E-Mail This Article to a Friend The sudden death of Romney’s dream (continued)

Mitt gets bizarre

With the actual likelihood of execution under this legislation virtually nil, last Thursday Romney and Healey made like George W. after finding no weapons of mass destruction: they retroactively unveiled a new justification for their plan.

They now claim that the threat of execution would prompt many killers to plea bargain and accept a first-degree-murder conviction in exchange for a death-penalty waiver. In fact, Romney testified that this would happen so frequently, the savings from those trials might outweigh the potential cost of the new death-penalty system.

This is a rotten argument for several reasons, but mostly because the threat would work just as well on innocent people as on guilty ones. In fact, as Norfolk County DA Bill Keating pointed out in his testimony, the Supreme Judicial Court has noted that the death penalty could be unconstitutional because it unduly pressures defendants to accept life in prison rather than face the possibility of death. "And now they highlight it as a reason for passing the bill," Keating said with palpable contempt.

This newly discovered rationale for the bill was just one of several head-scratchers that Romney and Healey let fly at the hearing. How to pay for the representation of defendants facing the death penalty was another. When asked about the added cost to the state of providing the indigent with specially qualified defense attorneys to work the enormous hours this kind of case would require, Romney said that he would consider additional funding if necessary — but claimed that it probably wouldn’t cost anything at all. "When there’s a rare capital-punishment case, it brings defense attorneys from all over the country who are happy to take the case without pay," he said. He didn’t explain the basis for this statement. It certainly did not come from recent and ongoing death-penalty cases in Massachusetts federal court, which have been defended at great expense to the taxpayers, Middlesex County DA Martha Coakley points out.

An even bigger whopper came when State Senator Steven Baddour (D-Methuen) asked about the historic injustice that African-Americans receive the death penalty in vastly disproportionate numbers. Romney bizarrely claimed that not only did his plan safeguard against that concern, but that the death penalty would apply specifically to crimes that minorities don’t commit. "I can’t think of a case involving an African-American where this provision might apply," he said, apparently forgetting Jeffrey Bly, the man convicted of killing prosecutor McLaughlin. In fact, he opined, all cases of mass murder he could think of were perpetrated by people "of the majority race" — an interesting new theory of terrorism, not to mention the DC sniper killings.

Romney may have been confusing perpetrators with victims. Although racial minorities make up a disproportionately high percentage of homicide victims in Massachusetts, McLaughlin and Geoghan, as well as the victims in Idaho and most of those in the London bombings, were white.

Backfire

Perhaps the most disconcerting moment of the hearing came when Representative Michael Costello (D-Newburyport) questioned Lieutenant Governor Healey, who said she was unfamiliar with the case of Stephan Cowans.

Cowans is the young black man who did six years for the non-fatal shooting of a Boston police officer — a crime he did not commit — based in large part on fingerprint evidence later found to be faulty. Had the officer died, Costello said, Cowans would have been eligible for the death penalty, and might well have been executed despite the "foolproof" system, or would have pled to first-degree murder to avoid the possibility of a death sentence.

Cowans is just one of a stream of wrongfully convicted people set free in the 22 months since Romney launched this death-penalty initiative, which is probably one of the major reasons why the bill has failed to gain momentum. Nobody paying attention to criminal-justice issues around here believes we are close to a foolproof system — as State Senator Dianne Wilkerson (D-Boston) put it, "it’s not a system that works, but a system that allows us to fix mistakes." Of all the cases, Cowans’s has sent the biggest shock waves of concern through the system — leading to grand-jury proceedings and the shutdown of the Boston Police Department’s fingerprint lab — which makes it all the more stunning that Healey wasn’t prepped on it.

Even Coakley, the DA of the state’s largest county, testified that the realities of police and FBI misconduct render moot all hopes of a foolproof system.

Instead of a symbolic death penalty, what Coakley wants is some real crime-fighting capability. Her office can’t get DNA tested because of backlogs at the state lab, she testified. Judges are grossly underpaid, while lack of funding has made defense counsel literally unavailable (see "Criminal Justice," This Just In, July 8).

This was the overarching theme of the hearing, and a sign of how this death-penalty bill is backfiring on Romney. It has become a focal point for discussion of what his administration has not done to improve public safety and criminal prosecution. Why not add police, increase prosecutorial budgets, improve crime labs, raise pay for court-appointed defense attorneys? "Why is this the best way to spend money?" asks State Senator Cynthia Creem (D-Newton), a member of the judiciary committee. "There was no answer to that."

David S. Bernstein can be reached at dbernstein[a]phx.com