||Susan M. Recinella, Clinical Psychologist for mentally ill adults, and
Catholic Lay Minister to Families of the Executed|
You Be The Judge
By: Dale Recinella
Last week, I wrote about a man who was sitting in the Florida death house awaiting a May execution based on bargained-for testimony and a single piece of physical evidence. The testimony came two years after the crime—when the witnesses’ boyfriend needed a deal from the prosecutor on an unrelated charge. The physical evidence could have been DNA tested if it hadn’t disappeared.
Since then, a circuit court judge has made the politically courageous decision to halt this execution for yet another reason. The sentencing judge in the case had absconded from his duty to weigh the factors for and against the death penalty. He had simply signed the death sentence order that the prosecutor put in front of him.
The law requires that a sentencing judge personally weigh such factors and prepare his or her own order. The reason is the seriousness of a death sentence. The law says that the deliberative process cannot and should not be delegated by a judge to anyone else, let alone the prosecutor.
The ancient Hebrews, the source of credibility for most Florida death penalty supporters, would have been horrified at this mess. Unlike our modern death penalty system, which primarily serves to advance political careers, capital punishment under Torah and Talmud absolutely forbad any political pressure upon judges. The twentieth century scholar of both Hebrew and modern criminal jurisprudence, S. Mendelsohn, said it this way: “Nor do we meet in the Talmud with examples of modern electioneering. Office-hunting is thoroughly repugnant to the spirit of Talmudic law.”
Not so with the death penalty of the twenty-first century. As one U.S. Supreme Court judge stated in a 1995 capital case: “The ‘higher authority’ to whom present-day capital judges may be ‘too responsive’ is a political climate in which judges who covet higher office—or who merely wish to remain judges—must constantly profess their fealty to the death penalty.”
Current judicial selection processes for appointments or promotions are screening out any judge who shows any concerns about capital punishment—even if it is only a concern about executing the innocent. As former Notre Dame Law Professor John H. Garvey has written in a 1998 Marquette Law Review article, this is especially a problem for Catholic judges and judicial candidates who accept the Church’s teaching on the death penalty.
We are in trouble. It is our judges who must provide a check on the excesses of the system. This can only happen if our judges are protected from the political pressures that drive those excesses. Those protections have been systematically removed.
The Federal courts are not immune. Recently, one reviewed a Florida death penalty case rife with fabricated evidence, inconsistent testimony, and egregious state misconduct. The trial judge had ordered Valium for the juror who was holding out against a guilty verdict. She took the drugs and changed her vote. A tape recording was discovered in possession of the state long after the trial. It recorded the state investigator offering eyewitnesses from Minnesota a free trip back to Florida if they changed their statements to support the state’s case. They didn’t. And the jury never heard their testimony. Twenty-five years ago, the state prevented subtype testing of the crime scene blood. Now DNA testing is possible. What did the federal judge decide?
In a decision worthy of Pontius Pilate, he washed his hands in the rosewater of procedural default saying, in result, “I’m not putting my career on the line. No relief.” Even DNA testing was denied.
The ancient Hebrews knew that it is too dangerous to live in a society where it takes extraordinary courage for a judge to halt the execution of an innocent man. When did we forget that?
UPDATE: Later, a state judge who had attended Catholic law school in another state and was not an insider to the local “good-ol’-boy” network ordered DNA testing in this case. He was immediately reassigned off the case. But the DNA testing came back in favor of the man on death row. The state immediately began arguing that the DNA test results are irrelevant. The new judge who was assigned to the case agreed with the State. That man will soon be facing execution if a courageous judiciary doesn’t suddenly appear.
First published: The Florida Catholic, April 26, 2001
© 2001 Dale S. Recinella & The Florida Catholic.
Used with permission. All rights reserved.
No further reproduction or republication without prior written permission.
I Was In Prison
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Dale S. Recinella
, Catholic Lay Chaplain, Florida Death Row and Solitary Confinement
Susan M. Recinella
, Clinical Psychologist for mentally ill adults, and
Catholic Lay Minister to Families of the Executed