Assessing the justice of capital punishment cases

It's the severest penalty in the land: the death sentence. But often the rulings that put inmates on death row are riddled with questions. Did the defendant get adequate counsel? Was the witnesses' testimony reliable? Were the defendant's actions influenced by mental retardation or mental illness? In his book "The Last Lawyer: the Fight to Save Death Row Inmates," published by the University Press of Mississippi, John Temple takes a concentrated look at an idealistic lawyer named Ken Rose. For years, Rose has tackled the many concerns raised by implementation of the death penalty. Temple digs into one of the lawyer's toughest cases - - that of Bo Jones, a North Carolina farmhand - - to highlight a legal system in need of repair.

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When attorney Ken Rose first met Levon "Bo" Jones in 1997, he knew little about his client beyond the fact that Jones was scheduled to die by lethal injection in less than a week. As Rose soon found out, none of the lawyers who had represented Jones at trial had known much about him either.

No one had investigated any of the defenses that might have spared Jones the ultimate sentence. The prosecution had hung its case on the word of one witness, yet Jones's trial lawyers had barely spoken to her -- or any other witnesses.

Rose won a stay of execution for Jones and spent the next decade compiling an arsenal of evidence. Rose's legal team pored through the trial record, interviewing witnesses in trailer parks and law offices across North Carolina, unearthing one questionable fact after another. As it turned out, Jones's trial lawyer was related to the victim in the case.

Furthermore, the prosecution's star witness had conflicts of her own. And Jones himself had a low IQ and appeared to be mentally ill. He was paranoid and refused to communicate with his own lawyers for several years as the case wended its way through the capital appeals labyrinth.

Because of these mitigating factors, it's unlikely that Jones would be sentenced to death if his trial took place in North Carolina today. Modern juries -- familiar with stories of exonerated prisoners -- are doling out far fewer death sentences, and capital defendants generally have access to greater resources and better lawyers than they did in the 1980s and 1990s.

But because of the long lag time between trials and executions, many of the executions taking place today stem from cases that were tried a decade or more ago. In North Carolina, 115 of the 159 inmates currently sitting on death row were sentenced in the 1990s or earlier, before several important judicial reforms -- including the state law that prevents the execution of mentally disabled prisoners -- were enacted.

One rationale for capital punishment is that it's a special penalty reserved for the most-depraved murderers, the so-called "worst of the worst." But that's not what happened in the 1990s, according to Rose, one of the country's most experienced and respected capital appeals lawyers. Instead, Rose links the imposition of death sentences with the defendant's circumstances.

Rose's clients on death row in Raleigh's Central Prison tend to share certain traits. They are typically poor, unable to afford good defense at trial. Many are mentally ill or intellectually limited and unable to assist in their defense.

But the most crucial factor, according to Rose, is the location of the crime, as certain district attorneys pursue the death penalty in almost every murder trial while others view it as a special option. Duplin County, N.C., the poor, tobacco-and-turkey farming region where Bo Jones was convicted, is one of the prosecutorial hot zones.

Without Ken Rose's intervention, Bo Jones's story might have ended twelve years ago. Today, Rose continues to raise his voice, trying to convince the nation that capital sentences have not and cannot be consistently applied and therefore should be removed from the realm of legal possibility, once and for all.

By Steven E. Levingston |  January 7, 2010; 5:30 AM ET Politics , Steven Levingston
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I recently read The Last Lawyer, and was so impressed with John Temple's reporting and writing. In my opinion, this book is a must-read for law students because it shows the critical role of defense attorneys in the justice system -- and dispels the notion that DNA evidence has solved all of the system's problems. Kudos to Temple for shedding light on this ongoing issue, and for doing so with such a readable, compelling narrative.

Posted by: wvlawprof | January 7, 2010 12:25 PM

John Temple's book is phenomenal. Thought-provoking and insightful, this book is one I'd encourage anyone in search of a good read to grab.

Posted by: mstanmyre | January 8, 2010 11:31 AM

wvlawprof is exactly right about DNA as the answer to all questions. For one thing, there often IS no DNA evidence, and in many (perhaps most) cases, the presence or absence of DNA evidence neither proves guilt, nor exonerates the accused.

In stranger rape cases, DNA evidence is of great value... because seminal fluid found in the victim's body pretty much does prove that the "donor" of that fluid did, indeed, have sex with the victim. But the presence of the DNA of an accused at a murder or robbery scene often proves nothing but that the accused was present at SOME time, not that he committed the crime charged... and the absence of DNA evidence proves nothing at all.

The scores of erroneous convictions that DNA evidence DOES establish (especially in high profile capital cases) should be seen as an indictment of our entire criminal justice system. If so many erroneous convictions occur even when there is so much attention paid to a case, how can anyone be confident of the accuracy of cases which draw LESS attention?

Posted by: Iconoblaster | January 12, 2010 3:03 PM

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