A Fair Judicial System? The Death Penalty

The following article is written by Craig Phemister, Esq., Practice Chair of the Napoli Shkolnik PLLC Civil Rights Department.

Update: Missouri Governor issues a stay of execution amid new DNA evidence

The case of Marcellus Williams is a tragedy. His execution is scheduled for Tuesday (August 22nd) evening. It shows the fault with our criminal justice system. That oftentimes prosecutors are so focused on winning and closing cases that they overlook the element of truly doing justice.

The state of Missouri plans to put Marcellus Williams to death while his lawyers have asked the U.S. Supreme Court to stop the execution and examine new DNA evidence, which they say proves his innocence. Defense attorneys have also asked Governor Eric Greitens for clemency. The U.S. Supreme Court has not yet ruled on the motion, but it is not unusual for the Court to wait until the day of sentencing to rule since last-minute petitions often flood the court hours before a scheduled execution.

Last week, the Missouri Supreme Court  turned down the defense lawyers’ bid to stop the execution without explanation. Some of Marcellus Williams’ supporters have also suggested the possibility of a racial element to his planned execution. That his execution exposes a racial bias in the American judicial system. Currently there are twenty-five people on death row in Missouri.

Williams was convicted in 2001 of the murder of a former newspaper reporter, Felicia “Lisha” Gayle in her home in August 1998.

We know from the number of overturned convictions across the United States that the justice system makes mistakes. Where the death penalty is the punishment, every stone must be overturned to ensure that the right person is being put to death, especially when new evidence has come to light since the trial and where advances in DNA testing technology can isolate and even exclude an individual from the crime.

Sadly, our society has had to even overturn convictions of inmates who were put to death – after the fact. There is no justice when the wrong person is convicted. Not only is an innocent man’s live ruined, but the victim’s family never knows true justice because the real killer is never caught.

We must continue improving our justice system and diligently work to move away from merely trying to “win” convictions and move towards a system that isn’t afraid of admitting when it has made a mistake.


The effect of anectodal evidence

Anecdotal evidence of ineffective representation abounds. It is not unusual to see instances of attorneys sleeping through parts of trials or appearing in a state of intoxication. It is also not unusual for derelict attorneys to not show up at all for preliminary hearings or to face disciplinary sanctions almost simultaneously with their representation of a wrongfully-convicted defendant.

But the evidence is not just anecdotal. Here are some statistics to consider as well:

  • A recent Texas Defender Service study concluded that capital murder defendants in that state “face a one-in-three chance of being executed without having the case properly investigated by a competent attorney or without having any claims of innocence or unfairness heard.”
  • In 25 percent of the capital murder cases in Tennessee, defense attorneys offered absolutely no mitigating evidence during trial.
  • Judges eventually reversed over two-thirds of the capital murder sentences handed down in Philadelphia between 1973 and 1995, largely on the basis of inadequate trial representation.
  • In 2003, the American Bar Association passed minimum standards in capital cases, such as two lawyers, an investigator, and full funding. As of 2017, zero states had adopted these guidelines.

All these inadequacies promoted Supreme Court Justice Ruth Bader Ginsburg to frankly remark that “People who are well represented at trial do not get the death penalty.”

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