February 13, 2006

O What a Tangled Web - Update and Bump

Hatched by Dafydd

UPDATE February 13th, 2006: Commenter sanddog reports that the defense team has just admitted that the letters are not true and has withdrawn them. But read on to see what the heck we're talking about!

This is jaw dropping: in an effort to secure commutation of the death sentence against California inmate Michael Morales, his defense team (which includes Kenneth Starr, interestingly) sent to Gov. Schwarzenegger six sworn affidavits from the jurors who decided his case (or his sentence, or both), begging the governator for clemency for Morales.

But according to prosecutors, those six affidavits were literally faked.

The jurors denied they thought Michael Morales deserved clemency because some of the testimony at his trial may have been fabricated, said Nathan Barankin, spokesman for Attorney General Bill Lockyer.

"We showed each person the declaration on their behalf and they all said they didn't say that," Barankin said....

On Friday, the San Joaquin District Attorney's office sent Schwarzenegger a new batch of sworn statements from five of those jurors saying they not only still supported capital punishment for Morales, but had never spoken with the defense investigator who claimed to have secured their signatures.

Kathleen Culhane, the San Francisco private investigator who Starr and Senior said had interviewed the jurors, declined to comment.

None of the five jurors involved in the legal tug-of-war, whose names were blacked out of the competing clemency documents to protect their privacy, could immediately be reached for comment.

(Evidently, one of the six jurors was unable or unwilling to file a new affidavit with the DA's office that he or she had not given the previous one; this could be as uninteresting as the juror being out of state, or as significant as the juror refusing to swear that he or she didn't previously swear. We'll see.)

It's hard to overstate the seriousness of such a charge. If this is true, and if the defense attorneys were aware when they presented them that these affidavits were fakes, then I think there's no question but that they would be swiftly disbarred; that is such an obvious consequence -- and it's so likely to be discovered, since of course the DA is going to contact the jurors, after getting blindsided like that -- that I have a very hard time believing that any of the defense team was aware of the fraud... assuming it was a fraud.

But I have an equally hard time buying the idea that five (out of six) jurors would (a) sign such affidavits for clemency, but then (b) give subsequent sworn affidavits that they had never signed the first affidavits; if they were caught, they must know they could and likely would be prosecuted for perjury or even obstruction of justice. One, maybe; but five? It strains credulity to the snapping point.

And that leaves only one explanation that I find probable. We start and end here:

Kathleen Culhane, the San Francisco private investigator who Starr and Senior said had interviewed the jurors, declined to comment.

Ms. Culhane is going to find herself on the griddle sizzling like ground chuck, confronted by five jurors who all swear they never gave her any such declarations, or indeed ever spoke to her at all. I will follow this case with rapt attention.

By the way, the Antique Media continues its anti-capital-punishment crusade by refusing to print the name of the poor 17 year old girl that Morales raped and murdered in January, 1981; her name is Terri Winchell. I believe it's important to remember the victims of the butchers on Death Row... and here is why.

Hatched by Dafydd on this day, February 13, 2006, at the time of 7:14 PM

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» Putting people to death can be murder from Alternate Voice
Dafydd Ab Hugh reports over on Big Lizards about faked affadavits in support of the death sentence commutation of one Michael Morales, convicted and sentenced to death for crimes most heinous. O What a Tangled Web Hatched by Dafydd This... [Read More]

Tracked on February 13, 2006 7:41 AM

» Doctors Overturn Death Penalty from Big Lizards
The execution of Michael Morales was postponed late Monday night when the two anesthesiologists -- forced into the execution process by the ruling of federal Judge Jeremy Fogel -- abruptly refused to take part in the procedure, citing ethical concerns.... [Read More]

Tracked on February 21, 2006 6:29 AM

» The Old Fogel Has Gotten His Wish from Big Lizards
The state of California has given up for now, admitting that under the bizarre new rules decreed by the judicial fiat of Judge Jeremy Fogel, they cannot execute Michael Morales, or indeed any other prisoner they have on death row.... [Read More]

Tracked on February 21, 2006 9:49 PM

Comments

The following hissed in response by: John Sobieski

Is there any surprise after that last gussy up job they did for that thug a few months ago? It is surprisingly dumb, but $$$$s and zealotry can go a long way overlooking that.

The above hissed in response by: John Sobieski [TypeKey Profile Page] at February 11, 2006 6:33 PM

The following hissed in response by: Dafydd ab Hugh

John Sovieski:

Zealotry? Ken Starr?

As far as money, I doubt the attorneys make any more money if Morales lives than if he dies. However, it's possible that the investigator may have been offered a bonus if she were able to talk the jurors into signing affidavits calling for clemency.

If true, that would at least supply a motive... though of course I have no actual evidence whether she did or did not have anything to do with this. Just suspicions.

Dafydd

The above hissed in response by: Dafydd ab Hugh [TypeKey Profile Page] at February 11, 2006 6:47 PM

The following hissed in response by: Jesse Brown

I won't dispute the ethical considerations of submitting bogus afadavits. It's wrong plain and simple. But as a libertarian I find it strange that you would support the notion of state sanctioned murder (i.e. Death Penalty).

Can we trust the state to be 100% correct when applying the final sanction in a deliberate and calculating manner? If even one innocent person is executed doesn't that negate the whole premise?

In a civilized society (which we ostensibly strive to be) can we afford to allow even one mistake of this magnitude when we have the means to permanently remove serious offenders like rapists and murders from society while still maintaing the ability to reverse should new evidence arise (think DNA)?

I think it's a worthy subject of discussion and deserves a position post at the very least.

The above hissed in response by: Jesse Brown [TypeKey Profile Page] at February 12, 2006 6:33 AM

The following hissed in response by: lmg

The death penalty is not murder. Murder is the illegal killing of a person. By definition, when the state does it under the law, it is legal.

"If even one innocent person is executed doesn't that negate the whole premise?"

No. Mistakes happen in the other direction as well: A killer who really did commit a murder gets off and kills again; or escapes and commits murder while a fugitive; or kills the judge and court personnel (just recently happened); or is released from prison after a term, and kills again. Does this argue for making the death penalty mandatory in all cases? I suspect this really happens FAR more often than the case of a truly innocent person being put to death. In order to save one innocent person from the death penalty, you are essentially guaranteeing the deaths of other innocent people at the hands of real killers.

The above hissed in response by: lmg [TypeKey Profile Page] at February 12, 2006 1:42 PM

The following hissed in response by: Dafydd ab Hugh

Jesse Brown:

But as a libertarian I find it strange that you would support the notion of state sanctioned murder (i.e. Death Penalty).

So this is a libertarian position for you? In other words, your only objection is that the State is doing it.

So tell me... you wouldn't mind if the widow of the victim killed her husband's murderer, without the aid of the State, and if the State then declined to prosecute, considering it an issue of individual rights?

And while we're at it, how can you support State-sanctioned kidnapping and imprisonment?

Dafydd

The above hissed in response by: Dafydd ab Hugh [TypeKey Profile Page] at February 12, 2006 3:18 PM

The following hissed in response by: Jesse Brown

Don't confuse the issue Dafydd. We're talking about state sanctioned killing as punishment for the crime of murder. An undoable and final action based on an imperfect process. A process that has time and again been proven to be not only imperfect in it's judgements but whose outcome has been manipulated by groups and individual's for their own ends.

My contention is that in an enlightened and civilized nation, the ultimate solution to the most heinous crimes be permanent removal from society - life without parole. Forfeiture of all rights in exchange for the criminal's depriving the victim of their right to life. Justice is served in a dispassionate manner but not vengeance. And the possibility of reversal on new evidence remains, as I said originally, as in the case of DNA evidence proving that the conviction was in error.

I do not condone the actions of your hypothetical widow unless it were in the heat of the moment and during the commission of the crime. No one should be above the law, not even injured parties.

img conflates two separate issues. What happens when criminals are paroled, escape or become repeat offenders (no matter what the crime) is not the issue here unless img actually proffers the death penalty for all murder cases, no exception. An unlikely scenario. Whether or not a convicted murdered serves life without parole or is executed has no bearing on anyone else’s criminal actions or the future deaths of innocent citizen's.

So yes, that is my libertarian position. I am for the individual and protecting his rights and property (which includes his own life). I am for law enforcement as the most proper form of government. I am for justice. I am against the state having the power to execute people.

I'm against abortion for some of the same reasons but that's another issue.

The above hissed in response by: Jesse Brown [TypeKey Profile Page] at February 12, 2006 6:30 PM

The following hissed in response by: lmg

I thought my point was clear, but I guess not. You argued that the death penalty should be abolished because it could result in the death of an innocent person. I argue that the failure to impose the death penalty when it reasonably ought to be imposed actually results in the death of more innocent people. Your proposal does NOT automatically prevent the death of innocent people - it just shifts the deaths to a different group - and therefore is not a valid argument for abolishing the death penalty. It would be a valid point against instituting the penalty if we didn't have it, but since we do, we have to consider whether any alternative might actually make the overall situation worse. Obviously, the more people of murderous tendency we have hanging around, the greater the probability that someone is going to get killed. That is not a positive for society. And confining them in prison demonstrably does not prevent them from killing innocent people. (The old man recently executed actually arranged for contract killings while he was serving a life sentence for murder.)

The above hissed in response by: lmg [TypeKey Profile Page] at February 12, 2006 8:03 PM

The following hissed in response by: Dafydd ab Hugh

Jesse Brown:

I do not condone the actions of your hypothetical widow unless it were in the heat of the moment and during the commission of the crime. No one should be above the law, not even injured parties.

But then, this is not a "libertarian argument," as you wrongly call it, because it makes no difference to you whether the State kills the murderer, or whether it stands back and does not prevent the widow from killing the murderer.

State involvement has nothing to do with your objection to capital punishment: you simply want all murderers to live.

All right; many people have that position. I don't agree with it, but it's more or less of an axiom, which can be asserted but not argued.

But don't confuse this with libertarianism. Like abortion, libertarians legitimately come down on both sides of this issue.

I note, by the way, that you object to the State taking all the remaining years of someone's life... but not to the State taking some of them.

Again, this can be a quite reasonable position; but it is not a libertarian argument: it's a compromise argument, a compromise between statism and libertarianism.

A pure Agorist, for example, would oppose any State-run justice system; all justice systems would be private. David D. Friedman (son of Milton) makes this argument in the Machinery of Freedom, and he is a minarchist, not an anarchist (he supports a State military, for example).

If you want to make this argument, go ahead; but don't identify it as "the" libertarian position, when it is not in fact any such thing. It's just Jesse Brown's position.

The above hissed in response by: Dafydd ab Hugh [TypeKey Profile Page] at February 12, 2006 9:30 PM

The following hissed in response by: Dafydd ab Hugh

Jesse Brown:

Oh, and as to your second point -- that we can just sentence murderers to LWOP and keep them in prison for the rest of their lives -- my friend Lee has already discussed why that doesn't work here.

Dafydd

The above hissed in response by: Dafydd ab Hugh [TypeKey Profile Page] at February 12, 2006 9:34 PM

The following hissed in response by: sanddog

Libertarian positions on the death penalty aside....

I suspect a certain Private Investigator is going to be scrambling to come up with a logical explaination for the discrepancies in affidavits.

The above hissed in response by: sanddog [TypeKey Profile Page] at February 13, 2006 12:12 AM

The following hissed in response by: Patterico

According to the LA Times (so it must be true!), the sixth juror's affidavit was not forged, but that juror did not request clemency.

http://www.latimes.com/news/local/la-me-morales11feb11,1,6689301.story

The above hissed in response by: Patterico [TypeKey Profile Page] at February 13, 2006 12:24 AM

The following hissed in response by: Jesse Brown

But then, this is not a "libertarian argument," as you wrongly call it, because it makes no difference to you whether the State kills the murderer, or whether it stands back and does not prevent the widow from killing the murderer.

You misconstrued or misread my statement. I said "in the heat of the moment during the commission of the crime." Big difference there from the state standing aside. The state is not there during the "heat of the moment." It's called either self defense or justifiable homicide.

State involvement has nothing to do with your objection to capital punishment: you simply want all murderers to live.

Again, you've turned my argument around. State involvement has everything to do with it. Of course, as as an injured party or outraged citizen, I would like to see the perp destroyed. But that's my point. We are a nation of laws and should not act in response to emotion. I would rather see all murderers live as you put it (albeit behind bars for life) then see one innocent person executed in error.

I note, by the way, that you object to the State taking all the remaining years of someone's life... but not to the State taking some of them.

I said I was in favor of life imprisonment without parole sans new evidence to prove innocence. Sounds like "all the remaining years" to me.

Again, this can be a quite reasonable position; but it is not a libertarian argument: it's a compromise argument, a compromise between statism and libertarianism.

A compromise? Well maybe. Libertarians hold that the proper function of government is the protection of rights. This implies a police function and a military in order to protect those rights.

A pure Agorist, for example, would oppose any State-run justice system; all justice systems would be private. David D. Friedman (son of Milton) makes this argument in the Machinery of Freedom, and he is a minarchist, not an anarchist (he supports a State military, for example).

I think Heinlein wrote a story about this long ago. Can't remember the title but I understand your point. Not familiar with Friedman's work in this area so I will get it. I haven't really considered the outsourcing idea very much because I don't believe our society is capable of implementing it without making the situation worse --yet. Baby steps and all that.

If you want to make this argument, go ahead; but don't identify it as "the" libertarian position, when it is not in fact any such thing. It's just Jesse Brown's position.

No, not "the" libertarian position because I don't believe there's a monolithic libertarian position. Unless it's that all forms of statism are bad for individual liberty and minimal involvement of the state in citizens's affairs should be the object. Certainly strictly defined law enforcement and military force must be in place or you have anarchy.

Philosophically my ultimate point is that we as a society (should) hold all life so precious that we wouldn't want to risk making a grievous error in executing a potentially innocent person. Especially when we know that the system or process is flawed and imperfect. I realize that much in our world is imperfect but few of those issues result in a "final solution."

The above hissed in response by: Jesse Brown [TypeKey Profile Page] at February 13, 2006 4:22 AM

The following hissed in response by: Jesse Brown

Oh, and as to your second point -- that we can just sentence murderers to LWOP and keep them in prison for the rest of their lives -- my friend Lee has already discussed why that doesn't work here.

Parables about chained dogs do not public policy make. What he argues and you support apparently is the notion that sentences and the force of law cannot survive successive generations. I disagree.

Life without parole in the absence of clear and compelling evidence of innocence or wrongful conviction can be made an enforceable policy in lieu of execution.

The above hissed in response by: Jesse Brown [TypeKey Profile Page] at February 13, 2006 6:51 AM

The following hissed in response by: Dafydd ab Hugh

Jesse Brown:

You misconstrued or misread my statement. I said "in the heat of the moment during the commission of the crime." Big difference there from the state standing aside. The state is not there during the "heat of the moment." It's called either self defense or justifiable homicide.

I understood you the first time: you are against the death if the State does it and also you are against it if the State stands back and declines to prosecute the Widow if, in cold blood, she does it -- not at the scene to protect herself but afterwards in cold blood.

So your opposition to murderers dying has nothing whatsoever to do with whether the State is involved in any way. Hence, this is not a libertarian argument: you just want all murderers to live.

Jesse, this is your opinion. Embrace it! No need to clutter up your argument by reference to a non-existent libertarian dimension to it.

No, not "the" libertarian position because I don't believe there's a monolithic libertarian position. Unless it's that all forms of statism are bad for individual liberty and minimal involvement of the state in citizens's affairs should be the object.

Right. But your argument demands neither more nor less State involvement in citizens' affairs: the State is just as much involved by confining the person for life as it is by putting him to death... both are decisions of the State.

Therefore, this argument has nothing to do with libertarianism... which is my only point in the comments section. You're using "as a libertarian" the way someone might say "as a Christian, I don't think people ought to watch TV game shows." (Maybe they oughtn't, but it certainly has nothing to do with Christianity!)

Life without parole in the absence of clear and compelling evidence of innocence or wrongful conviction can be made an enforceable policy in lieu of execution.

"Enforceable" but not permanent, as you can never guarantee either than no such prisoner will ever escape, or that no judge will ever set such a prisoner free, even in the complete absence of new evidence of innocence. For example, a later court may rule that LWOP is unconstitutional. A later legislature can rewrite the law to eliminate LWOP. A governor can be tricked (or bribed) into granting a pardon (think Marc Rich). A subsequent judge, himself opposed to LWOP, can simply rule on a habeus petition that the particular prisoner was wrongly given LWOP.

Each of these is possible also for people on death row: but since most people sent to the row are young, there is every expectation that, under an LWOP situation, they will have longer to effect such a "legal escape" in your system than the current one (which should also be speeded up, but that's a different point).

And finally, just because someone is in prison doesn't mean he is under complete control; prisoners can and have committed or procurred murders of fellow inmates, guards, and even people on the outside: lawyers cannot be prohibited from visiting their clients and conversations are not necessarily monitored (or prisoner and lawyer could speak in code); guards can be bribed; security may be lax.

Think on this: a person already sentenced to LWOP under your system has nothing at all deterring him from killing someone else... he is in a judicially imposed state of grace: there is nothing worse you can do to him. And he may be there for twenty-five, thirty, forty years, or longer. How do you guarantee no such murders will occur?

Philosophically my ultimate point is that we as a society (should) hold all life so precious that we wouldn't want to risk making a grievous error in executing a potentially innocent person.

You never really responded to LMG's point though, did you?

Suppose for sake of argument that it were provable that in the real world -- because some number of prisoners escape and some number are released later, for reasons other than new exculpatory evidence, even when they've been sentenced to LWOP -- suppose it were provable that more innocent people would die at the hands of these unexecuted murderers than the total number of innocent people who would be wrongly executed if we have a death penalty.

In other words, suppose -- just for sake of argument -- it could be shown that not having the death penalty resulted in more innocent death than having it. Would you then support the death penalty?

Dafydd

The above hissed in response by: Dafydd ab Hugh [TypeKey Profile Page] at February 13, 2006 3:25 PM

The following hissed in response by: sanddog

http://cbs13.com/topstories/local_story_044170055.html

The defense team has retracted the letters.

The above hissed in response by: sanddog [TypeKey Profile Page] at February 13, 2006 4:04 PM

The following hissed in response by: Consigliere

"[A]ccording to prosecutors, those six affidavits were literally faked."

Actually, only 5 juror declarations were forged and at least one witness declaration was faked. The 6th juror declaration was genuine but didn't really give an opinion. Kathleen Culhane was not involved with that declaration.

"Antique Media continues its anti-capital-punishment crusade by refusing to print the name of the poor 17 year old girl."

The local press as well as the SF Chronicle haven't been shy about naming her.

If you check the links on my blog, you'll see that Culhane isn't the only party that appears to be involved.

The above hissed in response by: Consigliere [TypeKey Profile Page] at February 14, 2006 11:10 PM

The following hissed in response by: Jesse Brown

I understood you the first time: you are against the death if the State does it and also you are against it if the State stands back and declines to prosecute the Widow if, in cold blood, she does it -- not at the scene to protect herself but afterwards in cold blood.


No actually you didn't understand me the first time or the second when I reiterated the "in the heat of the moment" statement. If someone kills an attacker in the heat of the moment it's called self defense or justifiable homicide. There's nothing in there about asking the state to stand aside if someone, after the fact, goes about righting the wrong by killing the attacker in cold blood, an understandable but wrong response. The state should not stand aside in that case.

So your opposition to murderers dying has nothing whatsoever to do with whether the State is involved in any way. Hence, this is not a libertarian argument: you just want all murderers to live.


This is disingenuous at best. I've never made any point about "wanting" all murderers to live. Certainly I don't "want" a Ted Bundy to live. That is your characterization because you refuse to address my central thesis which is that we should not give the State to power to impose the final solution when the process is so hopelessly flawed. A better statement is that I'm willing to let all murderers live for the sake of preventing the execution of an innocent person.


Jesse, this is your opinion. Embrace it! No need to clutter up your argument by reference to a non-existent libertarian dimension to it.

Au contraire mon ami, this is a hot button issue for libertarians and objectivists (as well as others I concede). Just how much power are we prepared to cede to the State in our behalf? The power to execute? It's a legitimate libertarian issue.

Right. But your argument demands neither more nor less State involvement in citizens' affairs: the State is just as much involved by confining the person for life as it is by putting him to death... both are decisions of the State.

See above. I am prepared to admit a certain involvement of the State but a strictly limited one. I thought I made that point clearly. It's the degree of state involvement. Permit the State to incarcerate convicted criminals. Don't permit it to exterminate convicted criminals, some of whom may be innocent of the Capital crime.

Therefore, this argument has nothing to do with libertarianism... which is my only point in the comments section. You're using "as a libertarian" the way someone might say "as a Christian, I don't think people ought to watch TV game shows." (Maybe they oughtn't, but it certainly has nothing to do with Christianity!)

Well I think you're trivializing that issue. I presented as a libertarian to preload the argument as someone for strict limits on state power. Now you're equating, on a philosophical level, fundamental issues like the death penalty with watching game shows.


"Enforceable" but not permanent, as you can never guarantee either than no such prisoner will ever escape, or that no judge will ever set such a prisoner free, even in the complete absence of new evidence of innocence. For example, a later court may rule that LWOP is unconstitutional. A later legislature can rewrite the law to eliminate LWOP. A governor can be tricked (or bribed) into granting a pardon (think Marc Rich). A subsequent judge, himself opposed to LWOP, can simply rule on a habeas petition that the particular prisoner was wrongly given LWOP.

But these are issues we deal with every day with or without the death penalty for all levels of crime. And you sort of argue to my point. The legal process is flawed and imperfect. Graft, corruption and political self interest are rife and always have been. I'm not sure it can ever be made perfect enough to guarantee that no innocent person will ever be executed.


And finally, just because someone is in prison doesn't mean he is under complete control; prisoners can and have committed or procured murders of fellow inmates, guards, and even people on the outside: lawyers cannot be prohibited from visiting their clients and conversations are not necessarily monitored (or prisoner and lawyer could speak in code); guards can be bribed; security may be lax.

Again you are talking not about the fundamental moral issue of the state having the power to kill someone but procedural and bureaucratic processes about how we manage our prisoner population. That’s a fascinating subject by itself and not totally depressing because there are better ways to do this than what's being done in the majority of situations.

Think on this: a person already sentenced to LWOP under your system has nothing at all deterring him from killing someone else... he is in a judicially imposed state of grace: there is nothing worse you can do to him. And he may be there for twenty-five, thirty, forty years, or longer. How do you guarantee no such murders will occur?

You can't of course. And it's not just convicted murderers with LWOP that do this. Unless you're willing to execute robbers, rapists and other kinds of criminals. Where does it stop?

You never really responded to LMG's point though, did you?

I thought I did. The future condition of innocent people has no bearing on the moral question of whether we should risk executing an innocent person wrongly convicted along with all the other scum who really deserve it.

Suppose for sake of argument that it were provable that in the real world -- because some number of prisoners escape and some number are released later, for reasons other than new exculpatory evidence, even when they've been sentenced to LWOP -- suppose it were provable that more innocent people would die at the hands of these unexecuted murderers than the total number of innocent people who would be wrongly executed if we have a death penalty.

In other words, suppose -- just for sake of argument -- it could be shown that not having the death penalty resulted in more innocent death than having it. Would you then support the death penalty?

This is an unprovable and disingenuous argument, hypothetical or not. It can be proven that a certain number of innocent people will be murdered in the future based on statistical analysis. So we know there are murderers and potential murderers walking around free right now. What does that prove? Should we institute some form of thought control or mind reading that will uncover these criminals a la "Minority Report"?

Your argument (and LMG's) seems to boil down to "we must risk sacrificing (executing) some few innocent wrongly convicted for the sake of an unknown many potentially murdered in the future." The one for the many. And that is definitely a Libertarian issue. And I embrace it.

Thanks for responding, I enjoyed the exchange even if I don't agree with you on this particular issue.

The above hissed in response by: Jesse Brown [TypeKey Profile Page] at February 15, 2006 7:35 AM

The following hissed in response by: Consigliere

Morales is having a bad day today.

His writ to halt his execution was denied by the California Supreme Court and the AG agreed to comply with the new rules for execution meaning on the 21st, California will execute it's third inmate in as many months. ... barring more forgeries turning up.

The above hissed in response by: Consigliere [TypeKey Profile Page] at February 15, 2006 6:04 PM

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