A plea for equal IN-justice

There was a wonderful minor story arc in the HBO prison drama "Oz" in which convicted killer Augustus Hill (Harold Perrineau) tries to appeal his case after he discovers that his lawyer has been locked up for taking bribes. Hill argues that his rights were infringed upon when, unlike other defendants, he was unjustly denied the opportunity even to offer a payoff. This, he contends, warrants his release. Part of “Oz’s” twisted allure came from the fact that many of its characters were violent, profoundly ignorant, sociopaths steeped in ludicrous urban myth. This storyline certainly made good use of that ambience. Hill’s almost comical strategy seems too ridiculous even for a fictional TV scenario.
…until one looks around to see how often it's attempted in reality, sometimes successfully.
This week, the Atlanta Journal Constitution employs precisely that deranged logic in its crusade to prevent murderers from paying for their crimes. Its series of articles and editorials “A Matter of Life or Death” takes partisan pseudo-journalism to despicable depths of unconcealed bias in its ranting against capital punishment.
Against capital punishment for anyone.
Anyone at all.
Ever.
The series incessantly rehashes and pound on the following stupefying premise: Some criminals who deserve to be executed aren’t. Therefore none should be.
The opening salvo in this assault against justice came in the paper’s Sunday edition. The double entendre headline blaring on the front page seems to have gone completely unnoticed by the editors, amusing because its black irony, apparently unintentional, speaks volumes about the misbegotten mess to come.
The AJC’s headline proclaims: “Death Still Arbitrary.”
Why yes, it is.
Just ask any insurance agent.
But while the caprices of fate pluck us each from this life in different ways, under different circumstances and at different ages, the AJC argues that all murderers are identical and so must their prosecutions, trials and sentences be. Since this is ludicrous demand is so obviously impossible, the paper concludes in its editorial on Thursday that the death penalty “must be abolished.”
So why exactly? The AJC gives us a point-by-point exercise in absurdity:
1) Uh…Racism! Yeah! That’s the ticket.
It is the last-resort maneuver of any race bating self serving political hack whose case has no merit whatsoever, the race card.
Sure enough, it’s the first card the AJC deals out in a September 23 piece by Heather Vogell which alleges “The death penalty carries a racial bias in Georgia.”
Racial bias? Apparently so. As the AJC points out, white killers are much more likely than black ones to get the death penalty. In fact, the paper points out, 18 of the last 20 murderers executed in Georgia were white.
But wait. This is no claim that these whites are being discriminated against. Instead, the AJC trots out gibberish like “subconscious racism” to claim discrimination because the victims of these white killers are also white. A gaggle of anti death penalty advocates insists murderers who kill blacks are less likely to be executed.
Upon what is this allegation based?
The paper fails absolutely to substantiate the claim.
Even the biased analysis of the AJC acknowledges there are many, many variables in each of these cases that have nothing to do with race. Victims of stranger-on-stranger murders or murders in store robberies were more likely to be white. Black and other minority victims were more likely to know their killers and more likely to be killed at home or on the street. Such factors muddy the waters of a complex death-penalty prosecution much more than the clear-cut circumstances of a scenario in which a thug murders an obviously innocent person during a robbery in a place of business. The dramatic difference between the circumstances of these murders makes it crazy for anyone but the most unscientific political polemicist to extrapolate any significance attached to a non sequitur like race of the victim or race of the killer.
Doughterty County's District Attorney Kenneth Hodges correctly describes the very notion of race playing a role in whether the death penalty is pursued as “offensive.”
The entire argument is just a meaningless canard devoid of any purpose except to rail against justice for killers. In fact, as the paper admits, the U.S. Supreme Court has already thrown out that very argument, ruling specifically that any such “patterns” do not prove any discrimination in any particular death penalty prosecution.
But…. On the other hand, let’s just suppose that prosecutors really are attaching less significance to the deaths of black victims. In that case this sounds like a stirring cause for the families of these victims and their community advocates to rise up and demand sterner justice for those who snuff out their lives. No more undervaluing of victims of color! Put the bastards to death!
Funny. The AJC doesn’t even consider that this gross negligence should be corrected.
Instead it proposes that the injustice be extended even further so that white victims be denied justice as well. Racial equality under the law is a great idea, but this logic is just obscene.
2) Justice sometimes fails, sometimes horribly
Next we’re told how a true monster, savage gang leader Ahmond Dunnigan, the creature behind the inhuman torture, rapes and murders of two teenage girls managed to elude his just desserts and instead enjoys a life of room and board at the expense of Georgia taxpayers. The AJC’s September 24th excretion by Heather Vogel and Bill Rankin details how, in 1993, Dunnigan orchestrated the hideous deaths of two young gangsta wannabes, children really. And yet, incredibly, Dunnigan continues to breathe. A big part of the problem, as explained by the paper, is that Dunnigan committed his crimes in Fulton and Dekalb counties, two of the Georgia’s most crime-ridden and (not remotely coincidentally) the state’s worst counties at putting murderers to death. Dekalb’s then district attorney J. Tom Morgan is quoted saying "If anyone deserved the death penalty, it was Mr. Dunnigan." More recently Morgan said to me “After all these years… I wish that by now he would have been killed in prison.”
But screwups in the investigation, lost evidence, and piddling paperwork problems with Dunnigan’s grand jury indictment (It had too many jurors names on it, as if that meant anything at all!) ultimately forced prosecutors to accept a guilty plea in exchange for life without parole. It was all they could do to avoid a sentence that actually would have let this beast out on parole after a scant 30 years.
Was it a gross miscarriage of justice? Absolutely.
Was it in any way a yardstick by which other cases should be judged? Hell no, except as an abject lesson never to let an abomination like this happen again. Morgan has the right idea. Perhaps we should be concentrating on how to have Dunnigan shanked, instead of discussing how we should let others get away with murder as he has. But letting other killers escape proper punishment is precisely the argument the Atlanta Journal Constitution uses this tragedy to advance.
3) Benumbed prosecutors forget their jobs
In the next installment, we’re told that prosecutors in "some" counties are less likely than prosecutors in others to seek the death penalty for murderers who kill their victims during armed robberies.
Correction: Prosecutors in Fulton and Dekalb counties are less likely than prosecutors anywhere else.
Yes even though “the counties were home to a quarter of all death-eligible crimes over the state,” it seems “Dekalb sent no killer to death row from 1995 to 2004 and Fulton sent just two.”
Coincidence?
Has it dawned on anyone that Fulton and Dekalb counties “were home to a quarter of all death-eligible crimes over the state” precisely BECAUSE “Dekalb sent no killer to death row… and Fulton sent just two?”
Writers Heather Vogell and Bill Rankin (again) make much of Augusta’s success at sending one creature, Mark McClain, to death row for the senseless killing of a Dominos pizza manager. Incredibly, statewide McClain was the only one, out of 55 armed robbery killers sentenced to death 1995. No wonder, then, that “armed-robbery murder is one of the most prevalent capital crimes in Georgia!” It’s these animals’ big chance to, literally, get away with murder.
Fulton County District Attorney Paul Howard dismisses the idea of even trying.
“‘We couldn't do it,’ he said. Fulton jurors know the crime isn't unusual and are unlikely to vote for death, he added.”
Way to go Paul. Let no thugs be alarmed or given pause as they consider whether to murder someone in the course of a robbery. Do we want to encourage them?
“The crime isn’t unusual,” he says.
Gee! Why do you suppose that is?
It is, we’re told, a different story in southeast Georgia, where prosecutors actually do pursue execution for armed robbery killers. And whadya know! Even when they run into evidence problems the simple fact that death is on the table often brings plea deals that result in life prison sentences.
Quoth D.A. Stephen Kelley of the Brunswick circuit: “I would think that you probably find that in a smaller community that an armed robbery is more offensive than in the big city, where they happen more often. We don't like them down here in the Southeast.”
And there’s the answer.
You get what you’re willing to tolerate.
The AJC would have us believe the disparity between death penalty prosecutions, particularly for armed robbers, is a flaw of Georgia’s outer and southeastern county justice systems.
But which systems are actually performing the job they exist to perform, keeping their citizens safer?
Let’s refer back to the part about Fulton and Dekalb being “home to a quarter of all death-eligible crimes over the state.”
Howard’s lame interpretation is outstanding that it’s so incredibly wrong. The article reports “…Howard said the sheer number in Fulton makes it impractical to prosecute them as capital cases.”
Um… no. The “sheer number,” the proliferation of these crimes, the degree to which they represent a widespread threat, makes it imperative to prosecute them, to the absolute maximum, right up to lethal injection. The “sheer number” of these crimes tells us that what Fulton and Dekalb prosecutors are doing now isn’t working!
4) Technicalities technicalities technicalities
The stupifying piece de resistance of the AJC’s rant against real justice in favor of meaningless process comes on Thursday. That’s when the paper claims Georgia’s Supreme Court has “botched,” and “mishandled” dozens of death penalty cases. In considering these cases, the court compared them to previous, unrelated, death penalty cases in a pointless but legally mandatory exercise called a “proportionality review” and (Here’s the problem according to the paper.) some of those previous cases had been, or have since been, overturned on appeal.
Here we have a technicality wrapped up in trivia, boosted by irrelevancy, resting on a technicality.
The AJC repeatedly asserts the following

"Under Georgia's death penalty statute, the Supreme Court is supposed to throw out sentences that are disproportionately severe when compared to punishment in similar cases."

This is absurd, a grotesque caricature of stare decisis, the legal principle of respect for precedents. Based on this logic, a defense attorney trying to prevent a convicted murderer from receiving richly deserved punishment needs only to dig up a few old cases of bumbling or lazy prosecution, dirty dealing defense, ignorant juries or incompetent judges in which killers escaped justice once before ...and turn those obscenities into weapons to prevent justice yet again in future cases!
So what, exactly, was wrong with these previous cases that now renders them unfit for consideration?
According to the paper…

“The Journal-Constitution found that while some cases were overturned because of procedural errors, others had serious problems regarding ineffective defense attorneys, prosecutorial misconduct, inadequate jury instructions, and evidence that jurors should not have considered.”

“Procedural errors?”
“Ineffective defense attorneys?”
Evidence jurors “should not have considered?”
“Other sentences,” the paper says, “had been overturned because the racial composition of the jury pool did not reflect the community.” So only a certain “racial composition” is capable of delivering a just finding of fact.
Now who’s guilty of “subconscious racism?”
Of all these piddling trifles, only the vague assertion of “prosecutorial misconduct” rises above the level of inconsequential technicality. None has any bearing whatsoever on whether the murderer in each of these past cases actually deserves to be punished.
The paper quotes Leah Ward Sears, chief justice of the Georgia Supreme Court as explaining that the court’s job is looking at the actual facts, not piddling technicalities and lawyers’ gameplaying.
"When this court cites older cases, it is primarily interested in what evidence the juries in those older cases actually heard at the time that led them to impose the death sentence, not what evidence those juries should have heard." (emphasis added)
And these inconsequentialities certainly have ABSOLUTELY nothing to do with the subsequent cases in which those ostensibly deficient earlier cases were cited.
In fact, why do these “proportionality reviews” exist at all? A fundamental instruction from the judge to the jury in virtually every criminal case tried by a jury is for the jurors to set aside anything they might have heard outside the courtroom and base their findings strictly on the facts of the one and only case before them. Irrelevancies such as how other cases might have been decided differently are explicitly to be excluded from consideration lest they unjustly prejudice those deciding a case and result in a finding based on something… anything… other than what happened in this particular instance.
Demanding that horrible mistakes by prosecutors, judges and juries in the past should have any sway over the decisions of courts in the future makes no sense whatsoever. Georgia’s ongoing plague of murders mandates that previous cases where killers escape justice and instead got a lifetime of food and housing from the state should be REJECTED as errors and IGNORED by courts in the future. The very concept of the “proportionality review” should be expunged from state law and judicial practice.
Two wrongs don't make a right and one gross miscarriage of justice does not justify another.
This is, however, precisely the logic the AJC lays out repeatedly, pointing out that metro Atlanta prosecutors routinely let killers plead out and escape execution while “elsewhere in the state, prosecutors seek and win death penalty sentences, making the punishment irrational.” Insane argument. This doesn’t make the punishment irrational. It makes the lack of punishment irrational. Oh sure, this disparity is most certainly a gross injustice. It must be corrected at once. But corrected in a way that brings more justice, not less. The warped politics and impaired judgment in Georgia’s crime capitals should be stamped out, not allowed to metastasize throughout the state so killers can be allowed to get away with their crimes elsewhere too.
The main mission of the justice system, in America and in Georgia, is to protect the public and to deliver… justice.
Justice for criminals and justice for their victims.
Not some bizarre notion of equity between killers.

September 28, 2007