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Capital Punishment in the United States Explained

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In our Explainer series, Fair Punishment Project lawyers help unpackage some of the most complicated issues in the criminal justice system. We break down the problems behind the headlines - like bail, civil asset forfeiture, or the Brady doctrine - so that everyone can understand them. Wherever possible, we try to utilize the stories of those affected by the criminal justice system to show how these laws and principles should work, and how they often fail. We will update our Explainers monthly to keep them current. Read our updated explainer here.
To beat the clock on the expiration of its lethal injection drug supply, this past April, Arkansas tried to execute 8 men over 1 days. The stories told in frantic legal filings and clemency petitions revealed a deeply disturbing picture. Ledell Lee may have had an intellectual disability that rendered him constitutionally ineligible for the death penalty, but he had a spate of bad lawyers who failed to timely present evidence of this claim -…

Confess, or “They’ll Fucking Give You the Needle.”

Police interrogation room
An idle threat, but the teenage suspect confessed. The Exoneration Registry, which tracks false confession cases, says they have counted at least 27 false confession cases across the country where suspects were threatened with the imposition of the death penalty.

Recent research tells us that false confessions are more common than we previously thought and that teenagers, in particular, are vulnerable to the kind of police coercion that brings them about. The problem has been particularly acute in Chicago, where incidents of false confession, especially those involving juvenile suspects in Cook County, reportedly occur at far higher rates than they do in other jurisdictions around the country.

In September, an appeals court in Illinois issued a ruling in a Chicago murder case that raises questions about the reliability of a young man’s “confession.” Police interrogators repeatedly threatened him with the death penalty even though he was ineligible for capital punishment because of his age at the time of the crime. There was no torture or physical abuse during the session. Should jurors have heard what the young man told the police?

The court eventually overturned the gang-related conviction against Jovan Djurdjulov, but not because police detectives may have coerced a statement out of him during a questioning session that continued off and on for 36 hours. Instead, the appeals judges concluded that his fair trial rights had been violated because his trial judge denied the defendant’s request for the payment of an expert witness to evaluate cell phone records that were at the heart of the case against him.

But it is the questioning of Djurdjulov, and the way both the trial judge and appellate courts evaluated it, that makes this case particularly noteworthy. The appeals court said that the length of the interrogation of Djurdjulov was “somewhat coercive” and that the detectives’ ploy about capital punishment was “intimidating and deceptive.” But they nevertheless endorsed the interrogation and the incriminating statements that arose from it, which were key in convincing jurors that the young man was guilty of murder.

“We agree with the State,” the judges wrote in their September ruling, “that the questioning here ‘is better characterized as a “dialogue or debate between suspect and police in which the police commented on the realities of [his] position and the courses of conduct open to him.’” Which is easy to say if it’s not your 18-year-old son who is locked in a room with the police for a day and a half with a double-murder rap on the line.

Djurdjulov was 17 when Chicago police and prosecutors accused him of first-degree murder. He was a member of the Spanish Cobras gang, they said, and, after a bottle was thrown through his apartment window, he had retaliated by starting a fire in a building in which members of a rival gang evidently lived. The smoke from that fire didn’t kill any gang members, but it overwhelmed the lungs of a woman named Rosanna Ocampo and her daughter, Itzel Fernandez. They died at the scene.

Before the sun had set the next day, the police came to Roosevelt High School looking for Djurdjulov and two other teenagers they believed to be in the Cobras. The boys were in the school’s auditorium watching a show when they were whisked into patrol cars and taken for questioning. It was over quickly. Djurdjulov told the cops that he was visiting two brothers, Michael and Noel Santiago, on the night in question and he had heard that someone else, another Cobra, had set the fire. The cops let Djurdjulov go.

But not for long. Clearly the police continued to have suspicions about his whereabouts on the night of the fire. In February they picked Djurdjulov up again and asked him to verify his alibi and then they arrested him on March 10 for an unrelated crime. This time, police kept Djurdjulov. This time they came armed with other evidence they said they had discovered about the crime and his role in it.

There were no eyewitnesses to the fire. No incriminating fingerprints were found at the scene. But a prosecution arson expert concluded that gasoline may have been used to start the fire; there was evidence of it all over the crime scene. Cell phone records — those same records that subsequently got the defendant a new trial — suggested that Djurdjulov was near the apartment at the time it was burning and then left shortly afterward. But mostly what police did during this time was get the suspect’s friends, and their friends, to turn on one another.

Djurdjulov’s friend Michael Santiago first told the police he didn’t know Djurdjulov. Then he told the cops that he knew Djurdjulov but that his friend was innocent of whatever the cops thought he had done. Michael finally told the cops that Djurdjulov, reeking of gasoline, had come back to the apartment in which Santiago lived on the night in question. He told the police that Djurdjulov changed clothes and tried to get rid of his pants. When they saw television news reports of the fire, according to Santiago, Djurdjulov said: “I burned down a building.”

Incriminating testimony, to be sure, But Santiago also had told defense investigators that he was promised by the police that he would be released from custody if he incriminated Djurdjulov. The jury was told about this contradictory version of events and chose to believe the government’s version; that Santiago was a liar when he initially defended Djurdjulov, and that he was lying about police coercion, but that he was a truth-teller when he later incriminated his friend.

Meanwhile, Santiago’s fiancee, Angelita LaSalle, at first told the police that Djurdjulov had a valid alibi. But when Santiago was arrested, her story changed completely. She told defense investigators that she only incriminated Djurdjulov because the cops promised they would release Santiago if she did so. But at trial she testified that she had lied to those defense investigators and that she, too, had seen Djurdjulov with those gas-soaked pants.

So when Djurdjulov was brought to the police station on March 10th the cops knew it would be a different sort of experience than his previous run-ins with the law. By this time he had turned 18; an adult in the eyes of the law. The cops fed him and allowed him to sleep a bit. He was allowed to use the bathroom when he asked to do so. He was read his Miranda rights and said that he understood them. No one laid a hand on him. And all of it was recorded on video for posterity. From the appellate decision in the case we can glean what his eight hours of interrogation (roughly a quarter of the time he was locked in that interrogation room at the police station) were like in some of its more intense moments:

“At one point, a detective said: ‘[O]h, this fucking make[s] you smirk, huh? Your little smirk, a seven-year-old girl is dead. You think this is a fucking joke?... What do you think they’re gonna do to you? You’ll be in the fucking penitentiary until you’re fucking a hundred and ten fucking years old if you make it that far. That’s if they don’t fucking give you the fucking lethal injection.’” And there was this moment of “dialogue or debate” between the teenage suspect and the detectives, as the appeals court put it:

“‘[Y]ou could very well spend the rest of your fucking life in prison if they don’t fucking give you the needle? I mean you realize that…. For something that might’ve been a fucking mistake, might’ve been a plan that went to[o] far. But we won’t know that until you tell us exactly what happened, who was there, how it went down.”

Djurdjulov at first had said that a member of his Cobras gang had started the fire after telling Djurdjulov that he was planning to do so. Then Djurdjulov conceded that he had seen the fire when it was started. And then, when confronted with police representation about cell phone records, Djurdjulov changed his story once more. It was not a member of the Cobras who had set the fire. It was instead a former member of the rival gang, the Spanish Gangster Disciples, who had torched the building in an act of revenge.Jurors asked for a transcript of the interrogation and cell phone records. They considered the evolving testimony of the defendant and his friends. And in the end they found Djurdjulov guilty. A judge later sentenced him to two consecutive 45-year sentences.


Source: The Marshall Project, Andrew Cohen, November 13, 2017


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but by the punishments that the good have inflicted." -- Oscar Wilde

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