‘Justice’ by Prosecutorial Whim

The prosecutor was relentless to get those Menendez boys on death row. He ridiculed family members who loved both the victims and the defendants. He implored the jury to disregard any sense of compassion or mercy based on familial support, chiding Maria Menendez, the mother of victim Jose Menendez, as “an old woman who doesn’t know what is going on here.” He lectured the jury that America has lost its way and pleaded for the jury to support a message that not only the poor end up on death row.

So went the penalty phase of the trial of Lyle and Erik Menendez for killing their parents, Jose and Kitty. So go the penalty phases of all the other trials, including the many whose names never make headlines until the day of execution. Just what are the ingredients that go into the recipe that prosecutors use to decide death penalty eligibility? No one can say with certainty. It is just a little pinch of this and a little dash of that; a coin toss, a feeling, a hunch.

What a prize Erik and Lyle would have made if they had been sent to the death chamber. The prosecutor urged the jury to show society that not only the poor slobs from East or South-Central Los Angeles get death.

The bitter irony is that the prosecutor’s real function is to do justice, to deliver the message of truth. The people elect as district attorney a person whose most important function is to determine who is eligible for the death penalty. But it is the people--jurors--who decide who actually is sentenced to death. Too often, the courtroom podium becomes the bully pulpit for a prosecutor to tell the people what the people want. Obtaining a death judgment is a notch on the old bar card. The power of playing a part in a person’s death is intoxicating, and it is legal. The prosecutor grabs the moral high ground and corners the defendant with his recently obtained murder conviction. He speaks with a far more righteous voice than does the defense attorney, as he represents “the people.” The jury has no way to know if this defendant has been singled out for death or if others who committed much more heinous crimes have escaped the call to the gallows.

The death penalty law is arbitrary. It is flawed. It is wrong. No one can articulate with clarity and specificity who among those eligible should be selected for its implementation. The prosecutor in the Menendez case argued that the poor and desperate crook who robs the 7-Eleven market and shoots and kills the clerk may not be so bad as to justify the death penalty. Meanwhile, the prosecutor in the courtroom next door has the same hypothetical crook in his sights and is urging death.

Murder and capital punishment are not opposites that cancel each other out. Being against an arbitrary death penalty law is not the same as being against the death penalty. Our system of criminal justice is rooted in the notion that the prosecution buys out the victim’s vengeance in exchange for evenhanded justice. The Menendez and Andersen families suffered a tragic ordeal. But in the end, it was not they but the prosecution alone who urged for death.