Episode 5 "The Death Penalty"

Episode 5 involves two of the most difficult tasks for a trial judge: presiding over a capital trial and signing a Judgement and Sentence that orders the defendant to be executed.

Judge Small will discuss the death penalty from a trial judge's perspective. We will then continue the story of True Justice. 

Transcript

SPEAKER_00 0:03

The Smoke and Gavel Podcast is now in session. I'm retired Judge Chip Small, who will preside over the podcast along with my bailiff, Madeline Rose. We welcome you and ask you to join us as we take a look at our justice system from a unique, candid, and inside view. Maddie, what's on the docket today?

SPEAKER_01 0:22

Okay, you're honored. Today we're gonna share your thoughts on the death penalty. That's a really sensitive one. And then we're gonna continue the story of true justice. But before we do that, one of our listeners complained that in our last episode, you didn't share your views about what judges to avoid. So can you start with that? What kind of judges to avoid?

SPEAKER_00 0:42

Sure. First off, they don't have any power.

SPEAKER_01 0:45

Judges don't have power.

SPEAKER_00 0:47

Right. Personally, the the the individual judge, Jane Doe, doesn't have any personal power. All her power comes from the office she holds. Now, the one thing we do have the power to do personally is we can we get to decide when we go into the courtroom and when we come out. That might not seem like a lot, but it's actually a lot of power.

SPEAKER_01 1:11

Like recess. Right. When we hear that in the law and order.

SPEAKER_00 1:14

Right. Or if there's if the case is going to be heard, you don't have to go in. I mean, you can delay things. I mean, you can continue it on your own motion, whatever. Uh and so uh that's significant. I mean, for example, uh, if a judge is about to lose their temper, then he can just say, we're gonna take a short recess. No one knows why the judge said that, and then he can go in the jury room and like the last time that you you uh you you did your gavel when your wanderer fell asleep.

SPEAKER_01 1:47

Right. Yeah, yeah.

SPEAKER_00 1:48

So the power that to that individual power of when we go in and when we come out is significant, but that's the only real power you have. And I say that because where our power comes from is the office we hold. Just like the President of the United States, Donald Trump doesn't have any power except he holds the office of President of the United States. So that office has power, the office of the presidency. No, that's that's more legislative, judicial, and executive kind of fighting.

SPEAKER_01 2:24

But aren't judges right now overturning some of Trump's stuff in Washington State, for example? So that's uh an example for when a judge does have power? I I mean I don't know.

SPEAKER_00 2:35

I'm the Well it it's related, but it's not exactly what I'm talking about today.

SPEAKER_01 2:41

When I'm talking about case a normal So we're in a normal case we're talking about today.

SPEAKER_00 2:48

Every time you see a judge in court. What the caution is fear the judge who speaks in first person singular. In other words, if a judge is saying, I do this, I rule this way, I'm doing this, I sentence you, they were, I don't feel like stay away from that judge.

SPEAKER_01 3:07

I believe this.

SPEAKER_00 3:08

What the the judge should be doing is saying the court rules this way. The court sentenced you to this. It should always be third person, not first person. In fact, uh it's not easy. I mean, you get in that position, it it's easy to accidentally speak in first person. So what I did to try to avoid doing that, I had a little jar back in judges' chambers. And my court reporter would pay attention to what I was saying, because she's writing everything down. And whenever I said I, boom, I had to put money in the jar. Okay. Until we had enough money to buy some treats for the court staff. Uh and then eventually I started not ever saying aye, and it was always the court, the court, the court. And and it's important because not only it reminds the judge that it's not her that's doing this, it's the position she holds that gives her this authority. But it also tells the public that it's not a personal thing. We're just exercising the authority we have because of the office we hold, uh, not because uh Judge Chip doesn't want so-and-so to do anything. No. If the law says they can't do it, then the court will rule that they can't do it. Right. So it's not a personal thing. So you're telling the public you understand that it's not you, it's the office you hold. Uh so that's why I tell people fear the judges speaks in first-person singular. Because they're not they're that's I don't it's my opinion. I mean other judges may disagree, but that's my opinion.

SPEAKER_01 4:44

You know, and I just think that's a normal thing in general. People take to that better. Like if I sit there and I say I feel this way, people are not gonna respect that as much as I say we feel this way.

SPEAKER_00 4:56

Right. Or the courts reviewed all the evidence.

SPEAKER_01 4:59

Yeah, yeah. It's just you just even with the normal person, like if I came up with this big great idea, but then if I'm attached to maybe like a business, if I say we did, it's gonna look more legitimate. Right. And same with the courts. Like, you know, I'm I'm we all have different beliefs, and I'm sure every judge does, and but that's not what the ruling should be about. It's about what the law is, and the judges aren't making the laws, the legislative branches, and that's a whole nother issue if people want to take that up, if they want to take up the law. I don't know. That's my two cents.

SPEAKER_00 5:31

Spot on. I mean, uh truthfully, the the first couple years I was on the bench, I had a lot of cases where the attorneys were wanting me to change the law. But you can't. Right. And so I kept explaining to them that they're they're in the wrong side of the street. Because in Olympia, Temple of Justice on one side of the street and the legislature on the other side. So I kept sending them, no, if you don't like the law, you don't come here. Yeah. You go over to legislature. And after a couple years of those rulings, maybe three years, they stopped asking me to do that because they knew I was gonna say no.

SPEAKER_01 6:04

Right, right. And you know, I I've helped a friend or two look at their cases, and I've noticed one thing is that a lot of times when people are presenting cases to judges, they're bringing up past rulings and current laws if they're gonna be trying to go against what the current law is, they have to actually show history and and rulings. So and that's just that's a different thing.

SPEAKER_00 6:26

Yep.

SPEAKER_01 6:27

Yeah. Okay. Now I'm sure our listeners want to know what your thoughts are on the death penalty. Don't some people deserve it after all, an eye for an eye, right? Dharma.

SPEAKER_00 6:40

Okay. The purpose of today's podcast isn't to debate. Everybody has their own views on that. Uh some very religious people are for it, some very religious people are against it. But what I do want to do is share what the death penalty means for judges and my observations on the practical, not moral, but the practical ramifications of having the death penalty.

SPEAKER_01 7:04

Practical ramifications of death. Okay.

SPEAKER_00 7:08

So, first, what it means for judges. For me, before I submitted my name to be considered by the governor to be appointed to the Superior Court bench, I had to know whether I could perform the duties of the office. And that could involve a capital case that if the defendant were found guilty of aggravated first-degree murder, I may have to sign a death warrant. So I spent a fair amount of time uh praying about it, researching what my church taught me. Can I do this? Can I not do it? And uh eventually I convinced myself I could do it because at that time I considered the death penalty self-defense with due process. And what I mean by that is if someone like a police officer was there at the time they were committing whatever the offense was that was aggravated first-degree murder, the officer could just blow them away right then. But because they did it and didn't get caught initially, well, they're entitled to trial and due process and all that. Right. And so I decided, no, I could it was moral for me to sign a death warrant. Uh if I hadn't decided that, then I never would have submitted my name. So that's the first thing I think the death penalty affects judges, the first way it affects them.

SPEAKER_01 8:28

Now the I'm gonna cut you off there, Chip, for a commercial break. The Smoking Gavel Podcast is sponsored by Judge Small Books and Gatekeeper Press, a full service publishing company empowering authors with complete creative control, professional guidance, and 100% royalties. Whether you're publishing your first book or your tenth, their team makes the process simple, transparent, and truly author-friendly. Listeners of the show can receive 10% off any publishing package with Gatekeeper Press. Just mention code CHIPSMALL when requesting a quote or during your free consultation at gatekeeperpress.com.

SPEAKER_00 9:03

Okay, so now my practical observations of having the death penalty, uh what those the consequences are, you first have to understand the process. And in our state anyway, there are basically two trials. First, there's a trial to determine whether the defendant is guilty, and second is another trial, if he is found guilty, to determine whether the defendant should be sentenced to death. So if the jury decides that that what the defendant did warrants the penalty of death, what follows is an automatic appeal under our court rules, and almost always an unending number of other appeals in federal court, wherever. And those appeals can take years. So closure for the victim's family and friends is delayed for a long time. In fact, if one of the appeals is successful, it might result in the order for a new trial and they start all over again, or the sentence may be commuted to life without parole. However, in most criminal cases that involve the death penalty, and in most criminal cases overall, they're resolved by plea bargain. Uh and the worst death case I ever presided over, in fact, ended with a plea bargain. And what happened was the state agreed to drop the request for a death sentence as long as the defendant pled guilty to life without parole. What that meant for the victims and their families was there is no trial, and by pleading guilty, there's no appeal, none. He's sentenced to life without parole, and the case is done. So closure for the victims and their families is certain and it's very quick. And so, regardless of whether you believe the death penalty is moral or not, that's a practical ramification of a state actually having it. Without that sentence being available, the prosecutor doesn't have as much. Like a bargaining trip almost. Right. I mean Exactly.

SPEAKER_01 11:17

Yeah, because I mean sometimes if you're threatening them with the death penalty penalty, they'll admit to the other murders that they did and which is exactly what happened in in uh at least one of my cases. In this case. And I I know it's a sensitive one, and we're not gonna say it yet, but we will tell the listeners a little bit that there have been multiple TV shows on this one. And um let's just say that he is still alive. And you know, I that makes me wonder. That brings me to the next question. If there's a family who is affected so horrifically by a killer, let's say who's on trial, and what if they would have more closure for the death penalty and drawing out the process? I mean, what about that thought process?

SPEAKER_00 12:05

Well, I think uh the Idaho case uh outs outside of Plumen, uh Washington. Right, right. Those victims, from my my understanding, what I saw in the media was uh they were against the state dropping the death penalty in exchange for a guilty plea. They wanted it to go forward. Yeah. In the in the case we're kind of talking around on that we'll get to eventually, the other thing that the victims in their family gain is not seeing the evidence. Oh, yeah. Because in the case we're talking about uh indirectly, I literally had to hire a psychologist uh to be prepared to counsel the jurors after the trial because what they were going to see as far as the evidence was unspeakable. Uh and so they were gonna have it was gonna be trauma, they it was gonna traumatize the job.

SPEAKER_01 13:01

Again, there is TV shows about this guy. I mean, I guess you can just Google the judge's name here, and if you really want to get deep into it, but we will eventually talk about it because we have gotten some permission from the family member, but we are gonna be careful um what goes on. But it it it is relevant with the death penalty, just talking about, you know, somebody so horrific who did deserve death. However, we wouldn't have found out as uh as much of what he did if we didn't have the death penalty to bargain with.

SPEAKER_00 13:30

But it it does point out that in addition to getting closure by a plea to life without parole, it avoids all the trauma, not only to the jurors and the judge, frankly, but also to the family, because they usually sit through the trial and they would have seen the same thing as the jury. Yeah. And it just, you know.

SPEAKER_01 13:49

Yeah, yeah.

SPEAKER_00 13:49

He almost got rewarded for being so evil.

SPEAKER_01 13:54

No, he no, that's what one of the shows is. Oh, you haven't even seen all the shows. You see, our judge here is a very, very good man, and he doesn't like the true crime shows.

SPEAKER_00 14:03

But here he's not that I don't like them, it's just I had 27 years of true crime. I don't need to watch it.

SPEAKER_01 14:08

Yeah, well, one of your most evil people is literally on most evil. I guess I don't know if I can say that on here. We'll bleep it out if not, but um, anyways, um But yeah, it's a it's a bargaining chip. That's the most important thing about this. And most of the time people don't even get the death penalty. It's so rare, right? Like you said, there's so many appeals and Okay, it's time to share the continuing story of true justice.

SPEAKER_00 14:33

Chapter one. Ernie Adams steps out onto the deck of his home overlooking the Eagle River Valley. As he removes the cover from his recently purchased hot tub, he feels the warmth of the afternoon sun on his well-muscled back. After setting down his glass of single malt and the lead crystal ash tray the Starks gifted him last year, he steps down into the tub. The temperature of the clear water is only a hundred degrees. Warm enough to relax, but cool enough to enjoy all of his Oliva 5 millennial Churchill cigar. These last few years have been exciting, challenging, and certainly rewarding. From a financial standpoint, I never imagined having this much success. But that was never my reason for becoming a lawyer. My goal has always been to help as many people as I can. Insurance defense work wasn't satisfying. Defending people accused of petty crimes didn't do it for me either. He taps the first inch of ash off his smoke and takes a sip of his smooth, chilled scotch. Setting it down, he looks out over the emerald green valley below. A gentle breeze coming off the distant snow covered mountains is refreshing. Personal injury work certainly allows me to help those people that cannot help themselves, although I can only help a few people at a time. Seeing the empty chairs around the table on his deck and hearing only the gentle sound of the jets in his tub, he thinks maybe what is really bothering me is that I'm lonely. He dismisses this thought as Kate immediately comes to his mind. She sure isn't who I thought she was when we first met. I thought she was attractive, hot even, but she was also aloof. She seemed to want to portray herself as untouchable, cold, even indifferent. All that changed after the Stark trial when she asked me out. We've been dating off and on ever since. She seems to want to take our relationship further. I suppose I would be crazy not to pursue a serious relationship with her. She constantly reminds me about how much we have in common. Our fathers are both attorneys, and we're both financially secure, driven, and intelligent. Then there is Stephanie, sweet, caring, and an advocate for people in real trouble. A woman more after my own heart. Our dating has been going well, but Steph seems reluctant to get more serious. I wonder why. Sighing, Arnie slides down until the water comes up to his chin. What do I do? Maria Lopez has always been my conscience. And I love working with her, even though I'm her boss. I feel I can confide in her. So in chapter one, listeners, you are introduced to another one of the main characters, Arnie Adams. You learn that he is an attorney, like his dad. You also learn that he's apparently successful given his surroundings, and he is conflicted. He doesn't appear satisfied with his career. But perhaps more importantly, his love life is conflicted, because he is currently dating two women, Kate and Stephanie. Finally, you discover there's another Maria, other than Maria Azul, Arturo's mother. There's also Maria Lopez, who works for Arnie Adams.

SPEAKER_01 18:10

A rich lawyer torn over two women. My goodness. Well, in our next episode, we'll continue the story of true justice, and the judge will explain the difference between not guilty and innocent and why that difference is important.

SPEAKER_00 18:26

Thanks for listening today. We hope you enjoyed this episode of the Smoke and Gavel Podcast. To learn more, visit judgesmallbooks.com. Don't forget to like, subscribe, and share to stay connected. Until next time, God bless.