically different outcomes reflective of the manner in which the cases were tried: how the attorneys handled the cases, and the judges and jury dealt with the ‘battered women syndrome’ defense. Surely a sterling example of the arbitrary nature of the system leading to a death sentence, when a woman under similar circumstances not only avoided the same but served a sentence of only two months!

Compare Gaile Owens to Wayne Glasser. Gaile was a woman responsible for killing a man at whose hand she suffered years of abuse. Wayne Glasser is a rapist, he has sexually assaulted at least 12 children including his own stepdaughter, and admits to forced sexual contact involving 25 adult victims including his sister and other relatives. He was convicted last year of raping a woman in 1996, and faced 60 years in prison. Rape is not a crime eligible for the death penalty, yet surely Glasser’s prolific violent offenses are far worse than the desperate act committed by Gaile Owens. What kind of a justice system allows a sexual fiend to be sentenced to 60 years, when a battered woman must pay with her life?

Again referring to a woman sentenced to death I present to you the case of Teresa Lewis. Teresa, with two other men, killed her husband and stepson. Within months of her trial and sentencing, a letter from one of the two men turned up indicating that it was he, not Teresa, who had planned the murders. In a post conviction hearing one psychiatrist testified that Teresa has an IQ of 72, which when taking into consideration the 5 point standard deviation, is within the range of mental retardation. Since the 2002 case of Atkins it is unlawful to execute the mentally retarded. Nonetheless, Teresa is scheduled to be executed in less than two weeks. Perhaps this case still doesn’t seem shocking, or relevant to the point at hand, but while Teresa faces being put to death on September 23, her two co-conspirators, one of whom is admittedly more responsible for the crime than she, have only a life in prison to face.

Gary Ridgway, aka the Green River Killer, was very fortunate. Although he couldn’t afford an attorney, the State of Washington provided him with a fabulous team. On this team was Mark Prothero who has written a book, ‘Defending Gary’, which I recently read and would highly recommend to anyone interested in getting an insight into the enormous amount of work and huge commitment (not to mention the finance) a capital case requires, or into the mind of a prolific serial killer which admittedly is what enticed me. Gary Ridgway may well be responsible for the deaths of as many as 70 women, so many he lost count. He is surely by definition ‘the worst of the worst’. He confessed to 48 murders, and in providing the police with all the details he could recall so that they might close some cases and provide closure to families still waiting for their missing daughter/mother/wife to return, Ridgway avoided the death sentence. I wrote last time about the evils of using the death penalty as a bargaining chip – how it might cause false confessions and pervert the course of justice. In this case it was a benefit to the defendant – a guilty man managed to avoid the punishment supposedly reserved specifically for men such as himself, by admitting his deeds and divulging the gory details. As someone vehemently against the use of the death penalty one might expect me to rejoice that a person managed to avoid it, but what really strikes me about this case is how it exemplifies the horror of how unfairly this punishment is applied. If the death penalty is reserved for the worst of the worst how is it that you can execute a man who shoots one woman, but not do the same to a man who strangles at least 48? I’d rather of course that no one was executed, but I hope you get the point I’m trying to make – the death penalty is still arbitrary and capricious.

While there are many more examples of how unfairly the death penalty is applied, I feel I have ranted and raved enough for now. The conclusion I have tried to draw out with these cases is that the very reasons for which the Supreme Court quashed the death penalty in 1972 still exist – it remains arbitrary and capricious! It is not reserved for the worst of the worst; not only might two people who committed similar offenses under similar circumstances received different sentences, but that sentence can also be considerably harsher than someone who committed an undeniably more horrific offense.

The Death Penalty and False Confessions

Putting aside my own personal opinion of the death penalty, considering only the purpose of the justice system: to find the truth, the death penalty creates more danger than good. Here is why: -

Prosecutors choose whether or not they will seek the death penalty. There is no higher power to guide or check this decision. When faced with a crime for which they would not normally seek death, (perhaps because they don’t believe the jury would so decide and therefore don’t want to waste the expense of a capital trial), the prosecutor might still put the death penalty on the table to entice the suspect to confess. “If you tell us everything we won’t seek death, you’ll get to live. If you don’t talk, you will be executed.” They might even go into the gory details of the death the suspect might suffer through – how they are paralyzed and then suffocated… I digress. The point is, it’s used as a bargaining chip.

Personally I believe this is wrong in and of itself. But some might say – if the suspect is guilty what does it matter why or how he/she confesses? So I ask you – what if the suspect isn’t guilty?

Think it doesn’t happen? Imagine you are brought into the police station and accused of brutally murdering someone. The night of the event you were alone at home, you have no alibi. There was an eyewitness who not only described someone who looks just like you, but also picked you out of a line up. (I’ll have to go into the errors of eyewitness’s another time, or I’ll digress again). The police interrogate you for hours on end. An intelligent person might ask for an attorney, “If you’re innocent what do you need one for?” comes the response, at which point many waive their rights. The interrogation continues. You tell them you need a bathroom break; they make you wait until you’re busting. By now it’s been hours since your last meal, they grudgingly throw you a can of coke. You are sleep deprived. And here’s where it comes: ‘You did it, didn’t you?’ – You’re no longer sure what to believe, you’ve by now heard so many details of the crime you feel like you were there. ‘If you tell us about it, tell us what you did, we will make a deal for you. Otherwise you could face death.’

And this is before the Prosecutor is involved. The police don’t have the power to make such a deal. You are sleep deprived and running on the sugar and caffeine from the coke, you’re thoughts are blurred and you just want them to stop. “I did it! It was me!” you break. Don’t know what you did? Don’t worry, they’ll tell you. ‘You broke into that house and you stabbed that woman didn’t you?’ Maybe you hesitate, this has gone too far. ‘We know you did it. There’s no turning back now, you’ve said it yourself. Now if you want to save your life, you’re going to have to tell us what happened.’ And so you follow the lead, hoping at the end there’s a bed where you can rest.

In the 2002 decision of Atkins v Virginia the U.S. Supreme Court acknowledged that the mentally retarded are susceptible to making false confessions due to their suggestibility and desire to please. The Supreme Court ruled it is Cruel and Unusual Punishment to execute the mentally retarded thus making it illegal. I believe though, that the risk extend beyond just those of a low IQ who are easily influenced. In a country without PACE (the British legislation governing powers of the police), trapped in an interrogation room, facing a reality of life and death, anyone can become easily influenced.

Perhaps I can make the situation all the more real to you with a true-life example. Take the case of Wayne and Sharmon Stock of Nebraska. In the late night of Easter Sunday 2006 they were murdered in their own home, each shot in the head. Initially their nephew, Matthew Livers and a friend of his were brought in for questioning. Matthew had a motive – there had been a dispute over money. The police interrogated them for hours. Matthew was given a polygraph test, he was told he failed. Eventually Matthew confessed, following police prompting. The next day, after some sleep, he recanted. “I was just telling you what you wanted to hear,” he explained. The trouble is – the damage is done. What jury is going to believe that an innocent person not only confessed to the crime but seemed to know so many details? Details the suspect likely heard about earlier on in the interrogation. More damning was – Matthew said he had been driving a tan car, not dissimilar to what an eyewitness said they had seen fleeing the crime, added to which he had had it cleaned within hours after his Aunt and Uncle had died. However, for a secure case, without ‘reasonable doubt’, the police need more. The CSI go over the scene and evidence again. All of a sudden one CSI, Mr. David Kofoed, finds a speck of blood in the suspect’s car. A speck of blood his coworker had apparently missed before. Low and behold the blood in the suspect’s car matches one of the victims.

Another item of evidence also turns up in this heated investigation – a ring, found in the kitchen of the Stock’s house, which belonged to neither the victims nor the suspects. The ring had an inscription, which lead the police to a Miss Jessica Reid. She’s brought into the police station and interrogated to within an inch of her sanity. Having established she was at the scene of the crime, they desperately want her to ‘admit’ that the other two suspects were also present. ‘I don’t know those men,’ she adamantly tells the police, pushing away the photos they keep thrusting in front of her. But the police are certain these men were involved, there’s DNA evidence linking them to the murders, and they want an airtight case. So they bring out the big guns: ‘Tell us the truth about these men and you won’t be executed.’ They have her attention. ‘You met them at the bar beforehand didn’t you?’
‘Sure.’ She agrees. She knows they have her, she was there, she witnessed her boyfriend, Gregory Fester, kill the husband and wife. Now all she can do is save her own life. She tells them whatever they want to know in order to protect herself from a possible death sentence.

Two men put on the chopping board so a guilty woman can save her life. All in the so-called name of ‘Justice’. But this isn’t how you find the truth.

Jessica confides in an officer from another district, “I don’t know those men. They made me say they were involved, but they weren’t.” And it all comes out – the drop of blood in the car tying the two suspects to the crime was planted by the CSI – he has been tried and convicted of this criminal act. Kofoed was famous in Nebraska for finding evidence when no-one else could, calling into question now every other conviction he had helped to obtain. He maintains he is innocent, and that perhaps the speck of blood got into the car by accidental transference during the investigation. Assuming he did do it, no one can believe it was a malicious act – he wanted to ensure two guilty men, whom he knew were guilty because of the confession, were put behind bars. However in so doing he perverted the course of justice.

So the bottom line is: people, whether innocent or guilty, will say anything that is asked of them in the face of death. Justice and the search for truth are not reliable under such circumstances. The only way to ensure their protection is to take such a bargaining chip out of the game.

Jazz Fest

7 days spread over 2 long weekends to celebrate: exceptional food, excellent music, and extraordinary crafts and culture. While the name may indicate the greatest draw to the festival is the music, upon attending it is easy to believe people (especially the locals) go just for the food! And oh how scrumptious the food is!

While I’d like to tell you the highlight of my first day at Jazz Fest (being the second day of the festival – Saturday, April 30th) was getting to see Simon & Garfunkel and hear Paul Simon sing ‘Diamonds on the Soles of her Shoes’ (one of my favorite songs ever), I would definitely have to clarify that it was my favorite part that day of the music side of the event. That morning I warmed up my taste buds with a serving of crawfish strudel. I initially had no idea what it was, but I knew I had to have it as I had been told it was a must by Rose (Sister Helen’s right hand woman). And so I beat my way through the crowds, lurching across mud and waited entirely impatiently at the one stand on the site which sold these delicious delicacies. I don’t really know how to describe it, except to tell you that I would have been quite content to keep eating them for the rest of the festival and give up trying anything else if it weren’t for the pleasured moans coming from around other stalls.

Other food I tried included: crawfish bread (a warm roll stuffed with melted cheese and crawfish meat), crawfish sacks (pastry sacks like dumplings stuffed with crawfish meat and fried) and crawfish Monica (a pasta dish with cream, Creole spices and …crawfish!) – are you sensing a theme? It continued naturally but I did branch away from it as well. I tired Boudin Balls (my least favorite of the event) which is effectively the meat of a white pork sausage rolled into a ball, battered and (as the Southerners so love to do with all their food) deep fried. And I began what I believe will be a lifelong addiction to fried green tomatoes! I also tried some ‘Jama Jama’ which is in fact sautéed spinach, and far more delicious than it sounds – a woman on her own had bought a plate of it and sat at a picnic table next to our little group. She picked away at it as I gobbled down my crawfish strudel (again) before asking her what it was – she told me, and offered me a taste. My eyes lit up, and my tongue began to dance – then she let me have the rest of the plate. And so I got my greens for the day.

As for the music – well I saw a whole lot of bands you probably won’t know, as naturally the Festival features up and coming local artists. But you may want to check out: Treme Brass Band, who, if you have been watching the latest HBO hit show “Treme”, you may recognize. And Trombone Shorty – who plays a variety of instruments not just the trombone, and doesn’t appear at all short, and he’s rather delicious, not to mention a phenomenal performer.

As I mentioned above, I saw Simon & Garfunkel which was quite an experience having grown up listening to their music. Garfunkel’s voice wasn’t up to scratch and while some criticized him for it, I think for others like myself it was just enough that he made the effort, turned up and gave it his all. It also allowed Simon to do some of his solo stuff which was rather special. It was funny because all day long it had been overcast and threatening to rain. We all kept hoping it would rain during the day so it would clear by the time they came on, and as we waited for them the threat seemed closer and closer to being realized. But the minute they stood on the stage, the clouds dispersed and the sun shone down. It was glorious.

For the second weekend I managed to get the Friday off to attend the Festival as my boss and his choir were singing in the gospel tent. It was so much fun to see him on the stage – he even did a solo – as if I didn’t admire him enough already. I also got to dance along with a group of strangers to Jose Feliciano and the Gypsy Kings. Aretha Fanklin was supposed to headline on one page but she cancelled supposedly because she didn’t want her vocal chords to be affected by the oil spill – on the road outside the gates someone had written “No R.E.S.P.E.C.T.” In her place Earth Wind & Fire played. At first I thought I didn’t know them, but as the set continued I recognized more and more songs, mostly from car journeys with my mother. And just to keep bragging – I also got to see Van Morison (who’s stage was almost completely gold, particularly his microphone stand) and listen to BB King – for reasons unkown to me he was put in a small tent which burst out onto the paths, so while I couldn’t see him for the crowd I could at least hear him. And he ended the Festival with “When the Saints go Marching In” – which as I may have mentioned before is quite a well loved tune in this football fanatical town.