INTERNATIONAL JOURNAL OF RESEARCH AND ANALYSIS
VOLUME 1 ISSUE 2
2013
TINKERING WITH THE MACHINERY OF DEATH : AN ANALYSIS OF A
SYSTEM PLAGUED BY ARBITRARINESS AND INEFFICIENCY.
**Rishika Srivastava & Vaishali Singh
On December 23, 1991 Cameron Todd Willingham was condemned to death for murdering his three minor daughters by arson in Texas. A report by Dr. Gerald
Hurst, an acclaimed scientist and fire investigator, convinced the jury of his guilt. The society was extremely repulsed by his barbaric act. Most believed that he deserved nothing but the death penalty. In 2009 a report by Craig Beyler, hired by the Texas
Forensic Science Commission, concluded that the investigators in the Willingham case had no scientific basis for claiming that the fire was arson and that they ignored evidence that contradicted their theory. In 2010, the district court of Travis County,
Texas formally exonerated him. However, it was too late as he had already been executed on February 17, 2004.
1
It is the travesty of justice that innocent lives are being put to an end by a system corrupted by flaws to such an extent that it cannot live up to its promise of assuring a fair trial and equal treatment to all the accused irrespective of their socioeconomic status. Every capital case undergoes the stages of investigation, defense by counsel, adjudication and executive clemency and each has its own set of peculiar problems which makes the idea of administering death penalty fairly untenable.
INEFFICIENT INVESTIGATION:
The first interaction that an accused has with the criminal justice system is with the police, an investigating agency infamous for its shoddy investigation and callous attitude. Death penalty cases involve the commission of heinous offences which often shock the conscience of the society. This places immense pressure on the police. Consequently, they often indulge in disreputable practices like hiding exculpating evidence, obtaining forced confessions
2
, planting and fabricating
1
Kenneth Williams, Most Deserving of Death? An analysis of the Supreme Court’s Death Penalty
2
Jurisprudence (Ashgate 2012) 59-62.
Nathu v State of Uttar Pradesh AIR 1956 SC 56.
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, using stock and professional witnesses
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, influencing key witnesses
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and falling prey to rampant corruption
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.
Myanmar’s Phyo Wai Aung’s case illustrates the brutality with which police can torture accused in order to get a confession out of them. The police stripped him, burned his genetalia with lit newspaper, and dripped hot wax onto them. His family and lawyers were forbidden from meeting him. Ultimately, he succumbed to the police torture and gave a false confession. Based on this confession and fabricated evidence, Phyo was sentenced to death.
7
Similarly, the police also tortured Girvies
Davis of Illinois and obtained 20 confessions. He was executed in May, 1995.
Furthermore, the police, when faced with cases they are incapable of solving, often forces people to turn approvers in order to escape criticism and attack from media and public. The case of Rampal Rahidas v State of Maharashtra
8
is a perfect example of the same. The High Court of Bombay had confirmed the death sentence of five people on the basis of the statements given by an approver. Fortunately, the
Supreme Court questioned the credibility of those statements and acquitted all five accused because the approver had been forced to give his statements as the investigation had drawn a blank.
Moreover, eye-witness testimony is often the most powerful evidence presented in a case and erroneous eye-witness testimonies have proved to be fatal..
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Ruben Cantu was convicted on the basis of eye–witness testimony of the victim. The police used the suggestive procedure by showing the eye-witness several arrays of photographs all containing Ruden’s photograph. The court sentenced Ruden to death as they believed that no irreparable misidentification could have been cause by the use
3
Arjun Marik v State of Bihar 1994 Supp (2) SCC 372; State of Uttar Pradesh v Vad Narayan AIR
4
1993 SC 265.
Amnesty International India and People’s Union for Civil Liberties (Tamil Nadu & Puducherry),
‘Lethal Lottery: The Death Penalty in India- A Study of Supreme Court Judgements in Death Penalty
5
Cases, 1950-2006’ (2 May 2008) 148; Major Singh v State of Punjab MANU/SC/8569/2006.
6
Rampal Rahidas v State of Maharashtra (1989) 1 SCC 204.
7
Kehan Singh and others v State of Haryana (1989) 1 SCC 204.
HRC ‘Report of the Special Rapporteur on the situation of human rights in Myanmar, Tomas Ojea
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Quintana’ (6 March 2013) UN Doc A/HRC/22/58, para 14.
9
(1989) 1 SCC 204.
Rob Warden, ‘ How Mistaken and Perjured Eyewitness Identification Testimony Put 46 Innocent
Americans on Death Row’ (2 May 2001) <http://www.deathpenaltyinfo.org/StudyCWC2001.pdf > accessed 19 August 2013; Karunakaran v State of Tamil Nadu AIR 1976 SC 383; Antu v State of
Haryana [(1970) 3 SCC 937.
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INCOMPETENT DEFENCE COUNSELS:
After the investigation process, when the trial begins, a criminal justice system promises the appointment of a competent defense counsel who will be able to point out the flaws in the investigation process, put forth critical information, have sufficient knowledge about the relevant provisions of law and have the infrastructural and financial support to undertake necessary investigation and research.
The importance of a competent legal counsel in capital cases can be pointed out by the case of John Eldon Smith
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and Rebecca Machete
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Both of them were sentenced to death by an unconstitutionally constituted jury which did not fairly represent the community. Machetti’s lawyers were aware of the law prohibiting gender discrimination in juries and they challenged the jury composition. A new trial was ordered for Machetti where the death sentence was commuted to life imprisonment. On the other hand, Smith’s lawyer, being unaware of the law, did not challenge the conviction and he was subsequently executed.
The failure of a counsel to present critical information regarding the mental state, juvenility and other mitigating circumstances peculiar to the accused has also proved to be fatal. Horace Dunkins was mentally retarded.
13
However his counsel failed to bring this extremely pertinent fact to notice of the court. Hence, he was executed.
In most countries, death row convicts are represented by legal-aid counsels who are inadequately compensated. The hourly rates in capital cases are insufficient for the lawyers to meet their overhead expenses and are at times even below the minimum wage. Such a dismal state of affairs with respect to wages discourages good defense counsels from providing their services as legal aid lawyers.
10
Andrew Gumbel, ‘ Case of Ruben Cantu highlights flaws in Texas death penalty’ The Independent
(Los Angeles, 22 August 2005).
11
Smith v Kemp , 715 F 2d 1459, 1469 (11 th Cir); 463 US 1344, 1345; 464 US 1003 (1983).
12
Machetti v Linahan 679 F 2d 236, 241 (11 th Cir 1982); 459 US 1127 (1983).
13
Stephen B Bright, ‘Counsel For The Poor: The Death Sentence Not For The Worst Crime But For
The Worst Lawyer’ 103 Yale LJ 1835,1837.
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Death penalty was abolished in South Africa by the Constitutional Court in the case of State v. Makuuanyane
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where one of the most important grounds was arbitrariness and inequality. It was recognized in this case that the nominal fee given to legal aid lawyers renders them incapable of conducting satisfactory investigation and research, employing expert witnesses to give advice, assembling witnesses and bargaining with the prosecution. Financially sound accused, on the other hand, are able avoid death penalty as they are able to afford good defense lawyers and provide them with resources to put up an effective defense. Even in the United States, inadequate compensation of the counsel at trial has proved to be one of the principal failings of the capital punishment system.
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Further, some states do not provide legal help in the form of a counsel for the later stages of review and for filing mercy petitions.
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EVEN THE JUDICIARY IS NOT PERFECT:
As mentioned above, legal representation may not always be adequate and so it becomes the duty of the court to ensure a fair trial to the accused. In light of this responsibility, it’s heart wrenching to notice the arbitrariness, judicial bias and insensitivity reflected by the judiciary in death row cases. Judges have allowed capital trials to proceed even in the cases where the defense counsel presented conflicting defenses for the same client,
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cross-examined a witness whose direct testimony counsel missed because he was parking his car,
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slept through part of the trial,
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or was intoxicated during trial
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and still imposed death penalty.
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The Supreme Court of India, in Mohan v State of Tamil Nadu
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, upheld the death sentence of two accused despite the fact that the accused were not represented by any counsel and had to defend themselves on their own in the trial court. In the opinion of the Madras High Court, in the same case, full and adequate opportunity
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1995 (3) SA 391 (CC).
15
Ira P Robbins, ‘Toward a More Just and Effective System of Review in State Death Penalty Cases’
40 AM U L REV 1 (1990).
16
Stephen B Bright, ‘Will the Death Penalty Remain Alive in the Twenty-first Century?: International
Norms, Discrimination, Arbitrariness and the Risk of Executing the Innocent’ (2001) Wis L Rev 2001.
17
Daniel v Thigpen , 742 F Supp 1535, 1558-59 (MD Ala 1990).
18
House v Balkcom , 725 F 2d 608, 612 (11th Cir 1984); 469 US 870 (1984).
19
Harrison v Zant , 402 SE 2d 518 (Ga 1991).
20
People v Garrison , 254 Cal Rptr 257 (1986).
21
Stephen B Bright, ‘Counsel For The Poor: The Death Sentence Not For The Worst Crime But For
The Worst Lawyer’ 103 Yale LJ 1835,1843.
22
(1998) 5 SCC 336.
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What makes the application of death penalty even more arbitrary and dangerous is that fact that it is inevitable for different judges to have different ideologies and that some are more inclined to give death penalties than others. Justice
P.N.Bhagwati has observed that infliction of death penalty is influenced by the composition of the bench
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and referred to the case of Harbans Singh v State of UP
24 where the three co-accused, having the same role in the commission of offence, were treated differently by three different benches. Kashmira Singh’s petition was admitted by the Supreme Court and his death sentence was commuted while another bench of the same court rejected the petition of Jeeta Singh. Harbans Singh’s special leave petition, review petition and mercy petition were rejected and he was to be executed on the same day as Jeeta Singh. Fortunately for him, a timely writ petition saved his life but Jeeta Singh had not filed a similar petition and was executed.
The insensitivity of the judges in the United States can be illustrated by the fact that some jurors believe there decisions to be non-binding because the appellate courts can review and correct them if required.
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The US Supreme Court in Caldwell v Mississippi
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opined that it is an intolerable danger for the jurist to believe that the responsibility of any ultimate determination of death will rest with others.
Even the Apex Courts is not infallible and can commit errors by failing to apply the law correctly. A constitutional bench of the Indian Supreme court in the case of Bachchan Singh v State of Punjab
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propounded the ‘rarest of the rare’ test for determining the cases in which death penalty can be given. One important element of this test is reformation. The judges are required to prove that a person is beyond reformation, however, this element has been conveniently ignored by all courts
23
Amnesty International India and People’s Union for Civil Liberties (Tamil Nadu & Puducherry),
‘Lethal Lottery: The Death Penalty in India- A Study of Supreme Court Judgements in Death Penalty
Cases, 1950-2006’ (2 May 2008) 197.
24
25
(1982) 2 SCC 101.
Robert M Bohm, “The Errors in Capital Cases and What Can Be Done About Them” in Robert M
Bohm (ed), The Death Penalty Today ( CRC Press 2008) 13.
26
27
472 US 320 (1985).
AIR 1980 SC 898.
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also makes it mandatory for the courts to prepare a balance sheet of aggravating and mitigating circumstances and to weigh them against each other before condemning a person to death. In many cases this exercise has not been undertaken in its truest sense and the courts have merely paid lip service to it. It also mandates that the courts should not confine their consideration only to the crime but should also give due consideration to the circumstances of the criminal. This binding dictum was not followed by a lower bench of the Supreme Court itself in the case of Ravji v State of Rajasthan
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where it ruled that “it’s the nature and gravity of the crime but not the criminal which are germane for consideration”. This case was later declared per incuriam by the Santosh
Beriyar
30 case in 2009. Unfortunately, it was too late as 13 convicts had already been given death sentence based on
Ravji’s 31
flawed ruling out of which two have already been executed.
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The credibility of our criminal justice system is questionable as nothing has been done and the remaining 11 still continue to be on death row.
Even after being granted death sentence from the apex court, the provision of clemency petition gives the death row convicts an illusive hope of getting their sentence commuted to life imprisonment. This provision is often rendered meaningless due to the time taken by the executives in disposing off the petitions and by the fact that they fail to consider the aspect of reformation by the accused.
28
AIR 1980 SC 898.
29
AIR 1996 SC 787.
30
2009 (2) ALT (CRI) 386.
31
AIR 1996 SC 787.
32
V Venkatesan, 'A Case Against the Death Penalty' Frontline (Vol 29-Issue 17 August
2012) < http://www.frontline.in/navigation/?type=static&page=flonnet&rdurl=fl2917/stories/20120907
291700400.htm> accessed 19 August 2013.
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LET’S STOP TINKERING WITH THE MACHINERY OF DEATH:
According to Justice Blackmun
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death penalty must be imposed fairly and with reasonable consistency, or not at all. After looking into all the above mentioned shortcomings, it is abundantly clear, that the criminal justice system is far from its utopian model, which is the only model in which an irreversible form of punishment like death penalty can be accepted. The arbitrariness is not only fatal but is also selective and discriminatory. Even after taking a very optimistic view about the reforms that might be undertaken in future to do away with such shortcomings, there are some inherent flaws, like differing ideologies of judges, for which there are no panaceas. Therefore, death penalty must be abolished and it is high time for the Indian criminal justice system to bring about this change in the earliest possible time, if it is serious in its commitments to ensure full range of human rights to all its citizens without discrimination. However, the work does not end here. There should be a moratorium on the executions of those currently on death row and projects on the lines of the innocence project running in the United States should be undertaken in all countries to look for possibilities of exoneration.
33
Callins v Collins 510 US 1141 (1994).
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