09/25/13 – Marc Hyden – The Scott Horton Show

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Welcome back to the show.
I'm Scott Horton.
This is the show.
Next up is Mark Hyden from Conservatives Concerned about the death penalty.
That's conservativesconcerned.org I like the sound of that.
It's the kind of thing that sounds like a liberal issue, but it's got conservatives right in the title.
So something interesting to talk about right there from the beginning.
Welcome to the show, Mark.
How are you doing?
Thank you so much for having me, Scott.
I'm doing great.
Well, I really appreciate you joining us here today.
But here's the thing.
Conservatives, they don't care about people getting sentenced to death because the only people who get sentenced to death are poor and black or brown.
In the vast majority, conservatives don't care about them.
And in fact, conservatives don't care about innocent people.
Witness the Iraq war and all the cries of, oh, we can't just cut and run.
We got to stay there and kill everybody or else it'll get even worse.
And I got to say, like, I'm sorry, I'm so jaded.
I thought conservatives were my friends to some degree back in the 1990s.
But then all the bloodlust and all the dishonesty and all the cruelty of the Bush years.
And after all, he had a mandate from the American right to do what he did and to act the way he did.
And they all cheered for him.
So now I'm kind of wondering, you know, what's your angle here?
Because are you really concerned about Deshaun, somebody or other being falsely convicted and sentenced to death for something?
Well, absolutely.
You know, we're a national network of conservatives and libertarians who just believe the death penalty is inconsistent with our philosophies and our principles.
And, you know, you're describing, I think, what stereotype people have for some conservatives.
But we try to stick to our principles of pro-life policies, fiscal responsibility, and limited government.
And in my personal view, the death penalty does not fall in any of those.
We need to, personally, I'd like to get rid of the death penalty and have a fair system in place.
I'm sorry for coming at you so hard right off the bat here.
I just, I got a chip on my shoulder.
So, well, let's go back to those three points there.
I heard fiscal conservatism.
There were two more?
Sorry.
Pro-life policies.
Pro-life policies.
Yeah, well, I'll start with that.
Sure.
Well, you know, this is, the death penalty is a very dangerous program that runs a very unacceptable risk of killing innocent people.
If you kill one innocent person, there's no way to justify that in my book.
And this is a system that has wrongly accused over 140 individuals since 1976.
And they have been released because they're wrongfully convicted.
Several others have been executed, even though there was serious doubt regarding their verdict.
And this is a problem, this is an issue that not only conservatives are concerned about, but whether you're a liberal, a libertarian, a centrist, a statist, everybody should be concerned about innocent life.
I sat down with my friend who's the former North Carolina GOP chairman from Rutherford County, Larry Ford, and he told me, when it comes to the death penalty, there's no oops moment, there's no redos.
Once you get it wrong, it's too late to right that wrong.
And I think conservatives, especially that are very pro-life are seeing this issue.
Right.
Well, you know, my favorite politician in American history, Ron Paul, so this is his one flip flop.
Of course, he's being sarcastic there.
This is the one thing where he's really changed his mind.
He's gone from law and order, pro-death penalty position to really just, I think, as you're saying, just a more consistent position that, you know, really, we are talking about killing somebody here and we're talking about a government program.
And even if you just, you know, kind of by instinct are biased toward trusting judges and cops and prosecutors to be decent and honest people, which is kind of funny when you say it like that.
But anyway, even if you are bent that way, still, it's, you know, basically criminal justice is a socialist monopoly in America.
And so, therefore, it has the same problems with its incentive structure, some of the same problems with its incentive structure as the post office or the army or anybody else.
They fail upwards, basically.
I would agree with you, and I'd like to say that Ron Paul actually endorsed our group and he released a statement saying that the death penalty is inconsistent with traditional conservatism and with libertarianism.
So we're very happy to have his support and have his name on this.
He's a thought leader, a political leader, and we're seeing more conservatives and libertarians coming out.
And this limited government issue is something that they're bringing up.
If you don't trust the government to fill potholes or to deliver the mail properly or have an efficient DMV, why on earth would you think that they would be able to make life and death decisions properly?
Yeah.
And again, well, I don't know.
Again, first of all, there is the question of whether, you know, when they're trying hard, whether they can always really get it right.
But then there's also, I think, and this is just, you know, again, the form of the system and the fact that it is a socialist monopoly, criminal justice, that they actually don't care very much.
Like for me, I'm a big Matlock fan.
I was raised on Matlock.
Unfortunately, I'm kind of extra paranoid because of it.
Probably people falsely accused all the time.
But on Matlock, when Matlock finally gets the guy who really did it to admit it on the stand, the prosecutor says, OK, I was wrong.
Sorry.
Drop all the charges, judge.
But that doesn't ever happen in real life.
It's more like, hey, we want that stricken from the record because we still want our conviction, you know.
And as you pointed out on one of your piece of propaganda I read here this morning that, you know, when you appeal, you're not even trying to say, but judge, I think I can prove I'm innocent or something when you're appealing.
The issue is whether the process was carried out fairly in the first place.
Unless they really cheated you by burying some exculpatory evidence or something like that, the appeals court doesn't care whether you're innocent or not.
They only care whether you were duly convicted or not.
That's exactly what I was going to say.
The appeals process is only to decide whether you had a fair trial or not.
It's not there to introduce new evidence.
In Texas, there was a prosecutor who was actually charged with withholding evidence.
And even when you have some very blatant evidence like DNA evidence that could exonerate you, it's nearly impossible, it's incredibly difficult to enter that into the appeals process to exonerate.
It's a system that the government has put into place that it's very hard to get out of if you're innocent.
And, you know, well, I've told this story a million times, but this will be my first time I told it to you.
Back when I was a cab driver, I met a lady who was an assistant district attorney down there in Houston.
And she said that their slogan was if they really didn't do it, they'll get out on appeal.
And what that meant was anyone that the cops bring in, we nail to the wall no matter what.
And we do not care.
We don't even question whether they really did it or really deserve it or not.
Our job is to process the meat.
And so in they come and out they go.
And part of this is the criminalization of breathing and everything else, too, where they have so many people to prosecute.
What are they going to do?
Take care of that?
They can't.
It's like working at the busiest McDonald's.
You just slap them burgers together and off they go.
You're right.
And actually, the ABA did an assessment to your assessment in Texas and listed many problems with the death penalty, some of which that you're actually touching on the prosecutorial misconduct.
And this is a system that, you know, that's not the right way to look at.
These aren't pieces of meat.
These are not people or these are people that this is going to have long lasting issues on if you wrongly convict them.
And many of them have been exonerated, wrongfully convicted and released as much as 33 years after they were convicted of a murder.
So it's hard to write that wrong is what I'm trying to say.
Yeah.
OK, now you have a thing right there on your front page about this woman, Jennifer Thompson, you know, tearfully regretting that she pointed at the wrong guy in the trial.
And she says she even carefully memorized the face of the man who raped her.
She was so certain it was the right guy.
And then the DNA proved that, no, in fact, it was not.
She had helped to convict an innocent man.
I was wondering if you could talk a little bit more about that, because it's actually death penalty questions aside.
It's just a fascinating subject.
Eyewitness identification and the problems with it.
Well, that's something we see all too frequently.
The death penalty doesn't generally you don't have DNA evidence that's only available in five to 10 percent of all criminal cases.
So it's not like CSI that you see on TV.
That's that's a farce.
I mean, that's not true.
That's not real life.
So too often they rely on eyewitness testimony and the mind can play tricks on you.
You're not 100 percent sure.
And many times this has happened and it's led to some disastrous consequences.
You're right.
Yeah, I remember learning in school about how I mean, they would even in a social psychology class, they would even have a guy run in and steal the professor's purse and run out and then ask everybody what color was he, how long was his hair or what color shirt was he wearing?
And nobody ever agrees about anything.
And they're all wrong, you know?
Well, I mean, I can add to that.
I'm sure you go places and you shake hands with new people you meet.
And to tell you the truth, 30 seconds after you do it, it'd be hard for me to pick that person out of a lineup.
Right.
Yeah, certainly to remember their name.
And of course, there's also the phenomenon where they remember the guy's face very well at the lineup from the picture that the cop showed them half of an hour ago and told them, this is the guy that you think it was.
Right.
Because that's the guy that the cops think it was.
And then they go into the lineup and they go, yeah, there's the guy from the picture.
And now.
And you know what?
I mean, this is true about anybody, right?
We know this from taking a picture of anything.
You start looking at the pictures even of yourself at a place.
Those end up replacing the real memories in your brain that you saw looking out of your own eyes.
Now your memories include you in the picture because you remember the picture.
And that kind of thing works all the time where there he is at the trial.
I remember him from the lineup and I remembered him from the picture.
And I can't quite remember from the crime anymore, but it must be the same guy, right?
Yeah, eyewitness testimony is notoriously unreliable.
And that's just that's an issue that we run into time and time again.
And if you can't be sure you can't use the death penalty, the life is just far too important to risk to uncertain testimony.
What about the I kind of mentioned there about the criminalization of everything?
What about all that?
Because I think first of all, and I should have said this at the beginning, instead of just attacking all conservatives, I should have said at the beginning that you know what?
I don't know.
Like, I try not to pay attention to this stuff because it gets me down too bad.
But my wife, she loves the true crime stuff.
And from time to time, I come across some of these stories about just the absolute horrors that Americans inflict on each other, that people inflict on each other, and especially some some of the crimes against children.
And I think often that I wouldn't mind sentencing this guy or that guy to death.
Some of these serial killers and whatever, they've forfeited their right to live.
Go ahead and kill them.
There's what if we could raise the standard to beyond a shadow of a doubt somehow or something?
You know, I'm no bleeding heart for the really guilty.
As I'm hearing from you, you're concerned about those falsely convicted being caught up in it more than anything else.
But it just seems like, I don't know even what my point was anymore.
It just seems like, well, I don't know.
I had a question that I was getting to, but I forgot.
Well, I would say that I'm not just worried about the wrongfully convicted.
This is a system that is, like I said, inconsistent with conservatism, inconsistent with libertarianism.
It costs way too much money.
So there's a burden on society.
Regardless of whether they're guilty or innocent, this costs much more than life without parole.
In addition to that, this is a system that's put in place that's supposed to help out the victim's family members.
Most of them say that this is a very harmful process and it's a retraumatizing process.
So it doesn't serve them.
It also fails as a deterrent, as many studies have come out and said.
So it's just a failure.
Conservatives, I think many of them, especially in the 80s, had this tough-on-crime mindset, and they believed that they could get it right.
Well, we've seen that we have been getting it wrong.
It's too expensive, risks killing innocent life, gives government too much power, and we're reexamining the position that many conservatives took.
And I think conservatism is taking a different turn now.
And we're part of this reexamination.
There's other groups out there right on crime that know the criminal justice system as it stands now is an utter failure.
It's not working.
And the death penalty is the truest form of that.
Yeah.
Well, and you know, too, it's very important what you say about giving the government too much power, because at least as it's supposed to be, the cops don't have any more right to shoot anybody than anybody else does, right?
We're just delegating our own natural right of defense to them.
They have the right to take a life only in immediate self-defense or the defense of some other innocent life.
But there's no circumstance where a private citizen has the right to tie somebody down and poison them to death or electrocute them to death.
And really, what we're doing here is we're legalizing murder for some government employees.
Sure.
And you've seen that with Carlos de Luna, who was actually probably an innocent man in Texas.
And that is definitely legalized murder, what happened to him and several others.
And regardless of their guilt, that is a state-sanctioned killing.
But I mean, even, you know, even for somebody who committed, who is definitely guilty of being a serial killer or something, if you shoot him, you know, in the act or something in an immediate way, that's one thing.
But just killing him later because you're so mad at him or because he's so guilty just as punishment, that seems like it's murder anyway, right?
You know, I would agree that it's definitely, it's incorrect.
There should be, the state should not have that right.
And I don't even know who does it.
Is it a doctor or just a prison guard that pumps in the poison?
Who gets that job?
Each state is going to have different policies that govern that.
And they have, quote unquote, professionals that oversee this.
But each state is different.
And you can see Georgia, my home state, actually recently, they ran out of the death penalty drug.
And they're having problems reacquiring it.
So what they did, and this shouldn't bother anybody that believes in small government or transparency in government, they've passed laws to say, it's a state secret what drugs we get, where we get them.
So we don't actually know what they're doing or what those processes are in Georgia.
And it's being challenged right now.
And that should scare anybody.
Yeah, it's crazy.
You know, I think even in assuming that they have all of the very best poisons for the way that they do the needle, it seems like they kill them while they're awake kind of thing, right?
They don't knock you out with, you know, say like a whole lot of morphine and put you to sleep and then kill you.
They kill you while you're awake, right?
And that's the official thing.
I would say there's no such thing as a best poison.
So I would disagree with that.
But yes, I mean, they start off awake.
I thankfully have never personally witnessed it.
I think it's very macabre and disgusting to even do that.
So I have talked to some workers in the corrections facilities, as well as wardens who have overseen this, and they say it's a very terrifying experience.
You know, I remember seeing a documentary one time about a guy who he was basically a death penalty entrepreneur, and he rationalized it that, you know, I mean, he felt kind of bad about it, that what he was participating in.
But what had happened was he had found out just how completely sloppy and amateurish and kind of slapped together the death penalty was the way it was carried out in state after state after state.
And so he was like, hey, listen, if you guys are going to electrocute somebody to death, let's make sure we really do it right and quick and not, you know, make it take a half an hour.
And you know what I mean?
This kind of thing.
And so in the in the telling his story about all of the different innovations of the way to kill people for the death chambers that that he had, it really came out just how, you know, really, if you ask seven guards to come up with a way to execute somebody, that was basically the way it was in this state, this state in this state, you know, totally what you would not imagine from seeing it on TV or something.
Sure.
And Ron McAndrew was actually a warden in the state of Florida who is now opposed to the death penalty, but he oversaw 11 executions.
One was the electric chair when the person actually caught on fire.
So it's a very terrifying and terrible experience, not only for the victim, but for the people witnessing it as well.
And I believe this has actually caused some post-traumatic stress for Mr. McAndrew, and he has become a very outspoken supporter of what we're doing.
Yeah, that's good.
And now I think you mentioned that the well, you did mention that only five percent of was it of death penalty cases are based on DNA evidence?
No, only five to 10 percent of criminal cases in general even have DNA available in the case.
So, I mean, most of these cases don't rely on that.
They rely on eyewitness testimony and other forensics that oftentimes are found to be false, like hair analysis.
The FBI is actually doing an analysis of multiple death penalty cases, some of which have already been carried out where they used faulty forensic science, bunk science to kill people.
Right.
I mean, they've had some really some pretty massive scandals when it comes to these crime labs, right?
Absolutely.
And I have to applaud the FBI and the State Department because what they actually said was we probably made mistakes.
We can't right the wrong, but we're going to find out what went wrong and they're going to publicize it.
And I think that's a step in the right direction.
Personally, I think we should get rid of the death penalty.
But that is showing at least some humility in government saying we do make mistakes and we make mistakes in the worst, worst kinds of ways.
Well, and on your site, you talk about is it Todd Willingham?
Is that how you say it?
Yes.
I forget.
I don't have it in front of me, but where he was convicted and sentenced to death and executed by the state of Texas based on the testimony of fire experts, which was later disputed by other apparently better fire experts about whether and I've heard quite a few cases like this, too.
There was, in fact, the Innocence Project was working on one where a lady was convicted of killing her own kid in a trailer fire.
And she was finally released when exculpatory evidence was raised in her case.
But this is the kind of thing where I guess because of the TV shows, people just put so much trust in.
Well, if the scientist on the stand says so, well, then that's just absolutely unimpeachable evidence against somebody.
And where it's really just not so like you're saying, and you don't even have to have corruption in your crime lab, but you can just still have a fingerprint artist basically acting as though they're a real hard scientist, that what they say is 100 percent factual when what it really is, is it's an interpretation.
Absolutely.
And I would like to say that I think most of these people have the best of intentions.
But like you said, it's more of an art.
It's not a science for many of these forensics, quote, unquote, experts.
They get it wrong.
And we're finding out that the science, the quote, science that they're relying on is oftentimes wrong.
As the case with Todd Willingham, it looked like the initial fire expert was entirely wrong.
And that was the reason that this man was executed.
Right.
Oh, and I'm sorry that I spaced out earlier, but I remember what I was trying to get to before when I went off on that tangent.
That question was the the over criminalization of everything, which means that and especially with the war on drugs and where simple drug possession charges clog the entire court system so that if you were a judge or if you were a prosecutor, you really don't have a choice in life but to plea bargain all day, threaten people with a giant stack of charges.
So they have to plea to something where I mean, really, trial by plea bargain is replaced trial by jury because you just couldn't have.
And because, of course, it's not a capitalist system where you have as many judges as you need because the market provides.
It's a socialist system where you don't have enough judges.
And it's always there are not enough courtrooms to deal with all the cases.
Everything is all backed up.
And so people don't even really have as much of a chance to fight when it comes to the kinds of things that really are the government's business, like prosecuting murder cases.
You know, doing it right.
The death penalty, just like any other, but much worse, clog up the system.
You can look in California and frequently they're having people, inmates that are waiting on the death penalty, dying of old age.
This is a process that takes decades.
Many of them have been waiting for 40 years.
So this is a process does clog it up.
Now, you talked about plea bargaining.
I would like to say that oftentimes we've seen, especially in younger kids or people that are a little ignorant when it comes to the criminal justice process, they're threatened with the death penalty and said, we know you did it.
You're going to get the death penalty if you don't admit it to us.
And oftentimes they're innocent and they've admitted to it.
And it takes decades for them to be exonerated because they're wrongfully convicted.
Sure.
Well, and then, of course, in all the death penalty states, which I don't know how many aren't these days, are there any states that are no longer death penalty states right now?
Thirty two states have the death penalty still.
Thirty two.
OK.
And then in, I guess, all those that's part of the jury questioning is you got to be pro death penalty, even get on the jury in a capital case, which means that you're going to be that much more biased toward the prosecution in the first place for the thing even gets started.
That's right.
You cannot serve on a capital jury unless you support the death penalty.
And that's another process the government has put in there, which is unfair.
How is that a jury of your peers?
There's a framework that the government has put in here that's very pro death penalty.
And let's not forget, many people say, well, it's the jury that actually decides whether or not they get the death penalty.
But it's the government that actually decides whether or not they're going to seek the death penalty.
And then they've got this framework in to make it more attainable.
And then they've got an appeals process to make it incredibly hard to reintroduce new evidence.
Right.
OK, now tell us very quickly what all you're doing about it and how people can join up with your effort here.
It's again, conservatives concerned dot org.
Well, we have several state groups that are getting involved in creating their own chapters.
If you want to get involved in the state level, please pop me an email info at conservatives concerned dot org.
Or you can stay in touch by signing up online at conservatives concerned dot org.
And we're also going to a lot of conferences.
We'll be at CPAC St. Louis this weekend.
I'd be happy if you would come by and see us, shake our hand, see us at our booth.
But other than that, we're just trying to shatter the myth that conservatives support the death penalty and provide a forum for conservatives and libertarians to get together and discuss this issue and express their concerns.
Yeah, right on.
Well, I think it's a great mission.
And I, of course, completely agree with you about this.
Well, I don't know completely.
I guess maybe I'm I'm worse on this issue than you are.
I still have a soft spot for the death penalty in some cases.
But I agree with you that there's no way to let the government carry it out in any fair or effective way.
Well, I don't think there should be a government at all.
How could I think that they have the right to put anybody to death?
When I was at LPAC, I believe one person who came up to our booth said it best when he said, I can sum up the death penalty in one word, and it's oops, because the government is defined by Murphy's Law.
What can go wrong will go wrong.
Right.
And it's true.
And you know what?
As you were saying, the evidence bears this out.
It has gone wrong over and over and over again.
So it's certainly true.
All the evidence is there.
And, you know, it's sort of like the foreign policy in a way, isn't it, Mark, where you kind of have your imagination of how it works and then there's how it really works.
And once you break away from the kind of, you know, law and order TV narrative of how it works and get to the real world, then you realize that this is not the right thing at all.
Something's got to be done about this.
Right.
Death penalty is broken like many other government programs.
And it doesn't work like it works on TV.
Men are fallible and the government multiplies that fallibility.
Yeah.
All right.
Well, thanks very much for your efforts and for your time on the show, Mark.
Appreciate it.
Thank you, Scott.
All right.
And I'm sorry to Mark and to all you conservatives out there for calling you all a bunch of bloodthirsty, innocent death mongers.
I I like conservatives a lot of the time.
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