In death penalty cases, smart people can get it wrong

By Barbara R. Keshen

August 25. 2007 12:07AM

Last week I attended the hearing in the case of State vs. Michael Addison. Boiled down to its essence, the hearing was about this: How can the community be assured that justice will be done in a case that could result in the state putting one of its own citizens to death; and what level of safeguards and protections must the court require to ensure that the ultimate sanction is not imposed unfairly?

There were seven lawyers at the hearing, four for the state, including the attorney general herself, and three for the defendant. All the lawyers were competent and prepared. Although the court's rulings could have a dramatic impact on this case and the future of the death penalty in New Hampshire, the hearing itself was academic and dry, an intellectual exercise that would excite only a legal scholar. But there were two statements made at the hearing that were absolutely gripping.

The statements were made by Senior Assistant Attorney General Will Delker. I have observed Attorney Delker many times over the years. He is a thoughtful and rational advocate. His arguments to the court are well-reasoned and researched. His demeanor is professional, and he is not given to drama or hyperbole. What he said, in his low-key way, is this: People involved in capital litigation make mistakes. Specifically, Attorney Delker, citing his disagreement with a decision of the California Supreme Court, said "Supreme Courts get it wrong sometimes - they are not infallible."

I quote him verbatim because I thought that statement was so noteworthy that I wrote it down. A few moments later in a different argument on a different issue, Attorney Delker said that Judge Wolf, the federal judge who presided over the capital murder trial of Gary Sampson in Massachusetts, gave improper jury instructions. Attorney Delker said, "Judge Wolf got it wrong."

That got me to thinking - if the California Supreme Court "got it wrong," and a federal judge "got it wrong," what assurances can we have that our court and our jurors will get it right? In fact, the more I thought about it, the more I came to the conclusion that there is almost no way for our state to get death penalty jurisprudence "right."

First, let's take the jury. Assuming they find Mr. Addison guilty of capital murder, they will then hear evidence from many sources about whether they should impose a sentence of death or life in prison without a possibility of parole. They will have to balance what are called "aggravating factors" and "mitigating factors." The jury's decision, whatever it is, will be arbitrary and random. It is an unremarkable proposition that different people look at the very same evidence and come to differing conclusions.

It is like playing duplicate bridge where players are dealt the same hand, but get different results depending on skill level and luck. Whether Mr. Addison lives or dies could depend on the life experiences of his own jurors: What kind of childhood just one of his own jurors had could mean the difference between life and death.
How can our community be satisfied that this jury will get it right? What safeguards can protect against the vagaries of human nature?

Next, let's take the legal process. All the lawyers and even the judge in this case are novices when it comes to a trial involving the death penalty. That is because there is virtually no death penalty jurisprudence in New Hampshire. We don't have a history of charging people with capital murder, and we don't have an established procedure for this most unique of all cases. Everyone, I am sure, will be doing what they think is best, but, as Attorney Delker cautioned, smart, well-intentioned people, can "get it wrong."

The arguments that were addressed at the Addison hearing involved lofty principles of law. But at their core, they also underscored that New Hampshire is undertaking to do what Justice Blackmun said he would do no more: "tinkering with the machinery of death."

(Barbara R. Keshen is staff attorney for the New Hampshire Civil Liberties Union.)