A Prosecutor Speaks

The following is a question and answer session with a Texas prosecutor.

Q: As a lawyer do you treat possible death penalty cases differently?

A: On the contrary, I treat all criminal cases I prosecute as seriously as I treat capital cases. The ultimate punishment at stake may be different, but my over-riding duty to do justice, not just to seek convictions, extends to all cases. The criminal justice system may result in the deprivation of life or liberty of an accused person. Any such result should only occur after a truly fair trial.

Q: What things do you look for in a case before asking for the death penalty?

A: In my jurisdiction, the ultimate decision to seek the DP is made by the District Attorney. I review the case and make a recommendation based upon the particular facts of the case, including the kind of killing it was (strangulation, or shooting, etc). What was the underlying offense and how it was carried out? What was the role of the actor in the crime? What prior criminal record does the actor have?

Another area for you to become familiar with is the concept that a person may receive the death penalty without actually committing the killing, even without specifically intending the killing to occur. You need to look up Texas Penal Code Chapter 19 and read what constitutes Capital Murder, and rules 7.02 (a) and (b) for the law of parties (Criminal Responsibility for the Conduct of Another) then compare and contrast the punishment scheme, the "special issues" asked of the jury under Code of Criminal Procedure Article 37.071, the answers to which determine the penalty of life or death.

Q: Has there even been a time when you asked for the death penalty and then felt unsure about the decision afterwards?

A: Not really. The very first death penalty case I tried I had some reservations about, until the defendant testified, and lied, and removed any last vestiges of doubt I might have had.

Q: Is there anything about the system, let’s say the number of appeals death row inmates receive, that you think needs to change?

A: Im really not the expert on appellate side, and I have no problem with all such cases receiving appropriate scrutiny. I do think that sometimes the defense deliberately tries to omit a point for appeal that they attempt to raise for the first time at the last minute, which I find disingenuous, and Im aware that some changes have been made to require more consolidation of the appeals process.

Q: When I was looking at anti-death penalty site I noticed that they argued that the death penalty is used more often on minorities. Is this a valid claim?

A: I only have access to the same statistics that are cited. I believe statistics will show that the vast majority of crimes, including capital crimes, are committed by "minorities." I’m not being prejudiced or elitist, and I dont claim to have all the answers to remedy all social ills, but I believe statistically those of disadvantaged backgrounds, be it lack of parenting or other forms of socio-economic deprivation, find themselves in a cultural (peer) pressure cooker (whether its gangs or just a general sense of deprivation that engenders a kind of hatred for "haves") that encourages the kinds of behavior, patterns of behavior, that ultimately result in these types of crimes being committed. So I guess the question is what is meant by "valid claim." Assuming that it is statistically valid, does that mean its unjust?

Q: As a lawyer, how would you define cruel and unusual punishment?

A: Some say that LWOP, life in prison without parole, is cruel and unusual. Ill defer to the teachings of the United States Supreme Court on this question.

Q: Also, on the pro-death penalty sites they would claim that most people supported the death penalty, and on the anti-death penalty sites they claimed that the majority of America wanted alternatives to the death penalty. Do you have any information on the acceptance by the public of capital punishment?

A: I have no special knowledge about what the population statistically believes, and am not in a position to argue for or against what any particular survey may statistically show. A caution though: What does the statistician collect? Does the survey first educate the respondent on what capital murder is? On what the sentencing scheme is, how the determination is made? Its one thing to ask, "do you believe in capital punishment", and quite another to ask, "do you believe in capital punishment for a person who abducts a 15 year old girl, repeatedly rapes her and leaves her nude in a field where no one could hear her cries for help if she could, to die with a crushed skull by virtue of having beaten her with a large hunk of concrete that weighed 38 pounds, and a stick protruding from her private parts; who the week before raped another girl and threatened to kill her if she did not submit; who bit the victim from the week before and who also bit the deceased victim sufficiently violently to actually rip flesh from her body; who had been involved in numerous instances of bad conduct from grammar school on, was known as a bully and incorrigible by all his teachers"…and that in order to receive the death penalty in Texas, the jury must believe beyond a reasonable doubt that yes, the defendant would commit criminal acts of violence that would constitute a continuing threat to society, and no, there are no sufficiently mitigating circumstances about the defendants background, moral culpability for the crime, or from the facts of the case, to warrant the imposition of Life instead of Death. (See 37.071)

Q: What are some of the main arguments used to support the constitutionality of capital punishment?

A: Sorry this question is just too broad for me to respond to. You will have to do some reading yourself. I believe, succinctly, that some people have simply earned their place on Death Row, due to the crime they have committed, the danger they pose to law abiding people, and the risk that they could someday escape or victimize others within prison.

Q: What forms of capital punishment are in use today? Are there any forms used that could be argued as cruel or unusual punishment?

A: Texas uses lethal injection. I think that the gas chamber has been found to be cruel and unusual, and Im not sure about the electric chair at this point. Seems to me that Florida had the chair at least until recently. Doesnt Utah still have the Firing Squad? (Was it Gary Gilmore?). Anyway, Im really not sure about all other jurisdictions, but Im sure of Texas form of execution, and from all Ive seen, heard, and read, it apparently is the most humane, and certainly more humane than any victim endured, wherein the person is basically put to sleep, similar to an anesthetic given prior to surgery, prior to the introduction of the chemicals that stop the heart and the lungs. The second part of that question is too broad. Certainly arguments can be made that any form is cruel/unusual. We no longer have drawing and quartering for instance.

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