Convictions: Slate's blog on legal issues

More on Tainted Evidence

Diane's point is well-taken: If the evidence is tainted, it's tainted for purposes of conviction, as well as for sentencing, and it's just as tainted if the defendant gets a long prison sentence as it is if he gets a lethal injection. If the conviction is "clean," by contrast, it's clean irrespective of the nature of the sentence he receives.

Yet I think Emily is onto something anyway when she says that she doesn't "want this country to be a place where people are sentenced to die based on a prosecution that is tainted by torture testimony." Death, after all, is different in many ways, some legal, some prudential. I'm willing, for example, to see a conviction sustained on a weaker factual record than the record on which I'm willing to see a capital sentence carried out—notwithstanding the fact that as a purely legal matter, the evidentiary threshold is the same: proof beyond a reasonable doubt.

That's why I've been cheered at times when governors (and President Clinton once) commuted death sentences to life in prison based on residual doubts about the integrity of a trial record but did not act against the conviction itself. Something similar may be at work here. The stakes in the MCA's softening of the traditional rules of evidence are particularly high in light of the availability of capital punishment in this case. Put another way, I think many people would not argue against conviction of someone who had been waterboarded upon capture if the government can prove his culpability without the use of tainted evidence. Many more, I suspect, would argue in principle against his execution, even if the evidence is clean.

Mukasey, Justice, and Emily

Emily’s brief post raises several fascinating questions, which seem to me to warrant fleshing out. The key sentence is the following: “if the government executes these men [the 9/11 plotters] after the coercive interrogation (torture) some of them experienced and all the failings of the this-ride-only military tribunals set up to try them, the damage Guantanamo has done to the reputation of our justice system will be raised by a power of ten.” But that specter, she writes may concentrate the mind. So “maybe the threat of the death penalty is the best hope that they will get some semblance of real due process.”

So here are my questions—to Emily and to all:

1)      Whatever people think of the death penalty, should the circumstances of these detainees’ interrogation ameliorate their sentences? I can see why we would want to suppress evidence obtained under duress. I’m not sure I see why being coercively interrogated—even tortured—lessens one's culpability for September 11, assuming that culpability can be proven without relying on evidence obtained improperly.

2)      Are we really so confident that these tribunals are incapable of delivering a semblance of real due process? Are they really that different from other ad hoc tribunals countries have set up to deal with extraordinary international criminal trials? Nuremberg, after all, was a this-ride-only military tribunal and we think of it as a triumph of international justice. Do we really think fair trials are impossible under the Military Commissions Act and, if so, why?

3)      What would “real due process” look like for these defendants at this time?

Mukasey's S&M Fears