Law school hosts death penalty conference, experts add opinions

In the fall of 2003, Gov. Mitt Romney, R-Mass., commissioned an 11-member panel with legal and forensic science experts to craft a narrow death penalty statute with a strong emphasis on evidentiary standard. \nThe Governor's Council on Capital Punishment, co-chaired by IU Professor of Law Joseph Hoffmann, released its 29-page report of recommendations in May 2004. Friday and Saturday, the IU School of Law held "Toward a Model Death Penalty Code," a forum which examined the council's findings.\nHoffmann said the council included people from both sides of the political spectrum on the death penalty.\nAmong the Council's recommendations were: a narrowly defined list of death-eligible murders; a system to ensure high-quality defense representations in potential capital cases; a heightened burden of proof to enhance accuracy; broad authority for appellate courts to set aside wrongful death sentences; and the creation of a death penalty review commission to review error.\nMany other legal and forensic experts on both sides of the death penalty issue participated in the weekend forum. Four panels examined capital crimes, capital juries, the role of scientific evidence and post-trial review.\nDr. Fred Bieber, an associate professor of pathology at Harvard Medical School who co-chaired the council with Hoffmann, said he didn't know whether the political will existed in Massachusetts to enact or propose death penalty legislation.\nBut he said the council's findings could "potentially influence other states, the military court system and the federal government as they potentially reexamine their political statues" regarding the death penalty.\nBieber said the council was asked not to deliberate on the moral and social arguments surrounding the death penalty, but to focus on reforming the system.\nMany of the panelists expressed satisfaction with the forward momentum the council's report had, but spent much of their time opining on what they believed were holes in the report.\nScott Sundby, a professor of law at Washington and Lee University at Lexington, Va., said he was indebted to the council for questioning factual accuracy in the criminal justice system and moving toward scientific evidence to secure guilt, but still questioned the lack of what he called a "moral accuracy" baseline.\n"If we are talking about a model death penalty, asking if it is something that we want, we clearly have to acknowledge the factual accuracy question and we have to ask about the moral accuracy," Sundby said. "How much 'wobble' can we tolerate to have a death penalty statute? You're always going to have the wobble. How much can you tolerate and still have a fair and accurate death penalty?"\nAndrea Lyon, an associate clinical professor of law at DePaul University in Chicago and the director of the Center for Justice in Capital Cases, said one chief problem in the current system of prosecuting capital cases involves sentencing juries.\nOne topic she said she believes needs addressing is the dismissal of opinionated jurors -- which she defined as people "most likely to seriously question" the evidence but are often excused during the jury selection process -- and juror preconception of the case before them.\n"There is no such thing as a jury that views innocence," Lyon said. "You need to understand that when you start out trying a death penalty case, there's an awful crime people are going to be upset about, and a jury who thinks where there's smoke there's fire."\nIn addition to Hoffmann, three of the council's other members attended the discussion: Bieber; Michael Sullivan, the U.S. attorney appointed by President Bush in 2001 for the district of Massachusetts; and Carl Selavka, the director of the Massachusetts State Police Crime Lab System. Hoffmann said it was interesting to watch the way the discussion among the panels panned out because he believed it replicated a similar flow that the Council had internally.\nHoffmann said he believes the death penalty remains a contentious issue for Americans because it symbolizes opinions and views about crime and society.\n"For many people, the death penalty represents a lot of justice and law and order. On the other side it represents the same thing but in the opposite direction," Hoffmann said. "These are deep issues about what makes a just society."\n-- Contact senior writer Tony Sams at ajsams@indiana.edu.