Massachusetts Citizens Against the Death Penalty does not endorse candidates for office but does pay close attention any time the death penalty is raised in a political campaign.
In this vein, Lieutenant Governor Kerry Healey’s advertisement questioning Deval Patrick’s fitness to be governor because 20 years ago he represented a man convicted of murdering a police officer represents a new low in the death penalty debate. I doubt the Lieutenant Governor really believes that only lawyers who represent socially acceptable clients should be eligible for elective office. Her ad even acknowledges in passing that a murderer has right to a defense. Yet she seems perfectly willing to accept that the public might not be so generous and may cast Mr. Patrick aside simply because he did the job he was supposed to do for a client who committed a heinous crime.
Is there anything about Patrick’s representation in this case that warrants this sort of attack? The facts are readily available in numerous reported state and federal decisions and put the lie to any claim that Patrick acted in a manner that ought disqualify him from public office.
The “escaped convict” of the commercial is Carl Songer. At the time of the killing, he was a 23 year old drug user who, while serving a sentence for car theft in Oklahoma, had walked away from a work release program. He and a companion were sleeping in a car by the side of a rural Florida road when the unfortunate Highway Patrolman, Ronald Smith, decided to investigate. After pulling the companion out of the car and frisking him, Smith went back to the car to get Songer. Songer later said that he was drugged and asleep; he saw an arm coming for him and picked up a pistol off the floor of the car and shot the officer. Smith suffered four bullet wounds and died at the scene. Under these facts, Songer was convicted and sentenced to death.
Thereafter, the case went through numerous appeals, including a US Supreme Court reversal of the sentence, before Patrick’s key role.
On a petition to federal court for habeas corpus relief after Songer had again been sentenced to death, Patrick asked the 11th Circuit Court to order a new sentencing hearing. He argued that the trial judge had erroneously limited consideration of mitigating factors only to those specifically mentioned in the capital sentencing statue. Because this was in derogation of Supreme Court precedent, the 11th Circuit agreed and ordered a new sentencing.
Patrick obtained a new sentencing hearing for Songer, but not his release from death row, as Healey’s commercial implies. Rather, the trial court for a third time sentenced him to death. A different lawyer handled Songer’s state appeal and this time, the Florida Supreme Court, without any help from Patrick, unanimously reversed the death sentence. Under a capital sentencing scheme that requiring weighing of aggravating and mitigating factors, it found that only one aggravating factor existed – the escape – which was not altogether compelling because Songer had not broken out of prison and whose significance had diminished when Oklahoma vacated the judgment. In contrast, the court found numerous mitigating factors, including that Songer had kicked the addiction that impaired his judgment at the time of the killing, was sincerely remorseful for his crime, and had developed genuine religious beliefs. According to the court, “this case represents the least aggravated and most mitigated case to undergo proportionality analysis.”
The story is a sad one – if only Songer had gotten his life together before he shot Patrolman Smith. But there is nothing in Patrick’s role that diminishes the law or raises questions about his fitness for public office. And the central assumption of the ad, that no argument can be made against imposing the death penalty for certain crimes, will meet with continued resistance from MCADP.
Jim Rooney, President, MCADP
