In defense (just this once) of Kenneth Starr

Looks to me as if he Starr was the bamboozlee, not the bamboozelor.
And it also looks as if his client might actually not deserve to die.

When a political opponent steps in the doo-doo, it’s hard not to rejoice. But I think Kevin Drum is being unfair to Ken Starr.

Starr is running the last-ditch attempt to keep a convicted rapist and murderer named Michael Morales from being executed. He and his colleagues submitted to Gov. Schwarzenegger affidavits from five of the jurors who voted to kill Morales, saying that they had changed their minds. But it now appears that the affidavits were fabricated by an investigator working for the defense team. Oooops!

After the outrageous games Starr played in the Whitewater case, it’s understandable that those of us on the other side tend to be suspicious of his integrity generally. But it’s hard to figure out what his motivation could have been for manufacturing bogus documents in this fashion, since their fraudulence was sure to be discovered by the prosecution. Obviously Starr and his colleagues made an error in trusting their investigator, but an error isn’t the same as deliberate malfeasance.

This is the sort of case that brings neither wealth nor glory to the lawyers who work on it. The only reason I can think of for Starr to represent Morales is doubt that he deserves to be killed.

And it turns out that there are strong reasons for such doubt, entirely independent of what the jurors said or didn’t say to the defense investigator. A key piece of prosecution evidence in the death-penalty phase of the case seems to have been false:

A jailhouse informant, Bruce Samuelson, testified that Morales had bragged during a jailhouse conversation in fluent Spanish that he had planned to rape and kill Winchell.

The prosecutor’s file notes identified Samuelson as “a key witness” to prove both the homicide and the special circumstances warranting a death penalty, Morales’ attorneys said.

A decade after the trial, however, it was learned that Morales does not speak Spanish.

Unsurprisingly, it turns out that Samuelson managed to skate past a prison term in return for his testimony. The practice of bribing witnesses with promises of lenity in unrelated cases is perfectly legal; perhaps it shouldn’t be. Or at least we need some very strongly worded jury instructions about the inherent unreliability of “jailhouse snitch” testimony. (There’s no way to make conspiracy cases without offering some defendants lighter terms for testifying against others, and the risks of sheer fabrication are probably somewhat smaller under those circumstances. But allowing any jailmate of someone accused of a serious crime to get off by inventing a confession is just an open invitation to perjury.)

The judge in the case now says that Morales shouldn’t be executed; doing so, he says, would constitute “a grievous and freakish injustice,” because Samuelson’s statement was the only evidence supporting the “special circumstance” &#8212 “lying in wait” &#8212 that made Morales eligible for execution. (The prosecution isn’t challenging the authenticity of the judge’s statement.)

So right now I’m filing this one under “No good deed goes unpunished” rather than “Ken Starr pulls another fast one.”

And the horrible thing is that the forgeries probably eliminate any chance of

getting a serious hearing for the substantive claim about false testimony at trial.

Footnote My theoretical support of capital punishment is having a hard time surviving the empirical circumstances surrounding it.

Author: Mark Kleiman

Professor of Public Policy at the NYU Marron Institute for Urban Management and editor of the Journal of Drug Policy Analysis. Teaches about the methods of policy analysis about drug abuse control and crime control policy, working out the implications of two principles: that swift and certain sanctions don't have to be severe to be effective, and that well-designed threats usually don't have to be carried out. Books: Drugs and Drug Policy: What Everyone Needs to Know (with Jonathan Caulkins and Angela Hawken) When Brute Force Fails: How to Have Less Crime and Less Punishment (Princeton, 2009; named one of the "books of the year" by The Economist Against Excess: Drug Policy for Results (Basic, 1993) Marijuana: Costs of Abuse, Costs of Control (Greenwood, 1989) UCLA Homepage Curriculum Vitae Contact: Markarkleiman-at-gmail.com