Capital Crimes

Sept 15, 2009:

Over the course of two hours, nurses attempted 18 times last month to find a vein in Romell Broom in which to inject the convicted murderer with a lethal combination of drugs. Broom even tried to help them, massaging his arms and straightening tubes. At one point, the needle hit bone. Finally, Ohio Gov. Ted Strickland called off the execution -- for the day, at least.

A rare occurrence?

Ohio, 2006: The execution of Joseph Lewis Clark took close to 90 minutes after executioners had trouble finding a vein. "It don't work, it don't work," Clark told them. Eventually, authorities closed the curtains so that the witnesses couldn't see the disgusting spectacle.

Ohio, 2007: Executioners worked for 90 minutes to insert an intravenous line into Christopher J. Newton, who finally had to ask for a bathroom break.

That's three botched executions of the 14 conducted, or attempted, in Ohio since 2006. After the Broom fiasco, one would think that Gov. Strickland would extend a moratorium on executions until Ohio devised a more humane procedure. Instead, while a federal court pondered Broom's case, the state went ahead with plans to execute a 15th death-row inmate in September. Only after the federal court delayed that execution pending judicial review of bungled injections did Strickland give that inmate, and another scheduled to die in November, 5-month reprieves. He did not delay planned executions in December, January and February.

Ohio is not the only state to have performed lengthy, botched executions. In California, executions have been suspended for nearly three years after concerns that a paralytic agent in the injections might be causing some prisoners to suffocate, while still conscious, without being able to show their discomfort. It seems obvious that Ohio should stop executions until it has developed a better procedure, and that the nation should use that time to ponder whether the death penalty reflects the kind of society we want to be.

Outside of Ohio, the national trend is for declining numbers of executions. Notably, Illinois Republican Governor, George Ryan (now serving a 6-year prison term for corruption) stopped executions in 2000 because of failures in the system. The moratorium was extended by Gov. Rod Blagojevich (arrested in 2009 on charges of fraud and bribery), and again by present Gov. Pat Quinn. These conscientious governors had the compassion and integrity to see through the corruption in our capital justice system, if not in their own administration of executive power… And then there’s California.

While nationally, the number of death sentences issued this year is the lowest since reinstatement of capital punishment in 1976, California has defied the national trend. We tend to think of Texas as the Capital Punishment Capital---but California is at the top in capital convictions. In fact, Los Angeles County handed down more capital punishment sentences last year (13) than any state outside California. Texas issued nine death sentences, opposed to 29 convictions in California, and 97 in all other states combined. While we have not seen an execution in over 4 years, our condemned population of 697 is by far the largest in the nation (3,279).

L. A. County prosecutors have been seeking death in fewer cases than they did a decade ago, but the percentage of verdicts going to death is up. Some observers believe that judges are restricting the time allowed to lawyers in jury selection. Some think that jurors have become cynical about defendants’ abused childhoods. According to one veteran defense attorney, “There is less tolerance, less understanding from more and more jurors”.

California’s capital system is widely known as the least efficient in the nation, having executed only 13 since Rose Bird and two other Brown-appointed judges were impeached for blocking executions in 1986. The annual cost of keeping convicts on death row in this state, as opposed to life sentencing, is estimated at $137 million. This comes to $195,000 per prisoner per year---paid for by our state’s unbalanced budget. Much of this expense comes through the lengthy appeals process. All death penalty cases are automatically appealed and all defendants are assigned an attorney for a process that can take more than five years. On the other hand, there are reports of the accused seeking the death penalty on behalf of the “Cadillac” treatment afforded to the condemned, combined with the unlikelihood of execution. (For confinement alone, the average annual cost for the condemned is $90,000. The cost of holding the elderly averages about $70,000 for people over 60, compared to regular confinement at $34,150.)

Michael Morales and Ricky Ortega were convicted of the murder of Tokay High School student Terri Winchell in 1981. Both have spent more than two decades behind bars, but the cost of delivering justice to the two men responsible for this brutal death differs by millions.

Sentenced to life in prison without parole, Ortega has cost California taxpayers $800,000 since 1983. But based on the average cost of 11 executions over 27 years, state and federal taxpayers have paid some $250 million pursuing the death sentence handed down to Morales. The great majority of this comes down to state-sponsored “welfare” for lawyers. What do we get for this kind of investment? Is the value of vengeance this dear?

So people have reached the limit of tolerance as crime has escalated, right? Wrong. As reported in The Times, Dec 24, ’09, for the seventh straight year crime in L. A. County has declined. Homicide (capital crime) numbers are at a 40-year low. “It is a different world,” said Police Chief Charlie Beck, a 32-year veteran of the force. “There was a time when it was the opposite of today — when it seemed there was no limit on the potential for things to get worse and worse. The whole outlook has shifted now.” The number of property-related crimes, such as burglary and theft, also declined this year, including a surprisingly large drop in the number of stolen automobiles. According to LAPD figures, violent crimes fell about 10% from last year, while burglary and other property crimes declined 8%. The Sheriff’s Department, which patrols dozens of cities and unincorporated communities, reported similar results for the year, with overall serious crime down more than 11%, including a 23% decline in homicides. Yet our prison population continues to swell, largely because of "three strikes" and dubious drug laws.

But still, many continue to favor capital punishment. There is no softening the horror of Broom's crimes. He abducted a 14-year-old girl at knife-point and then raped and killed her. Even if he endured last month's ordeal 10 times over, the state still wouldn't be putting him through the terror and suffering he inflicted on his victim.

Yet that's precisely the point. The state is not Broom, nor should we want it to carry out our sadistic bidding. The survivors of a murder victim often yearn for vindication or simply a sense of closure, and we might too if we were in their shoes. But is it the job of the state to carry out that desire? What about the “better angels” of our nature? Part of why this nation has constitutional guarantees against cruel and unusual punishment is because (supposedly) we as a society want to maintain the highest moral character. Yet the United States, alone among Western industrial powers, still administers the death penalty. And still we have "esteemed" legislators, like Orrin Hatch (R. Utah) who would tell us, "Capital punishment is our society's recognition of the sanctity of human life."

It appears that we, expressed as jurors and voters, demand vengeance---blood. And while much of the present controversy over the death penalty swirls around the “humaneness” of the method, are we really concerned by this? While hangings have almost vanished from our land, and electrocutions have waned since the practice was dramatized by the 1999 movie “The Green Mile”, more and more states have adopted this obviously imperfect practice of lethal injection.

But there’s a technique which would easily fit any criteria for “humane” that unmasks our pretense. The military has used “altitude chambers” for years in pilot and astronaut training to acquaint pilots with the dangers of high altitude. This device could easily be adapted for capital punishment.

An altitude chamber is the opposite of a “decompression chamber”, commonly used to coax dissolved nitrogen from the blood stream of divers. The altitude chamber is an enclosed room from which air is gradually removed.

Atmospheric pressure near sea level (where most of us live) is about 14 psi. At 6 psi a person loses “useful” consciousness, while around 4 psi he loses actual consciousness. Soon, with declining pressure, he dies. It is certain; it is completely painless---the victim, sensing only pressure corrections in the ears, slips out with no discomfort. No pain, no chains, no spectacle, no drama. The rate at which the decompression occurs could be scheduled to extend from as little as five minutes to as long as one wishes, (although at about 30 minutes one would begin to experience nausea from “altitude sickness”.) In the chamber the victim could be seated comfortably, or lying down; his favorite music could be piped in...not a bad way out! (This would surely offend the vengeance set!) Given this option, persistence with more cumbersome and controversial methods of execution can only be justified by inertia, politics---or perhaps by public demand for pain and drama.

In summation, crime in general is down; capital crime is down even more. Capital punishment is notoriously unequally administered, with only the poor convicted. The administration of capital punishment is wildly expensive, sadistically applied and ineffective as a deterrent. Our drastic increase in this instrument of justice doesn't come from crime, doesn't come from prosecutors, is completely unwarranted by the state budget. This trend comes from us! It comes from anger, intolerance and impatience. We demand death at the ballot box and in the jury box.

In any case, Robbinsense opposes the death penalty. For those who embrace “swift justice”, we need only consider that in the short time since the availability of DNA testing, 14 have been exonerated by it. Since reinstatement of the death penalty, 119 condemned have been cleared and freed. How many innocents over the last hundred years have we put to death? We hope our readers will consider their opinions and passions.

The Jury Experience

by Roving Reporter Randoid

The Jury Waiting Room

Every year around springtime I get the call: report to the Ventura County Hall of Justice for jury duty. And every year I spend the day reading a novel, working a crossword puzzle, or just staring at the wall waiting to be called upon to perform my jury service. And the call never comes. Every year it’s the same, except for this year.

I was spending my time chatting with a woman from Simi Valley when the call came for a group of jurors to report to a courtroom. Her name was called and off she went. As I waited for the day to pass I couldn’t help but feel a bit sorry for her as Simi Valley is on the eastern side of the county, 40 miles away. I live in Oak View, which is on the western side of the county, and, if she was selected to be on a jury, I know the drive she was facing. Years ago, I used to make the 50-mile commute to work in Simi Valley.

A short while later there was another call for jurors. Except this time the jurors were to report to the courthouse in Simi Valley, “a very unusual occurrence, one that hardly ever happens,” if the jury clerk can be believed. There were about 150 prospective jurors remaining in the jury pool and they needed 60 people. I figured that my odds were roughly 5 to 2 against that I would be selected but as I heard my name called, suddenly I didn’t feel all that lucky.

The Jury Selection Process

I’ve always wanted to be on a jury. I had never been in a courtroom let alone taken part in the judicial process. I wasn’t looking forward to my daily 100-mile round trip but I was eager for my first jury experience. Twelve prospective jurors were called along with eight alternates. My name was the last one called. Once again I assessed my chances of making it on the jury. I did the math – 12 jurors, plus 2 alternates, that’s 14 jurors. As juror number 20, I thought my chances of getting on the jury were slim. I needn’t have worried.

The judge gave us a brief overview of the case. A woman drove her SUV into the path of a motorcycle rider. The woman was unhurt but the motorcycle rider received various head, neck, and shoulder injuries. Guilt for the accident was already established, as the driver of the SUV was found to be totally responsible for the accident. The motorcycle rider (plaintiff) was suing the driver of the SUV for damages. I was disappointed that I was going to serve on a civil case and not a case that involved a verdict of guilty or not guilty. But, no matter, here I was.

Over the next two days the court labored through the jury selection process. Each juror was asked probing questions regarding their job, finances, and their personal life. Perhaps answers to all of these questions are important, but in front of 60 other strangers plus at least 12 court personnel? I couldn’t help but cringe at hearing some of the personal revelations that were offered up to the court. Putting all of that aside, the excuses that people offered to get off the jury were shocking.

This was a civil case and our task was to decide how much, if any, compensation was due to the victim. One of the jurors was a mountain bike rider and he made it obvious that he had an axe to grind with anyone that sat behind the wheel of a car. Without hearing any testimony he offered up his opinion that the plaintiff should get maximum compensation. (Uh, not exactly the open mind we’re looking for on the jury. However, if it was your intention to avoid jury duty, then it was very well-played sir. You’re excused.) Another guy said he didn’t care what evidence was presented he wasn’t going to give “this jerk” any money. (Huh? Don’t you want to hear any evidence, any evidence at all? No? Well, thank you for your service. Please crawl away.)

Well, after hearing two days worth of excruciatingly painful courtroom declarations detailing financial, physical, and emotional hardships we had a jury. Also, it came as no surprise to me that I went from prospective juror number 20 to juror number 7.

The Case

As previously mentioned, this case involved an SUV driving into the path of a motorcycle rider. Upon impact, the motorcycle rider was thrown face-first into the SUV. It was not difficult to imagine that the rider received head, neck, and shoulder injuries resulting from this accident. To that end, the plaintiff’s attorney produced several expert witnesses in the form of accident investigators and doctors to support the injury claims. As it happens, the motorcycle rider was a Vietnam veteran. And, as a result of the accident, his Post-Traumatic Stress Disorder (PTSD) re-surfaced. Professional care providers from the Veterans Administration testified to this also. The expert witness testimony was very convincing and the plaintiff’s attorney did an excellent job in presenting their argument.

Now it was time for the defense to present their side of the case. The first thing the defense attorney did was to try and deceive the jury. On the day of the accident there were two different people with the same last name treated for their injuries at the local hospital. One of the treated parties, the plaintiff, complained of head, neck, and shoulder injuries that were consistent with the claimed injuries. The other party, the one with the same last name as the plaintiff, had minor complaints that were not consistent with the claimed injuries. The defense attorney tried to convince us, the jury, that the plaintiff was the person with the minor complaints. The plaintiff’s attorney made short work of exposing this shameful tactic and letting the truth be known.

Besides this ruse, the defense called only one expert witness. A doctor, who examined the plaintiff for less than 10 minutes, testified that the plaintiff’s injuries were minor. Under cross-examination, the plaintiff’s attorney attacked this doctor’s credibility and competence and, in the process, ripped his testimony to shreds. After this fiasco the defense rested their case.

In short, the testimony in this case was so overwhelming in favor of the plaintiff that, if this had been a prize fight, they would have stopped it. After a week of testimony, the judge gave us his instructions, emphasizing that we should consider this case based only on what we heard in the courtroom. Based on what I heard, I thought this case was a “slam dunk” in favor of the plaintiff. Jeez, was I in for a surprise!

The Jury Deliberation Room

The jury had several issues to decide upon. The issues were prior pain and suffering, future pain and suffering, an aggravation of the PTSD issue, and medical expenses. Each issue carried a price tag of monetary damages. This was a civil case, and unlike a criminal case, a unanimous verdict was not necessary. Our jury needed a majority decision of 9-3 for each issue. Simple enough, I thought, we’ll be out of here in an hour or two. After all, the plaintiff’s attorney made mincemeat out of the defense attorney – to the winners go the spoils!

We took a vote on each issue and I received a shock. We were split completely down the middle – four jurors in favor of the plaintiff, four jurors in favor of the defense, and four jurors that couldn’t make a rational decision if their life depended upon it. The four jurors that favored the defense were adamant in their refusal to award any monetary damages. The four “no opinion” jurors were much closer to the “no monetary award” position, presumably because taking that position involved little or no thinking their part.

Over the next three days discussions became arguments, coaxing became coercing, and constructive criticism gave way to outright insults. The four “no opinion” jurors participated less and less as the discussions became more heated. The longer things dragged on, the four “no monetary award” jurors became more unified and intractable in their position. We called for court testimony to be read back in the jury room in hopes of changing some minds but it made no difference. It became obvious that court testimony was no match against a prejudiced position.

On the third day, one of the fervent “no monetary award” jurors announced that she had an important appointment and that she would be willing to change her position in order to bring the deliberations to a close. So we decided on a monetary award that I considered was still too low. For a brief time I considered changing my vote so that a decision could not be reached, thereby creating a hung jury. In the end I relented and went along with the negotiated award. The plaintiff’s medical expenses were being met so I figured that was as good as it was going to get.

Conclusion

So after reading novels and working crossword puzzles for years I finally got what I had hoped for – to be on a jury. The old saying, “Be careful what you wish for, it may come true” comes to mind. I must say that I did enjoy the trial portion of being on a jury, although that was far outweighed by the sour taste of the jury deliberation experience. Initially, I was a bit dubious at the prospect of twelve people trying to come to a decision regarding money, which required some talent for negotiation and compromise. Now, I am no longer a “bit dubious,” but I am completely dubious of a jury being competent enough to make these types of decisions. As for being on a jury, I’ve done it and I am no longer curious about being on another.

Randoid is a Robbinsense staff writer