The Human Conspiracy Blog Has Moved to a “Better Place”.
Elementary, My Dear Watson…
Protecting the Innocent
& losing our Innocence
Reflections about Safe Neighborhoods and Death Penalty Policy
Jay B. Gaskill
Remembering My Dead Clients
Once I handled an “interrupted” juvenile case in front of the Hon. Carl West Anderson, an Alameda County Superior Court Judge who was later elevated to the California Court of Appeal.
The charged crime involved stealing from a mailbox. Evidently it didn’t qualify as a “federal case” because the loss was minimal.
My client (we’ll call him Joe) was a sweet faced young man, probably about 15 at the time, neatly dressed, amiable but very nervous. He was out of custody and came to court on his own, sans mother. Judge Anderson was in a bit of a rush because of a “witness scheduling” problem, as I recall, so a procedural compromise was reached: We would proceed to hear part of the DA’s case; then we would break and resume the rest of the trial ten days later. My client would remain out of custody & readily agreed.
The evidence took about an hour that afternoon. I don’t recall all of the details, but there was a witness who claimed to observe someone (meeting my client’s description, of course) removing material from the neighbor’s mailbox. The aging mailbox victim then was called and asked whether “the defendant” (the DA pointed to Joe with an accusing finger) had ever been given permission to remove items from the mailbox in question. “No!” was the answer.
My cross examination was brief. [At this point there was no in-court ID of the thief.]
When we reconvened ten days layer, my client’s name was called. A long silence followed; he was not in court. I took a short recess. After I discovered that Joe wasn’t in the building and that no one answered the home phone, I requested a two day delay.
The court denied my request, and insisted on allowing the DA to complete the prosecution’s case in chief, in absentia. This was irregular, of course; after all, defendants – even in juvenile court – have a right to confront their accusers. So I made all the appropriate objections, including “I’m sure there is a good reason for his absence, your honor.”
The next ninety minutes or so were painful and unreal at the same time. I was sitting next to an empty chair and attempted to vigorously defend the absent Joe, all the while lodging an objection to the in absentia procedure.
[In fairness to the court, the defendant would be able to successfully object to this part of the proceeding whenever he showed up in person ad the case resumed. He would be pressured to agree, giving him further leverage on the single goal that was the most important to him: staying out of custody.]
But the case never resumed, and all charges were dismissed. A few days after Joe’s first day in court, my client had been murdered.
No one had even bothered to call.
Later I represented Juan R, a lean, charming 22 year old laborer, who came to my office and the court dressed in jeans and a denim work shirt. He had been charged with assault with a deadly weapon (a five inch knife) arising from a street encounter with “an old friend”. Any plea bargain was out of the question; Juan was no stranger to the system, but this – as he stoutly maintained – was “not right”. So it was to be a full bore felony jury trial.
Flash forward to the trial. The complainant, we’ll call him Vince, was a stocky man about my client’s age, both shorter and considerably heavier. Vince described being attacked on the street by my client “for no reason”. Vince hedged at first about whether he used a knife during the confrontation. “Maybe once, in self defense, before the f….r stuck me.”
Then Juan R. took the stand and calmly described being confronted on the street by Vince who challenged him to fight. A deadly fight ensued when Vince suddenly displayed his own five inch blade. But both men were armed with knives. The confrontation ended a few minutes later when Vince suddenly crumpled to his knees. My client’s knife was wedged in his skull. Fortunately, Vince was a hard headed fellow; a murder case would have been much harder to defend because the jury would not have been able to assess Vince’s credibility.
The police recovered both knives from the scene; Vince was wheeled to highland emergency on a gurney and my client was handcuffed and led to a patrol car. The case was routinely charged. [There were a lot of knifings in Oakland.] And it quickly became a question of which party to believe. The “victim” came off as sullen and evasive; while my client, Juan, was calm, light hearted and straightforward.
After a couple of hours of deliberation, the jury agreed that my client had acted in self defense. Juan was acquitted. I never saw him again.
But about a year later I was conferring with my investigator on another case. “I wonder how Juan R. is doing,” I mused.
“You didn’t hear? Juan was murdered last month. Now we’re defending the killer.”
That wasn’t the first or last client of mine who had died at the hands of another. When I took over as the head of the department, it became one of my responsibilities to review conflict of interest matters affecting my office’s murder cases.
During those years we had about 200 murder cases pending for trial at any given time.
Fn. [The overall caseload intake exceeded 40,000 new referrals every year — that includes referrals of all kinds: juvenile cases, adult misdemeanors and felonies, and a few hundred civil commitment trial cases. This influx was efficiently and competently handled by a staff of dedicated trial attorneys, secretaries, clerks, investigators and law clerks who worked in six branch offices across the county. Overflow cases, most of them cases rejected for conflict of interest reasons, were referred to the private bar under contract with the county. The last fiscal year I was in charge, the public defender department had a staff of about 220 men and women and did all of this for about 20m, including expert witness fees and forensic tests.]
Any instance in which one of our active clients was murdered was always brought to my attention, as well as any case in which a former client was murdered and we were asked to defend the accused killer.
During the ten years I served as head public defender (this is a county with a population exceeding 1m) only one of my clients was executed by the state (David Mason on 12-13-05, a so-called “volunteer” who abandoned his appeals), but a couple were killed by other “clients” every month or so.
And those were just the solved cases.
Elementary, My Dear Watson…
Civilizations are able to exist because of a general obedience to the core rules that create the conditions for civil peace. These are the avoidance of murder, assault, trespass, theft, mendacity and oath breaking – in effect, obedience to the set of rules that the Decalogue and the English Common Law share with all functioning civilizations.
These core rules are the foundations of the civil order; they set the threshold conditions for civilized life, without which civilizations quickly deteriorate into war, chaos and dissolution.
My “life of crime” consisted of the nearly three decades I spent as a professional public defender headquartered in Oakland, California. My time was not only entertaining; it was a post-graduate course in the human condition.
My contact with thousands of criminals, hundreds of lawyers, police and judges, and the study of thousands of criminal transactions “from the inside”, taught me five simple but profound lessons:
(1) The whole thing (i.e., the whole edifice of our civilized order) rests on a three layer foundation: (a) that deep normative infrastructure of agreed moral norms we sometimes call the social contract, (b) a robust system of rule-consequences designed to implement those rules, (c) and a reasonably fair and impartial system of law for adjudicating compliance.
(2) My “clients” mostly consisted of those thousands of poor, impulsive, short-term-thinking people with inadequately developed consciences. This is the criminal subgroup that accounts for 98% of the ‘repeat business” in this country’s criminal courts. These are people in “failure mode”, most of whom are not “evil’ in the classic sense, but when faced with certain temptations, incentives and disincentives, they are fully capably of doing evil things to other human beings. While I acknowledge their weaknesses, we need to be reminded: They are dysfunctional but not crazy. They remain capable of refraining from the worst kinds of conduct, provided the incentives and disincentives are clear enough and are reinforced with sufficient frequency.
(3) Punishment is often kinder and, on the whole, more effective than “treatment.” Because it connects the act to be punished with a moral principle and an implementing law, punishment has a general educational effect. Moreover, punishment (but not treatment) is amenable to individuated mercy.
(4) This is why the crime rate in any given population is a product of four interrelated factors: (a) the number and area-density of “clients” as defined above; (b) the weakness (or strength) of the social compact as a part of the prevailing culture; (c) the absence (or presence) of social forces (professional or amateur) charged with detecting, reporting and arresting wrongdoers; (d) an appropriately scaled system of punishment.
(5) Punishment for crime is a measure of the moral seriousness of a given society. When coupled with a general sense of fairness in its administration (which means that the norms apply robustly to the great and small, rich and poor, powerful and powerless), just punishment is essential to the survival of the civil order.
Betrayal or Epiphany?
When I left the county service, I had served as the Chief Public Defender for the County of Alameda for a decade of management that followed a long hands-on career of defending criminals in the trial courts. My office (and I personally) had saved a number of clients from the gas chamber. I thought then and still believe that the defense is honorable work, but that you don’t have to oppose all punishment on some unbalanced ideological level to be effective at the defense.
So you might imagine my surprise at the sense of betrayal among some of my former colleagues when, after a grace period of about 2 ½ years following my return to private life, the following was published on the Oakland Tribune, “My Word” Op Ed page. As a now former friend said in anger – “What the f… happened to you, Gaskill?”
I had the temerity to say, in print, that the death penalty served a vital purpose. I had crossed a line.
Op Ed by Jay b. Gaskill
As Published in the Oakland Tribune on 11-30-02.
Oakland has reached the one hundred murder mark, but consider another number: As of Halloween, there were 95 homicides in the city and only 31 of them had been solved. Two thirds of the murders in the city of Oakland unsolved.
… Prison graduates live in two societies: among their “home boys” around town, and in prison, where their friends are doing time. Gangs flourish behind bars; and prison graduates are under-deterred. Neither the statistically improbable prospect of an arrest, nor the threat of a mere prison sentence is going to stop this group of criminals from pulling the trigger when it suits them. We need the will to overcome.
Problem. Oakland is neither a pro police nor a pro law-and-order town. And Oakland is not a death penalty friendly jurisdiction. As Public Defender, I worked to prevent any of my clients from going to death row. …[Now] I support the death penalty for selected murders, especially for the criminals who have gotten used to prison life, because the credible threat of that punishment saves lives.
We’ve heard the death penalty is not a deterrent. Nonsense. Whole categories of criminals are deterred. Carjackings where the victim is in the trunk. Some are shot, others not. Criminals often think of the consequences. Cons who don’t kill don’t want to be executed. Who looks forward to the “green room?” It’s really that simple.
The death penalty deters that class of murders where there is a moment to reflect before killing. Think drug dealer turf shootings, gang warfare, witness killings, robbery murders. Most murders in Oakland can be deterred if: (1) the arrest risk reaches a credible level; (2) there is some prospect of the death penalty. Granted, many murders aren’t “death eligible.” But witness killings, murders while “lying in wait,” and killings in the course of listed felonies are. Let’s add a new one: any first degree murder by someone who has spent time in state prison. The City should back that legislation; declare zero tolerance for killings; and ask the prosecutor to seek death in every legally appropriate case.
Of the thousands of dispossessed youth, of all the hard luck cases, very few actually kill. Despite all the pressures, only a comparatively handful actually blow away a fellow human being. When we deter a potential killer, we help many people, including the would-be killer. The message is the key: Oakland is fed up with murder; enough is enough; if you take a life in “Oaktown”, you may forfeit your own.
… Will we let the promise of this wonderful city slip away because of a few thugs with weapons? Stay tuned….
Jay Gaskill was former Alameda County Public Defender, now an attorney-consultant in Alameda.
Copyright ã 2002 Jay B. Gaskill
The Public Wake-up Begins
Excerpts from this week’s AP release.
June 6, 2007
Studies create new round in death penalty debates: Do executions deter other murders?
By ROBERT TANNER AP National Writer
[A] series of academic studies over the last half-dozen years … claim to settle a once hotly debated argument — whether the death penalty acts as a deterrent to murder. The analyses say yes. They count between three and 18 lives that would be saved by the execution of each convicted killer. …
“Science does really draw a conclusion. It did. There is no question about it,” said Naci Mocan, an economics professor at the University of Colorado at Denver. “The conclusion is there is a deterrent effect.”
A 2003 study he co-authored, and a 2006 study that re-examined the data, found that each execution results in five fewer homicides, and commuting a death sentence means five more homicides. “The results are robust, they don’t really go away,” he said. “I oppose the death penalty. But my results show that the death penalty (deters) — what am I going to do, hide them?”…
Each execution deters an average of 18 murders, according to a 2003 nationwide study by professors at Emory University. (Other studies have estimated the deterred murders per execution at three, five and 14).
The Illinois moratorium on executions in 2000 — imposed by then-Gov. George Ryan and continued by current Gov. Rod Blagojevich — led to 150 additional homicides over four years following, according to a 2006 study by professors at the University of Houston. …
The studies’ conclusions drew a philosophical response from a well-known liberal law professor, University of Chicago’s Cass Sunstein. A critic of the death penalty, in 2005 he co-authored a paper titled “Is capital punishment morally required?”
“If it’s the case that executing murderers prevents the execution of innocents by murderers, then the moral evaluation is not simple,” he told The Associated Press.
The Public Education Continues
I have been aware of the research since early 03 and I wrote about it in these pages, particularly noting the 2005 joint Brookings Institute / AEI Study (http://www.aei-brookings.org/admin/authorpdfs/page.php?id=1131 ) that I’ve cited in “Death Penalty Revisited” below. Here are links to some of my Op Ed’s and articles.
Oakland’s Murders 2002
Murder in Oakland 02
Death Penalty revisited
Capital Punishment 06
(AEI/Brookings Abstract at http://aei-brookings.org/publications/abstract.php?pid=922 )
My 2004 article about Social Ambivalence About the Death Penalty is archived at
You Don’t Have To Like Medicine to Appreciate That It Works.
My enthusiasm is not for public executions of a few select convicted murderers as such, but for preventing the “free enterprise” variety that cuts down thousands of innocent men, women and children and permanently wounds their surviving families and friends, most of whom live relatively unprotected lives in the high-crime zones of urban America.
My real passion is for the project of discouraging murder and violence and restoring peace and civility, particularly for America’s poorer neighborhoods. Sadly, these are places from which – for too many – there is little practical hope of escape.
For me, morality cannot be just about “taking stands” and appearing to be benevolent. It is about the much more challenging process of figuring out which policies are most likely to protect the truly innocent among us and getting them implemented in the real world.
On the real world level, morality cannot be divorced from the complicated and messy realm of human interactions. To attempt to be moral on the practical level is to make mistakes. It’s safer to just take positions from the “moral high ground”. Yes, the Real World is less forgiving.
So be it.
The evidence has caused me to change my mind about a particular policy more than once as I’m sure it will again….
PS – They never caught the guy who killed Juan R. I understand that the juvenile who killed Joe got off cheaply. Usually, undue leniency is a setup. Joe’s killer has murdered again. The second and third killings are always easier…