No one in their right mind can actually blame Dr. William Petit for wanting blood. In 2007, his wife and two daughters were viciously slain during a home invasion robbery. Since then he has become a famous advocate for the death penalty and has gained national recognition for his testimony before legislative bodies in favor of capital punishment. His ready quote, which has been used by other death penalty advocates before him is that his wife and daughters “already received the death penalty” and that people who commit such crimes “no longer have a right to exist in this society.” It is not just his reliance on the Hammurabi-code version of justice that I have a problem with; its what he is doing now in connection with the trial of the first of two men charged with committing this crime. He has been holding press conferences in front of the courthouse where the trial is convened championing the death penalty in an attempt to sway the folks who are about to be selected as jurors.
So what’s my problem with it? First of all, the lawyers have been prohibited from talking about the case, so the defense cannot stand out there and respond to Dr. Petit. Dr. Petit points out that only the lawyers have been barred from talking about the case, not anyone else. I don’t know if they even would if they could – how could you respond to someone deserving of so much sympathy. As the NY Times reports today in their article on the case:
This is a man, after all, who is often described as enduring unfathomable loss. Criticism of him has been virtually unheard of since the crime made him the subject of widespread sympathy.
“Death Penalty Advocate is Challenge for the Defense” (http://www.nytimes.com/2010/09/03/nyregion/03cheshire.html?ref=nyregion)
My second problem with it is that the United States Supreme Court has disallowed the victim’s family from testifying before the jury about their wishes regarding the death penalty. The high court has recognized the great sway and emotional impact that may have on jurors during the penalty phase of a trial and the difficulty if not impossibility for the defense in combating that emotional appeal. So the good doctor is in essence flouting that law by testifying instead in his daily press conferences.
The Times reports that the defense is flabbergasted and frustrated and does not know how to respond:
“I don’t think we can sit here taking a daily battering,” the chief defense lawyer, Thomas J. Ullmann, said during an argument in court. He threatened to hold his own news conferences to counter Dr. Petit’s, in violation of the order directing the lawyers in the case not to speak about it outside of court.
I know it is a tough position to be in -no lawyer likes to attack the victim. But a man’s life is at stake,and even if he is guilty, the death penalty is not the answer. (See my earlier post The Death of the Death Penalty http://www.courtroomstrategy.com/wp-admin/post.php?post=44&action=edit to see my issues with capital punishment). So what should the lawyers do? Violate the gag order? No. Play loud marching band music outside whenever the doctor speaks? No.
Three ideas: 1. If the court won’t take action against the doctor for circumventing established law , the lawyers have no recourse but to mount a similar campaign by getting death penalty opponents to hold similar daily press conferences. Clergy would be good. 2. Bring to the court as many men as possible who were on death row when their convictions were overturned and they were proven innocent. If you can’t bring the men, create large oversized placards with their faces and perhaps captions like “Where Would He Be?” or “An Innocent Man Would Have Been Put To Death”3. Educate the jurors that while the death penalty may seem right and proper in certain cases -like where the defendant is caught red-handed and there is no doubt about his guilt- because it has not ever been fairly applied and beaus even pro-death penalty think tanks have foudn that it cannot be guaranteed to be fairly applied it must be nationally outlawed. Get this across with large placards with the right statistics and excerpts from the numerous studies that support this proposition.
Is this enough to combat Dr. Petit’s simple and powerful appeal? Probably not. But fundamental fairness requires that the jurors should be either free from outside influence or equally poisoned before their deliberations. Like we all learned in elementary school: Two Wrongs Don’t Make a Right.