My First Death

Almost a quarter of a century ago I lost a death penalty trial. It was to be the only such loss in my career. I was to defend in many more cases in which the prosecution sought to execute my client, but none would result in death verdicts, although many would be deemed more "deserving" of punishment by death than the one who had been condemned to die.

The client in the one case I lost was named Mitchell Sims. He was accused of killing a Domino Pizza delivery man and robbing the store. He had come from South Carolina with his accomplice, Ruby. At the time of his California trial, he had yet to be tried for killing two Domino employees there. Eventually, he would be convicted there too, sentenced to death as well.

Although the crimes Sims was convicted of committing were horrible, they were by no means the worst crimes which my capital clients have committed.

One killed two undercover DEA agents in the course of a drug deal / robbery.

Another executed four "innocent" witnesses during another robbery of a drug dealer.

Yet another beat to death a middle aged woman who had MS and a few months later stomped to death a seventy-year old man who was thought to be wealthy.

Possibly the worst was a young man who, with his fellow gang members went on a summer rampage, killing eleven people.

In all of these cases, juries voted for life sentences instead of death.

Mitch Sims has been on death row in San Quentin since 1987 and all of his appeals have been exhausted of the issues surrounding "whether" he should be killed. What remains are arguments about "how" it should be accomplished.

Thirteen people have been executed since then, the last in 2006. At that time a moratorium (ironic) was declared when judges objected to the details of the manner of execution by lethal injection, which is deemed to violate the Eighth Amendment’s prohibition against punishments that knowingly cause pain. Sims’ habeas counsel has now (December 16, 2011) succeeded in obtaining another judge’s halt to the proceedings by questioning the drugs which should be used to kill him.

A week later, California Supreme Court Chief Justice Tani Cantil-Sakauye stated her opinion that the system of capital punishment in this state is not working. It is "ineffective" and "costly," imposing an enormous burden on the justice system that outweighs the benefits.

Within days, The L.A. Times published letters from outraged death penalty proponents, attacking the Chief Justice. "Endless appeals" are to blame, the writer complains.

This reaction is a typical argument. It ignores the enormous number of convictions which have been overturned after DNA or recanting witnesses or other new evidence was uncovered which proved that the original guilt / death verdicts had been faulty. It is now clear that innocent people in this country have been executed.

Well, Mitch Sims is not "innocent" in the sense of guiltless. But the capital law in this country doesn’t stop with the crime. In every state, the jury is required to consider not just the facts of the crimes, but also the life of the accused as well as the lives of the victims. In other words, no matter how horrible (or "heinous") the crimes appear to be, no juror is supposed to vote for death without considering "mitigating factors" most of which relate to the life of the killer.

In the cases I mentioned, all of the defendants had troubled lives. Broken homes, abusive parents, poverty, mental issues. 

But none was as bad as Mitch Sims’ life. It was like a Dickens southern gothic nightmare. His drunken stepfather serially raped Mitch’s sister and forced Mitch to have sex with his mother. Mitch medicated his clinical depression with booze, and his self-hatred in self-destructive actions.

So why was Mitch Sims sentenced to death while the others were not?

After the verdict a juror sought me out. She felt guilty about her death verdict and wanted to set up a trust fund for Mitch’s son, "to stop the cycle of damage". She told me that she voted for death because, although she sympathized with his horrible background, she couldn’t relate it to the cold blooded manner of his crimes. If he had killed his stepfather, or even if he had committed sex crimes, or his family, she and others on the jury would have spared his life.

That was my failure. The law and reason doesn’t demand a nexus between the background and the crime for it to be mitigating enough to vote against death. It is not a cause and effect relationship. It represents our society’s judgment that lives should be measured in their entirety rather than the moments of criminal acts.

In all of the other cases, the jurors "got it". I was able to present facts, experts, arguments, or something else that even the jurors couldn't explain, to justify a non-death verdict.

There is also a concept that the courts have given lip service to but which has been ignored in practice. It is the notion of "proportionality". This means three things. First, it means that the sentence should be proportionate to the crime. For instance, should someone be executed for crimes other than murder? The second idea relates to consistency in enforcement. Crimes committed in Los Angeles should be prosecuted and punished the same way as in Riverside. Even within L.A. County, the results vary. Jurors in Pasadena (where Sims was tried) and the central L.A. are different and prosecutors know it.

Although the appellate courts promised to consider these factors, in practice they have not faced the issue with integrity.

When it comes to non-capital crimes, the courts have been inconsistent. The Three strikes law, which permits life sentences for petty crimes, has been upheld.

But death is different, the courts have repeatedly claimed. The Supreme Court keeps saying: "There is no question that death as a punishment is unique in its severity and irrevocability."

And: "When a defendant's life is at stake, the Court has been particularly sensitive to insure that every safeguard is observed."

Another issue that lends doubt about the fairness of the death penalty is its racial bias. Statistically, it is clear that African Americans are more likely than whites to be executed, especially where their victims are not black.

All of these issues complicate the process that is supposed to be rational, rather than "arbitrary and capricious." 

And that is not all. The random luck of the skill and ethics of the detectives, experts, prosecutors, defense lawyers, judges, and many other unknown variables bear on the result.

California, which clings to its claims of diversity, is an equal opportunity state, fearful of executing only minorities. Mitchell Sims is white and therefore is a leading candidate for immediate execution as soon as the moratorium is lifted and the governor yields to the inevitable pressure to go forward into hell.

Does Jerry Brown have the guts to do the right thing and stop it? 

He could send Mitch Sims back to South Carolina. That state has a tradition of law and order, except when it is seceding from the Union. Other governors (as in Illinois and Oregon) have acted on doubts about the system by courageously stopping it, at least temporarily.

I hold my breath.