The Ryoko-registry: Murder Victims Decide the Death Penalty Question

Liliana Sergura at The Intercept has posted a must-read article on two death-penalty propositions Californians will vote on next Tuesday: Prop 62 takes the death penalty off the table entirely; Prop 66 puts post-sentencing proceedings in death penalty cases on a fast track.

With these two mutually exclusive propositions, the issue of how California deals with its muddled capital punishment situation could not be placed before the voters more clearly. The almost 800 convicted murders on California’s death rows will be sleeping uneasily from now until next Wednesday morning.

But, as is virtually always the case with important policy issues, California’s either-or options and the wholly-within-the-box thinking eclipse and, ultimately, obviate discussion of more imaginative solutions to these incredibly difficult moral questions, such as: Who should determine whether or not a convicted murderer pays with his/her life? And how can those decisions be made in a way that filters out bias due to the gender, race, and ethnicity of the murderer?

Deciding whether to execute the executioner, a personal story

In 1998 I sat through my first and only murder trial. It was the trial of Dorian Lester in Charlottesville, Virginia, a sweet, southern city I called “home” off and on for over a period of 23 years. By the end of Lester’s long trial I had collected over 50 pages of scribbled notes, not because I intended writing a book about murder in a small southern town, nor did I intend at the time to write this essay, but because I had just taken the Virginia State Bar exam and was cocky enough to think that maybe I would pass the thing and, hence, would someday be called upon to actually defend someone in capital murder proceedings. But by the end of Lester’s trial I was debating whether I should call the bar authorities and tell them to never mind about grading my exam. I found the judicial process of condemning a person to death to be … well, both agonizing and inane. Ultimately, I went into patent law.

It was clear from the outset of Lester’s trial that the penalty phase was going to be very intense. He was, after all, charged with capital murder — the first person to face the death penalty in Charlottesville in almost 20 years, which says a lot about why I spent so much time there. The evidence against Lester was very strong. When the cops arrested him, he and his girlfriend were on their way out of the country. He was in possession of jewels belonging to the murdered victim, a jeweler named George Moody, who was shot in the back of the head while he was on his knees — executed in other words. Lester was also in possession of a barrel that fit a Glock 9mm automatic pistol, the kind that was used to fire the bullet into the base of Mr. Moody’s brain. Without that barrel the forensics people would not have had a chance of connecting the fatal bullet to the weapon, and, hence to Lester. And so, judging from the evidence already discussed in public, there was little doubt in anybody’s mind that by the end of this trial the jury would have to decide whether or not Mr. Moody’s executioner should be executed. The judge needed a jury that would flip the switch, metaphorically speaking, if it came to that.

For two days the judge and the attorneys interrogated each potential juror (or “venireman,” a genderless legal term applied to those called to jury duty) individually as to their beliefs on the death penalty. Again and again the same hard questions were put to these good, ordinary people of Charlottesville in order to determine which ones, if it came to the crunch, could be counted on to carry out the most extra-ordinary citizen’s duty of all: sentence a human being to die. As the judge explained to one venireman who was obviously less than certain as to where he stood on the death penalty issue, “It is no good to get to the end of six or seven days of trial and then suddenly realize that, hey, I really am against the death penalty. We need to know now — right now — are you against the death penalty?” The judge was applying the USSCt’s 1968 edict from Witherspoon v. Illinois that all jurors sitting on a capital murder case must be willing to impose the death penalty even if they have scruples against the death penalty generally.

Of course, the prosecution wanted a jury comprised of individuals with a “hang ‘em high” mentality and no queasiness. The defense wanted twelve charter members of Amnesty International or the ACLU or some other group dogmatically opposed to the death penalty. Between these extremes sat the judge, who wanted to be sure that each person on the jury would weigh the all of the facts and apply the death penalty if those facts indicated beyond a reasonable doubt that the death penalty was demanded by the law. But from the judge’s personal point of view the problem was this: Under Virginia law, if a jury hangs on the issue of the death penalty (apologies for the pun), the issue defaults to the judge, who must decide the penalty alone. The judge didn’t tell the veniremen this part.

When “beyond a reasonable doubt” is unreasonable

The words “beyond a reasonable doubt” were repeated over and over again for two solid days like a mantra wafting up from Yogaville, the ashram 30 miles south of the courthouse. Here is the ultimate question put to each venireman:

“If Mr. Lester is found guilty of capital murder beyond a reasonable doubt, and if the circumstances warrant the death penalty beyond a reasonable doubt, will you impose the death sentence?”

Along the way to this ultimate question there were ancillary questions, like “Have you ever discussed the death penalty with your friends or family?” “Have you ever expressed an opinion about it?” “Do you have any personal or religious beliefs about the death penalty?”

But the judge kept coming back to: “You must tell this Court right now: can you apply the death penalty in this case if the facts warrant it?” There was so much emphasis on the “must” that it rose in the air and hung above each person in turn like a naked 250 watt bulb in an otherwise dark interrogation room. But in spite of all of the pressure to fall off the fence to one side or the other, many people simply could not say what they would do. “I just do not know if I could do it. I’ve never had to before.” said one young woman, who was near tears at the sudden realization of long-term emotional ramifications of the ghastly chore that was being so rudely dropped in her lap.

I sat in the gallery totally amazed as one after another of these folks said that, no, they had never really thought about the death penalty. They had never discussed it. I was shocked. And I was doubly shocked, and embarrassed, and started to squirm like the veniremen when I realized that at the age of 50, I could not recall ever having had a discussion on the propriety of the death penalty, either. Talk about uninformed democracy!

We are, after all, a democracy that imposes the death penalty in federal courts and, for the most part, in state courts. We have a judicial system in which individual citizens are called together to play a very important role in death penalty proceedings: decision-maker. And yet most of those potential jurors in Charlottesville, good Americans every one, admitted that they had never really thought about capital punishment. Ever? There in a public courtroom, called in for jury duty against their will, forced into a public discourse of beliefs and principles that they did not want to be a part of, these folks were caught with their pants down in public — compelled to disclose, under oath, in public whether they could sentence another human being to die without ever having previously given the issue any thought.

Poppycock and the courts

But I suspect that there was within this large group of stressed and seemingly ambivalent veniremen a sub-population who probably had fairly firm beliefs about the death penalty in general but who were confused by the questions put to them. Anyone who was carefully thinking through what the judge and lawyers were asking had to be confused.

It went something like this:

“Will you impose the death penalty if you find beyond a reasonable doubt that the defendant is guilty of capital murder and you find beyond a reasonable doubt that the murder was particularly vile or you find beyond a reasonable doubt that the defendant is guilty of capital murder and you find beyond a reasonable doubt that the defendant represents a future threat to society.”

Follow? Neither did I. Neither did they.

First of all, there were only two things that could happen to Lester should he be found guilty of capital murder: execution or life imprisonment. Those were the two sole and, obviously, mutually exclusive options, and the veniremen were told, not entirely truthfully, that they would have to reach a decision as to which it would be. If they found that Lester was guilty and that he represented a future threat to society, then execution was mandatory, regardless of whether the murder was a “vile” one. Likewise, if they found that the murder was sufficiently vile (as if there is a “vileness” standard. Is any cold blooded murder anything other than vile?) then execution was mandatory regardless of whether or not Lester presented future threat to society.

In addition, the prospective jurors were warned that they would be required to determine whether such vileness or future threat to society existed beyond a reasonable doubt. How does one determine vileness beyond a reasonable doubt? — it’s an opinion, not a fact. How does one determine beyond a reasonable doubt what another person will or won’t do in the future? All of us non-lawyers in the courtroom were thinking the same thing: “Huh?” which, a decade later would be less politely but more precisely stated as “WTF?”

The problem was that embedded deep in these instructions was a series of logical snags that many of these folks were having trouble with in spite of the lawyers’ patient and patronizing attempts to explain the standards for imposing the death penalty. (One of the prosecutors actually asked them this: “This trial will have two phases, one for guilt and one for punishment. Are you with me so far?”)

One of the logical snags was this: There was next to no point in killing Lester on the basis of some “future threat to society” if “prison for life” meant that he would remain in prison until he died. In that case, he wouldn’t be a future threat to society unless he escaped or unless one considers the prison population “society.” Consequently, the judge was actually telling the veniremen that they would have to estimate, beyond a reasonable doubt, Lester’s chances of escaping should he get life in prison.

On the other hand, if “prison for life” meant Lester would be up for parole someday, then, yes, a decision would have to be made as to whether or not he could be a future threat to society, but wouldn’t that be up to the parole board to determine as part of the evaluation as to whether to release him?

To me, the judge’s repeated emphasis on the word “future” implied that there was a chance that Lester would eventually be released if sentenced to prison “for life,” even though I knew that was not so because Virginia abolished parole. But the veniremen probably didn’t know that unless they had been studying law, too, and neither the judge nor any of the lawyers explained to them that in Virginia “life in prison” actually means “you’ll be there until you die.” Without resolving that issue, there was no way to resolve the “future danger to society” issue.

These descriptions of the jury’s duties were … well, let’s just say “inexpedient,” and the veniremen were being called upon to sort it out on the fly in order to determine whether or not they could sentence Lester to death. I pitied them.

All of this was unsettling — to all of us, and probably to Lester most of all, who had not yet been tried. From where I sat, it appeared that death penalties are applied and humans are executed in Virginia based on complex instructions, inane standards of “vileness,” and the supposition that a jury can look into a crystal ball and determine whether or not one who has committed capital murder will be a danger to society in the future. This is poppycock. Any capital murder is vile, and anyone who commits such a vile and violent crime must be presumed to be a perpetual threat to society, almost by definition, unless he/she is locked up permanently. Or dead. There must be a better way of handing out death sentences.

Royko’s death penalty registry

Many years ago, Mike Royko, a Pulitzer-prize winning columnist for the Chicago Tribune and a man who wrote a lot of words in support of the death penalty, came up with an excellent out-of-the-box solution to the problem: let the victim decide the death penalty question.

Although I have not been able to find his original article from more than 20 years ago, as I recall it Royko suggested that states should maintain databases of those citizens who want the death penalty applied to anyone who is found guilty of murdering them. This information would be kept secret from everyone — including the judge, jury, and the defendant — until the defendant has been found guilty. The penalty phase of the proceedings would consist of, essentially, looking in the death-penalty registry to see whether or not the victim’s name is there. If the victim had registered as wanting the death penalty applied, too bad for the convicted defendant; the decision to execute him/her would be all but preordained and not subject to prolonged debate or a bunch of tangled what-ifs.

On the other hand, if the victim was not in the registry, the defendant would automatically get life in prison. There would be no need for discussion or consideration of vileness or future danger — if the defendant was found guilty of capital murder but the victim was not on the Royko-registry, then no execution —  it would be a done deal. Royko’s point was that capital murder is, per se, vile, and that is sufficient reason to execute the murderer if the victim stated his/her preference for that outcome. If the victim had not expressed a preference for the death penalty, then his/her family should be content that the murderer’s dodging the death penalty was what their deceased loved one wanted.

To me Royko’s idea of victim-determined sentencing sounds reasonable, assuming sufficient attention is given to the Constitutional issues. For instance, in order not to conflict with the 1978 USSCt case Lockett v. Ohio, it would probably be necessary for juries to consider mitigating factors that may make the death penalty unsuitable in a specific case, irrespective of what the victim had to say about it. Thus, the jury, without imposing the death penalty itself, could represent the conscience of society by taking the death penalty off the table if there are sufficient mitigating factors, in which case the victim’s preference would not even be revealed. But where a jury certifies that the death penalty would be suitable, then the ultimate fate of the murderer would come down to his/her victim’s preference as expressed in the registry. Alternatively, the system may merely use the registry as a means of informing the jury of the victim’s wishes, and the jury would then use that information in balancing the mitigating and aggravating factors.

One of the most valuable benefits of Royko’s idea would be that by relying on the victim’s preference, irrelevant characteristics of the murderer like race, gender, ethnicity, etc. would be factored out of the ultimate death penalty decision because when a person registers as wanting the death penalty imposed, they cannot then know what race their future killer will be. Obviously, one would not be able to register specific preferences such as demographic or personal characteristics of the murderer. One would not be able, for instance, to register: I want the death penalty imposed, but only if my killer is white, female, blonde, tattooed and predisposed to twerking in public.

Summary: Yeah, Royko had something

Basically, Royko was right, if not in the details at least in demonstrating how to think outside of this very deep and very dark box. Why put the decision to kill someone on the consciences of twelve strangers who had nothing to do with the murder and who must carry their decision with them for the rest of their lives? Let each of us make this decision for ourselves, and let each of us carry that decision throughout our own lives. That would be the purest form of democracy and it would force each of us to give this capital punishment issue some serious thought. If enough people in the country elect not to have their killer executed, then capital punishment will become a thing of the past by virtue of hundreds of millions of individual decisions, not by virtue of the contorted political process of drafting legislation or the contorted judicial process of passing down vacillating and often contradictory judicial fiats.

Royko gave us just the stub of a potentially game-changing idea. A lot of details would have to be worked out, like what the default position is. IOW would the registry register those who want the death sentence applied or those who don’t? Who would speak for those who have no legal capacity because of age or mental infirmity? Would parents or guardians be able to register in behalf of their wards? Given that young children are more likely to be murdered by their own parents than by anyone else, should parents be the ones determining their children’s position on the death penalty?

And given that the Royko-registry would greatly expedite the determination of whether the death penalty should be imposed, perhaps there should be a statutory minimum post-conviction appeal period before the sentence can be carried out; you know, just to ensure appeals are heard and the defense team has time to investigate the possibility of prosecutorial misconduct or other common causes of wrongful convictions.

Or perhaps an actual registry maintained by the state wouldn’t be necessary. States could, for instance, pass laws stating that the death penalty is off the table unless the victim had a clause in his/her will saying the death penalty should be applied. The state could provide official, ad hoc wills limited to just that proviso. That way if a person wishes to change his/her wishes all they would need to do would be to burn the will, or execute a new one or a codicil.

To my mind one of the greatest ironies of our time is that as forensic technology becomes more and more powerful and accurate at identifying actual murderers, and as the odds against making tragic mistakes rise steeply, the death penalty should be viewed as less and less controversial, and yet the opposite is happening. For whatever reason, part and parcel of the “human condition” is that vile perps do horrible things to good and innocent people. It seems that those victims, even if they are dead, dismembered, and long decayed, should have some input when it comes to determining what price must be paid once the perp is convicted.

In bringing this piece to a close, let me attempt to bow out like Mike Royko might have.

Take 1:

Should such a Royko-registry system ever be instituted in whatever form, I can tell you right now that I would be the first to sign up. I would also begin wearing a sandwich-board saying: “I’m on the Royko-registry. Murder me, Bucko, and you are burnt toast.” People who are against capital punishment can wear their own sign saying they’re not on the registry. And good luck to them.

Additional sources. ((Capital Punishment in Context — some very useful resources and discussions on the death penalty issue;

ACLU‘s Capital Punishment Project — from the lawyers who are on the endless treadmill of death penalty cases.

The Innocence Project — when convictions go terribly wrong.

Va. Dept. of Corrections — Dorian Lester is listed as prisoner #1139965 and is serving a life sentence at the Augusta Correctional Center. Incredibly, the execution of George Moody was not deemed by the jury to be “vile.”))

Denis O'Brien has been a member of the Virginia State Bar and registered to practice before the U.S. Patent and Trademark Office since 1998. His PhD (University of Virginia,1980) and his post-doc (Havard Biolabs) were in the field of neurosciences, primarily neuropharmacology. Denis is the author of Murder in the SunMorgue, available online, a pharmacological investigation of the 2013 Ghouta massacre. Read other articles by Denis, or visit Denis's website.