THE END OF CAPITAL PUNISHMENT — A GOOD THING

by John P. Flannery

Whatever one thinks of capital punishment, there must be general agreement that the state should never execute an innocent man or woman.

Our criminal justice is so badly broken, no one should be sentenced to death.

I’ve argued in and out of court to abolish capital punishment.

Many have fought against the Commonwealth of Virginia executing anyone including U.S. Senator Tim Kaine.

Virginia’s General Assembly has decided in recent days that it is wrong for Virginia to execute anyone.

Those who might resist this reform should know how and why it’s necessary.

It’s not just because the Bible says to turn the other cheek.

It’s because our system is broke.

It’s because our laws are not fair and just.

Earl Washington was pardoned in 2000 after DNA evidence excluded him as the perpetrator of a rape and murder for which he was sentenced to death.

He’s not the only one who was found innocent by evolving forensic tools.

We continue to convict innocent people in Virginia because of false eyewitness testimony, false confessions, over-eager snitches, faulty forensics, bad defense lawyers but also, and this is the worst of all, because of prosecutorial misconduct and police misconduct.

In this last category, what we often mean by “misconduct” is that the government is concealing or destroying evidence that is exclusively within its possession that demonstrates, or tends to demonstrate, that the accused is innocent or his accusers raise credibility issues.

Many assistant commonwealth attorneys will fight to hold onto information, not disclose it, saying there’s nothing there, and they keep it confidential from the accused, even at the risk of convicting the innocent unjustly.

The best prosecutors have an “open file policy” to allow defendant’s counsel to inspect the file and thus to avoid injustice for failing to disclose critical information.

The best defense lawyer in the nation, ignorant of a client’s factual innocence because the commonwealth is sitting on the evidence of his innocence, or information that raises questions about the credibility of a government witness is helpless to save his client from prison or death row.

We know that the innocent have been convicted in Virginia because DNA evidence has allowed us to exclude individuals as suspects in crimes — when the DNA evidence has been preserved.

Arthur Lee Whitfield spent 22 years in prison for the double rape of two women in Norfolk within the same hour. Both women positively identified him. Whitfield pleaded guilty to one of the charges to get a lesser sentence. The commonwealth had destroyed the DNA. But one serologist had violated lab protocol and saved a sample that exonerated Whitfield and implicated another prison inmate for the crime.

We must reform a system that provides less information to a person accused of a crime than a party would get if sued for a $200 bad debt in civil court.

We must abolish the culture that a criminal prosecution is some sort of sport that is all about winning a conviction, rather than doing justice.

Another bad rule that hurts the defendant arises when a defendant’s counsel fails to raise an appealable issue in the trial court, or misses a deadline, through no fault of the defendant, because then that defendant may be barred from arguing what went wrong.

In other words, the objective should be to get at the truth, hear the objections, not play gotcha with the Accused’s reputation and freedom.

It should be inconceivable that our society would allow the innocent to be executed.

It is unacceptable that disproportionally persons of color are executed as compared with white defendants. Have we made such modest progress that we are still “hanging” persons of color?

In Virginia, a capital offense was meted out by a hangman’s noose for 300 years.

The first electrocution occurred in 1908.

Earlier this month, on February 3rd, the Virginia Senate passed a resolution to abolish the death penalty. The House of Delegates agreed a few days later. The Governor has indicated that he will approve the resolution.

This is a significant step forward in the South but there’s more that needs to be done to protect all defendants.

I was instructed when sworn in as a federal prosecutor of the enormous power that had been delegated, that it could destroy an individual’s life with a misspent word, and was further instructed, in the words of former Supreme Court Justice George Sutherland:

“The [Prosecuting] Attorney is the representative not of an ordinary party to a controversy, but of a sovereignty whose obligation to govern impartially is as compelling as its obligation to govern at all; and whose interest, therefore, in a criminal prosecution is not that it shall win a case, but that justice shall be done. As such, he is in a peculiar and very definite sense the servant of the law, the twofold aim of which is that guilt shall not escape or innocence suffer. He may prosecute with earnestness and vigor — indeed, he should do so. But while he may strike hard blows, he is not at liberty to strike foul ones. It is as much his duty to refrain from improper methods calculated to produce a wrongful conviction, as it is to use every legitimate means to bring about a just one.”

There is a lot of work yet to be done but ending capital punishment in a Southern State is a really good start.