The Death Penalty

The Open Mind
Host: Richard D. Heffner
Guest: Mary Jo White, Esq.
Title: The Death Penalty
VTR: 5/22/03

I’m Richard Heffner, your host on The Open Mind. And sometime back my guest today was the compellingly forthcoming centerpiece of an intriguing New York Times story by Adam Liptak, quite appropriately titled, “The Death Penalty: A Witness for the Prosecution.”

For as United States Attorney for the Southern District of New York, the top Federal prosecutor for Manhattan during the near decade from 1993 to 2002, Mary Jo White had been what The Times writer characterized as “a cautious supporter of the death penalty.

Yet here she was having dinner and a couple of beers with him just after seeing that tough, tough off-Broadway documentary play, “The Exonerated” about six people exonerated and released from prison, but only after years on Death Row.

Well, what does Ms. White think about the death penalty now? The Times reports how after the performance she met Kerry Max Cook “who’s horrifying 22 year ordeal on Texas Death Row ended when he was cleared by DNA evidence and in the lobby he told Ms. White that he had, to this day, received neither compensation nor an apology from the State of Texas, which didn’t sit right with Ms. White, who reached for Mr. Cook’s arm … I apologize,” she said, “on behalf of the nation.”

But now while this tells us that Mary Jo White thinks certain things about miscarriages of justice, which we hear about more and more often these days, even those that involve the death penalty … I want now to ask her much more directly to pass her personal judgment on capital punishment itself. Is that fair?

White: It’s fair. It is. I think … there is a place for the death penalty in our system. It’s obviously the most awesome concept and for the State to take a life, I think presumptively, demeans the State. And yet I think there is a place for it. Where I think there’s a place for it is you have a crime that is so egregious, that it rocks the foundations of civilized society. And to vindicate civilization’s … civilized society … the death penalty can, indeed, not only be appropriate, but the only right penalty, in my view.

Heffner: But how does that jib with this concept of demeaning society?

White: Well, I think because the crime itself so demeans society that the society needs to vindicate itself. And I wouldn’t begin to argue that my position, my thoughts on the death penalty are totally, internally consistent. I think people that find anything to do with the death penalty simple or straightforward are masking all of the really horrible and horribly difficult complexities. Trying to figure out, in my own mind, you know, which crimes are therefore … what few crimes are therefore appropriate for the death penalty.

It’s a little like “you know it when you see it” and yet that sounds trite and trivial in this context of capital punishment. But for me, for example, which is really the only way I can explain where I come down on this … I did seek the death penalty when I was U.S. Attorney in the East Africa Embassy bombings where 224 innocent people lost their lives. Another example, not from a real case of mine, would be perhaps a child murdered, tortured in front of their parents. You know, imagine the crime that makes everyone recoil in horror and diminishes them as a human being to witness. And that’s where I think there can be an appropriate role.

I think that, you know, the killing of police officers is, is another area where I think it can be appropriate, too. They’re a symbol not only authority, which isn’t the main point, but they’re out there to protect the public. They risk their lives to do it and if there’s a deliberate campaign to kill them, murder them in cold blood, I think the society … rightly so … can put up its hand and say, “you know, no, the person who committed that crime does not deserve to continue to live.”

Heffner: But now the person that committed that crime … when you went to the play, “The Exonerated” …

White: MmmHmm.

Heffner: … the problem was that there were a number of people who were exonerated because they had committed those crimes …

White: MmmHmm.

Heffner: … they were on Death Row and yet something then happened to indicate that, indeed, they not only were not to be executed, but were not guilty as accused and tried and found …

White: Well, again our whole system is designed to err on the side of letting the guilty go free. In other words, you don’t want one innocent person to be convicted. Put aside the death penalty for the moment. We all know “it happens. It happens.” I always consider the highest mission of a prosecutor is first to try your damnedest never to make a mistake when you charge anyone on any crime. But if you make a mistake, or think you may have made a mistake, you should be working a thousand times harder to exonerate that person. Which is why I have no patience at all when I hear people in the law enforcement community … prosecutors opposing what I call efforts to exonerate after someone is, perhaps …

Heffner: Do you hear that often?

White: Very often. Very often. It’s more common in the State prosecutorial system because that’s where, you know, more of the issues arise because of the nature of the crimes that the state system prosecutes. When identity is an issue that’s where you have difficulties.

Many of the Federal crimes that carry the death penalty don’t involve an issue of identify. So in terms of the … some do … but in terms of the certainty with which the prosecutor goes into a death penalty case on the Federal side, the certainty level is ordinarily higher. It should be beyond any question in the prosecutor’s mind that that person committed that crime. That should be true, in my view, before you indict anyone of any crime. But certainly on a death penalty crime. And in some identity cases you can’t achieve that level of certainty. And therefore, irrespective of what the crime is you, the prosecutor, should not be, in my view, seeking the death penalty.

I think that is not the overwhelming view of most prosecutors. I think they don’t, you know, look at it quite at that high a bar of certainty in their own minds. Again, you can be wrong, when you’re even at that high bar of certainty in your own mind. And you should be constantly questioning your case yourself for any inkling that you may be wrong in a death penalty case.

And if after convicted and someone’s on Death Row you should be …and someone writes you a letter and says, you know, a lawyer puts in a petition and says, “you’ve got the wrong man; you’ve got the wrong woman here.” You should be devoting all the resources you can bring to bear to make certain that you have not made a mistake.

And that … resistance to that, I think, has no place in our system and I think it has a big place in our current system. I think you have resistance not only under current law, the habeas law, but also in the minds of prosecutors. I mean you have … as a prosecutor, I mean we give our prosecutors … I think we have to … a lot of power, a lot of discretion to make lots of decisions. And you … some prosecutors can have that power go to their heads a bit, in a way that they become too certain of themselves.

What I always used to tell my assistants is, for example, with a defendant testifying on the stand, and I say, oh, he’s lying about this, he’s lying about that … I said the last conclusion that you should reach is that someone’s lying to you. You rule out every possibility consistent with the truth before you conclude that that, you know, person, that witness, that defendant is lying or that that person is guilty.

But if you don’t bring that kind of … really kind of humble mindset … to the job of being a prosecutor … mistakes do happen and in some numbers. And add to that, you know, in the capital context … and it, it sends shivers up and down my spine to think how many mistakes can have been made and then indifference to correcting them.

Heffner: How comfortable would you be, today, as United States Attorney in terms of the question of death penalty?

White: Well, my personal views remain the same, although I constantly examine them. So I would still be in the position of favoring the death penalty in a narrow band of cases. There … when I was U.S. Attorney the ultimate decision-maker on Federal death penalty cases was the Attorney General. Not the U.S. Attorney. That’s the case today. I think that has to be the case today, by the way because I think you have to try to achieve consistency in the application of the death penalty across the United States.

Heffner: But what kind of consistency has it been?

White: Well …

Heffner: Is it now?

White: … the one fundamental question is, “what’s the lowest common denominator? Is it Texas? Or is it New York?” And I, you know, that’s very, very troubling because I think what I would like to see if I were King or Attorney General … is a standard closer to my own, obviously. Those are my own views. I’m not saying I have the only correct view on that. What seems to be happening now is that you have a fairly low common denominator for when the death penalty is sought and a greater imposition from Washington of the decisions, the ultimate decisions on the death penalty.

I mean one thing I think people miss in all of this, too, is that the death penalty is one of the most inefficient, ineffective law enforcement tools …

Heffner: What do you mean?

White: … in many ways. You, you add … and forget all the appeals and the time that they take … on average you add two years to any proceeding … in the District Court or the trial court level … when you seek the death penalty. Why is that?

For good reason. The motion practice is much more extensive. You have in the Federal system … you have at least two or three lawyers for each defendant, including a capital expert lawyer and so your motion practice is increased. The Judges are much more careful on all of their rulings, as they should be. Very often in some kinds of cases, whether you obtain a conviction will depend upon many of the evidentiary rulings you get from a judge and those are discrecenary … there’s not a right or wrong answer.

In a death penalty case you get fewer of those as a prosecutor, coming out your way because the Judge is erring on the side …

Heffner: MmmHmm.

White: … of making certain that there’s sufficient evidence to convict this defendant because he or she faces the death penalty.

Heffner: But you say …

White: You could lose the case because you’ve sought the death penalty.

Heffner: But you say “two years” do you mean two years at ever level of appeal?

White: It’s even longer at every level of appeal. It’s two years in the trial court.

Heffner: I see.

White: You add. Which is the piece people often forget. And it’s … the other … and so what can happen here is that, for example, when I was U.S. Attorney we did a lot of these violent gang cases, the most violent people in the city who committed multiple murders, we actually charged them under the Federal Racketeering Statute. Many, many of them were death penalty eligible. And so we’d have to decide to whether to seek the death penalty. And under the protocol then … and now … that had to go through Washington. It was a very lengthy process. If you recommended “no” and the folks in Washington and the committee in Washington thought it should be “yes”, but you wanted it to be “no” you and your assistants spent extraordinary time persuading them that it should be “no”.

And I made a comment once in the higher levels of our government in Washington … I said, “you know, if we continue to do this, I will do one or two of these gang cases with 25 of the most violent people in New York City instead of eight or ten, because you are so consuming my resources in deciding not to seek the death penalty or to seek the death penalty. We can’t get our work done. We can’t, we can’t protect the public as broadly as we need to.” It’s often the case I think where … I mean I’ve used this facetious expression in a very serious arena. But you can’t let the death penalty be “the tomato that ate Cleveland” from a law enforcement perspective.

Another example in the terrorism arena. If we’re so adamant about seeking the death penalty on every terrorist, let us say, who’s captured abroad to be brought back to the United States to be tried and then wherever he’s captured, typically in a country, or often in a country where they don’t believe in the death penalty …and they will say to our government, “you can have this terrorist defendant to put on trial in the United States, but you have to agree not to seek the death penalty.”

Now if we’re so adamant in our view that the only appropriate penalty is for the death penalty …

Heffner: We’re not going to get him back.

White: We’re not going to … or we don’t take him back. Worse yet we decide not to take him back and what will they face, typically abroad much lesser penalties. So that defendant will face five years in France or Germany, or ten years. If you brought him back to the United States you’d have to agree not to seek the death penalty, but they’d face life in prison without the possibility of parole. So, you know, that would be a very, in my view, unwise law enforcement decision to decline to have a defendant brought back over here because you couldn’t seek the death penalty.

And I fear, you know, that is … that is occurring. In a … in the Misouwi(CHECK SPELLING) case, I think we had some difficulties when we did seek the death penalty with our counterparts in Europe about sharing evidence because they were so adamantly opposed to the death penalty. So, you know, law enforcement needs to make wise decisions in the public interest that will often mean not seeking the death penalty. You can’t let the death penalty lead everything in law enforcement. And I think it does today and prior to today in a lot of prosecutors minds.

Heffner: And what’s the affect? The impact upon our war against terrorism?

White: You know … hard to gauge, but very troubling. I mean in our war against terrorism single … in my view the single most important thing is that we maintain and grow the world coalition and if we undermined our credibility as I think we have with many of our partners abroad because, in part, of our views on the death penalty. That’s a very bad things. We’re going to lose their cooperation; we need their cooperation in order to be able to effectively combat terrorism. If you think about September 11th, I mean almost nothing happened in the United States of consequence in terms of the plot. Certainty in New York, virtually nothing, which was obviously the site the most grievous, grievous injury and death. It was plotted from abroad.

And if we aren’t joined at the hip cooperatively abroad with our partners wherever the plot is being hatched, we’re not going to hear about it. And so if we alienate our partners abroad in part because of our views on the death penalty and how we enforce the death penalty, we’re going to undermine our ability to protect ourselves and fight the war on terrorism.

Heffner: You don’t mean that little word “if”, do you. You mean we have.

White: I mean we have. I mean we have. I don’t know to what degree. But I mean we have.

Heffner: How do we get out of that?

White: How do we get out of that? I think we, we need to have wiser, more thoughtful thinking in our … in our government about some of these issues …

Heffner: You’re talking about the Attorney General, aren’t you?

White: Well, I mean included in that category, sure. I mean I think it’s a …again, and I mean this … you know, I can’t know the insides of all the issues and sometimes what you don’t know would change your mind about what’s happening. But, but … from what I do know, you know, I see our top government officials or some of them finding the answers to many of these questions in the war on terrorism, as well as the death penalty … too easy. Too easy. They’re not easy. They’re very, very difficult. And I was certainly known as a very tough prosecutor …

Heffner: Yes, indeed.

White: … and a very tough terrorism prosecutor, in particular. But the issues involved were excruciating and you have to keep your eye on the system and what you’re doing within the system. You can’t bend the rules because you have a terrorist defendant. You can’t bend the rules because you’ve got a death penalty case. Because in the end and in the long run, you’ll undermine not only your credibility, but really your ability to successfully prosecute in the long term. You’ll alienate the judges, you’ll have them looking askance at everything you ask for in the way of a ruling. If your credibility goes down as a government prosecutor, you will not be as successful in your cases. And so … people have to keep a closer eye on that, I think.

Heffner: What is the origin, in your estimation of the failure to maintain this balance?

White: Well, I think, first of all, none of us … and I don’t think any of us do … can undermine the riveting, to the core, impact of September 11th. I for one, you know, favored a military response to terrorism long before 9/11. It needed to happen. But when 9/11 happened, not only the will of our country, but the will of the world was with us so that we could do that.

And when you have, when you’re under such a threat to the public safety and the national security, you’re in a more … you know, one dimensional mode in a sense and you forget about the, the collateral impact of some of your decisions. And, and I understand that. We’ve now though … it’s been a while … and as you move further away from the day, the weeks, even the year after the attacks, this is going to be with us a long time, this war on terrorism.

And we can’t become a different people. We can’t become … can’t let our criminal justice system, for example, be undermined because we are rightly so, vindicating, fighting against world terrorism, international terrorism.

Heffner: Why do you say “we can’t become another people”. You may be saying you don’t want us to become another people, but aren’t you concerned that we will become a different people in terms of our attitudes toward the law.

White: I am concerned about that. But I think we will correct that if it goes down that path too far.

Heffner: Where is it written?

White: I … it is not written anywhere except in the, in the psyche and the character, I think, of the American people. I think in our judicial system I think you see the judges, the judicial branch now doing some mid-course corrections on the war on terrorism to the extent that it comes into American courtrooms.

I mean we have to do what’s prudent to protect ourselves. And we’re all going to live a different life than we used to. And we have to. Because, you know, our … we are an open society and part of being an open society is not being as secure against the threat of terrorism as we must be to be prudent. We have to do more things to control who comes nto our country. Immigrants who come into our country, what they’re doing in our country … we must do that. And so, to a large extent, I approve of these initiatives. But every time we take one of those steps we have to think, “okay, what’s the price of it? What is the price of it to our system? What is the price of it to our American psyche?”

And I think the American psyche will … we will only take so much of that. So much erosion of our system, so much curtailing of our freedoms and then we’ll just live with greater risk.

Heffner: You know Ms. White, I want to stand up and applaud what you just said. But how much of it … of that is wishful thinking?

White: Ahaaa …

Heffner: What do you base it on?

White: I base it on, you know, life experience I guess. I base it on a great deal of faith in our judicial system. And in our, you know, Federal judges. But it, but it also comes deeper than that. I mean I think we have a long history as a people being not only free, but fair and I think, you know, when you’re threatened, your safety is threatened, your survival is threatened, you have to take the measures necessary to protect yourself. And I approve of all of those.

But that intensity of risk is not with us every day. It’s a presence that we must deal with, but at the end of the day we have to decide who we want to be as a people, and how we want to live. And we have to balance protecting ourselves physically from a threat. And I think we will. I think it’s in the character of the American people.

Heffner: I’m interested that you say “the Federal Judiciary” is what you consider perhaps the most important bulwark outside of the traditions … our people’s traditions. What indications have there been?

White: Well I think you’ve seen in a number of the cases since September 11th, for example, the Judges saying, you know, “no” to the, to the prosecutors about certain issues. You’re seeing that in the Moussaoui case. You’ve seen it in connection with Padilla; access to a lawyer; you know a decision in District Court that’s now being appealed by the government, but nevertheless, giving him access to a lawyer. You know, those are, those are two examples. There are others, as well. And I thing, you know that, that will continue. Now in time of war … a lots been written about this our Chief Justice has written about it … that the judiciary doesn’t question much the powers of the President, the powers of the Executive Branch. And, you know, there certainly is law to support what our Executive branch is doing from some of our prior times of crisis. And so you can’t fault the judges in the lower courts for following those laws when they will up hold what the executive is doing. But you see it popping up all over the country.

You know, pocket some judicial resistance … to the Executive Branch’s extending their powers, nearly to the edge of the prior legal envelope and beyond it. And I think it’s coming from that fundamental, you know, character where we are country … we must be a country that’s governed by a rule of law.

Heffner: Certainly, when I edited Tocqueville’s Democracy In America I was so impressed with his understanding that it would be a judiciary, an independent, strong judiciary that would be the greatest protection that we would ever joined. But I also have to say, from my reading of the press, or maybe I’m only reading selectively, maybe I only read those things that particularly appall me. I, I see the courts not performing quite as well as you say …

White: Well, you know, I think …

Heffner: … they have.

White: … your quarrel may be with what the law is as opposed to, to some extent, as opposed to what the judges are doing in applying it. I mean there’s a lot of law that’s been on the books for many years, some of it borne out of periods of crisis in wartime that authorized the steps that bother some people in our country … that are being taken in the war on terrorism. And the Judges are applying that law. How does one change that law? The Supreme Court may be one area where it could happen. Congress is another area. You’re not likely to get fundamental change in the law during a time of crisis, when you’re fighting terrorism. But what the judges are doing is when the government is pushing the envelope certainly beyond what the existing law permits .. it doesn’t mean it prohibits it. They’re putting up their hand and saying, “no” this is not due process, this is not consistent with your power.

So, you know, it’s not an easy thing. And I, and I should be clear that, you know, I for the most part favor and think they are sadly necessary in terms of the initiatives our government is taking on the war on terrorism, whether it’s, you know, questioning immigrants in our country, whether it’s tightening the immigration laws … I think it’s necessary.

Heffner: In the minute we have left, is there an area where you think it is not necessary, or at least more difficult in your estimation to swallow for us in terms of our free traditions?

White: I think the hardest is when we not only exercise the Executive power to detain, for example, unlawful combatants or immigrants in this country, but also deny them access to a lawyer. It’s one thing to exercise power, it’s another thing not to have a check on power. And that’s what I think’s troubling, most troubling.

Heffner: Why do you think that has been the case? Why the refusal to permit an attorney?

White: We’re at war. To some extent the law permits the denial of access to an attorney. You think about prisoners of war, lawyers aren’t allowed, but when you have an all encompassing war within a definite duration, not every detention falls within that category. But we’re at war, that’s why. I mean it’s understandable, but troubling.

Heffner: Ms. White I wish you were still there in the United States Attorney’s office, I’d feel a hell of a lot better.

White: It’s in very good hands.

Heffner: Thank you for joining me today on The Open Mind.

White: Thank you.

Heffner: And thanks, too, to you in the audience. I hope you join us again next time, and if you would like a transcript of today’s program, please send $4.00 in check or money order to The Open Mind, P. O. Box 7977, FDR Station, New York, New York 10150.

Meanwhile, as an old friend used to say, “Good night and good luck.”

N.B. Every effort has been made to ensure the accuracy of this transcript. It may not, however, be a verbatim copy of the program.

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