Another of the periodic death penalty controversies is unfolding in Florida. The stay of execution for James Dailey expired yesterday. Governor Ron DeSantis now has to decide whether to grant him a new clemency hearing, or uphold his death sentence. So far, the Governor has not been sympathetic.
New evidence provided by the co-defendant in the Dailey’s murder case has been offered by Jack Pearcy, Dailey’s co-defendant in the 1985 murder of 14-year-old Shelly Boggio. Pearcy was sentenced to life in prison, Dailey to death. Pearcy has written a letter declaring, “James Dailey had nothing to do with the murder of Shelly Boggio. I committed the crime alone.” A federal judge issued a stay until Dec. 30 to give attorneys an opportunity to file appeals.
As the New York Times argued in an editorial, Dailey’s conviction also depended heavily on the testimony of a repeat jailhouse snitch who had a cozy relationship with the prosecutors. The Times says, “The rank injustice of cases like James Dailey’s provides yet another reason, as if more were needed, that the death penalty must be abolished.”
No, it doesn’t. I haven’t studied the case, but based on what I’ve read, it certainly appears that Dailey might be innocent, and thus in his case, the death penalty is unjust. (I agree with the Times that jailhouse snitches are unreliable witnesses and should be regarded by juries with skepticism. On the other side, I don’t find a late claim of guilt exonerating a co-defendant especially persuasive. The guy is locked up for life; he has nothing to lose or gain. )
I would have no objections to using the death penalty only in cases where there is no chance whatsoever that the defendant isn’t guilty and the crime is especially cruel, premeditated, and depraved. (See the Cheshire home invasion, an example I have used before.) As I have argued here before, there must be an ultimate punishment for the worst crimes, or society’s values are compromised, and inevitably diluted. We have to recognize a hierarchy of crime. If a Ted Bundy only gets life imprisonment, what is the proportional punishment for a gang assassin of one? This is how much of Europe ended up with absurdly short sentences for serious crimes.
Coincidentally, I watched the 2003 film “The Life Of David Gale” over the weekend. Starring Kevin Spacey as an anti-death penalty activist who is framed for murder, the Alan Parker directed film purports to be anti-death penalty, but its arguments are facile, concentrating on one of the worst death penalty abolishment theories, that since it is possible for someone to be executed for a crime he or she didn’t commit, the death penalty is too flawed to be just. Of course, that argument could be used to abolish all criminal punishment; demanding perfection of any system is unreasonable. The protagonists of “The Life of David Gale,” however, are convinced that if a single execution could be shown to have been inflicted on an innocent citizen, then the death penalty would be doomed.
I won’t spoil the “shock” resolution of the movie in case you decide to see it, but I bet you can figure out what it is based only what I’ve told you already.
It appears that justice demands that James Dailey be, if not freed, spared the ultimate punishment for a crime where his guilt is far from certain. The fact that the societal tool of the death penalty has been inappropriately applied in this case, however, does not constitute a strong, or even a valid, argument to abolish it.
Ethics Alarms 
When faced with plausible if not totally credible evidence, if an error is to be made in this case then DiSantis should grant clemency. Throwing out penalty because a mistake could be made is ridiculous but ignoring exculpatory evidence is at best incompetent and at worst criminal.
The real problem isn’t the death penalty but the overwhelming imbalance between the prosecution and defense in today’s justice system. The two sides (at best) in today’s system are Police + Prosecutor + Crime Lab + vast government resources and defendant + private attorney. These aren’t close to equal. Defense attorneys should be granted the same independent access to evidence and government resources that the prosecution has. We have seen recently what happens when the prosecution gets to decide what the defense needs to have. We have seen what happens when the crime labs are answerable only to the prosecution.
All addressed by sufficiently ethical prosecutors. I was taught that no prosecution should take place if the prosecutor had any substantive doubts about a suspect’s guilt. Almost none of the abuses we hear about would happen in that rule was followed.
When district attorneys are political jobs – such that their job does not rely on votes – the likelihood of following every rule by prosecuters is remote. Even career prosecuters often fail, or are slow to divulge exculpatory information (Andrew Weissman).
Remember we have a sizable population that believes if a lawyer defends a client for a heinous crime it is the same as if the lawyer is an advocate for the crime. Prosecuter’s are not immune from public pressure.
Correction. Their jobs rely on getting votes. Not does not rely
What percentage of prosecutors follow these rules? Relying on people to act against their self-interest with no oversight and no penalties for violating the rules doesn’t sound like a good system to me. In other words, why can’t the defense have more equal rights in the system? Why is that such a big deal? Do prosecutors really order forensic testing that would do nothing to further their own case and might derail it, or do they just not see those tests as necessary and leave them undone?
“[I[ts arguments are facile, concentrating on one of the worst death penalty abolishment theories, that since it is possible for someone to be executed for a crime he or she didn’t commit, the death penalty is too flawed to be just.”
Absent the qualifying language, I think this describes my thoughts on the death penalty. “Better 100 guilty men go free than a single innocent man be punished” only goes so far, I understand, but execution seems… permanent. While I have no moral objection to execution as a form of justice, it strikes me that American courts in particular have a very shitty track record of sending innocent men to the gallows. This is despite a system that allows 30 years worth of deliberation of the process; as a quick and easy example, the story above is the result of a crime that happened 34 years ago, and there’s a middling chance America is about to kill an innocent man. Perhaps my position is metaphorically; “Better 100 guilty men stew in prison for the rest of their natural lives (which is maybe a decade or more than the 30 years the appeal process had them there anyway), than a single innocent man be killed.” Heck, considering the number of people executed in America for all of 2019 was 22, perhaps it’s most accurately stated “Better 21 guilty men stew in prison for the rest of their natural lives, than a single innocent man be killed.”
What hits me as particularly strange, is the desire to kill people. Maybe that’s overstating the emotion, I don’t know, but it does hit me as an emotional, as opposed to logical drive. Like I said; a grand total of 22 people were executed in America in 2019, so we aren’t exactly experiencing a national emergency in dealing with these cases, the cost to administer and litigate these cases is, frankly, disgustingly egregious, and you aren’t even guaranteed a decent accuracy rate. But there’s this push to execute, and I don’t understand it. Is it a visceral, but misguided desire for justice? Is it a nod to tradition?
Don’t let me put words in your mouths guys:
Why is execution a preferred implementation of justice, specifically in light of the rate of innocent men executed?
How *the hell* isn’t the rate in which your system murders the innocent a direct condemnation of that system?
Jailhouse snitches. Talk about quid pro quo. If the subject conviction would have no chance of survival with the JHS information excised, the result should be exoneration. They are as unreliable as hair and fiber evidence. If dropping the JHS evidence only reduced the chance of conviction, then a re-trial would be in order. Let them make their case without it.
I would never vote to convict if the prosecution brought in a jailhouse informant. Of course, as a retired 25 year LEO and 20+ years as a defense investigator, my chances of neither side “kicking” me are very remote. I’m too old now, anyway.