Amicus idea: _Halliwell_ and _Godfrey_ cases

[mschulter]

I guess what we need to do is find an attorney in CA that
will submit the brief for us under his/her own name.

I know there is one attorney who always maintained Scott's innocence, gosh,
I can't get her name off the tip of my tongue -- BRB.

edited to add - Joanna Spilbor. I believe she is in San Diego. She wrote a
couple of columns on the rush to judgment in Scott's case.

A thought: the "quality-of-evidence" and "blatantly unlawful death
qualification as a ground for reversing on guilt" issues might be of
interest to her and others if LWOP becomes the top penalty in California!
She and some colleagues could take part in an amicus brief focusing on the
dangers of wrongful convictions in DP and/or LWOP cases, and how the right
rulings on these two issues could help protect the innocent.

On the first, the U.S. Supreme Court, most recently in _Miller v. Alabama_,
has held that LWOP, like death, is in some ways radically different from all
other penalties: maybe we could call it "quasi-capital." So the argument
that especially reliable evidence may be needed to sentence someone in
effect to "death through imprisonment" might have continued interest.
Wrongful convictions were a big focus about five yeears ago of the
California Commission on the Fair Administration of Justice (CCFAJ).

On the second, overturning Scott's conviction and modified sentence of LWOP
(if the reform happens in California this November) would still be a
motivation for our "blatantly unlawful death qualification should overturn
the conviction as well as any death sentence" argument. If it wins, it gets
Scott a new trial (not the only reason for a new trial, of course!).

And both claims, although they're really uphill battles, could have lots of
benefits for wrongfully convicted people on Death Row or serving LWOP in
other States. What the California Supreme Court decides only applies to
California, but might influence other jurisdictions, state and federal.

The death qualification claim has some interesting equities and politics. A
strong reason for _not_ overturning capital convictions based on bad death
qualification is that someone who gets the DP or LWOP is generally presumed
guilty of one or more heinous murders. Reversing the death sentence only
means that they get LWOP or whatever, and stay safely behind bars. A new
trial raises the specter of "a duly convicted killer out on the streets."

If LWOP is the ultimate penalty in California, then the death-qualification
issue won't arise in the future: the State Supreme Court could decide to
reverse Scott's conviction while affecting few if any other prisoners, since
such a blatant violation of _Witherspoon_ is likely rare! The really uphill
part is that they'd be granting a new trial to one of the most "notorious"
prisoners in California, although the thinness of the evidence might make it
a bit easier. And this kind of ruling in California might help Death Row
prisoners in other States where such blatant errors may be a bit more likely
than in California.

[mschulter]

Here is one of Spilbor's articles -- I certainly don't
agree with her assessment of the Amber tapes, but nonetheless, her point is
valid, I think, that they significantly contributed to the DP verdict.

http://writ.news.findlaw.com/commentary/20041116_spilbor.html

A very readable article which I really like. I'd be interested in your
differences with her on the Amber tapes.

But her article brings two things home to me even more, both of which become
a bit moot if this November the DP becomes no longer relevant:

(1) If a conviction is a stretch, and the circumstances of the actual
killings are neither known nor evidently especially heinous, and Conner's
death was not premeditated, why a double stretch to the DP? Even someone who
supports the death penalty could feel that it should be reserved for serial
killers, mass terror, torture, murder for hire, and the like.

(2) Confessing that your client behaved like a "playboy" or an "untrue
lover" is one thing, but avoid implying that he is a thoroughly despicable
person, because you don't want to have your client live (and possibly die)
with that in the penalty phase when you try to humanize him or her and argue
mitigation.

[marlene]

My disagreement with Spilbor is that she characterizes Scott as still cheating and wanting to be with Amber after Laci's disappearance. I've done some analysis of those calls, and IMO they paint a totally different picture -- a picture of someone who is desperately trying to keep a former lover at bay so she won't become involved, not just for his sake, but mostly for Laci's (she's still alive in his mind) and also for Amber's (she didn't deserve to be pulled in under suspicion). http://pwc-sii.com/Research/Amber/AmberTimeline.htm#value I am certain that if Scott were the sociopath, narcissist that everyone wants him to be, he'd have thrown Amber under the bus.

In the Old Testament, the DP is handed down for pre-meditated murder and also for rape. However, we have to remember that in the OT -- imprisonment was NOT a penalty -- no one was ever sent to a prison. The closest thing to imprisonment was a voluntary sequester in a safe-city until the death of the high priest - -it's a rather complicated subject, so I'll not go into details, but for other crimes that could be "paid back," -- the person was fined 2 or 4 times or 5 times the value of what he took or destroyed, not sent to prison. When people cite biblical authority for the DP, they forget that imprisonment wasn't a part of that system of justice.

[marlene]

The other thing about the OT's laws and rules for trials is that if a witness bore false testimony, that witness got the punishment that the person on trial would have gotten or did get. So if say, a witness lies at the trial, such as what we often see snitch witnesses do, then if it's a capital murder case, that snitch witness would get the death penalty. That obviously was a strong deterrent to lying about someone's guilt.

[mschulter]

My disagreement with Spilbor is that she characterizes
Scott as still cheating and wanting to be with Amber after Laci's
disappearance. I've done some analysis of those calls, and IMO they paint a
totally different picture -- a picture of someone who is desperately trying
to keep a former lover at bay so she won't become involved, not just for his
sake, but mostly for Laci's (she's still alive in his mind) and also for
Amber's (she didn't deserve to be pulled in under suspicion).
http://pwc-sii.com/Research/Amber/AmberTimeline.htm#value I am
certain that if Scott were the sociopath, narcissist that everyone wants him
to be, he'd have thrown Amber under the bus.

This is really interesting. During some of the trial, I was visiting my Mom,
who had cable TV, and so followed a few of the witnesses a bit. But I
haven't really looked into this, and understanding any part of the trial
better will help me with all of it (definitely including the penalty
phase!). So I'll read, helped by your explanation of things to look for,
then share my impressions.

In the Old Testament, the DP is handed down for pre-meditated murder
and also for rape. However, we have to remember that in the OT --
imprisonment was NOT a penalty -- no one was ever sent to a prison. The
closest thing to imprisonment was a voluntary sequester in a safe-city until
the death of the high priest - -it's a rather complicated subject, so I'll
not go into details, but for other crimes that could be "paid back," -- the
person was fined 2 or 4 times or 5 times the value of what he took or
destroyed, not sent to prison. When people cite biblical authority for the
DP, they forget that imprisonment wasn't a part of that system of
justice.

Very true! With rape, also, the perpetrator was sometimes required to marry
the victim (if she were unmarried), so the death penalty didn't apply to all
cases. But the lack of imprisonment, at least as a statutory penalty, was
pointed out by 19th-century writers like Horace Greeley. He actually
compared the ancient Hebrews to the gold miners and vigilantes in
California, who likewise often had no effective court system or prisons. And
in 16th-17th century England, some Puritans (who tried often to follow the
law of Moses) argued that it was wrong to hang thieves, who should instead
pay the fines that you mention!

[mschulter]

The other thing about the OT's laws and rules for trials is
that if a witness bore false testimony, that witness got the punishment that
the person on trial would have gotten or did get. So if say, a witness lies
at the trial, such as what we often see snitch witnesses do, then if it's a
capital murder case, that snitch witness would get the death penalty. That
obviously was a strong deterrent to lying about someone's guilt.

That's part of the story of Susanna, Chapter 13 in some versions of Daniel,
where a young woman bathing in her husband's garden, where she thinks she is
alone, is surprised by two intruders: elders and judges who sexually harass
her. They threaten that unless she makes love with them, they'll falsely
accuse her of adultery with a young man they supposedly saw in the garden.
She refuses: better to die than offend her Creator.

She's being led to execution when a one-person Innocence Project appears:
young Daniel, who quickly exonerates her and arranges for the executions of
the two elders, since "they had borne false witness"; and the people then
"did to them, as they would have done to their neighbor." Of Susanna's
deliverance, it is added, "And guiltless blood was saved that day."
That's Daniel 13:61-62, modernized a bit from an English Bible of around
1395 that follows the Latin Vulgate (which includes this chapter of Daniel).

[mschulter]

The other thing about the OT's laws and rules for trials is
that if a witness bore false testimony, that witness got the punishment that
the person on trial would have gotten or did get. So if say, a witness lies
at the trial, such as what we often see snitch witnesses do, then if it's a
capital murder case, that snitch witness would get the death penalty. That
obviously was a strong deterrent to lying about someone's guilt.

Just a quick additional note that in capital cases, this is actually the law
in California also! See Penal Code Section 128: "Every person who, by
willful perjury or subornation of perjury procures the conviction and
execution of any innocent person, is punishable by death or life
imprisonment without possibiility of parole." Upon conviction, the defendant
would get a penalty trial much as for capital murder.

[marlene]

Same with Haman and Mordecai in the Book of Esther -- Haman devised a plot of falsehoods to hang Mordecai, and Haman, after being exposed, was hung on the same gallows. In his case, all of his sons were also hanged.

I don't know of a single instance when that CA rule has been applied -- might be an interesting google search.

[mschulter]

Same with Haman and Mordecai in the Book of Esther -- Haman
devised a plot of falsehoods to hang Mordecai, and Haman, after being
exposed, was hung on the same gallows. In his case, all of his sons were
also hanged.

That is another example, although if I'm correct, that execution
may have been carried out under Persian law.

I don't know of a single instance when that CA rule has been applied
-- might be an interesting google search.

Nor I, and I did another search prompted by your post. The closest are some
mentions of the statute by the California Supreme Court. _In Re Mooney_
(1937) 10 Cal.2d 1, 50 relates to the campaign to exonerate Tom Mooney,
sentenced to death for his alleged part in a 1916 bombing in San Francisco,
with the sentence commuted to life imprisonment. At one point, the decision
quotes a letter regarding the case, with a comment by the Court in brackets:
"Be careful and fair because any witness who has testified falsely in this
murder case must himself be prosecuted for murder. [This sentence
undoubtedly has reference to section 128 of the Penal Code.]"

Curiously, there are more substantial mentions in some recent cases. In
_People v. Harris_ (1989) 47 Cal.3d 1047, 1083 n. 17, the Court held it
acceptable for the prosecution to elicit testimony that one of its
witnesses, Linicome, "was aware of Penal Code section 128, and that the
section provided for the death penalty for a witness who gave perjured
testimony leading to a conviction in a capital case."

The longest discussion I've seen is in _People v. Dickey_ (2005) 35 Cal.4th
884, 911-912, where the Court addresses a claim that it was prejudical error
for the prosecutor to establish that one of the State's witness was well
aware of Section 128, and then later argue to the jury that this witness
might not lie when he "could face a capital case for it." The trial found
_Harris_ a persuasive precedent permitting both the questioning of the
witnessing and the argument to the jury.

The California Supreme Court, in sustaining the trial judge and responding
to defendant's claim that such a statute has little deterrent value because
of the "remote" likelihood of a wrongful execution followed by the
conclusive exoneration of the prisoner, noted that although there's much
delay nowadays between capital sentence and execution than in 1872, when
Penal Code Section 128 was adopted, this section was reaffirmed by the
Legislature in 1977 (a typo in the versions of this case of I've seen on the
Web says in 1997 in the body of the opinion, but the correct date in a
footnote, see id. at 912 and n. 11. It added that "with the advent of DNA
testing," the prospect of a conclusive exoneration after an execution "is,
if anything, less `remote.'" Id. at 912.

Whenever Section 128 comes up, I remember a television episode I saw when,
as I have now determined, I was almost 12 years old, where a defense
attorney in San Francisco persuades a prosecutor not to seek the death
penalty for someone whose testimony may have resulted in a wrongful
execution. As an anti-DP activist back then as now, I really liked the
episode, and remembered that the series was based on the exploits of defense
attorney Jake Ehrlich, whose writings I read avidly. Google helped me to
identify the series as _Sam Benedict_ (1962-1963), and the episode as "So
Various, So Beautiful" (aired December 15, 1962). While my computer doesn't
support video, maybe other people can find and view this episode.

[marlene]

I could not find that tv series on either hulu or netflix.