Mississippi Supreme Court Dissenting Opinion Calls For Death Penalty Abolition

Mississippi has long supported the death penalty. So it is remarkable when a Mississippi Supreme Court Justice writes a dissenting opinion in a death penalty case that calls for the abolition of the death penalty. In Doss v. State (pdf), Justice Oliver Diaz, Jr., did just that, he called for the end of the death penalty.

The Sun Herald reports:

Outgoing Supreme Court Justice Oliver Diaz Jr.'s impassioned call for an end to the death penalty has drawn both criticism and praise.

In what was likely his departing dissent as his tenure on Mississippi's highest court ends, Diaz says society finally must recognize that "even as murderers commit the most cruel and unusual crime, so too do executioners render cruel and unusual punishment."

Jimmy Robertson, a Jackson attorney who served on the state Supreme Court from 1983 to 1992, said Diaz laid out a number of points, including that the death penalty is not a deterrent to murder, that were "pretty close to being irrefutable to anybody that's objective on the question."

The criticism in the Sun Herald article was provided not by Mississippians but instead solely by Kent Scheidegger, legal director for the pro-death penalty Criminal Justice Legal Foundation of Sacramento, a right wing, pro death penalty organization, who provided the usual shop worn generalities.

Justice Diaz's dissent came in the case of Anthony Doss who sought a new trial because the trial court never explored his claims of mental retardation or the adequacy of the representation he received at trial from a court-appointed attorney with no death penalty experience. Doss was sentenced to death fifteen year ago, in 1993, for his role in the armed robbery and killing of a convenience store clerk, Robert C. Bell.

Diaz wrote:

"Just as a cockroach scurrying across a kitchen floor at night invariably proves the presence of thousands unseen, these cases leave little room for doubt that innocent men, at unknown and terrible moments in our history, have gone unexonerated and been sent baselessly to their deaths."

"All that remains to justify our system of capital punishment is the quest for revenge, and I cannot find, as a matter of law, that the thirst for vengeance is a legitimate state interest. Even if it is, capital punishment's benefit over life imprisonment in society's quest for revenge is so minimal that it cannot possibly justify the burden that it imposes in outright heinousness."

The entire dissent is here (pdf) beginning at page 25.

This dissent is incredibly important to me. In 1984 I represented on appeal to the Mississippi Supreme Court a man who had been convicted of murder and sentenced to death in Gulfport, Mississippi. I handled this appeal without charge. I volunteered to do it (the story of how that happened is a separate essay for another day). Fortunately, I was successful and the conviction itself in State v. James Moffett, 456 So.2d 714 (1984), was reversed.

Back then, 24 years ago, if I had been appointed by the Mississippi Supreme Court to handle the appeal, I could have received the magnificent sum of $900 for my work. I didn't even get the $900 because the Court denied my motion to be appointed. I spare you the arithmetic of dividing this theoretical, gigantic sum by the number of hours I spent on the case. You don't need to figure out how much I would have made per hour. I wasn't doing the case for money. I did it because of an intense passion against the death penalty. But anybody who does criminal defense work knows that unless people are volunteering to provide free representation, which is an incredible gift and makes me extremely proud of those who do so, the accused gets a defense that's probably worth about what the state pays for it. Pleases note: this is not a slap at my extremely persistent and dedicated brothers and sisters in the defense bar who are the exception that prove the rule. They do incredible work because of their passion, not because of what they're paid. But they aren't the only ones handling these cases. On another day, as an illustration of this point, we can review all of the decisions courts have written about sleeping lawyers in death penalty trials.

Significantly, the topic of compensation and its relationship to the quality of defense arises in footnote 1 in Justice Diaz's dissent:

It must be noted that the unworkability of our capital punishment
system is due in no small part to the State’s utter inattention to publicly funded defense. The Mississippi indigent defense system is wholly inadequate to provide meaningful representation to the poorest criminal defendants. As Justice Graves has stated, “the State of Mississippi has failed to establish or fund a system of indigent defense that is equipped to provide all defendants with the tools of an adequate defense, and has therefore fallen short of its constitutional obligation.” Quitman County v. State, 910 So. 2d 1032, 1052 (Miss. 2005) (Graves, J., dissenting). Amazingly, in all criminal cases, court-appointed attorneys are entitled to no more than $1,000 compensation. Miss. Code Ann. § 99-15-17 (Rev. 2007). This problem is hardly a new one; in 1994, Justice Blackmun noted that Mississippi’s capital defense attorneys were compensated at an average rate of $11.75 per hour. McFarland v. Scott, 512 U.S. 1256, 1258, 114 S. Ct. 2785, 129 L. Ed. 2d 896 (1994) (Blackmun, J., dissenting from denial of certiorari).

Put another way, a death penalty trial isn't really a fair fight. It's not meant to be. The defense is almost always over matched by the state's endless resources. And that, I am sorry to report, is exactly the state's intention. The result is a flawed system that for this reason alone should be ended.