DA Wants Death, Juries Won't Deliver

District Attorney Leon Cannizzaro doesn't get it.

District Attorney Leon Cannizzaro said Friday that his office isn't giving up on the death penalty, even after two capital trials this year ended in mistrials and a nightmarish child-murder case this month failed to persuade a jury to hand down the ultimate penalty.

Cannizzaro and his staff believe Louisiana should kill the "worst of the worst," like Barry Ferguson, who raped and strangled his mentally disabled daughter. Who, they asked, could be more deserving of the death penalty? Last week, Cannizzaro got his answer.

The jury of eight men and four women, unpersuaded, sentenced Ferguson to life in prison.

Voters elected Cannizzaro to represent their community in court. Juries are delivering the sense of the community again and again: killing is not the answer to killing. Orleans Parish juries haven't returned a death sentence in twelve years, despite New Orleans' reputation as the nation's murder capital. But Cannizzaro doesn't get it. He refuses to hear the message that juries continue to deliver, and so he spends the community's resources in futile efforts to kill defendants. It's time that Cannizzaro learned to listen.

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    legislature expresses wishes of the community (5.00 / 1) (#1)
    by diogenes on Mon Apr 27, 2009 at 09:54:56 PM EST
    If the community did not want the death penalty, then it would elect legislators and a governor that would repeal the death penalty. Criminal law is made at the state level, not at the parish level.  I suppose that the parish is welcome to vote this district attorney out of office if it feels so strongly against the death penalty.    

    I have to agree. (none / 0) (#2)
    by Joelarama on Mon Apr 27, 2009 at 10:12:38 PM EST
    I'm against the death penalty, but the people who voted for the DA represent the will of the people on death penalty.

    If jurors on a capital case are against the death penalty they are obligated to answer truthfully if they are asked their position in voir dire.


    And, I mean of course (none / 0) (#3)
    by Joelarama on Mon Apr 27, 2009 at 10:14:23 PM EST
     that jurors, if asked,  must answer truthfully of they are against the death penalty in principle.

    In these cases, I assume they did not believe it was warranted.


    do most of the american populous (none / 0) (#26)
    by of1000Kings on Tue Apr 28, 2009 at 04:07:57 PM EST
    even know who they're voting for when they vote for a DA?

    I mean, would they be able to tell you half the stances of that DA?

    maybe I'm wrong here and someone could correct me...

    most of the people I know in rural areas vote for the names they know, not the issues when it comes to voting for anything below US congressperson...


    Legislatures (none / 0) (#16)
    by TChris on Tue Apr 28, 2009 at 11:39:37 AM EST
    represent the wishes on the state as to legislation (not always very well). Juries represent the wishes of the community in court.  No less an authority than Thomas Jefferson declared juries the embodiment of democracy in the judiciary (he also said that given the choice between legislatures and juries, he would keep juries).

    That's a good point. (none / 0) (#4)
    by Mikeb302000 on Tue Apr 28, 2009 at 03:54:55 AM EST
    Presumably the jurors were screened beforehand to see if they were capable of delivering the death penalty if warranted.  I guess they didn't think it was.

    I see cases like this as another face of the grass-roots movement against the death penalty which should eventually lead to its abolition.

    It doesn't take many jurors (none / 0) (#7)
    by tokin librul on Tue Apr 28, 2009 at 07:54:45 AM EST
    to negate the 'will of the majority.'

    One's usually enough.

    I'd be the one on my jury.

    That's why no Bushevik would EVER be convicted of war crimes: there'd always somebody who'd vote to acquit...

    Do lawyers really believe the system works? (none / 0) (#8)
    by Saul on Tue Apr 28, 2009 at 08:03:52 AM EST
    I am against the death penalty.  This guy was guilty and got the second worst punishment.  However, I see prosecutors sort of like cowboys that do not feel they have done their job unless they got a notch on their gun.

    If a person is found not guilty you think the prosecutors would be rejoicing that he was proven wrong.  But no, he puts his face in his hands and say damm't we didn't hang anybody today.

    Well, (none / 0) (#10)
    by jbindc on Tue Apr 28, 2009 at 08:19:29 AM EST
    If a person is found not guilty you think the prosecutors would be rejoicing that he was proven wrong

    Well, just because someone is found "not guilty" doesn't mean s/he is not really guilty of committing the crime charged.  All that means is that prosecutor did not convince a jury (or judge) beyond a reasonable doubt.  Notice that no one is ever found "innocent". So, maybe that's why a prosecutor would not rejoice at being proven wrong - they realize that possibly (probably)? a guilty person gets set free.


    No one is found (5.00 / 1) (#11)
    by eric on Tue Apr 28, 2009 at 09:53:06 AM EST
    "innocent" because it is not an option.  Not guilty is the best we can do.

    just because someone is found "not guilty" doesn't mean s/he is not really guilty of committing the crime charged.

    Yes, I believe it does mean that.  We have a system where you are innocent until found guilty in a court of law.  Absent that conviction, no matter what anybody thinks, the accused is not guilty.  To say that someone is guilty despite what the court says is inconsistent with our justice system.


    No one has to be (5.00 / 2) (#13)
    by Anne on Tue Apr 28, 2009 at 10:41:57 AM EST
    found "innocent," because we are all presumed innocent; it's the status we have unless and until the state proves otherwise, so regardless of whether someone "really" did what he or she is accused of, a finding of "not guilty" upholds that presumption of innocence.  

    I see what jbindc is saying, but once you get into the "not REALLY not guilty," you have to accept that there are also "not REALLY guilty" verdicts, too.  Injustice, whether real or perceived, works both ways.

    We can't control what anyone thinks about someone's guilt or innocence, nor, apparently can we stop the media from thinking they can assess the evidence and we can have local and national verdicts.  Look at Gary Condit.  Look at John and Patsy Ramsey.  People who were never charged with anything, and yet, their lives were ruined by a media that thought it was "helping."  It shouldn't be that the course of someone's life is determined by how badly the media need big ratings, but I think it's a factor.

    I'm not immune from thinking someone who was acquitted "really" did what he or she was charged with.  I'm pretty sure OJ did murder his ex-wife and her friend - but the jury says the state failed to prove that.  No, it doesn't mean he didn't do it, but it does mean - as galling as it might be - that his innocence is intact because the state didn't have enough to remove it.

    I'm much less concerned with people going free who did commit crimes than I am with those who didn't and who end up in prison.  Whether justice is served seems to depend more than ever on things that shouldn't be factors: age, race, economic status - even where one lives and the political climate.

    Injustice should bother us all, but I'm afraid that, like a lot of things, people don't think about it until it affects them directly.


    Not Guilty at law (none / 0) (#12)
    by jbindc on Tue Apr 28, 2009 at 09:59:56 AM EST
    Is different than not guilty in fact.  A defendant may be acquitted of armed robbery, but that doesn't mean he didn't do it.

    And that was my point - we don't have an option of declaring someone "innocent" because we don't really know.


    There should be another option (none / 0) (#15)
    by Saul on Tue Apr 28, 2009 at 11:32:36 AM EST
    If I am accused of committing a crime and I did not contribute to the crime in any way form or fashion and the prosecutor should have never brought the indictment in the first place then hell yes not only shall the jury have the option to say not guilty but the jury must say  

    the defendant is found to be completely innocent of all charges.  

    This is a big distinction as compared to not guilty.  


    In the federal system (5.00 / 0) (#19)
    by Bemused on Tue Apr 28, 2009 at 01:11:44 PM EST
     such a procedure exists and is sometimes even used.

      The Court of Federal Claims has jurisdiction to award damages to persons based upon unjust convictions and resultant false imprisonment. See:  28 u.s.C. § 1495.

      To sustain a claim the plaintiff must obtain a "certificate of innocence" from the court of conviction (or a pardon based on actual innocence). See 28 u.S.c. § 2513.

     Following an acquittal or dismissal, a  person can petition the trial court to issue a certificate of innocence and that document is, under the law, a binding declaration the person was innocent, unjustly convicted and either did not commit the acts alleged or the acts did not constitute a any crime (caveat, to obtain a COI the court must also be persuaded the person did not contribute to his own prosecution through misconduct or neglect).



    The Scottish "Not Proven" (none / 0) (#24)
    by diogenes on Tue Apr 28, 2009 at 03:41:00 PM EST
    A third verdict, "Not Proven", would suffice.

    I'm not following the logic here either (none / 0) (#9)
    by Bemused on Tue Apr 28, 2009 at 08:05:46 AM EST
      That juries in specific cases declined to recommend the death penalty be imposed standing alone hardly supports the argument that a DA is ignoring the "sense of the community" by seeking it.

      The cases that ended in mistrials really don't even seem to belong in the discussion because as I read it those juries hung in the guilt phase of the trials. That might, with additional information, suggest ceratin deficiencies in the prosecutor's office but really has no bearing on the question of whhether the community rejects the death penalty for those CONVICTED of murder under certain circumstances.

      The cases where juries do convict people then decline to recommend death mean only that those juries judging all the facts and circumstances of those cases could not unanimously agree that death was the appropriate punishment. It's not supposed to be easy to obtain death sentences. A community could support the death penalty in the abstract by a substantial  margin despite the reluctance of specific juries to impose it in spoecific cases.

      Based on this account, it is just as reasonable to suspect  that voters might elect a different DA who is claims he would be more more proficient at persuading juries to deliver death verdicts than it is to think they would elect a new prosecutor who declines to seek the death penalty.

      It's also reasonable to think it might be a case where many people there might  view this as examples of the adversary system working as intended and evidence that the safeguards against unjust imposition of the death penalty at least sometimes work.

      This kind of poorly reasoned, shoot from the hip argument really does little to advance the cause of ending the death pernalty.


    12 years (none / 0) (#17)
    by TChris on Tue Apr 28, 2009 at 11:50:26 AM EST
    No Orleans Parish jury has returned a death sentence in 12 years.  We're not talking about a couple of holdout jurors in anomalous cases.  If every capital, death-qualified jury over the course of a dozen years says no to the death penalty, they are conveying the sense of the community that death is not an appropriate punishment.

    then (none / 0) (#18)
    by Bemused on Tue Apr 28, 2009 at 12:32:45 PM EST
     why does the same community elect successive DAs who campaign (in part) by stating they will seek the death penalty in cases they believe warrant it.

     You can't annoint yourself as spokessman for a community and declare that you have special insight into the collective consciousness and expect to be taken seriously. Your seriousness is even more undermined when you base your pronouncements on such poor reasoning it doesn't even appeal to those who believe the death penalty should be abolished.

      No one who wants to be considered credible would argue that the failure to obtain unanimous verdicts from juries (constituted of jurors who have survived strikes for cause and peremptory strikes) tells us much of anything as to the prevalence of sentiment against the death penalty in a community at large.

    A jury is NOT a representative sample of the community; it is a very small group chosen from an imperfectly representative sample of the community rendered more unrepresentative by the jury selection process. Add to that the fact a jury can be more than 90% in favor of the death penalty in a given case and it will not be imposed because it is not unanimous and it is simply not tenable to make the case the decisions of these groups can be used to show community sentiment.



    Civics lesson. (none / 0) (#20)
    by TChris on Tue Apr 28, 2009 at 01:31:01 PM EST
    Your argument is with Thomas Jefferson, not me (see comment 16). And with the Supreme Court, which recognizes that community participation in the judicial process, via juries, is an essential democratic protection against the arbitrary assertion of power by judges and prosecutors (Duncan v. Louisiana, 1968).  As the Constitutional Rights Foundation reminds us:

    The jury trial was a significant expression of "the consent of the governed" in American history. Among the reasons given by the signers of the Declaration of Independence to "dissolve the Political Bonds" which connected them to Great Britain was the deprivation "of the Benefits of Trial by Jury."

    True, juries are not perfectly representative of the community, but neither are the 20 to 50 percent of citizens who bother to vote in elections.

    As to whether voters want DAs who campaign for the death penalty, have there been any candidates in the parish who campaigned against it?

    By the way, I have not "anointed" myself spokesman for any community.  


    Harper Lee (none / 0) (#25)
    by diogenes on Tue Apr 28, 2009 at 03:45:05 PM EST
    Harper Lee gives a completely different view of juries in "To Kill a Mockingbird".  Would people be citing Jefferson as holy writ do dispute objections to juries in the South in the 1940's as well?

    To the best of my knowledge, (none / 0) (#27)
    by TChris on Tue Apr 28, 2009 at 04:31:53 PM EST
    Harper Lee was a novelist, not a Framer of the Constitution.  In any event, democracy does not always function well, as the 2000-08 period of our national government demonstrated.

    democracy may never function well (none / 0) (#28)
    by of1000Kings on Tue Apr 28, 2009 at 05:51:00 PM EST
    on the scale that we want it to...

    although I know I'm probably in the minority here when it comes to states' rights.


    Well, if there have (none / 0) (#21)
    by Bemused on Tue Apr 28, 2009 at 01:53:09 PM EST
     been no candidates who campaigned against the death penalty that just might possibly have something to do with the political realities in that community.

      Your evocation of Jefferson and the quote from Duncan simply confuse the issue. Juries are a check on SPECIFIC assertions of power in SPECIFIC cases. The decisions of juries are not meant to and do not reflect the general consensus of the community on broader issues. It is, plain and simple, false logic to argue that, because a few juries considering a few specific cases have declined to recommend death penalty,  the majority of the entire commu ity would not have supported the death penalty in those cases let alone  that the community is opposed to the death penalty as a general proposition.

      Would you argue that in a jurisdiction where a few juries convicted people for marijuana offenses and no acquittals were obtained over a period of time that is proof a majority of the community must be in favor of the marijuana prohibition and its strict enforcement? Or, would you when confronted with that scenario suggest that the jury verdicts merely demonstrate the jurors deciding specific cases and applying the law as they were instructed to the specific facts of those cases?


    in your hypothetical (none / 0) (#22)
    by TChris on Tue Apr 28, 2009 at 03:05:01 PM EST
    I would argue that juries generally follow the law as it is explained to them by the court.  But the reality is that they aren't required to follow the law.  The doctrine of jury nullification is based on the democratic function that juries serve as representatives of their community.  So if juries persistently refused to convict on marijuana offenses, I would argue that they are reflecting the consensus of their community.  By the same token, when juries in a series of gruesome cases over a 12 year period refuse to return the death penalty, I think it is inarguable that they are reflecting a community consensus that the death penalty is not a punishment favored by the community.  And I think the DA should recognize that reality and stop wasting the community's resources seeking penalties the community doesn't support.

    first, (none / 0) (#23)
    by Bemused on Tue Apr 28, 2009 at 03:30:10 PM EST
     you less than artfully evade my question because my hypothetical involved a few juries CONVICTING people of marijuana offenses and asked whether you would use that to support an argument the sense of the community favors msrijuana laws.

      Second, you keep acting as if there have been a large number of cases where people in Orleans Parish have been convicted of capital offense but juries declined to impose the death penalty. I'm pretty sure you are aware that is not the case and that there have been very few 1st degree murder convictions in recent years, otherwise you wiould likely citer the number of cases rather than vaguely alluding to the last 12 years.

      How many times have juries actually convicted a defendant of 1st degree murder and then recommended life without?