Lawyer 2 Lawyer

Firing Squads and Lethal Injections: Is Today’s Death Penalty Cruel and Unusual?

The Eighth Amendment protects people from cruel and unusual punishments in the United States but what does that mean? In the last 38 years, Americans used hangings, gas chambers, lethal injections, electrocutions, and firing squads to execute convicted murderers. Given the recent reports of botched lethal injections, some experts are calling for the return of the firing squad as the most humane form of capital punishment. On this episode of Lawyer 2 Lawyer, host J. Craig Williams interviews Judge Alex Kozinski from the United States Court of Appeals for The Ninth Circuit, exonerated death row survivor Ronald Keine from Witness to Innocence, and M*A*S*H actor Mike Farrell from Death Penalty Focus. Together they discuss the merits of firing squads vs. lethal injections, corruption in the judicial system, and the morality of western society. Tune in to hear about the 144 exonerated death row survivors as well as Ronald Keine’s near miss with the gas chamber.

Judge Alex Kozinski sits on the bench of the United States Court of Appeals for The Ninth Circuit where he’s served since his appointment on November 7th 1985. Prior to his appointment Judge Kozinski occupied other prestigious positions including Chief Judge of the US Claims Court and Office of Counsel to the President. He is married with three children plus three grandchildren.

Ronald Keine is an exonerated death row inmate who was just 9 days from his execution in the gas chamber when the actual murderer confessed to the crime. Today, he an Assistant Director of Membership and Training for Witness to Innocence an anti-death penalty organization whose leading voice is that of exonerated death row survivors.

Mike Farrell played Captain BJ Hunnicut for eight years on the hit television show M*A*S*H as well other roles like Jim Hansen in another series called Providence. In the 90s, he served for three years as a member of the State of California’s Commission on Judicial Performance. Mr. Farrell is a life-long opponent of the death penalty and has been the President of Death Penalty Focus since 1994.

Special thanks to our sponsor, Clio.

 

View transcript

The first three days I sat there basically in shock.  I couldn’t believe that this happened to me, the humiliation, the degradation of it, sitting here on death row for something I didn’t do.

People who commit mass murders, people who rape and torture children, you know, there are horrible cases out there, but sometimes people do things that are bad enough, and they lose their right to live.

The idea that we are trying to find a humane way to commit an inhumane act has always been troublesome to me.

Welcome to the award winning podcast, Lawyer 2 Lawyer, with J. Craig Williams and Robert Ambrogi, bringing you the latest legal news and observations with the leading experts in the legal profession.  You’re listening to Legal Talk Network.

Craig Williams: Hello and welcome to Lawyer 2 Lawyer on the Legal Talk Network.  This is Craig Williams coming to you from Southern California.  I write a legal blog called May It Please the Court.  My cohost, Bob Ambrogi is off today.

Before we introduce today’s topic, we’d like to take a moment to thank our sponsor, Clio, an online practice management software program for lawyers at GoClio.com.  Also, as our show sponsor, Clio is going to be hosting their Clio Cloud Conference in Chicago on September 22nd.  To learn more about this event, go to ClioCloudConference.com.

Well, since 1976 there have been approximately 1,386 executions in the United States.  Among them we’ve seen executions by electrocution, gas chamber, hanging, lethal injection, and firing squad.  Of those executions, we’ve had 46 botched in some way, leading to reports of suffering, apparently disproportionate to our constitutional limits.  Of the 46 botched executions, lethal injections comprised 34 of those.  Some blame lack of participating medical professionals, while others blame aging and expired drugs, and still others are calling for the firing squad as a more humane way to implement capital punishment.

Here to discuss this topic, we have three guests.  First we’d like to welcome Judge Alex Kozinksi of the United States Court of Appeals for the Ninth Circuit, where he has served since his appointment on November 7, 1985.  Prior to his appointment, Judge Kozinski occupied other prestigious positions, including Chief Judge of the U.S. Claims Court, and Office of the Counsel to the President.  Welcome, Your Honor.

Hon. Alex Kozinski: Good morning, Craig.  How are you?

Craig Williams: Excellent.  In addition, we have joining us today, Ron Keine.  Mr. Keine is an exonerated death row inmate who was just nine days from his execution in a gas chamber when the actual murderer confessed to the crime.  Today he’s an assistant director of membership and training for Witness to Innocence, an anti-death penalty organization, and the leading voice of that organization is exonerated death row survivors, including Ron Keine.  Welcome Ron Keine.

Ron Keine: Good morning.  How are you?

Craig Williams: Excellent.  Finally we have joining today, Mike Farrell.  Mike played the Captain B.J. Hunnicut for eight years on the hit television show M*A*S*H, as well as other roles, like Jim Hansen in another series called Providence.  In the ‘90s he served for three years as a member of the State of California Commission on Judicial Performance.  Mr. Farrell is a lifelong opponent of the death penalty and has been the president of the Death Penalty Focus since 1994.  Welcome, Mike Farrell.

Mike Farrell: Thanks very much.  Nice to be with you.

Craig Williams: We’re very glad to have you, as well.  The Eighth Amendment of the United States Constitution prohibits the United States government from imposing cruel and unusual punishment.  In addition, the Supreme Courts found that the rule applies to states through the due process clause of the Fourteenth Amendment.  More recently, in 2008, in Baze versus Rees, with a seven, two decision, the Supreme Court found the use of lethal injection was not considered cruel and unusual punishment.

I think we’d like to start with Ron Keine.  Ron, as someone who lost the liberty and nearly your life, can you tell us a little bit about your experience on death row?

Ronald Keine: Well, in a nutshell, I was convicted of a murder in Albuquerque, New Mexico, was almost two years on death row for a murder that a police officer had done.  I was roughly nine days from my execution date, my first date, when that police officer walked into a church, said he experienced an epiphany walking down the street.  Walked in, confessed to the resident preacher there, and that’s what started my exoneration.  Of course, later on, he had to prove that he did it.  He brought witnesses and everything.

Because of my case, because of all the corruption by the officials in my case, the assistant prosecutor was disbarred and three detectives were fired from their positions.  This is very, very rare in a lot of these cases.  Usually these people go unpunished when they do that.

You want more?

Craig Williams: Well, let’s turn to Judge Kozinski at this point.  In the Baze versus Rees decision, the plurality opinion, they held that the first drug in a multidrug cocktail has to render the inmate unconscious, otherwise there is a substantial constitutionally unacceptable risk that the inmate will suffer a painful suffocation while on the gurney.  Given the recent botched executions in Ohio, Arizona, and Oklahoma, what’s your belief about how lethal injections should be handled, or should we pursue a different methodology?

Hon. Alex Kozinski: Well, first of all, when you say botched executions, I’m not sure that is the case.  I wasn’t there.  I don’t have any evidence on it.  I know a little bit about the Woods execution because I was involved in the case before his execution, and as best we can tell, it just took him a long time to die.  I don’t know about the other ones.  There are conflicting reports, and what a botched execution is, is a little bit of a, you know, question that’s up for grabs.

The fact that it takes somebody a long time to die does not make it a botched execution.  If you look at the Supreme Court’s opinion in Baze versus Rees … actually, opinion, and this was a 7-2 opinion, not just a plurality.  Seven justices were convinced in that case that the three drug cocktail is not cruel and unusual and does not preclude the possibility that another case, using a different set of drugs, they might come to a different conclusion.  In Woods they used a different type of drug.  I think it was a two drug cocktail, and every time they use a different combination of drugs, this leads to the different constitutional calculus.

The reason that they are using different cocktails is because drug [inaudible 00:06:46] opponents have put a great deal of pressure on drug companies to not provide the drugs that have been proven to be effective in executions, so the people to suffer are the people who are actually being executed because the state cannot use … no longer has available the drugs that are used and have been proven effective to cause a swift and painless death.

Craig Williams: Mike, what’s your perspective on this situation?  What’s your position?

Mike Farrell: I think the fact that Mr. Woods had to be injected three times or more in the process of dying, indicated that there was something ineffective in the drugs that were being used, and this is, of course, always the problem with these things.  One, they aren’t usually administered by a professional, they are effectively experimenting with ways in which to kill people, whether or not the pressure from the abolition community is responsible for the drug companies not providing these drugs is, I think, not exactly the significant point.  The significant point is that as, I think, your question initially, in stating the premise, argues that the lethal injection method is supposed to be more humane, more humane than we’ve found … methods we’ve found in the past.

The idea that we are trying to find a humane way to commit an inhumane act is … has always been troublesome to me.  We as a society have … need to wrestle with, as Judge Kozinski has recently stated, the willingness to actually embrace the idea that what we are doing is killing people, and we’re killing people in manners that are …  We’re trying to find a way to do it that makes us feel better rather than concerned about the way in which we’re dispatching individuals.

Craig Williams: Mr. Keine, you disagreed with Judge Kozinski’s dissent in the Woods case, where his execution was stayed until he received information about drugs and credentials and other protocols.  What’s the reasons for your disagreement?

Ronald Keine: Well, I agree, basically, that people do have the right to know where the drugs come from, and what they contain.  My problem with the dissent is the cavalier attitude towards executions, which promotes brutality, for [inaudible 00:09:10] the brutality of firing squads, with no respect for the sanctity of life.  Quoting the smug statement of Justice Scalia, how inevitable a quiet death by lethal injection, that’s deplorable.   Scalia believes the constitution is etched in stone.  It should never, ever be changed from what the Founding Forefathers said.

Now, these are the same forefathers who believed in slavery and themself (sic) owned slaves and tried to subjugate an entire race of people here in the United States.  Now, are these the people we’re supposed to adhere to?  Are these our heroes?

Craig Williams: Judge Kozinski?

Hon. Alex Kozinski: Well, the constitution was amended to repeal slavery, because it clearly does provide for slaves.  It has a [inaudible 00:09:58] compromise which specifically mentions slaves.  It also specifically mentions the death penalty in more than one place.  Where it talks about the state taking life, liberty and property without due process of law, it prohibits that, so obviously [inaudible 00:10:13] of life.  You can argue all you want with Justice Scalia, but the fact is, he is on the Supreme Court and Mr. Keine is not.  The Constitution says [inaudible 00:10:24].

Now, we can debate whether this is a good idea to execute people or not, but I thought … we have to accept the fact that executions are lawful in this country, and the question we have to ask is, “How do you go about doing it in a way that is appropriate.”  When I think of my dissenters, I don’t think it’s appropriate to use drugs.  I think it masks the brutality of it.  I also think it causes serious risks that the people doing it, as Mike said, might not be … have training or experience to do it properly.  Firing squads are quick.  They are effective.  There are plenty of people who know how to shoot a gun.

Craig Williams: Was your dissent, Judge Kozinski, partially tongue-in-cheek, to say that if we’re not willing to face the brutality of death then we shouldn’t have a death penalty.

Hon. Alex Kozinski: What I said was, “I think … “  I wasn’t tongue-in-cheek at all.  I’m quite serious.  The executions are brutal things.  They are an exercise of considerable force by the state, but so is life imprisonment.  Have you ever been into a prison?  Have you ever been into a maximum security prison?  You know, those things are hugely brutal, and I think, in some ways, worse than the death penalty.  We have to be very careful when the state exercises for us, but in the end, unless we say there’s no criminal law at all, I think at some point we have to accept the fact that the state will do terribly brutal things to people.

Craig Williams: Mike …

Mike Farrell: If I may …

Craig Williams: Go ahead.

Ronald Keine: Well, as Judge Kozinski just mentioned, the Constitution is … has been changed, and can be changed.  There is a Supreme Court holding that the evolving standards of decency that mark the progress of a maturing society require, it seems to me, such change.  It seems to me that the argument that prison is somehow more brutal than killing misses the point.  The point is that the fact that prison, or prison conditions, are hideous in this country, and certainly solitary confinement and the life without parole and the kinds of things that are being offered without any change in the way in which prisoners are treated would probably support that argument.

It seems to me that’s a false argument when we …  If we look at the options, what we can do is change the way in which we deal with people who break the law, and recognize the fact that there’s always a reason for human behavior, and sometimes those reasons can be understood and some of the behaviors can be changed.  What we need to do is have a prison … criminal justice system that really responds to the human condition in a humane manner.

Hon. Alex Kozinski: [Inaudible 00:13:11] I don’t think [crosstalk 00:13:12] ..

Craig Williams: Well, Ron, you’ve been in that …

Hon. Alex Kozinski: … down to John Wayne Gacy to change his ways or to reform him, or Richard Ramirez.  I mean, these people are mass murderers.  They brutalized people for fun, and I don’t think there’s anything we could have done to make them into good citizens.  Sometimes [crosstalk 00:13:30] …

Ronald Keine: Excuse me, does that mean our government should do the same?  Should they be mass murderers?  Should they brutalize people?

Mike Farrell: Exactly.

Ronald Keine: Sure, it’s brutal to kill people, put them in prison, but do we have to extend the brutality?  Do we have to keep it going?  Or can we be a little more civilized about it?

Hon. Alex Kozinski: Well …

Ronald Keine: You bring up the Gacy’s, how about the innocent people?  How about myself and 143 other people that are on death row and found to be innocent?  What about the people who have been executed and are innocent?  Where’s the justice for them?  Why do we have to have this type of brutality?  A lot of these people would not have died needlessly if they’d of had time, more time in appeals, if we didn’t have the death penalty.  There’s a lot of reasons, but it’s brutal.  I understand.  But it doesn’t have to be brutal.  We don’t have to be brutal as a society.

Hon. Alex Kozinski: Well, I am not aware of anybody in the [inaudible 00:14:20] death penalty, ever since Gregg versus Georgia, that has been executed that’s innocent.  [Crosstalk 00:14:25].

Mike Farrell: Well, would you like me to cite a few?

Robert Keine: Todd Willingham, Ruben Cantu, Carlos DeLuna, Larry Griffin.  I mean, I could go on and on with these.

Hon. Alex Kozinski: Well, you could go on and on, but you’d be wrong.

Robert Keine: No, I wouldn’t.

Hon. Alex Kozinski: You can name these names all you want …

Robert Keine: These are people who were executed.  They’re innocent.

Hon. Alex Kozinski: I’m sorry, but that’s …

Male: [Crosstalk 00:14:39].

Hon. Alex Kozinski:… just not the fact.  [Crosstalk 00:14:41].

Mike Farrell: You know, there is a judge …  I would ask you to consider the fact that there is an institutional imperative to denying the fact that innocent people have been killed, but evidence subsequent to the execution of Cameron Todd Willingham, for example, has certainly pointed to his innocence, the same is true with Carlos DeLuna.  The same is true with Ruben Cantu, and, in fact, there have been suggestions that the same is true with a man by the name of Thomas Thompson here in California.

Hon. Alex Kozinski: Well, I know.  I’m very familiar with Thompson’s case.  There’s no doubt he was guilty.

Mike Farrell: There’s no doubt he was guilty?

Hon. Alex Kozinski: You know?  There’s no doubt.  There’s no doubt.  I …

Mike Farrell: Well, sir, there is doubt.

Hon. Alex Kozinski: Well, I [crosstalk 00:15:19].

Mike Farrell: Have you reviewed all the evidence in that case …

Craig Williams: One at a time.

Mike Farrell:… enough to make a decision like that?

Hon. Alex Kozinski: We have a process by which we make the decisions.  We convict people based on proof beyond a reasonable doubt.  We have juries.  We have appeals.  We have instructions.  We have a whole set of controls.  Does anybody ever get convicted who isn’t guilty?  I think that does happen, but it’s not limited to the death penalty.  It happens to people who get life in prison.  It happens to people who get 20 years in prison and 10 years in prison.  It happens occasionally.  It happens far less often, if at all, that somebody gets the death penalty, because that’s when we actually take a very close look at the case and make sure the guy is, in fact, guilty, much closer than if he got life in prison.

Ronald Keine: How does it get wrong so often, then?

Hon. Alex Kozinski: If you’re innocent, the best thing that can happen to you is to get the death penalty, because the chances of you getting exonerated are much greater.

Craig Williams: Mike, what’s your sense of whether we should have a death penalty at all?

Mike Farrell: Well, of course we should not have a death penalty.  The rest of the world, all the Western nations and most of the developed … almost all the developed nations in the world have given up the death penalty, and have found that they can do very well without it.  In fact, the idea of life in prison without parole is a nonsensical idea from the perspective of many people in the developed worlds.

The notion that we need to have a death penalty really fails to understand that the reason we have a death penalty is because of political cowardice.  Most people in this country in positions of authority understand that we have a system that is racist at its core, that is used only against the poor, that it is entrapping and killing the innocent, and that there is no justifiable reason to continue it, particularly because, what people don’t understand is the dehumanizing aspect of it not only to the people who are killed, but to the people who are required to do the killing.  That involves all of us.

Craig Williams: Ron, what’s your sense of Judge Kozinski’s point that inmates that are sentenced to death would be more likely to be found innocent given the intense pressure on finding them innocent, compared to someone who just has life in prison?

Ronald Keine: People really don’t look at those cases as much as a death penalty case because there’s no urgency.  There’s not a life to save.  They look more if they’re going to do this type of work, look for justice, they’re going to try to find … stop somebody from dying.  That’s more immediate, but the thing is, too, it’s not okay just to put somebody on death row and let them go.  Some of these guys have been there 10, 20, 30 years, their whole life, everything that they’ve missed.  I don’t want to get into all that right now, but is that a just punishment for being innocent?  Is this a just punishment for a system that made a mistake and that keeps making these mistakes over and over and over?

Craig Williams: Judge Kozinski, what is your sense of the death penalty?  Are you in favor of it?  Or is it simply a matter of you’re sworn to enforce it?

Hon. Alex Kozinski: Well, I think I’m sworn to enforce it, so that’s as far as my judicial is concerned.  As a citizen, I would limit it to the worst cases, but I think there’s some people who really deserve to die, and I think that, as a society, we do an injustice by letting them live.  The Richard Ramirez and the Wayne Gacys of the world, and I could name half a dozen or a dozen other killers like that, people who commit mass murders, people who rape and torture children.  I mean, there are some horrible cases out there, and sometimes people do things that are bad enough that they lose their right to live.

Craig Williams: Mike, how do you respond to the family of a murder victim who wants to see the murderer put to death?

Mike Farrell: Of course I understand anybody feeling rage and horror and anger at the loss of a loved one.  I lost a loved one in my experience, but the idea that is put into peoples’ minds by prosecutorial forces that somehow they’re going to feel better, they’re going to have some kind of conclusion, some sort of closure, as a result of the death of the perpetrator, assuming that they got the right person, is nonsensical.  Murder Victims Families for Reconciliation is an organization made up of people who are … their loved ones, the family members of murder victims, who have come to the conclusion that there is no value in having another death to simply pay for the death of their loved one, because once the perpetrator is dispatched, their loved one will still be dead.

There still will be a hole in their lives.  There is no closure, as is promised by our system.  Those who continue to insist that they want to have it, I certainly understand it.  I don’t share their view, and I don’t think that I, as a citizen of the United States, should be forced to participate in the death of another human being as a result of their inability to deal with their own anger and frustration and rage.  What I’d rather do is put the energy and the time and the money that is used for the death system into counseling services and support systems that family members need in a situation like that.

We need to have a system.  We need to have a society, it seems to me, that’s a little more responsive to the humanity that is required for us as a society to be the civilized society we’re supposed to be.

I think what Judge Kozinski was talking about when he said that being on death row is better for people because their sentences are to be more likely to be analyzed carefully and therefore, if they are incorrectly convicted, they are more likely to be found innocent, is rather than a justification, it’s an indictment of the system.  That’s what we need to do is take a look at this system we have forced on ourselves.  This system that’s based on punishment and brutality, and find an alternative, and that there are alternatives available to us.

Craig Williams: Mike, how do you respond to Judge Kozinski’s point about the inability to be able to reform or resolve any issues with mass murderers like John Wayne Gacy and Richard Ramirez?  Is there a point that there’s a death penalty that’s justified for mass murderers?

Mike Farrell: Not in my view.  It strikes me as odd to be able to say, “I can think of half a dozen people who deserve to die, and as a result of that, we have a system where over 3000 people are on our death rows, many of them innocent, like Ron Keine was … is.”  As a result of this need to dispatch the horror stories, the monsters, that Judge Kozinski and others can sort of call up at will, instead of putting them in prison, instead of studying them, instead of trying to treat them, if they’re treatable, instead of keeping society safe from them and them safe from others, and others safe from them, instead of doing that, we have this system that is spending incredible amounts of money in a society that needs those dollars for schools and police officers and health care, and all the things that are going … begging.  It seems to me that we have lost ourselves in a kind of syndrome of necessity.

John Wayne Gacy exists, therefore, John Wayne Gacy means that we should have a death system and we should be putting people to death whether they’re innocent or guilty, and if they happen to be innocent, we’ll deny their innocence.

Hon. Alex Kozinski: You know …

Craig Williams: Ron, what …

Hon. Alex Kozinski: That’s not a very good answer.  I mean, the question is, should we put John Wayne Gacy to death?  Then …

Ronald Keine: If I may …

Hon. Alex Kozinski: Then we can talk about other people, you know, the first time …

Mike Farrell: No, [crosstalk 00:23:04].

Hon. Alex Kozinski:… we don’t have …

Craig Williams: Just a minute.

Hon. Alex Kozinski: We don’t have to put everybody to death to say that John Wayne Gacy and Richard Ramirez and people like that deserve to die.

Ronald Keine: Yeah, if we bring …

Male: [Crosstalk 00:23:12].

Ronald Keine:… up John Wayne Gacy and some of the most horrible cases we can think of, then we also have to pull up Joe Lunchbucket.  Joe Lunchbucket came home early from work and caught his wife in the sack with somebody else, and killed the man or the woman or both of them, or something.  Now, that’s not a John Wayne Gacy, and there is a chance of redemption here.  These guys will go to prison.  They’ll never kill again.  There’s no reason to execute them.  You’re not protecting society from anything.  This guy, possibly alcohol had something to do with it, drugs or something like that.  This is not a monster.  This is not what we call the worst of the worst.  This is not what the death penalty is designed for, but they’re going to be sitting on death row, just like the rest of them, whether they’re good or bad.

Hon. Alex Kozinski: All right, so [crosstalk 00:23:56].

Ronald Keine: That’s not the worst.  The worst [inaudible 00:23:57] gets it anymore.

Hon. Alex Kozinski: I’ll give you Joe Lunchbucket, you give me John Wayne Gacy, and then we’ve got a deal.  You know …

Mike Farrell: We have …

Hon. Alex Kozinski:… if you agree that John Wayne Gacy and Richard Ramirez and people like that do deserve to die, I agree with you.  Yeah, I think Joe Lunchbucket should …

Ronald Keine: No, I don’t believe killing anybody …

Hon. Alex Kozinski: Oh …

Ronald Keine:… brings anything back.  It doesn’t bring the victim back.  It doesn’t bring closure to the family.  It’s against God.  I mean, I could go on for hours and hours of why it’s wrong.  Just killing anybody is wrong.

Hon. Alex Kozinski: All right, so why raise …

Ronald Keine: There’s no humane way to kill anybody.

Hon. Alex Kozinski:… Joe Lunchbucket.

Ronald Keine: It’s wrong.

Hon. Alex Kozinski: Well, why raise Joe Lunchbucket?

Ronald Keine: Well, I brought Joe Lunchbucket because of John Wayne Gacy.  If you got the worst of the worst, you’ve got to get the mildest cases, also, which make up the …

Hon. Alex Kozinski: No, you don’t.

Ronald Keine:… majority of them.

Hon. Alex Kozinski: No, you don’t.  That’s a [crosstalk 00:24:39].

Ronald Keine: There’s not that many monster mass murderers out there …

Hon. Alex Kozinski: That’s …

Ronald Keine:… but there’s a whole lot of guys …

Hon. Alex Kozinski:… a fallacy.

Ronald Keine:… that have basically a scenario like I described.

Hon. Alex Kozinski: No, that’s a fallacy.  You do not have to have a death penalty that includes Joe Lunchbucket.  You can have one that just includes mass murderers and people who torture and people who rape children.  You could have that.

Mike Farrell: If that …

Ronald Keine: Would you write …

Mike Farrell:… Your Honor, [crosstalk 00:25:01].

Craig Williams: Ron …

Ronald Keine: Would you initiate a law to start that?

Hon. Alex Kozinski: Oh, I have long advocated having a much more limited death penalty, limited to only the most …  I mean, I wrote articles about this 20 years ago.

Mike Farrell: Yeah, if you’re …

Ronald Keine: Is that a compromise you’re at … you say that you would go for?

Hon. Alex Kozinski: There’s no doubt that John Wayne Gacy was guilty.  There’s no doubt.  There’s no doubt, not a shadow of a doubt, that Richard Ramirez was guilty.  It’s not a question that they …  Or John McVeigh, the guy who blew up the Federal Building in [crosstalk 00:25:33] …

Craig Williams: Timothy.

Hon. Alex Kozinski: Timothy McVeigh.  Sorry.  Timothy McVeigh.  There’s no doubt that these people were guilty.  The question is, can they be reformed or is there injustice in putting them to death?  You don’t have to sweep in people that commit much less heinous crimes.  [Crosstalk 00:25:50].

Ronald Keine: Then we run into the problem, a lot of these people are convicted, not because they did anything wrong, but because of corrupt prosecutors and judges.

Hon. Alex Kozinski: Again [crosstalk 00:25:58] …

Ronald Keine: So we throw out the baby with the wash?

Hon. Alex Kozinski:… I’ve raised dozens of …  No, we don’t.  We throw out the wash and we keep the baby.

Craig Williams: Mike, is there a compromise …

Mike Farrell: Yeah.

Craig Williams:… that’s available here …

Mike Farrell: Listen …

Craig Williams:… for the people that support the …

Mike Farrell:… I don’t think this is something in which …  The compromise that we have made, in order to satisfy the Judge Kozinskis of this world that say we must execute certain people because they don’t deserve to live, is that we have a system that entraps the Ron Keines of this world and kills the Cameron Todd Willinghams of this world.  The compromise need not be …  If you want to have that compromise, let’s take the half dozen people that Judge Kozinski says don’t deserve to live, and put them in a very specialized institution where then you can determine whether or not it’s possible that those people can be treated and reformed.  If not, you can keep them there for the rest of their natural life, a punishment that is as egregious as one can imagine and it does not require that we stoop to the level of the murderer and take a life.

I find this notion that allowing ourselves to stoop to this level because of the need to eliminate the John Wayne Gacys of this world to be so defeatist and so kind of negative and uncivilized and ignorant, that it’s astonishing to me that we, as a civilized society, would accept it.

Craig Williams: Gentlemen, we need to take a quick break, and before we move on to our next segment, we’ll hear a message from our sponsor.

Hi.  My name is Kate Kenny from Legal Talk Network, and I’m joined by Jack Newton, president of Clio.  Jack takes a look at the process of moving to the cloud.  Now, how long does it take to move to the cloud?  Is it a difficult process?

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Craig Williams: Welcome back to Lawyer 2 Lawyer.  I’m Craig Williams, and with us today is Judge Hon. Alex Kozinski from the United States Court of Appeals for the Ninth Circuit, Mr. Ronald Keine from Witness to Innocence, and Mike Farrell from Death Penalty Focus.

Before the break we’d been talking about whether or not there’s a position where mass murderers might be held responsible and put to death, and maybe other people not.  The question, really, that I’d like to turn to at this point is, Mike, what efforts are being made to repeal the death penalty?  I mean, it’s obvious that it’s only going to happen through a constitutional amendment given our status right now.

Mike Farrell: I’m not sure it only can happen through a constitutional amendment.  It can happen through a recognition of the Constitution, a constitution that is, as we discussed earlier, capable of an evolutionary understanding.  If we simply determine, if the Supreme Court simply determines that it is the will of the people that the death penalty should go away, as is the case today in 18 states in our country, six having given it up in the last seven years, the people will speak.

Here in California we had proposition 34, which was to eliminate the use of the death penalty.  It lost by a very small number of voters, and I think, if tried again, it should prevail.  As Judge Kozinski’s colleague, Judge Alarcon, pointed out, we are spending $184 million every year, here in California alone, to maintain a death system that has not been used because it is so bollixed up and has been declared unusable by certain members of the judiciary, to the fact that we’ve had a moratorium now for the last seven years.

We are wasting time.  We are wasting money.  We are wasting the intellect of a good number of people debating an issue which should not be an issue.  It should not exist in this country, as it does not exist in most developed countries in the rest of the world.

Craig Williams: Judge Kozinski, there’ve been apparently 144 exonerated death row survivors in the United States.  Given that we shouldn’t be putting innocent people to death, what’s your assessment of the death penalty based on that statistic?

Hon. Alex Kozinski: Well, it sounds to me like our system works pretty well.  One hundred and forty-four people got off.  I don’t know of anybody who’s been executed who’s been guilty.  It sounds like our system works.  There’s no guarantee in any criminal justice system that you’re going to get 100% accuracy.  We do our best, but you’re going to have mistakes, and whether the mistakes cost somebody 20, 30 years of their life, whether it means you stick them in a cage like an animal for the rest of their life, or whether you execute them, these are all very grave mistakes.  We should try to avoid them.

The fact that there are some mistakes, that eventually are corrected, does not mean that the system is defective.

Craig Williams: Ron, what efforts are being made by your group to repeal the death penalty?

Ronald Keine: I’ll explain that by what we are.  We’re a group of exonerated death row inmates.  We were all on death row, all found guilty beyond any reasonable doubt by a jury of our peers, and were deemed not worthy of life anymore.  We all sat on death row waiting for our executions, and something came along.  Normally, not anything within the judicial system.  Normally, it’s something outside of the system that comes in to help, to find these people that are innocent.

What we do, we are essentially a speakers’ bureau now.  We go all over universities, law schools, colleges, all over the United States, and we speak on the death penalty.  We put a lot of literature out.  As a matter of fact, I just coauthored a textbook on … that’s being used by law students all over the United States, and it’s on death penalty and what we do.  We are out to end the death penalty.  We’re winning a state a year, basically, right now.  We’re winning.  We’re going to win this.  The death penalty is going to be over in the United States.  I just hope it’s in my lifetime.

Mike Farrell: If I can only add to that, Judge Kozinski’s position seems to be that it’s a demonstration of the efficiency of the system that these 144 people were exonerated, and, in fact, almost all of them came about as a result of the work that was necessary to be done against the system because it was in the system’s interest to not admit error, and to continue to cover up the mistakes that were made, and not allow for the understanding that these individuals were, in fact, wrongly convicted.

Ronald Keine: They were not exonerated because of a system that works.  They were exonerated in spite of the system.

Craig Williams: Judge Kozinski?

Hon. Alex Kozinski: Well, of course.  I mean, that’s how the system works.  Some people get acquitted and those people are not there to complain.  That system works one way.  Then, of course, once there’s a conviction, and the people who got acquitted go home, that’s them, who are left, and the system then corrected itself.  This is, what we’re talking about, is not limited to the death penalty.  It is true of all criminal cases.  To raise this in [inaudible 00:33:58] discussion, that’s a little misleading.  If you have doubts about how our criminal justice system operates and if you are worried there are too many mistakes, then we need to revise the system from the bottom up, not limited to the death penalty.

I do want to pick up on something Mike said.  You know, Mike said, “Oh, we need the Supreme Court to intervene to [inaudible 00:34:19] the Constitution to reflect the popular world.  But, of course, if the people don’t want the death penalty, they know how to repeal it.  It’s been put to a vote in California, and the people rejected it.  It has been put to a vote in other states and other states have repealed the death penalty.

We don’t need the Supreme Court.  We don’t need judges to do this.  If the people do not want the death penalty, all they have to do is repeal it.  A Congress can repeal the federal death penalty.  They haven’t done it.  Thirty-some states have enacted and not repealed the death penalty.  Why don’t we trust the people to speak to their elected representatives?

Craig Williams: I’m sorry.  We need to wrap up, but before we wrap up Ron, I wanted to ask you one final question that none of us on this phone call, other than you, have experienced, and very few people in the world have experienced.  What is it like, what kind of thoughts go through your head when you’re sitting on death row?

Ronald Keine: The first three days I sat there basically in shock.  I couldn’t believe that this happened to me.  The humiliation, the degradation of it, sitting here on death row for something I didn’t do, and here’s a system that I believed in all my life, that the American system, I’ve always heard it’s the best in the world, yet it failed me.  It failed me in a way that now I’m going to die, and I really believed in this.

I look at some of the other people on death row.  Sure, there’s some people down there which I would not go out and have coffee with, but then I’d learn later on, in the process of what happens, and why there’s people on death row that didn’t do anything, and it’s corruption.  In my case, they were covering up for a police officer, so they completely framed me.  They manufactured fabricated evidence that …  They used jailhouse snitches.  Everything that they did to me, and I see how they’re doing it to these other people.

I look at our judicial system now, and I look at it a different way.  It scares me.  I love my government.  I mean, I love my country, but I live in fear of my own government because of what happened, and I see it happening time after time again.  I see it keep happening to other people.  That’s one of the reasons I do what I do.  I’ve got to try to stop this.

Craig Williams: I understand.

Ronald Keine: I’m trying to give back.

Craig Williams: Thank you very much for that.  Well, we’ve reached the end of our program and it’s time to wrap up with your final thoughts and your contact information.  Mike Farrell, let’s turn to you with your final thoughts and contact information for Death Penalty Focus.

Mike Farrell: Death Penalty Focus is www.deathpenalty.org or, if they want to e-mail me, it’s mike@deathpenalty.org.

I just wish that, you know, the complacency I hear on Judge Kozinski’s part, I understand, but I don’t appreciate about the system and the errors in the system, and the way the system is self-correcting, because the system is only corrected by the egregious demonstrations of its ineffectiveness and inappropriateness and then the people finally become awakened to the reality, as Ron has suggested.

Judge Kozinski said in an interview I read that, when he was asked if he had to push down the hypodermic or push the button that would kill that individual, he said he didn’t know if he could do that or not, and he would … and if he didn’t, if he determined he couldn’t do it, then he would have to rethink his position.  I would urge him to rethink his position.  I would urge him to consider the fact that we as a civilized society have better ways to deal with the malefactors, the bad actors, in our society, and not in … it serves us not to stoop to the level of a murderer or someone who acts out violently in a society to somehow maintain that we’re correcting it.  It simply doesn’t work.

Craig Williams: Ron, your final thoughts and contact information, please.

Ronald Keine: To see a man strapped into a gurney, who is helpless, meek, couldn’t hurt a person in the world, couldn’t hurt a fly, to see him strapped down, to be injected, the Arizona case, 15 times he was injected.  It took him almost two hours to die, writhing in agony.  I believe that is a little bit of cruel and unusual.  Out of 220 nations we have in the world today, we only have roughly 20 that believe in capital punishment.  We are the only Western civilized society, country, besides Belarus who has the death penalty.  Long ago they’ve all figured out, it’s archaic, it’s barbaric, it’s morally wrong, it is not indicative of a civilized society, especially a society like the United States.

We hold our hand out in aid to people all over the world, yet at home, we kill our own people.

You can contact me at, my name, R-O-N-K-E-I-N-E at Yahoo! dot com, or through my office at witnesstoinnocence.org.

Craig Williams: Great.  Thank you very much.  Judge Kozinski?

Hon. Alex Kozinski: Well, I thought some more about it, and you know, I wouldn’t have any trouble pulling the trigger on somebody like John Wayne Gacy or Richard Ramirez or Timothy McVeigh.  I think, as to the reset, I think we need to be very careful in imposing the death penalty.  I think when it comes to the worst murderers, like the John Wayne Gacys and the Richard Ramirez, and Timothy McVeighs, I would not have any trouble pulling the trigger on those guys.  As to the rest, I think we need to be very careful.  I think in general we need to be very careful in our criminal justice system.  I think corruption, which is what Mr. Keine mentioned, I think is a serious problem in law enforcement, and prosecution, not in all cases, but in some cases, and I think that’s something to be watch out for whether it involves the death penalty or any other criminal punishment.

I think we need to be very careful with that.  You know, in general, I think we ought to be skeptical of any government use of power against individuals, and I think we are far too accepting of much of what the criminal justice system does when it comes to cases other than the death penalty, yet we have something like 2 million people in prison, and many of them in horrible conditions, and I think that’s where we ought to be directing our efforts to perform.

Craig Williams: Well, gentlemen, that wraps it up for us.  Thank you so much for participating.  I’m Craig Williams, thank you for listening.  Join us next time for another great legal topic.  When you want legal, think Lawyer 2 Lawyer.

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