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A blank check for misconduct

If you're a death penalty supporter, Anthony Kirkland is Exhibit "A."  Over a period of four years, he raped and killed two girls, 13 and 14, and two women, then burned or dismembered their bodies.  There wasn't much to the trial -- Kirkland had made a full confession -- and the jury easily convicted him of the aggravated murder of the two girls, and sentenced him to death.  (At the beginning of the trial, he had pled out murder in the killings of the two women.)  On Tuesday in State v. Kirkland, the Supreme Court easily affirmed his conviction. 

All seven justices agreed not only on Kirkland's guilt, but agreed that the prosecutor had engaged in numerous instances of misconduct in the penalty phase which "prejudicially affected Kirkland's substantial rights."

That's where the unanimity ended.  Four justices decided that Kirkland should die nonetheless.

Murder cases arouse passions, and the prosecutor in Kirkland was highly aroused.  His closing argument in the penalty phase was a What Not To Do list for prosecutors.  Tell the jury that anything less than a death sentence isn't punishment at all?  Check.  (He told the jury that since Kirkland would spend the rest of his life in prison for the murders of the women, unless he was sentenced to death the murders of the girls would be a "freebie.")  Make up stuff about what the last minutes of the victims would have been like?  Check.  Make up stuff about the victims?  Check.  (He gave a detailed accounting of the "tough childhood" experienced by one of the victims -- drug abuse by her mother, father in prison -- none of which had made its way into the record.)  Argue that the circumstances surrounding the killings are sufficient "aggravating circumstances" in themselves that they outweigh any mitigating factors?  Check.

The court agrees that "the state's closing remarks in the penalty phase were improper and substantially prejudicial," and thus finds "well-taken" Kirkland's proposition of law alleging prosecutorial misconduct.

And that's where the train goes off the rails.  In capital cases, the court conducts an independent review of the death sentence, weighing the aggravating and mitigating factors itself to determine whether the sentence is warranted.  The majority decides that its "independent evaluation of the capital sentence" can cure the ills in Kirkland's case.

Lanziger, O'Neill, and Pfeifer waste no time pointing out the problem with this.  This is not a situation where a prosecutor made a few improper comments, and they were harmless in the broad context of the argument and the case.  Here, the court had just held that the jury may well have come back with a life sentence if not for the prosecutor's improper comment; that's what "prejudicially affected Kirkland's substantial rights" means.  How is that remedied by four justices deciding that they would have voted for death if they'd been on the jury.  They weren't.  In fact, if the jury had returned a life sentence, like the court just got done saying they could very well have, the court wouldn't be reviewing the case at all.

But the outcome is much worse than that.  We all know that prosecutorial misconduct is a problem in death penalty cases, and others as well.  We all know that where a prosecutor is found to have engaged in misconduct, even hiding evidence, there are rarely any consequences.

You think there might be some connection between those two statements?

Of course there is.  And you've just had a ruling from the State's highest court that even where a prosecutor crosses the line, even if he engages in blatant misconduct, and even if the court finds that he did, there won't even be the consequence of his having to do the death penalty phase over again.

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