GOVERNOR’S COUNCIL ON CAPITAL PUNISHMENT

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http://www.mass.gov/Agov2/docs/5-3-04%20MassDPReportFinal.pdf

GOVERNOR’S COUNCIL ON CAPITAL PUNISHMENT

Joseph L. Hoffmann, Harry Pratter Professor of Law, Indiana University - Bloomington

(Co-Chair and Reporter)

Frederick R. Bieber, Associate Professor of Pathology, Harvard Medical School (Co-Chair)

Judge Robert Barton, Massachusetts Superior Court (Retired)

Ralph Boyd, Jr., Executive Vice President and General Counsel, Federal Home Loan

Mortgage Corporation

Plymouth County District Attorney Timothy J. Cruz

Donald R. Hayes Jr., MSFS, D-ABC, Director, Boston Police Department Crime

Laboratory

Dr. Henry Lee, Chief Emeritus, Connecticut Department of Public Safety, Division of

Scientific Services

Attorney Henry Moniz

Attorney Kathleen O’Toole

Carl M. Selavka, Ph.D., D-ABC, Director, Massachusetts State Police Crime Lab System

Michael J. Sullivan, United States Attorney, District of Massachusetts

NOTE – The opinions and ideas expressed herein are those of the Governor’s Council on

Capital Punishment and its individual members, and do not necessarily represent the views

of any of the institutions or organizations with which the members of the Governor’s

Council are affiliated.

TABLE OF CONTENTS

INTRODUCTION 3

OVERVIEW 4

RECOMMENDATIONS 6

1) A Narrowly Defined List of Death-Eligible Murders 6

2) Appropriate Controls Over Prosecutorial Discretion in

Potentially Capital Cases 12

3) A System to Ensure High-Quality Defense Representation in

Potentially Capital Cases 13

4) New Trial Procedures to Avoid the Problems Caused by the Use

of the Same Jury for Both Stages of a Bifurcated Capital Trial 17

5) Special Jury Instructions Concerning the Use of Human Evidence

to Establish the Defendant’s Guilt 19

6) A Requirement of Scientific Evidence to Corroborate

the Defendant’s Guilt 20

7) A Heightened Burden of Proof to Enhance the Accuracy of

Jury Decision-Making 22

8) Independent Scientific Review of the Collection, Analysis, and

Presentation of Scientific Evidence 23

9) Broad Authority for Trial and Appellate Courts to Set Aside

Wrongful Death Sentences 25

10) The Creation of a Death-Penalty Review Commission to Review

Claims of Substantive Error and Study the Causes of Such Error 28

INTRODUCTION

We, the members of the Massachusetts Governor’s Council on Capital Punishment, hereby

submit our final report and recommendations to Governor Mitt Romney. In this report, we offer

a series of ten proposals – many of which are unprecedented in the history of American capital

punishment – that, if adopted in their entirety, can allow creation of a fair capital punishment

statute for Massachusetts that is as narrowly tailored, and as infallible, as humanly possible.

Although the process that led to this report has been long and challenging, we are satisfied that

we have completed our work in a manner consistent with the Governor’s charge.

We began our work on September 23, 2003, the same day that Governor Romney first met with

us and presented us with our charge. Since that day, the Council has met together seven times,

and we have corresponded regularly, both by telephone and by e-mail. We have compiled

thousands of pages of documents – including research studies, legal and scientific analyses,

reports of death-penalty commissions in other states, and relevant documents issued by various

federal, state, and non-governmental entities – and we have reviewed numerous death-penalty

reform proposals. We have called on experts from outside the Council to make presentations to

us, and to consult with us. We have received calls and letters from numerous additional experts

and other interested parties, and we have discussed and considered their comments and

suggestions, incorporating some of them into our final recommendations. In the end, we are

confident that no significant issue, or perspective, has been overlooked.

While our timeline was ambitious, we enjoyed two major advantages over other, previous deathpenalty

reform commissions. First, we were able to draw heavily on the research, and the

collective wisdom, of those earlier efforts. This expedited our information-gathering and

facilitated the fundamental legal and scientific analyses necessary to address both empirical

questions (“What do we know about this particular aspect of capital punishment?”) and the more

important normative ones (“What should we recommend about this particular aspect of capital

punishment?”).

Second, we were not constrained in our work by any existing death-penalty laws or practices in

Massachusetts – because there are none. We were free to consider any idea that might constitute

a “best practice” for a possible death penalty statute, without having to worry about whether

such an idea might conflict with procedures or institutions already in place, or encroach on some

entrenched or vested interest. This allowed us to focus our attention squarely on the merits of

each idea, without the distraction of political considerations.

This report contains ten recommendations. Each of these recommendations represents a

consensus view of the entire Council. The fact that such a diverse group – including attorneys

with prosecution, defense, and judicial experience; forensic scientists who work with prosecutors

and defense attorneys; persons with extensive backgrounds in law enforcement; and legal and

medical academics – could reach such a consensus reveals the extent to which personal feelings,

as well as differences of opinion about the death penalty itself, were set aside in pursuit of the

common goal.

The Council’s report should not be interpreted as a criticism of any existing death-penalty

system in any other jurisdiction. Each different jurisdiction must make its own decisions about

how best to balance the competing values, priorities, demands for resources, and other variables

involved in the administration of the death penalty. This report reflects Governor Romney’s

unprecedented charge to the Council on behalf of the people of Massachusetts, which was to

recommend the legal and forensic safeguards that would be necessary before a fair death-penalty

statute could be considered in Massachusetts. The goal was to make recommendations to ensure

that any death penalty statute that may be considered in Massachusetts would be as narrow, and

as foolproof, as possible. We believe that the ten recommendations outlined herein can

accomplish this goal.

The Council was not asked to consider or make any recommendation about whether capital

punishment legislation should be considered or approved in Massachusetts. That is an issue

properly reserved for the citizens of the Commonwealth of Massachusetts and their duly elected

representatives. Nevertheless, the entire Council agrees that, if capital punishment legislation is

to be considered in Massachusetts according to the standards set by Governor Romney, it should

be done on the basis of the recommendations contained in this report.

OVERVIEW

In Governor Romney’s charge to the Council, he repeatedly stressed two main themes. First,

capital punishment should be limited to a narrowly defined subset of first-degree murders, so

that only the “worst of the worst” murders, and murderers, will be eligible for the ultimate

punishment. Second, the death penalty should be administered with a strong emphasis on the

use of scientific evidence to help establish the defendant’s guilt, which will ensure – as much as

humanly possible – that no innocent person will ever wrongly be condemned to death. These

two main themes dominated the Council’s work, and they represent the foundation for this

report.

As a starting point for the Council’s discussions, we agreed with Governor Romney that the two

most important aspects of any death-penalty system in Massachusetts should be to ensure – as

much as humanly possible – that (1) no innocent person, nor any person who is guilty but legally

ineligible for the death penalty, will ever wrongly be condemned to death, and (2) the death

penalty will be applied in a narrow and reasonably consistent manner, reaching only the “worst

of the worst” murders and murderers. We also agreed that, in general, the best way to provide

such assurances is through multiple layers of review, and that the emphasis should be on those

review processes that can exclude problematic cases from the pool of potentially capital cases as

early as possible. Finally, we agreed that, given our limited charge, we should avoid proposing

major changes to the way that non-capital crimes are investigated, prosecuted, and tried in

Massachusetts, but instead should focus primarily on proposals that would apply to potentially

capital cases – although reason may suggest that at least some of these same proposed reforms

also should be extended, in the future, to non-capital cases.

With this basic substantive framework in place, we developed our specific proposals. These

proposals can be outlined as follows:

(1) a narrowly defined list of death-eligible murders;

(2) appropriate controls over prosecutorial discretion in potentially capital cases;

(3) a system to ensure high-quality defense representation in potentially capital cases;

(4) new trial procedures to avoid the problems caused by the use of the same jury for both

stages of a bifurcated capital trial;

(5) special jury instructions concerning the use of human evidence to establish the

defendant’s guilt;

(6) a requirement of scientific evidence to corroborate the defendant’s guilt;

(7) a heightened burden of proof to enhance the accuracy of jury decision-making;

(8) independent scientific review of the collection, analysis, and presentation of scientific

evidence;

(9) broad authority for trial and appellate courts to set aside wrongful death sentences; and

(10) the creation of a death-penalty review commission to review claims of substantive error

and study the causes of such error.

In the first instance, concerning the narrow definition of capital murder, our proposal takes the

form of specific statutory language, capable of being introduced directly into the legislative

process. In the remaining instances, our proposals take the form of detailed policy

recommendations and suggested actions, which will require the assistance of others to convert

into any proposed legislation. We have been mindful throughout of the many published studies

and discussions concerning the possible effects of race and ethnicity of defendants and victims,

and, by proxy, economic status, on death sentencing. We believe that our recommendations

contain important safeguards – most notably, the narrow definition of capital murder – that will

help to address such concerns.

There will be increased costs associated with the implementation of the above proposals. Since

most of these costs will arise only when the death penalty is sought in a particular case, however,

they will be limited by the extremely narrow proposed criteria for death-eligibility, which ensure

that, at most, only a small handful of murders will be eligible for the death penalty each year in

Massachusetts. Nevertheless, each capital trial will be expensive. Moreover, additional costs

inevitably will be incurred due to the proposed creation of new governmental institutions to

review scientific evidence and post-trial claims of innocence. The Council strongly believes

that, if the death penalty is to be reinstated in Massachusetts, such increased costs simply must

be borne. It is not possible to have a death penalty system that is both inexpensive, and at the

same time capable of being relied upon to produce accurate and fair results. We are confident

that the people of Massachusetts would insist on a death penalty system that is extremely

accurate and fair, despite the increased costs.

In most of the aforementioned areas, the proposals made herein break new ground. Taken as a

whole, these ten proposals would create a death-penalty system for Massachusetts unlike any

such system that has ever existed, or even seriously been considered, before. We believe that

such a bold and innovative approach is necessary, if the Governor’s uncompromising charge to

the Council is to be fulfilled.

RECOMMENDATIONS

(1) A Narrowly Defined List of Death-Eligible Murders

The following new statute should be adopted:

Capital Murder

Murder in the first degree is capital murder when:

(1) The defendant committed the murder through:

(a) the defendant’s own conduct;

(b) the conduct of another person acting under the defendant’s direction or

control; or

person and the defendant to commit the murder; and

(2) The defendant committed the murder with deliberately premeditated malice

aforethought, with respect to the victim’s death; and

(3) The defendant was at least 18 years old at the time that the defendant either:

(a) engaged in the conduct that caused the victim’s death;

(b) directed or controlled another person to commit the murder; or

the murder; and

(4) One or more of the following additional elements is present:

(a) The defendant committed the murder as an act of political terrorism;

(b) The defendant committed the murder for the purpose of influencing,

impeding, obstructing, hampering, delaying, harming, punishing, or otherwise

interfering with a criminal investigation, grand jury proceeding, trial, or other

criminal proceeding of any kind, including a possible future proceeding, or in

retaliation for the victim’s role in the investigation or adjudication of a prior

criminal case (including the implementation of the defendant’s sentence), against:

(1) a victim whom the defendant knew or believed to have played an

official role within the criminal justice system, such as a police officer, parole

or probation officer, judge, juror, court official, prosecutor, criminal defense

attorney, expert witness, or employee of a correctional institution; or

(2) a victim whom the defendant knew or believed to have been (i) a

witness to a crime committed on a prior occasion, or (ii) an immediate family

member of such a witness, such as a husband, wife, father, mother, daughter,

son, brother, sister, stepparent, stepchild, grandparent, or grandchild.

of time and in a gratuitous and depraved manner, during or immediately prior to

the murder;

(d) The defendant committed murder in the first degree against two or

more victims, and each of the murders satisfied elements (1) through (3) herein;

(e) The defendant has a previous conviction for murder in the first degree

in Massachusetts or another American jurisdiction (or the closest equivalent,

as defined by the law of the relevant jurisdiction), and the previous murder also

satisfied elements (1) through (3) herein;

(f) At the time that the defendant engaged in the conduct described in

element (1) herein, the defendant was subject to a sentence of imprisonment for life,

without the possibility of parole, as the result of a previous conviction for murder in

Massachusetts or another American jurisdiction.

Within the context of this statute:

(1) “An act of political terrorism” means an act committed by the defendant for

the purpose of attacking the government of the United States, or any political

subdivision thereof.

(2) “Torture” means the infliction of extreme physical or psychological pain against

a victim whom the defendant knew was conscious. “Gratuitous and depraved”

means that such pain was in addition to that which necessarily accompanied the act

of killing itself, or the particular method of killing was chosen by the defendant for

the purpose of inflicting such pain.

The punishment for capital murder shall be imprisonment for life without the possibility of

parole or the death penalty.

It shall be an affirmative defense to capital murder that the defendant is mentally retarded,

as defined by either the American Psychiatric Association or the American Association on

Mental Retardation. The defendant shall have the burden to produce some evidence with

respect to possible mental retardation, but once the issue is properly raised, then the

prosecution shall have the burden to prove, beyond a reasonable doubt, that the defendant

is not mentally retarded. Nothing in this paragraph shall prevent the defendant from

raising the issue of possible mental retardation as a mitigating circumstance at the

sentencing stage of a capital murder trial.

Explanatory Notes

(1) The death penalty is limited to defendants who are guilty of murder in the first degree

through their own conduct, the conduct of another person under their direction or control,

or the conduct of another person acting pursuant to an agreement with the defendant to

commit the murder. This would not include mere accomplices or “joint venturers.”

(2) The phrase, “deliberately premeditated malice aforethought,” already appears in

Massachusetts G.L. c.265, §1, the statute defining “murder in the first degree,” and has

extensive Massachusetts case law interpreting it. The death penalty is limited to

defendants who exhibit “deliberately premeditated malice aforethought.” This would

exclude defendants who are convicted of murder in the first degree based on the two

alternative grounds set forth in Massachusetts G.L. c.265, §1: (1) murders committed with

“extreme atrocity or cruelty,” and (2) murders committed while “in the commission or

attempted commission of a crime punishable with death or imprisonment for life.”

(3) The death penalty is limited to defendants who commit murder in the first degree after

they reach the age of 18. This age limit applies at the time of the defendant’s relevant

conduct – either the conduct that caused the victim’s death, the conduct that directed or

controlled another person to kill the victim, or the conduct of entering into an agreement

with another person pursuant to which that person killed the victim – rather than at the

time of the victim’s death.

(4) The specific criteria for eligibility for the death penalty are usually termed

“aggravating circumstances.” The aggravating circumstances are defined as a required

element of the new crime of capital murder, which means that they must be found by the

jury, beyond reasonable doubt, as part of the guilt-innocence stage of the bifurcated capital

trial. Because some of the aggravating circumstances provided in this statute involve prior

crimes allegedly committed by the defendant, and because others involve matters that may

be unfairly prejudicial to the defense, the jury should be required to decide separately

whether the prosecution has proven beyond a reasonable doubt the basic requirements for

capital murder set forth in elements (1) through (3), and whether the prosecution has

proven beyond a reasonable doubt any of the six aggravating circumstances. In many

cases, there will be no need for the introduction of new evidence after the jury has found

elements (1) through (3), because all relevant evidence concerning the alleged aggravating

circumstances already will have been introduced; an additional round of closing arguments

and jury instructions will be sufficient. In most cases involving aggravating circumstances

(4)(e) and (4)(f), however, evidence about the defendant’s alleged prior crimes should not

be introduced until after the jury has found elements (1) through (3).

(4)(a) The first aggravating circumstance is murder committed as “an act of political

terrorism,” which is defined as murders that are committed for the purpose of attacking

the government of the United States or any political subdivision thereof. The definition

does not include acts of terrorism aimed at the general public rather than at the

government, because (1) it is difficult, if not impossible, to limit such a broader definition

of “terrorism,” so that it would not apply to too many murders, such as street-gang

murders designed to intimidate a neighborhood, and (2) in any event, most serious cases of

terrorism aimed at the general public would already qualify for the death penalty under

(4)(d), (4)(e), or (4)(f). The definition also does not include acts of terrorism designed to

attack the governments of other countries, because (1) such a broader definition of

“terrorism” might generate undesirable controversy, in the form of politically motivated

demands to apply the death penalty to controversial acts by U.S. military or government

personnel, and (2) in any event, most such acts are properly punishable either by the

countries targeted or under international criminal law.

(4)(b) The second aggravating circumstance is designed to reach murders committed for

the purpose of obstructing justice (as defined herein), or in retaliation for the victim’s role

in a prior criminal case. It includes both the murders of persons who play official roles

within the criminal justice system, such as police, judges, jurors, prosecutors, defense

attorneys, expert witnesses and the like, as well as the murders of crime witnesses or their

immediate family members, so long as the defendant either knew or believed that the

victim belonged to one of these two categories, and so long as the defendant possessed the

prohibited motive for the murder. This aggravating circumstance would not apply,

however, to a typical felony-murder case in which a defendant commits a crime such as

rape or robbery and then immediately murders the victim to prevent her from identifying

him, because such a victim was not a witness to a crime “committed on a prior occasion.”

(4)(c) The third aggravating circumstance is designed to reach a narrower category of

torture murders than the current “extreme atrocity or cruelty” language in the

Massachusetts statute defining “murder in the first degree.” This aggravating

circumstance is limited to (1) the infliction of extreme physical or psychological pain, (2)

for a prolonged period of time, (3) during or immediately prior to the murder, (4) against a

victim whom the defendant knew was still conscious, (5) that was “intentional,” meaning

that the defendant consciously desired to inflict such pain, and (6) that was “gratuitous and

depraved,” meaning that such pain went beyond that which necessarily accompanied the

act of killing itself, or resulted from the defendant’s intentional choice to use an especially

painful method of killing. All six of these sub-elements must be proven in order for the

defendant to qualify under this aggravating circumstance. Acts of sexual assault

committed against the victim immediately prior to the murder, such as forcible rape or

sodomy, may in particular cases qualify as the infliction of “extreme psychological pain.”

The limitation to torture “during or immediately prior to the murder” is intended to

exclude cases in which the defendant may have “tortured” the victim at a much earlier

time (e.g., a spousal murder in which there may have been earlier incidents of severe

physical or psychological domestic abuse). The limitation to “a victim whom the defendant

knew was conscious” is in direct response to existing Massachusetts case law, which has

held the “extreme atrocity or cruelty” language applicable even if the victim was

unconscious.

(4)(d) The fourth aggravating circumstance is for single-episode multiple murders. Each of

the murders must satisfy the basic requirements for “capital murder” set forth in sections

(1) through (3) of this statute. In particular, each of the murders must have been

committed by the defendant as a principal and with “deliberately premeditated malice

aforethought.” This aggravating circumstance thus would not include, for example, a case

in which the defendant’s act kills two victims, but only one of those killings was with

“deliberately premeditated malice aforethought.”

(4)(e) The fifth aggravating circumstance is for multiple murders that are not committed in

a single episode. Under this aggravating circumstance, the defendant would first have to

be prosecuted for one of the murders, and he would have to be convicted of murder in the

first degree (or the closest equivalent, if the first prosecution was in an American

jurisdiction other than Massachusetts). Then, in order for the defendant to become eligible

for the death penalty, the prosecution, in the later case, would have to prove not only that

the later murder satisfies the basic requirements for “capital murder” set forth in sections

(1) through (3) of this statute, but also that the previous murder satisfied those same basic

requirements.

(4)(f) The sixth and final aggravating circumstance is for a defendant who commits murder

while he is already subject to a sentence of imprisonment for life without the possibility of

parole for a prior murder in Massachusetts or another American jurisdiction. Regardless

of the circumstances of the prior murder, such a defendant must be eligible for the death

penalty, because otherwise he would have nothing more to lose. At the same time, the

death penalty cannot be mandatory even in such cases; the defendant must be allowed to

bring forward mitigating circumstances, and the jury must be allowed to exercise

sentencing discretion (see Sumner v. Shuman, 483 U.S. 66 (1987), in which the U.S.

Supreme Court invalidated Nevada’s attempt to impose a mandatory death penalty in such

cases). Within the context of the “capital murder” prosecution, the defendant must be

allowed to challenge the validity of his prior murder conviction, or his prior sentence, on

any legally permissible ground. This aggravating circumstance would apply without

regard to the American jurisdiction where the defendant was previously convicted of

murder and sentenced to imprisonment for life without the possibility of parole.

Defendants who are “mentally retarded” may not be convicted of capital murder or

sentenced to death, in compliance with the U.S. Supreme Court’s decision in Atkins v.

Virginia, 536 U.S. 304 (2002). The statutory definition of “mental retardation” is taken

directly from Atkins, which referenced both the AAMR and APA definitions of “mental

retardation.” The issue of the defendant’s mental retardation is an affirmative defense; the

defendant bears the burden of production with respect to possible mental retardation, but

the prosecution bears the ultimate burden of proof, beyond a reasonable doubt, on the

issue. In any event, however, the defendant also may raise possible mental retardation as a

mitigating circumstance at the sentencing stage of a capital murder trial.

If one of the goals is to devise a death-penalty system that limits the ultimate punishment to the

“worst of the worst” murders and murderers, then one of the most important aspects of such a

system must be the statutory list of “aggravating circumstances” that make a particular murder,

and murderer, eligible for the death penalty. This statutory list defines the scope of the death

penalty in each jurisdiction, because no crime that falls outside the list can be a capital crime.

In many jurisdictions today, the statutory list of “aggravating circumstances” has expanded to

the point that it now covers a substantial proportion, perhaps even more than half, of all firstdegree

murders. In California, for example, there are now 22 “special circumstances” that can

lead to the imposition of the death penalty. In Illinois, there are now 21 such “aggravating

factors”; the Governor’s Commission in that state recently acknowledged the possibility that,

“due to the large number of eligibility factors, nearly every first-degree murder in Illinois could

be eligible for the death penalty under one theory or another.”

This expansion of death-eligibility is understandable, but regrettable. It typically occurs because

particular heinous murders provoke a public demand for the death penalty, which in turn leads

responsive legislators to add new “aggravating circumstances” to the statutory list. This process

occurs repeatedly, and it is one-sided – new “aggravating circumstances” are added to the list,

but existing ones are never removed from the list.

The main problem with the expansion of death-eligibility is that the statutory list of “aggravating

circumstances” is the one and only place, in the entire death-penalty system, where substantive

limits can be imposed on the death penalty that are not discretionary. If the statutory list is

overly broad, then the discretionary decisions of prosecutors, judges, and juries must carry the

entire burden of ensuring that the death penalty is applied narrowly and reasonably consistently.

If the statutory list includes virtually all first-degree murders, then discretionary decision-makers

must carry the entire burden of selecting, from such a large pool, the small handful of the “worst

of the worst” murders for which the death penalty will be imposed. Moreover, discretionary

decision-makers often do not even get to see all of the cases in the pool – juries, for example, see

only one case, and thus cannot easily compare that case to other death-eligible crimes.

The same expansion of death-eligibility also contributes directly to the serious and welldocumented

problem of racial disparity in the application of the death penalty. When various

decision-makers within the criminal justice system, and especially the jury (whose decisions are

essentially unreviewable), possess too much discretion over capital sentencing within a large

pool of death-eligible murders, then overt and hidden prejudices can influence the decision. By

narrowly restricting the categories of death-eligibility to a small number of precisely defined and

extremely heinous murders, and thereby restricting the discretion of capital-case decisionmakers,

the problem of racial disparity can be addressed in the most meaningfully possible way.

The Council concluded that the burden of narrowing a large pool of death-eligible murders down

to the “worst of the worst” is simply too much to expect discretionary decision-makers to handle

effectively. We therefore adopted the following philosophy, with respect to the statutory list of

“aggravating circumstances”: No category of first-degree murders should be placed on the list,

and included within the scope of death-eligibility, unless the overwhelming majority of such

murders are among the most heinous of all crimes. In other words, the statutory list of

“aggravating circumstances” should include only those categories of first-degree murders in

which almost every individual case might be expected to be found by a jury to be among the

most heinous of all crimes.

The necessary corollary of this philosophy is that there will be some first-degree murders that

should be death-eligible, but will not be – because they fall within a category of first-degree

murder that does not comprise an “overwhelming majority” of the most heinous crimes. This

kind of inconsistency is inevitable in any death-penalty system, and should not be problematic.

If we are to have a narrow death penalty, then we must limit the death penalty by means of

narrowly defined “aggravating circumstances.” If this means that some of the most heinous

individual crimes will manage to avoid the death penalty, then so be it – because it is far more

important to ensure that the death penalty will not be applied too broadly than it is to ensure that

every one of the most heinous crimes will be eligible for the death penalty. For some of the

most heinous crimes, life imprisonment without the possibility of parole will have to suffice.

In this sense, the “aggravating circumstance” issue is no different from other practices that are

widely accepted in the American criminal justice system. No defendant can be convicted of a

crime if the admissible evidence of that defendant’s guilt is not sufficiently clear. In our

criminal justice system, we choose to err on the side of releasing defendants who may be guilty,

and who may deserve criminal punishment, because it is far more important to ensure that

criminal punishment will not be applied too broadly than it is to ensure that every deserving

defendant will receive criminal punishment. The same can, and should, be said for capital

punishment.

The Council proposes to identify the “worst of the worst” murders, and murderers, by defining a

new crime of “capital murder.” We propose to define the pool of death-eligible murders by

means of a new crime statute, rather than a separate capital sentencing law, because doing so

will help to exclude problematic cases earlier in the process. It will also allow the “guiltinnocence”

stage of the bifurcated capital trial to focus on the facts of the crime and the possible

existence of “aggravating circumstances,” and will reserve the “sentencing” stage for the issue of

whether the defendant deserves the death penalty, especially in light of possible “mitigating

circumstances.”

We propose to limit the new crime of “capital murder,” and thus the death penalty, to defendants

who commit first-degree murder either through their own conduct, or through the conduct of

another person whom they directed or controlled, or with whom they entered into an agreement

to commit the murder. This would exclude mere accomplices or “joint venturers.” We propose

to limit the death penalty to defendants who acted with “deliberately premeditated malice

aforethought” (as that term is defined in Massachusetts law). We propose to limit the death

penalty to defendants whose relevant conduct occurred after they had already reached the age of

18, and to defendants who are not mentally retarded (as defined by the U.S. Supreme Court in

the recent case of Atkins v. Virginia, 536 U.S. 304 (2002)).

Finally, we propose further to limit the new crime of “capital murder” to the three categories of

death-eligible murders identified by the Governor in his charge to the Council – (1) murder as an

act of political terrorism, (2) murder to obstruct justice, and (3) narrowly defined torture-murder

– plus three additional categories that, in the view of the Council, manifest the same extreme

degree of evil – (4) multiple murder in a single episode, (5) multiple murder in more than one

episode, and (6) murder by a defendant who is already subject to a sentence of life imprisonment

without possibility of parole for a prior murder.

(2) Appropriate Controls Over Prosecutorial Discretion in Potentially Capital Cases

The District Attorneys’ Association should develop a uniform set of protocols for the

exercise of prosecutorial discretion in potentially capital cases in the Commonwealth of

Massachusetts. These protocols should address both the substantive factors that should

influence this exercise of prosecutorial discretion, and the procedures that should be

followed in connection with this exercise of prosecutorial discretion.

Under the authority granted by Massachusetts G.L. c.12, §27, as construed and affirmed

by the Massachusetts Supreme Judicial Court in Commonwealth v. Kozlowsky, 238 Mass.

379, 131 N.E. 207 (1921), and subsequent cases, the Attorney General should review all

exercises of prosecutorial discretion by District Attorneys in potentially capital cases, and

should take appropriate actions to ensure the consistent application of the death penalty

throughout the Commonwealth of Massachusetts. The Attorney General should develop a

set of protocols for this review, which should address both the substantive factors that

should influence this review and the procedures that should be followed in connection with

this review.

Just as no death-eligibility statute can be drafted precisely enough to cover every individual

crime, or individual defendant, that may deserve the death penalty, neither can such a statute be

drafted precisely enough to exclude every individual crime, or individual defendant, that does

not deserve the death penalty. This problem is inherent in the nature of legal rules – they are

always both over-inclusive and under-inclusive. Even a narrowly tailored death-eligibility

statute, such as the one proposed above, is incapable of appropriately restricting the scope of the

death penalty without the help of thoughtful exercise of prosecutorial discretion.

In America, prosecutorial discretion is properly considered to be an essential component of

justice, moderating and fine-tuning the criminal laws to suit the facts and circumstances of

individual cases. Such discretion is generally exercised by local prosecutors, who are directly

elected or otherwise politically accountable to local voters, and thus serves also to keep the

enforcement of the criminal laws in tune with the basic values of the local community. These

advantages of prosecutorial discretion are important, and should not be diminished.

At the same time, in the special context of the death penalty, it is essential to ensure that local

prosecutorial discretion is exercised in a reasonably rational and consistent manner, so that – as

much as humanly possible – like cases are treated alike, and different cases are treated

differently. This basic principle was central to the U.S. Supreme Court’s modern constitutional

mandate for capital punishment, as expressed in Furman v. Georgia, 408 U.S. 238 (1972), and

Gregg v. Georgia, 428 U.S. 153 (1976), and it remains a constitutional requirement for all capital

sentencing systems today.

In addition, because the death penalty is imposed in the name of all of the people of the relevant

state, it is essential – as a matter of policy, even if not necessarily of constitutional law – to

ensure that the ultimate punishment is administered in a manner that is reasonably consistent

across the entire state. In other words, it should be unacceptable for a particular murder to be a

capital crime in one part of the state, but not in a different part of the state. Such geographic

variations, with respect to the application of a punishment as uniquely controversial as the death

penalty, cannot be justified by traditional arguments for local prosecutorial discretion.

We propose to maintain the benefits of local prosecutorial discretion by largely preserving such

discretion, but to limit such discretion in two significant ways, in the special context of the death

penalty. First, local prosecutors should be required to work together to establish state-wide

protocols for both the substantive factors that will guide, and the procedures that will be

followed in, the exercise of such discretion. Second, the Attorney General should review all

exercises of local prosecutorial discretion in potentially capital cases. This state-level review,

which is already specifically authorized by existing Massachusetts statutory and case law, and

which should also be conducted pursuant to protocols established for such purpose, can help to

ensure the reasonably rational and consistent application of the death penalty.

(3) A System to Ensure High-Quality Defense Representation in Potentially Capital Cases

A list of “capital-case qualified” defense lawyers should be established and maintained by

the Committee for Public Counsel Services (CPCS), pursuant to policies and procedures

established by the Supreme Judicial Court of Massachusetts. This list should include only

those defense lawyers who meet rigorous standards of experience, capital-case training,

and exemplary performance. These rigorous standards should include, at a minimum, the

following:

Experience

(1) Number of years of criminal litigation experience

(2) Experience with plea bargaining in homicide cases

(3) Experience with expert testimony and scientific evidence (including medical,

forensic, psychiatric, pathological, and DNA evidence)

(4) Experience with all aspects of criminal litigation (including pre-trial, trial,

appellate, and post-conviction)

(5) Number of felony jury trials to verdict

(6) Number of homicide trials to verdict

(7) Prior capital case experience

Capital-Case Training

(1) All relevant state, federal, and international law

(2) Investigative techniques and strategies

(3) Investigative support, including investigation of mitigation evidence

(4) Arrest, interrogation, evidence-collection, evidence-handling, evidence-testing, and

chain of custody issues

(5) Issues relating to human evidence, including the special problems of line-ups,

eyewitness testimony, informant testimony, and defendant statements resulting

from interrogation

(6) Issues relating to expert testimony and scientific evidence, including medical,

forensic, psychiatric, pathological, and DNA evidence

(7) Issues relating to exculpatory evidence in possession of the prosecution

(8) Issues relating to the defendant’s prior criminal history

(9) Dealing with “tunnel vision” and “confirmatory bias”

(10) Pleading and motion practice

(11) Pre-trial strategies

(12) Jury selection

(13) Trial preparation

(14) Coordination of guilt-innocence and sentencing strategies

(15) Preserving issues for appellate and habeas review

(16) Presentation of mitigating evidence

(17) Communicating effectively with the defendant, family, and friends

(18) Dealing with a potentially disruptive or recalcitrant defendant

Exemplary Performance

(1) Written descriptions of pre-trial strategy and advocacy

(2) Trial memoranda of law, appellate briefs, post-conviction petitions

(3) Proposed jury instructions prepared by counsel

(4) Sentencing transcripts, pre-sentence memoranda, or written descriptions of

sentencing strategy and advocacy

(5) Written descriptions of effective collaboration with co-counsel or counsel for codefendant

(6) References from prosecutors, other defense counsel, judges

(7) Participation in continuing legal education related to capital cases

These rigorous standards should be developed with an appropriate awareness of the fact

that, at the outset, few Massachusetts defense lawyers will have had prior capital-case

experience or capital-case training. Such particular requirements, therefore, may need to

be phased in over a reasonable time.

An indigent defendant in a potentially capital case should be provided with at least two

appointed defense lawyers to represent him at trial. A non-indigent defendant in a

potentially capital case who can afford only one privately retained defense lawyer should

be provided with a second, appointed defense lawyer to represent him at trial. Both the

“first chair” and “second chair” defense lawyers at the trial of a capital case, whether such

lawyers are appointed or privately retained, should be required to be certified as “capitalcase

qualified,” unless the Superior Court approves the defendant’s request for a waiver of

certification on the ground that such waiver is consistent with the need for high-quality

defense representation at trial in the particular capital case. An expedited certification

procedure should be established, so that a defense lawyer who meets the standards for

certification as “capital-case qualified,” but who is not yet so certified, may obtain

certification in order to represent the defendant in a particular capital case.

A defendant who seeks to waive his constitutional right to counsel, and represent himself,

should be discouraged from doing so in the strongest possible terms, consistent with the

U.S. Supreme Court’s decision in Faretta v. California, 422 U.S. 806 (1975). In all such

cases, if the defendant is permitted to waive his constitutional right to counsel, the trial

judge should appoint at least two “standby” counsel. All such “standby” counsel should be

required to be certified as “capital-case qualified,” unless the Superior Court approves the

appointment of a non-certified “standby” counsel on the ground that such appointment is

consistent with the need for high-quality performance as “standby” counsel during trial in

the particular capital case.

An indigent defendant who is convicted and sentenced to death should be provided with an

appointed defense lawyer to represent him at all post-trial proceedings, including the direct

appeal as well as any state or federal post-conviction proceedings. This appointed defense

lawyer, for post-trial proceedings, should not be one of the same lawyers who represented

the defendant at trial, unless a single Justice of the Massachusetts Supreme Judicial Court

approves the defendant’s request for waiver of this requirement on the ground that such

waiver is consistent with the need for high-quality defense representation in post-trial

proceedings in the particular capital case. Any defense lawyer who represents, in a posttrial

proceeding, a defendant who has been convicted and sentenced to death, whether such

lawyer is appointed or privately retained, should be required to be certified as “capitalcase

qualified,” unless a single Justice of the Massachusetts Supreme Judicial Court

approves the defendant’s request for a waiver of certification on the ground that the

particular defense lawyer meets the standards for certification with the exception of trialrelated

experience, training, and/or exemplary performance, and that such waiver is

consistent with the need for high-quality defense representation in post-trial proceedings in

the particular capital case.

The specific policies and procedures for the appointment of defense counsel in post-trial

proceedings in capital cases should be developed and applied in such a manner as to satisfy

the special requirements set forth in 28 U.S.C. §§ 2261 et seq.

All appointed defense lawyers in potentially capital cases, at every stage of the case, should

receive adequate compensation, and should be provided with adequate funding for all

reasonable expenses relating to the investigation, preparation, and handling of the case,

including adequate funding to hire properly certified experts to assist with the defense.

One of the most important, yet frequently overlooked, aspects of the capital case is the quality of

defense representation. In the past, many of the problems that have occurred in capital cases,

and many of the inaccurate outcomes, can be traced directly to the fact that the defendant was

represented at trial by a defense lawyer who was overworked, underpaid, inexperienced, less

than fully competent, and/or unprepared to handle such a uniquely complex and stressful case.

Indeed, post-trial litigation in capital cases frequently focuses heavily on claims that the

defendant’s trial counsel was constitutionally ineffective; such claims tend to predominate partly

because many other kinds of legal claims have been severely restricted, especially in the context

of federal habeas corpus review, but also partly because (at least until recently) quality defense

representation at trial often was the exception, rather than the rule, in capital cases.

In recent years, several states have taken significant steps to reform their systems of defense

representation in capital cases. These states have recognized that, although such reform is often

expensive, it actually saves significant public money in the long run, by helping to ensure that

weak capital cases are excluded from eligibility for the death penalty at an early stage. Some of

the states whose recent reform efforts in this regard have been widely praised include New York,

Illinois, and Indiana.

We drew heavily upon such recent reforms in designing a high-quality defense representation

system for Massachusetts capital cases. We recommend that, with very limited exceptions,

every defense lawyer in a capital case – whether appointed or privately retained, or serving as

“standby” counsel for a defendant who exercises the Faretta right to self-representation at trial –

must be certified as “capital-case qualified,” and must appear on a list of such defense lawyers

that will be established and maintained by the Committee for Public Counsel Services, pursuant

to policies and procedures established by the Supreme Judicial Court of Massachusetts. To be

“capital-case qualified,” a defense lawyer must meet rigorous standards of experience (including

capital-case experience), training (specific to capital cases), and exemplary performance. Of

course, in the early years of a new death-penalty system, it may be difficult to find enough

defense lawyers who have had any experience with, or training about, capital cases; nevertheless,

we believe that it is important to require such experience and training, and we are confident that

the Massachusetts Supreme Judicial Court can develop appropriate means to phase in such

rigorous standards.

We propose to extend the defendant’s right to appointed counsel, based on indigency, from the

capital trial to all post-trial proceedings in a capital case, including not only the direct appeal but

also all state and federal post-conviction proceedings. We also propose that the defendant

should receive an appointed defense lawyer, for post-trial purposes, who was not one of the

lawyers who represented the defendant at trial. This requirement helps to ensure that the

performance of the trial lawyers will be reviewed appropriately during the post-trial proceedings.

In addition, this requirement satisfies a key provision of the federal habeas corpus statute,

28 U.S.C. §§2261 et seq., which creates a new and streamlined version of federal habeas corpus

review for capital cases, so long as the relevant state has adopted a compliant system to ensure

high-quality defense representation in state post-conviction proceedings. We intend for the

Massachusetts system of defense representation to be the first in the nation to satisfy this new

federal standard.

The defendant in a capital case may request a waiver of the “capital-case qualified” certification

requirement, as well as a waiver of the requirement that appointed post-trial defense counsel be

different from the lawyers who represented the defendant at trial. The relevant court may

approve such requests for waiver, however, only in very limited situations, and only if such

waiver is consistent with the need for high-quality defense representation. A similar exception

applies to the appointment of “standby” counsel in self-representation cases.

(4) New Trial Procedures to Avoid the Problems Caused by the Use of the Same Jury for

Both Stages of a Bifurcated Capital Trial

At the end of the guilt-innocence stage of the capital trial, if the defendant is convicted of

capital murder, the defendant should have the right to request the selection of a new jury

for the sentencing stage. If the defendant exercises this right, then the defendant should be

deemed to have waived the issue of residual or lingering doubt about guilt, and should not

be allowed to raise such an issue during the sentencing stage.

At the start of the sentencing stage, if a new jury has been selected, the prosecution shall be

permitted to present otherwise admissible evidence to the new jury to the extent reasonably

necessary to inform the new jury about the nature and circumstances of the crime,

including each of the elements set forth in sections (1) through (4) of the capital murder

statute that were found by the original jury at the guilt-innocence stage, and to allow the

new jury to determine the appropriate weight to be given to these facts in deciding the

sentence. The new jury shall be instructed that each of the elements of capital murder that

were found by the original jury at the guilt-innocence stage shall be deemed established

beyond a reasonable doubt for purposes of the sentencing stage, but that any additional

facts elicited by the prosecution at the sentencing stage that are not essential to the verdict

of guilty of capital murder shall not be deemed established beyond a reasonable doubt.

The new jury should not be told whether the defendant contested his guilt during the guiltinnocence

stage.

Capital trials have been bifurcated into a “guilt-innocence” stage and a “sentencing” stage since

before the landmark U.S. Supreme Court case of Furman v. Georgia, 408 U.S. 238 (1972). In

McGautha v. California, 402 U.S. 183 (1971), decided a year before Furman, the Court

expressed support for the idea of bifurcated capital trials, even though it held that bifurcation

was not constitutionally required. Bifurcation means that the jury will focus on the defendant’s

factual guilt, and on the nature of the crime, during the guilt-innocence stage, and will turn its

attention to the defendant’s life history, any mitigating circumstances that may exist, and the

deservedness of a death sentence only at the sentencing stage. Bifurcation also presents the

defendant with the opportunity, at least in theory, to protest his innocence at the guilt-innocence

stage, but to accept responsibility for the crime and express remorse at the sentencing stage.

Bifurcation thus helps to ensure both accurate guilt determinations and fair sentencing decisions.

No matter what the theory of bifurcation may hold, however, in an actual capital case the

defendant often faces an insurmountable strategic dilemma. If he exercises his constitutional

right to contest the prosecution’s case at the guilt-innocence stage, and even more so if he

actively protests his innocence, then he seriously undermines the credibility of any efforts to take

responsibility or to express remorse at the sentencing stage – because the same jury generally has

already observed his denials of responsibility at the guilt-innocence stage. The use of two

defense lawyers (one for the guilt-innocence stage, and another for the sentencing stage) slightly

mitigates this strategic dilemma, but does not eliminate it.

We propose that, in Massachusetts, if the defendant is found guilty at the guilt-innocence stage,

he should have the right to choose whether to proceed to the sentencing stage with the original

jury, or to have a new jury selected for the sentencing stage. This would allow the defendant to

make a meaningful choice, at the sentencing stage, between two possible strategies: continuing

to contest the proof of his guilt (although, after the conviction, this would be limited to the issue

of residual or lingering doubt), in which case the defendant would choose to proceed with the

original jury; or accepting responsibility and expressing remorse for the crime, in which case the

defendant would choose to proceed with a new jury that would be unaware of any denials of

responsibility that he, or his lawyer, may have made at the guilt-innocence stage.

If such a new jury is selected for the sentencing stage, then the prosecution must be allowed to

present to the new jury at least some of the evidence that was introduced during the guiltinnocence

stage of the trial, so that the new jury can appropriately weigh the nature of the crime

and the aggravating circumstances against any mitigating circumstances that may be offered by

the defendant during the sentencing stage. It is not possible to specify in advance exactly how

much of this evidence will need to be presented to the new jury at the sentencing stage; in each

particular capital case, this decision must be left to the sound discretion of the trial judge. Such

situations are not unusual, however, in other states today; they arise every time a death sentence

– but not the underlying conviction – is set aside on appeal or by a habeas corpus court, and the

prosecution seeks to convince a new sentencing jury to re-impose the death penalty.

(5) Special Jury Instructions Concerning the Use of Human Evidence to Establish the

Defendant’s Guilt

At the guilt-innocence stage of the capital trial, and again at the sentencing stage, unless the

issue of residual or lingering doubt is waived by the defendant, the jury shall, if requested

by the defense, be instructed about the following known limitations of human evidence, to

the extent that such human evidence has been introduced in the particular case:

(1) eyewitness testimony, even from a confident eyewitness, may be unreliable, especially in

connection with extremely emotional events such as a murder, and should therefore be

evaluated with great care; (2) cross-racial eyewitness identifications may be particularly

unreliable; (3) statements made by the defendant while in police custody are not always

inherently reliable, and should therefore be evaluated with care; (4) ideally, statements

made by the defendant while in police custody should be contemporaneously audio- or

video-recorded in their entirety, and the lack of such a recording should be considered

when evaluating the reliability of such a statement; and (5) statements made by

codefendants or informants, especially when the codefendant or informant receives or

hopes to receive any benefit from the state (such as reduction of a criminal charge or

sentence), may be unreliable, and should therefore be evaluated with great care. If any

statement by a codefendant or informant was introduced in the particular case, and if the

codefendant or informant received any benefit from the state in exchange for the

statement, the jury should be told about the benefit.

Studies of recent mistakes in capital cases, in Illinois and elsewhere, have identified several

common themes that were present in many, if not most, of the cases. One of the common

themes was the heavy reliance on certain kinds of human evidence, or evidence provided by

human witnesses, to establish the defendant’s guilt. Although juries often tend to place great

emphasis on such human evidence, scientific research, as well as recent experience, has

demonstrated that much of this human evidence is not nearly as reliable as juries may think it is.

We therefore propose several limits on the use of human evidence to establish the defendant’s

guilt in potentially capital cases. These limits consist of explicit warnings to the jury, at both the

guilt-innocence and sentencing stages of the trial, that highlight the known problems with such

evidence, thereby reducing the tendency of juries to rely too heavily on it.

The first kind of human evidence that should be so limited is eyewitness testimony. Scientific

research has documented that such testimony, no matter how confident the eyewitness may seem

to be, is often unreliable. We propose that juries in capital cases be instructed that eyewitness

testimony may be unreliable, especially in connection with an extremely emotional event such as

a murder, and that this is a particularly severe problem for cross-racial eyewitness

identifications.

The second kind of human evidence that should be limited is any statement made by the

defendant while in police custody. Although such statements are often highly reliable, and may

even constitute the best evidence of the defendant’s guilt, recent experience also demonstrates

that this is not always so. In some cases, perhaps because of the intense desire to solve a heinous

murder, either inadvertent or deliberate pressure has been placed on a defendant by the police in

order to secure such a statement. We propose that juries in capital cases be instructed that

statements made by the defendant while in police custody are not always inherently reliable. We

also propose that juries be instructed that the failure of the police to contemporaneously audioor

video-record the entirety of such a statement should be considered when evaluating the

reliability of such a statement. Although a strict requirement of audio- or video-recording would

be beyond our purview, we hope to encourage such audio- or video-recording.

The third kind of human evidence that should be limited is any statement made by a codefendant

or informant. The main problem with such statements is that they are often made pursuant to a

promise, or with the hope, that the state will grant a benefit (such as reduction of a criminal

charge or sentence) in exchange for the statement. We recommend that juries in capital cases be

instructed that such statements may be unreliable. We also recommend that juries be instructed

about any benefit that is received from the state in exchange for such a statement.

(6) A Requirement of Scientific Evidence to Corroborate Guilt

At the sentencing stage of the capital trial, as a prerequisite to the imposition of the death

penalty, and regardless of whether or not the defendant has waived the issue of residual or

lingering doubt, the jury should be required to find that there is conclusive scientific

evidence (i.e., physical or other associative evidence), reaching a high level of scientific

certainty, that connects the defendant to either the location of the crime scene, the murder

weapon, or the victim’s body, and that strongly corroborates the defendant’s guilt of

capital murder.

Within the context of this requirement, “physical or other associative evidence” includes

any tangible image, object, or item that can be independently examined for the purpose of

obtaining useful investigative information, or for rendering an interpretation relevant to a

fact at issue in the particular capital murder case.

Not all “physical or other associative evidence” will be capable of satisfying the

requirement of conclusive scientific evidence, reaching a high level of scientific certainty,

that adequately connects the defendant to the crime. Moreover, not all individual cases

will involve evidence of sufficient quantity and quality to satisfy this requirement. While

the current benchmark for the kind of “physical or other associative evidence” that can

satisfy this recommendation is a full single-source DNA profile, other categories of

“physical or other associative evidence” may be capable of providing conclusive

associations of suspects, victims, crime scenes, and/or the implements of crime. These

include photographs, video- and audio-tapes, fingerprints, and certain impression evidence

(e.g., some footwear impressions, tire impressions, tool marks, firearms-related

impressions, and other physical pattern matches). These categories are provided only as

illustrative examples; other categories of scientific evidence may also satisfy, either now or

in the future, the requirement of conclusive “physical or other associative evidence.”

We recommend that, as a prerequisite to the imposition of the death penalty, the defendant’s

guilt must be corroborated by the reliable and valid collection, analysis, and interpretation of

physical or other associative evidence, conclusively linking the defendant to the crime.

This recommendation includes several aspects. First, it means that there can be no serious

problems with the collection, analysis, or preservation of such physical or other associative

evidence. This aspect of the recommendation should be applied in light of our related proposal,

infra, that all physical or other associative evidence in a capital case must be evaluated by an

Independent Scientific Review panel of independent experts who will examine issues relating to

the collection, analysis, and preservation of such evidence.

Second, the physical or other associative evidence must conclusively link the defendant to either

the murder scene, the murder weapon, or the victim’s body.

Finally, the evidence must “strongly corroborate” the defendant’s guilt. The Council is fully

mindful of the reality that, in a particular case, even a conclusive, scientifically certain link

between the defendant and some aspect of the physical evidence relating to the crime might not

necessarily “strongly corroborate” the defendant’s guilt. For example, in a case where the

defendant and the victim were spouses or otherwise intimates, a link between the defendant and

the victim’s body may be virtually inevitable, and, therefore, may not “strongly corroborate” the

defendant’s guilt. In such a case, it may not be possible to impose a death sentence – unless

physical or other associative evidence also links the defendant directly to the murder scene, the

murder weapon, or another location, object, or person directly related to the crime.

The requirement of physical or other associative evidence “strongly corroborating” guilt would

be imposed at the sentencing stage of the trial, after the defendant has already been found guilty

of the crime. This means that, in a legal sense, a defendant may be proven guilty of a murder at

a sufficient level of certainty (i.e., proof “beyond reasonable doubt”) to receive a sentence of life

imprisonment without possibility of parole, but not at a sufficient level of certainty to receive a

death sentence. Thus, this requirement acknowledges the possibility (hopefully quite remote)

that defendants in non-capital criminal cases may be convicted and sentenced to lengthy prison

terms even though they are, in fact, innocent. While this is, of course, very troubling, at least in

a non-capital case it is always possible for the justice system to correct such mistakes. In capital

cases, however, it is absolutely essential to ensure the accuracy of the guilt-innocence

determination in the first instance, so that no innocent person ever receives a sentence of capital

punishment.

Furthermore, this requirement of conclusive physical evidence would apply to all capital cases,

including those in which the defendant has waived the issue of residual or lingering doubt at the

sentencing stage. We believe that this particular requirement should not be subject to waiver by

the defendant, because society itself has a compelling interest in ensuring that no innocent

person ever receives a sentence of capital punishment.

(7) A Heightened Burden of Proof to Enhance the Accuracy of Jury Decision-Making

At the sentencing stage of the capital trial, as a prerequisite to the imposition of the death

penalty, and unless the issue of residual or lingering doubt is waived by the defendant, the

jury should be required to find that there is “no doubt” about the defendant’s guilt of

capital murder. In connection with this requirement, the jury should be instructed that,

even after finding the defendant guilty of capital murder “beyond a reasonable doubt,” it is

possible that one or more jurors may still harbor a residual or lingering doubt about the

defendant’s guilt, and that the existence of such doubt – whether held individually or

collectively – is sufficient to preclude the imposition of the death penalty.

Evidentiary limitations and requirements notwithstanding, our system of criminal justice

necessarily depends on the wisdom of juries to make accurate decisions about guilt or innocence.

We know, however, that in at least some recent capital cases, juries have made mistakes. For

this reason, we propose to add a new and heightened burden of proof at the sentencing stage of a

capital trial. Under this heightened burden of proof, even after the jury has found the defendant

guilty of capital murder “beyond a reasonable doubt” at the guilt-innocence stage of the trial, it

would be required further to find at the sentencing stage, as a prerequisite for a death sentence,

that there is “no doubt” about the defendant’s guilt. In other words, before imposing the death

penalty, the jury would be required to find the absence of any “residual” or “lingering” doubts

about the defendant’s guilt.

The concept of residual or lingering doubt has been discussed in numerous court cases, most

notably by the U.S. Supreme Court in Lockhart v. McCree, 476 U.S. 162 (1986). There, the

Court stated:

“Iin at least some capital cases, the defendant might benefit at the sentencing

phase of the trial from the jury’s ‘residual doubts’ about the evidence presented at

the guilt phase.”

Similarly, the U.S. Court of Appeals for the Fifth Circuit, in Smith v. Balkcom, 660 F.2d 573 (5th

Cir. 1981), explained:

“There may be no reasonable doubt – doubt based on reason – and yet some

genuine doubt exists. It may reflect a mere possibility; it may be the whimsy of

one juror or several. Yet this whimsical doubt – this absence of absolute certainty

– can be real.”

Although at least six states, including California, Connecticut, and Tennessee, currently allow

capital-case juries to consider residual or lingering doubt at the sentencing stage of the trial, the

U.S. Supreme Court has declined to mandate such consideration as a part of the constitutionally

required consideration of mitigating circumstances. We propose, however, to elevate the

concept of residual or lingering doubt to the forefront of the jury’s deliberation at the sentencing

stage, because of its potential value in preventing substantive mistakes. If any jurors,

individually or collectively, harbor such residual or lingering doubt about the defendant’s guilt,

then a death sentence may not be imposed.

We acknowledge that it may be confusing for the jury to be asked to apply one burden of proof

at the guilt-innocence stage, and then a different burden of proof at the sentencing stage. In

addition, after finding the defendant guilty “beyond a reasonable doubt,” the jury may be

inclined to downplay (or even to deny outright) the existence of any residual or lingering doubt,

because such doubt may seem inconsistent with the guilty verdict the jury has already rendered.

For these reasons, we propose to explain forthrightly to the jury, at the sentencing stage, the

concept of residual or lingering doubt, so that any jurors who may feel such doubt will know that

their feelings are appropriate and worthy of consideration.

(8) Independent Scientific Review of the Collection, Analysis, and Presentation of Scientific

Evidence

The Council recommends that the Massachusetts Supreme Judicial Court should initiate a

formal process to ensure the Independent Scientific Review (ISR) of physical or other

associative evidence in every capital case in which a sentence of capital punishment is

imposed. We recommend that the Court first appoint an ISR Advisory Committee,

reporting to the SJC, with responsibility for drafting, adopting, and updating general

policies relating to ISR, establishing criteria for ISR in particular cases, selecting

independent forensic-science experts to conduct case-specific ISR, and monitoring the

ongoing effectiveness of ISR. Members of the ISR Advisory Committee should be selected

by the SJC, from a list of nominees submitted by the Governor, and should be recognized

experts in the evaluation of forensic evidence. If any appointed member of the ISR

Advisory Committee is employed by a Commonwealth crime laboratory, s/he should not

participate in any ISR review or ISR panel selection in any capital case with which his/her

laboratory had any involvement.

We recommend that, as part of its charge, the ISR Advisory Committee consider policies to

require that all crime laboratories, medical-examiner offices, and forensic-service

providers who are involved in any death-eligible homicide investigation or homicide trial in

Massachusetts must be accredited by the appropriate accrediting organization, if available.

The ISR Advisory Committee should also develop policies with respect to the

qualifications of individuals who work for crime laboratories, medical-examiner offices,

and forensic-service providers in connection with any death-eligible homicide investigation

or homicide trial in Massachusetts. Given the wide diversity of areas of expertise, and the

unforeseeable types of expertise needed in a particular case, formal certification will not

necessarily be possible or required. We recommend that policies with respect to the

accreditation of medical-examiner offices, and the certification of individuals who work for

such offices, should be developed in coordination with members of the Massachusetts

Commission on Medicolegal Investigation. The above recommendations should not

prevent legal counsel representing any criminal defendant from utilizing any person,

otherwise qualified, as an expert in connection with the investigation, hearing, or trial of a

criminal case.

We further recommend that at the end of any capital murder trial, if the defendant is

convicted and sentenced to death, the ISR Advisory Committee should then appoint an ISR

Panel that includes independent members from each forensic-science sub-discipline

relevant to the particular case. Members of this panel should be selected from among

recognized experts not employed by the Commonwealth’s state or city crime laboratories.

They might include independent experts employed by federal or state laboratories outside

the Commonwealth, academics, or other suitable experts. This ISR Panel should conduct a

thorough review of the collection, handling, evaluation, analysis, preservation, and

interpretation of, and testimony and all other matters relating to, physical or other

associative evidence in the particular case. This review should be conducted pursuant to

the policies adopted by, and using the review criteria established by, the ISR Advisory

Committee. This review should, at a minimum, address the following questions:

(1) whether the integrity of the evidence was sufficient to allow for consideration of

subsequent procedures; (2) whether the appropriate guidelines and standards of practice

were followed for the crime scene and autopsy procedures; the recognition, documentation,

recovery, packaging, and preservation of the evidence; the examination and comparison of

evidence; the interpretation and reporting of results; and the reconstruction by experts

relying on other examinations and reports; (3) whether any new research or novel science

played a role, and if so, whether it was appropriately documented and provided for review

under the relevant legal standard; and (4) whether the retrospective ISR process, using

contemporary standards, revealed any specific scientific or technical issues requiring

additional information, or suggesting that errors may have been made. A copy of the ISR

Panel’s report should be provided, in a timely fashion, to the trial judge, prosecutor, and

defense attorney, as well as to the Massachusetts Supreme Judicial Court.

Adequate funding should be available to support all ISR activities, and to provide

appropriate compensation for service on either the ISR Advisory Committee or on a casespecific

ISR Panel of independent experts.

We wish to emphasize the centrality of forensic-science evidence to our recommendations,

which makes it crucial to ensure, as much as humanly possible, that such evidence is collected,

handled, evaluated, analyzed, interpreted and preserved according to the highest standards of the

medical and scientific community. In the past, unfortunately, these highest standards have not

always been met by some of those engaged in the “front lines” of criminal investigation. Serious

problems, including both inadvertent errors of omission and commission, as well as deliberate

and conscious acts of wrongdoing, have arisen in crime laboratories, medical-examiner offices,

and forensic-service providers around the country. This not only undermines the public trust in

the criminal justice system, but can contribute significantly to erroneous verdicts in death

penalty cases.

We propose to create a process for independently reviewing and evaluating scientific evidence in

all capital cases. The key to this new process is that it will operate on a completely independent

basis – not only independent of the adversarial forces of the prosecution and defense, but also

independent of the existing investigative structures of police crime laboratories, medicalexaminer

offices, and forensic-service providers.

This new process we recommend would be called “Independent Scientific Review” (ISR). It

should be initiated by the Massachusetts Supreme Judicial Court, and should be conducted under

the supervision of an Independent Scientific Review Advisory Committee. The ISR Advisory

Committee should adopt general policies with respect to the qualifications of all crime

laboratories, medical-examiner offices, and forensic-service providers contracted by the

Commonwealth operating in connection with any death-eligible homicide investigations or

homicide trials in Massachusetts, and also with respect to the qualifications of all individuals

employed by such entities. The ISR Advisory Committee also should establish policies for ISR

review in capital cases, and should monitor the operation of the ISR review process over time, so

that any necessary changes or adjustments to the process can be made in the most appropriate

manner.

At the end of every case that results in the imposition of a death sentence, the ISR Advisory

Committee should recommend the appointment of an Independent Scientific Review Panel,

containing members with recognized expertise in each field of forensic science relevant to the

particular case. Members of the ISR Panel, in turn, should review all issues relating to the

collection, analysis, and presentation of scientific evidence, and should make a comprehensive

and timely report of their findings to the trial judge, prosecutor, defense counsel, and the

Massachusetts Supreme Judicial Court.

The ultimate goal of the ISR review process is not only to evaluate the reliability of scientific

evidence in particular capital cases, but also to provide a strong incentive for systematic reforms

across the forensic science community. Laboratory accreditation, credentialing of laboratory

personnel and investigators, and independent review of scientific evidence will hopefully

become a routine part of the overall criminal justice system. The ISR review process can help to

ensure that such meaningful reforms are undertaken as quickly as possible.

(9) Broad Authority for Trial and Appellate Courts to Set Aside Wrongful Death Sentences

Before trial, the trial judge should examine carefully the aggravating circumstances that

were identified by the prosecution as a basis for the capital murder prosecution, and

should dismiss the capital murder charge if such aggravating circumstances are not

supported by legally sufficient evidence; in such a case, the charge should be reduced to

first-degree murder, and the jury should not be death-qualified.

After trial, the trial judge should exercise the authority granted by Massachusetts Rules of

Criminal Procedure, Rule 25(b)(2), to set aside the verdict of guilt of capital murder and

the corresponding death sentence, and direct the entry of a verdict of guilt of first-degree

murder, whenever the trial judge finds the death sentence to be inappropriate on any basis

in fact or law, including the trial judge’s disagreement with the exercise of capital

sentencing discretion by the jury. This authority under Rule 25(b)(2) should be broadly

construed.

All cases in which the death sentence is imposed should be subject to mandatory appellate

review by the Massachusetts Supreme Judicial Court. Such appellate review should not be

subject to waiver by the defendant.

As part of this mandatory appellate review, in addition to the review of any legal issues

properly raised, the Massachusetts Supreme Judicial Court should exercise the substantive

review authority granted by Massachusetts GL ch. 278, § 33E, to set aside the verdict of

guilt of capital murder and the corresponding death sentence, and direct the entry of a

verdict of guilt of first-degree murder, whenever the Court finds that “the verdict was

against the law or the weight of the evidence, or because of newly discovered evidence, or

for any other reason that justice may require.” The Court should exercise this substantive

review authority, and set aside the death sentence, whenever the Court finds the death

sentence to be inappropriate on any basis in fact or law, including the Court’s

disagreement with the exercise of capital sentencing discretion by the jury. This

substantive review authority should be broadly construed, and should be exercised by the

Court without regard to any procedural default rules or other procedural barriers to

review, including the defendant’s failure to raise an issue properly in prior proceedings.

One of the traditional methods to correct any mistakes that may occur at trial is judicial review.

Judicial review of a death sentence can take place in many different settings, but the trial judge is

certainly in the best position both to prevent an inappropriate case from being tried as a capital

case in the first instance, and to act promptly, after trial, to correct any mistakes that may have

been made by the jury. Trial judges should be encouraged to act, before trial, to reduce a capitalmurder

charge to a first-degree murder charge if the evidence is legally insufficient to establish

the existence of an aggravating circumstance; this can ameliorate the negative effects of deathqualifying

the jury, since the jury should not be death-qualified if the case is not an appropriate

capital case. Trial judges also should be encouraged to exercise their existing authority, under

Massachusetts Rules of Criminal Procedure, Rule 25(b)(2), to set aside the verdict of guilt of

capital murder and the corresponding death sentence, and direct the entry of a verdict of guilt of

first-degree murder, whenever the trial judge finds the death sentence to be inappropriate on any

basis in fact or law, including the trial judge’s disagreement with the exercise of capital

sentencing discretion by the jury. See, e.g., Commonwealth v. Woodward, 427 Mass. 659, 694

N.E.2d 1277 (1998); Commonwealth v. Gaulden, 383 Mass. 543, 420 N.E.2d 905 (1981).

Mandatory appellate review is standard in most state death-penalty systems today. In most

states, however, such appellate review generally has been constrained by the need to base any

reversal or other remedial action on the finding of a procedural error at trial, as well as by

procedural default rules and other procedural barriers that restrict the ability of defendants to

assert claims of error if those claims have not been raised properly at an earlier stage of the

proceedings. Appellate courts generally have lacked the authority to reverse a death sentence (or

any other aspect of a criminal case) simply because they disagree with it on the merits.

But this emphasis on proceduralism, to the near-exclusion of substance, is beginning to change.

One of the most important recent reforms to the Illinois death penalty, for example, is the

expansion of the authority of the Illinois Supreme Court to set aside a wrongful death sentence

on substantive, and not merely procedural, grounds. This reform has been called the

“Fundamental Justice Amendment,” because it grants to the Illinois Supreme Court the power to

reverse any death sentence that it finds “fundamentally unjust” on the facts and circumstances of

the particular case.

The arguments for such broad substantive appellate review authority are many, but perhaps the

most important is that such authority places on the appellate court the final responsibility to

ensure the appropriateness of a death sentence in a particular case. Such authority also serves to

reduce the current incentive for an appellate court to strain procedural law in order to justify

reversing a death sentence that the appellate court finds to be substantively unjust. When the

appellate court strains in this way to find a procedural error, the systemic effects are far more

disruptive than if the court had the power simply to reverse a particular death sentence on the

merits.

Fortunately, in Massachusetts, there is no need to propose any major changes in the law with

respect to this subject. Since at least 1939, the Massachusetts Supreme Judicial Court has

possessed the broad authority to set aside a death sentence on substantive grounds.

Massachusetts GL ch. 278, § 33E, specifically provides:

“In a capital case as hereinafter defined the entry in the supreme judicial court

shall transfer to that court the whole case for its consideration of the law and the

evidence. Upon such consideration the court may, if satisfied that the verdict was

against the law or the weight of the evidence, or because of newly discovered

evidence, or for any other reason that justice may require (a) order a new trial or

(b) direct the entry of a verdict of a lesser degree of guilt, and remand the case to

the superior court for the imposition of sentence.”

This substantive review authority, which today is limited by statute to first-degree murder cases,

and to review by the Massachusetts Supreme Judicial Court, traditionally has been given a broad

reading by the Massachusetts courts. See, e.g., Commonwealth v. Painten, 429 Mass. 536, 709

N.E.2d 423 (1999); Commonwealth v. Lennon, 399 Mass. 443, 504 N.E.2d 1051 (1987);

Commonwealth v. Bearse, 358 Mass. 481, 265 N.E.2d 496 (1970) (earlier version of same

statute, providing for substantive review by the appellate court).

We recommend that, pursuant to this broad review authority, the Massachusetts Supreme

Judicial Court should review every death sentence imposed in Massachusetts to ensure that such

sentences are substantively just. The Court should set aside the verdict of guilt of capital murder

and the corresponding death sentence, and direct the entry of a verdict of guilt of first-degree

murder, if it concludes that the death sentence is unjust in light of the facts and circumstances of

the particular case. This substantive review authority should operate independently of the

review of procedural or other legal claims of error at trial. It should apply without regard to any

procedural default rule, or other procedural barrier, that might otherwise preclude the Court from

considering the substantive justice of the defendant’s death sentence.

As important as substantive appellate review can be in ensuring a fair and just death-penalty

system, it is also important to take affirmative steps to ensure that capital-case juries do not

diminish their own sense of responsibility for the capital sentencing decision as a result of the

broad availability of judicial review. We therefore recommend that the jury, in every capital

case, be instructed in a manner that emphasizes the centrality of the jury’s role in capital

sentencing, and that specifically informs the jury that whatever sentence the jury selects is very

likely to be the sentence that the defendant ultimately will receive.

We do not find broad availability of judicial review to be inconsistent with the principle of jury

decision-making, nor with the jury’s traditional role in capital cases as the “conscience of the

community.” We believe that, in our society, the jury serves primarily to protect the defendant

from unfair governmental abuse or over-reaching. Under our proposal, it remains true that no

defendant can ever be sentenced to death unless the jury unanimously finds that he deserves such

a death sentence (except, of course, for those cases in which the right to jury trial has been

waived by the defendant). The expansive role of the trial judge, and of the Massachusetts

Supreme Judicial Court, will be limited to reviewing this jury determination and correcting any

substantive mistakes that may have been made.

(10) The Creation of a Death-Penalty Review Commission to Review Claims of Substantive

Error and Study the Causes of Such Error

We recommend that a Death-Penalty Review Commission be created, as an independent

agency within the executive branch, for the purpose of (1) investigating any claim of

substantive error made by any person subject to a death sentence, i.e., any claim either that

the person did not commit the capital murder for which the death sentence was imposed,

or that the person was legally ineligible for the death penalty; and (2) investigating the

causes of any such substantive errors that may be found to have occurred at trial in any

capital case.

In connection with the investigation of a claim of substantive error in a capital case, the

Death-Penalty Review Commission should be authorized to hire all necessary staff,

including experts; to inspect evidence and other tangible materials connected with the

crime; to issue subpoenas; and to request the assistance of the police to carry out searches

or make arrests. If the Commission concludes that any capital case may involve a

substantive error, the Commission should be authorized to refer the case to the judicial

system with a recommendation for further judicial review.

In connection with the investigation of the causes of a substantive error at trial in a capital

case, the Death-Penalty Review Commission should possess the same powers described

above. The Commission should issue a public report detailing its findings, which can

become the basis for future reforms of the Massachusetts death-penalty system.

The final step in our multi-layered review process is the creation of a new “Death-Penalty

Review Commission” to review all claims of substantive mistake filed by persons on Death

Row, and to investigate the causes of any substantive error that may occur. The concept of such

a Commission is relatively new to the United States, but is common in other countries, most

notably England and Canada. In England, since 1997, the Criminal Case Review Committee, or

CCRC, has received more than 3600 petitions, and has reviewed more than 2000 of them. Of

those, the CCRC has referred 203 cases back to the judicial system for further review, and in 38

of those cases (or less than 2 percent of all reviewed petitions), the courts have ordered the

conviction to be set aside.

We propose that a Death-Penalty Review Commission be created, as an independent agency

within the executive branch of the government, and with a role that is limited to capital cases.

The Commission would have broad investigative powers, supplemented by the ability to request

police assistance where needed. The Commission would not be able to take any remedial action

on its own, but would have the authority to refer any problematic case back to the judicial

system, with a recommendation for further judicial review.

We also propose that the Commission have the authority to investigate, and issue a public report

about, any capital case in which a substantive error is found to have occurred at trial. This

public report would describe the causes of such an error, and thus help to promote future trial

reforms to ensure that Massachusetts capital trials continue to be as accurate as humanly

GOVERNOR’S COUNCIL ON CAPITAL PUNISHMENT

GOVERNOR’S COUNCIL ON CAPITAL PUNISHMENT

GOVERNOR’S COUNCIL ON CAPITAL PUNISHMENT

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