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Wednesday, September 14, 2005

The Gray Lady's Got No Juice

Notwithstanding its significance, as alleged by Brooks, the NYT endorsement of Leslie Crocker Snyder for Manhanttan DA didn't matter much.  The Old Man, Robert M. Morgenthau, won handily, garnering almost 60% of the vote.  As I was reading the coverage, I noted Snyder's odd position on the death penalty, which became an issue during the last few days:

In the closing days of the campaign, the emphasis shifted to the death penalty, which Mr. Morgenthau has long opposed. Ms. Snyder said repeatedly that if capital punishment were legal in New York State, which at the moment it is not, she would impose it only for what she calls the most serious crimes, and only if there were corroborating evidence like DNA.

This tends to be an increasingly familiar (and superficially plausible) position, taken in the contemporary legal academy for instance -- though only?  -- by New York Law School's Robert Blecker, who says executions should be imposed on only the worst of the worst offenders.  But what's odd about Snyder's request for a requirement of "corroborating evidence like DNA" is that it may presuppose that DNA evidence is never mistakenly or corruptly handled.  As my recent article on the retributivist case against the death penalty explains in greater detail, this is a problematic assumption.  Moreover, if a person is convicted of a capital crime, it means there was already a finding of guilt beyond a reasonable doubt, i.e., that there was "corroborating evidence."  Perhaps one shouldn't put essentially political figures like the Manhattan DA under such scrutiny, because they're just blathering, and maybe in the words of one favorite commentator on this blog, "stupid."   Still, I suspect that politicians who support the death penalty (as punishment) have to be willing to accept a non-zero error rate, even though they may reasonably try to devise schemes to reduce the error rate. 

Posted by Administrators on September 14, 2005 at 12:26 PM in Dan Markel | Permalink


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Excellent points Brooks, and as my old evidence prawf said, repeatedly, a brick is not a wall!

Posted by: Dan Markel | Sep 14, 2005 1:47:55 PM

Well, Dan has answered my question about what influence, if any, the Times' endorsement would have on this race before I could do it myself. Dan raises an interesting point, though, about generalized demands for DNA as corroborating evidence in DP cases. In addition to concerns about DNA mishandling and other errors in DNA testing, the rhetoric about DNA raises another set of concerns: some people refer to DNA as if it consistently offers an evidentiary crystal ball into factual guilt or innocence. In some cases it does, or comes close to it, like if a defendant runs with an alibi-misidentification defense yet his DNA is an intimate part of the crime scene. But sometimes, it says only something, or even very little, about what we need to know in a particular case. DNA in a rape case, for instance, tells us very little about guilt or innocence when the defense is consent. Same with a homicide case if, for instance, the defense is self-defense, or perhaps if the parties know each other or even live together, all depending upon the particular facts of the case and the prosecution and defense theories. It's still relevant evidence even in these instances, of course. But I worry that such a generalized call for DNA in the name of “fair” convictions improperly will turn DNA into a superficial talisman for factually uncontestable convictions. “Oh, they had DNA? Case closed.” This view of DNA evidence would be a sad irony, but it's the impression that I think many people are developing. DNA is what it is: evidence. Yes, sometimes uniquely devastating evidence, but sometimes only helpful yet not determinative evidence, and sometimes not that significant of evidence at all.

Posted by: Brooks | Sep 14, 2005 1:34:25 PM

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