Spring 2001: Does Capital Punishment Have a Future? Transcripts Web Chat with Ronald Tabak -- March 23, 2001 The views expressed in this document have not been approved by the House of Delegates or the Board of Governors of the American Bar Association, and accordingly, should not be construed as representing the policy of the American Bar Association, nor do they represent the official position or policies of the U.S. Department of Justice or the ABA Standing Committee on Public Education. Ronald Tabak is Special Counsel to and Pro Bono Coordinator of Skadden Arps Slate Meagher & Flom LLP, Past Chair and/or Co-Chair of the Death Penalty Committee of the ABA Section of Individual Rights and Responsibilities. Currently, he is President of New York Lawyers Against the Death Penalty. [Read Mr. Tabak’s bio.] Moderator: Here is a question from a student at Midwood High School, Brooklyn, NY. Would you explain what conditions must be met to be granted habeas corpus? Tabak: In order to be granted habeas corpus, you must not only establish a violation of the Constitution that is not harmless error (i.e., it could well have affected the outcome), but you must now also show that in NOT finding the Constitutional violation, the state courts acted "unreasonably"—that they were not just wrong, but also that they were unreasonably wrong in denying your rights. Moderator: Hampden Academy, Hampden Maine, couldn't be here. They want to know are there any circumstances that would make capital punishment justifiable or is it just the implementation that you oppose? Tabak: I don't personally think there are any circumstances that make capital punishment justifiable, given that we have the alternative of life without parole. That has worked in Michigan with no higher murder rate than in neighboring states that do have the death penalty, and without murders within prisons by prisoners serving such sentences. The ABA, however, has no position on the death penalty except for those with mental retardation and juveniles, but favors a moratorium on executions, given the unfair way in which the death penalty system operates. Moderator: Hampden Academy would also like to know what your opinion is about the legal fairness/excessiveness of allowing juveniles to be tried as adults for first offenses. [Hampden, Maine] Tabak: It is certainly excessive to try juveniles as adults where that means that they could get the death penalty. Otherwise, I believe it is usually unfair to try juveniles as adults for first offenses, but it might be fair to do so if the crime is very egregious and the juvenile is very close to adult age. Moderator: Students from Midwood High School want to know if you know of a case when the limitation on habeas prevented the rehearing of a case when new evidence of innocence was discovered. [Midwood High School, Highland, MI] Tabak: Yes. A recent fatal example was in Texas, the Gary Graham case. No court or clemency board EVER heard evidence of eyewitnesses who would have testified that Graham was not at the scene of the crime. Graham was executed based on a single eyewitness's testimony; yet that eyewitness was further away than others who said it couldn't have been he. Moderator: How is preparing for a death penalty case different from preparing for another type of criminal case, from Hampden Academy? Tabak: It requires preparation not only for the issue of guilt and innocence, but also for the penalty phase of the case. In that phase, anything that might cause the jury to decide not to impose the death penalty can be introduced. In many jurisdictions, anything in the defendant's life that might cause them to vote for death and also be introduced. So, a great deal of extra investigation into the defendant's entire life must be done. This can include investigation into medical subjects such as post-traumatic stress syndrome and various forms of mental illness. There's also special jury selection, under which no one who'd never vote for death or who'd always vote for death is allowed to serve. In addition, counsel must know about the complex constitutional issues unique to capital punishment, or else the attorney will waive them. Belaire High School: Why are you against the death penalty? [Belaire High School, Baton Rouge, LA] Tabak: I am against the death penalty because it does not accomplish anything in dealing with crime, and it is unfairly applied in numerous respects. Who gets the death penalty is determined like a bolt of lightning. There's total discretion of the DA in deciding against whom it'll be sought. There's racial discrimination in its imposition. Innocent people can get it, as can those with mental retardation and juveniles. And you often get the death penalty more because of how bad your attorney is than because of how bad you are. Moderator: This question from Hampden Academy: What do you think, Mr. Tabak, is the single biggest difficulty with the way the death penalty is administered in our country? Tabak: The single biggest difficulty is that the Constitution is violated so frequently and yet nothing is done about it, because of overzealous prosecutors, inadequately performing defense counsel, judges worried about ruling in favor of the defendant, and limitations on habeas corpus. Moderator: How does the Constitution get violated? Tabak: It can get violated by the prosecution failing to provide the defense with evidence favorable to the defendant; by the judge charging the jury in a way that puts the burden of proof on the defendant; by the jury not being properly instructed that if the defendant doesn't get death he will never be paroled, and in numerous other respects. 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