Commentary

Virginia Death Penalty Case: A Call for Justice

By Richard Kelsey | April 19, 2017 | 10:20am EDT
This undated file photo provided by the Virginia Department of Corrections shows Ivan Teleguz. The Ukrainian-born man is scheduled to be executed on April 25, 2017. Lawyers for Teleguz filed a petition for clemency with Democratic Gov. Terry McAuliffe on Friday, April 7. (AP Photo/Virginia Department of Corrections)

I support the death penalty.

I have argued the merits and disadvantages of the death penalty policy in print, on radio, and even with a judge who once gave the sentence over his own personal beliefs.  I have also sat in a court room as a law clerk to the judge on two separate death penalty cases.  In both instances, Virginia juries found the defendant guilty.  In one case the jury gave the death penalty.  In the other case, a jury handed down life in prison.  Death penalty cases are remarkably hard, and they should be.

Virginia will execute Ivan Teleguz on April 25, 2017.  It should not.  His case calls for justice, and the law is about justice whether one supports the death penalty or not.  

Justice requires a fair, reliable process.  Justice also requires that we get both the conviction and sentence right. The case of Ivan Teleguz unites both pro-death and anti-death penalty advocates.  They are united because Mr. Teleguz’s case has significant problems that strongly indicate neither the conviction nor the sentence was based on a fair, reliable process.

A jury convicted Teleguz of capital murder for hiring another man to kill his ex-girlfriend.  Like most cases, the prosecution built and won the conviction on witness testimony. Those witnesses were the killer and two other criminals who traded leniency for sworn testimony against Teleguz.  On the facts presented to the jury, the conviction was strong.  The facts, however, changed.  

The two corroborating witnesses other than the killer have come forward and sworn that they lied under oath at trial and that Mr. Teleguz was not involved in the murder.  Convicted, self-interested criminals don’t have great credibility.  That is true when they testify at trial, and it is true when they recant after trial.  Who knows when, if ever, they were telling the truth?  Nonetheless, their recantation calls Mr. Teleguz’s conviction into question. We don’t need to determine when the flawed witnesses were telling the truth.  We need to determine whether the conviction and penalty are just given the new facts.

If you oppose the death penalty, cases like this are the poster child for your cause.  Indeed, because opposition to the death penalty is both legal and political, those advocating to eliminate it often choose to elevate any recanted testimony to a higher level of trustworthiness.  In reality, a witness who recants doesn’t become more believable by recanting.  A recanting witness, however, creates doubt … doubt a jury could never have considered.  

If you support the death penalty as a sanction for certain crimes, you should not be looking to stand behind a conviction because the crime deserves the penalty.  You should be looking to stand behind the penalty because the evidence and process used to gain the conviction gives complete confidence that the accused deserved the outcome.

The flaws in the Teleguz case don’t give me confidence in the verdict or penalty. 

The facts in the case are brutal … and there is little chance Mr. Teleguz wasn’t involved.  You can read the Virginia Supreme Court recitation of the facts on the original appeal here.  Those facts, including the murder details, the parties, the associations, and a host of other related issues certainly make a layman comfortable thinking Mr. Teleguz was involved, no matter the recanting testimony. 

Our justice system, however, requires more to convict any man.  It requires proof beyond a reasonable doubt, and it requires a trustworthy process and reliable evidence.  Moreover, those who cherish liberty and the law don’t rise to defend only the sympathetic among us.  Justice demands that we hold the state to the highest standard, especially for those whom we have little sympathy for. 

Sympathetic or not, the Commonwealth has the burden of proof.  That burden of proof and the requirement of a fair process aren’t technicalities.  They are the life-blood of liberty.  If the state wants to take your liberty or life, a free people have the right to demand of it the highest standards, the fairest process, and an unimpeachable standard of proof.

Mr. Teleguz sure “looks” complicit isn’t the legal standard to take a life.

This case screams problems with the evidence and the process.  Other than the recantations, it appears the prosecution used evidence in the penalty phase that was inaccurate and misleading.  Most people don’t understand that in a capital murder case in Virginia, there are two phases.  In the “guilt” phase, the Commonwealth must prove beyond a reasonable doubt each element of the crime.  Once the jury is satisfied that the evidence of guilt meets the appropriate standard, the case moves to the “penalty” phase. 

In the penalty phase, the Commonwealth may introduce evidence of every misdeed in a defendant’s life.  When these prior crimes do come before the jury, a jury holds a criminal to account.  I have seen this happen.  A jury looking down at a convicted killer with a long history of violent crime is almost always given the maximum penalty.  In this case, the penalty phase included a reference to Mr. Teleguz being a participant in another murder in Pennsylvania.  The problem is, that murder apparently never happened.  Thus, the jury may have given a penalty based on incorrect or false evidence of dangerousness. 

There is no justice in false facts.

My problem with this case is not in what the jury found, but in the process and reliability of the information on which it relied.  We owe every Defendant a fair trial, and we owe every jury reliable evidence and a process in which they can trust when asked to take a man’s life. Imagine convicting a man and sentencing him to death only later to learn two witnesses on whom you relied recanted their testimony.  Imagine further that you find out that you gave the death penalty to the same convicted criminal based on incorrect facts the prosecution gave you in the penalty phase.

No juror should carry the burden of a failed system.

The Teleguz case cries out for the type of justice in a death penalty case that is necessary when we find out the process and evidence may have been unreliable.  That special type of justice is just what was required in one of the death penalty cases on which I clerked.   The case was a murder at Champion’s Billiards in Arlington, Virginia.  The man convicted of the murder was Robin Lovitt. He was convicted after an hour of deliberation, and he received the death penalty in about the same time.  The case against him was overwhelming, and the evidence was devastating.  In addition, his criminal record used in the death penalty phase was staggering.  He was rightly convicted, yet the Virginia Governor ultimately commuted his sentence.

Why? 

After his conviction, and after several failed appeals, a clerk of the Court mistakenly threw out evidence in the case.  That error itself went up on appeal, and ultimately the high court ruled that the error was harmless, in the legal sense.  It was not harmless in the justice sense.

There is a difference between “legal” error and an error in justice. The Lovitt case tested the outer bounds of that difference.  Lovitt was unsympathetic, he was guilty, and the evidence in that case never changed, nor did any responsible person call it into question. Discarding the evidence in that case may have been “harmless.”  Lovitt’s defense team, however, claimed that because the knife was thrown out, it could not order new DNA testing during the appeal’s process that was not available at the time of the conviction. Ultimately, the high court determined that the case was so compelling, that such error ultimately could not unravel the case.

However, explaining harmless error to most American’s in a 30 second sound bite is far more difficult than claiming, as anti-death penalty advocates did, that the man was denied a fair appeal because the state threw the evidence in the garbage.  I remember listening to activists and pundits rail about this and thinking to myself, “wow, these clowns have no idea about what they are writing and saying.  I was there.  He was guilty.  He earned the death penalty.”

Earn the death penalty or not, I had come to the conclusion that the appearance of impropriety to the general public regarding the lost evidence was clouding the conviction.  I had decided that to do justice, and to ensure that the case was not wrongly used to attack the death penalty, the right result was for the Governor to commute the sentence to life.  I made that case in a radio interview.

Like the Lovitt case, the right conclusion here is for the Governor to commute this sentence to life in prison.  Indeed, in this case, the call for justice is far more compelling.  No reasonable legal observer could be confident a jury would have reached the same conclusion if the prosecution had presented the facts as they are now known.

The death penalty doesn’t require a perfect result.  It does, however, require a perfectly trustworthy process and the full knowledge that evidence used for the conviction is not later credibly called into question.

No matter where one stands on the policy of the death penalty … our aim in every legal case is justice. Moreover, no matter one’s political stripe, all Americans must be interested in a justice system that is certain about the ultimate penalty. 

We can’t reverse the death penalty.

Advocates and legal observers want Governor McAuliffe to commute Mr. Teleguz’s sentence to life.  Anti-death penalty warriors predictably oppose the execution for any reason.  However, it is the credible call of honest, unapologetic lawyers of every type that give merit to the call for commutation.  Even Conservative voices are calling on the Governor to commute this sentence.  I add my voice as a lawyer, American, and legal commentator, to the chorus of those who think justice requires that the Governor stop this execution.

The Teleguz case requires justice, and justice in this case is commutation to a life sentence.

Richard Kelsey is an attorney practicing with The Impresa Legal Group. A former Assistant Law School Dean and a former Virginia state court law clerk and commercial litigator, Kelsey was also the CEO of a technology company.

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