Defense attorneys who specialize in death penalty cases are an interesting lot. I admire them greatly. In most cases, they defend really evil murderers. Few of their clients are innocent except under the law until they are convicted. A death-penalty lawyer fights primarily to save clients from execution, not to win an acquittal. (Undoubtedly, this was Mark Geragos’s biggest failure in the Scott Peterson trial.)

In the Michael King trial, TruTV named the woman who is his lead attorney and noted that she was on the defense team in the murder trial of Joseph Smith, who kidnapped, raped, and murdered young Carlie Brucia. Unfortunately, I did not write down her name, and now, no matter how hard I try, I cannot find a single reference to her name on the Net. (I wrote down the second attorney’s name on the King defense team, though: Jerry Meisner.)

Mr. Meisner is the one who made a bold move in the trial yesterday, when he accused a prosecution witness of being the real killer. That was the first time I heard a defense attorney use an affirmative accusation of someone else. (This morning in his closing argument, the prosecutor attempted to assert that this placed a burden of proof on the defense. I believe the defense objected.)

Trial lawyers no doubt insure themselves against slander and libel so they can sometimes point a finger at someone other than their clients. (Perry Mason comes to mind.)

As I have said before, to rely on reasonable doubt, a defense must tell a coherent, alternative story of the crime. In the King case – despite overwhelming evidence – the defense team has told a story in which one or two other individuals “aided and abetted” the murder and may even have pulled the trigger.

It’s hard to believe the jury will accept this alternative narration, but it is already clear that they are taking it seriously. In addition, in the event of a conviction, the defense will be able to complain that the state had two suspects in the crime testify against the defendant.

“Cruel and Unusual Punishment”

Good lawyers wouldn’t have to specialize in defending the most heinous criminals if this country did not allow the death penalty. These talented defenders would be able to apply their skills to defending the wrongfully accused.

The death penalty ought to be abolished.

I don’t want to repeat all the usual arguments here. Instead I want to talk about the language of the law.

I’m not going to argue that the death penalty is unconstitutional. In the 18th century, when the framers of the Constitution and Bill of Rights prohibited “cruel and unusual punishment,” they did not intend to include capital punishment in that set of punishments.

In the 18th century “cruel punishment” meant any punishment that inflicted a permanent, physical injury on a criminal. Such punishments were clearly cruel, because they forced a criminal to endure a lifetime’s punishment, even after he “paid his debt to society.” A permanent injury by definition meant that a criminal could pay off his debt but still would have to suffer. So the Bill of Rights made sure thieves could not have a hand cut off. No one could be whipped for blasphemy.

If the Founding Fathers made any mistake, it was in not recognizing that execution was cruel, because it inflicted an irreversible physical injury. Remember, the Founding Fathers believed in a Supreme Being and an afterlife, a theological perspective that not everyone now shares, a perspective of which the law purports to be independent. In the 18th century, few people had any doubt that an executed person’s soul would survive death and would be judged by the Almighty. By executing a guilty man, the state did nothing more than hasten the individual’s “final judgment.”

In the 18th century “unusual” did not mean what it means today. It did not mean “bizarre.” “Unusual” meant “not usual, not standard.” In other words, the Founding Fathers intended to prohibit punishments unique to an individual. It was their intent that punishments should “fit the crime,” not the criminal. So, if one murderer is punished by execution, all murderers must be punished by execution and vice versa.

The Founding Fathers placed criminal law under the control of the states. They made it clear that state criminal law must conform to the principles of the federal Constitution. But they failed to realize that a “usual punishment” in one state could be prohibited in another state. That means that those of us who live in capital-punishment states, such as Illinois, have fewer rights than our fellows in states such as Kansas. Not only are murder suspects subject to execution, but law-biding citizens are forced to bear the heavy tax burden of the capital-punishment system in our state. And because I oppose the death penalty, I am excluded from any jury in a capital murder case.

In the 18th century, no one could imagine the range of degrees of murder and manslaughter that we have today. No on could imagine that a fetus’s death could result in a capital murder charge. No one imagined that fifty states could have such a wide range of laws and attitudes toward capital punishment. No one imagined that the age or IQ of a murderer could determine whether or not he was eligible for the death penalty.

If the Founding Fathers made any mistake, it was in not recognizing that execution was cruel and unusual, because an innocent man could be mistakenly executed, because a state could make execution the usual punishment for any crime it wished, because a draconian government could make execution a universal punishment for all crimes, and because it inflicts an irreversible injury.

Death-Penalty-Qualified Attorneys

Apparently in Florida an attorney must be specially qualified to handle the defense in a death penalty case. I’ll have to do some research to learn what these qualifications are. For now I can only commend Michael King’s attorneys for their willingness to take on his case. I imagine they are subject to a great deal of public animus simply because they oppose the death penalty.

A TruTV commentator said yesterday that inadequacy of counsel is most common reason for successful appeals in death-penalty verdicts—yet another logical contradiction in the law. Wouldn’t defendants in such cases be better off with unqualified attorneys, then? Can the State of Florida force a defendant to hire a competent lawyer?