Jean-Paul Laurens, Pope Formosus and Stephen VII - The 'Cadaver Synod' - Painting 1870
Photo Credit: Wikipedia

During the month of January in the year of our Lord 897, an ecclesiastical trial of Catholic Pope Formosus was held in the Basilica of St. John Lateran in Rome. The trial was conducted by Formosus's successor, Pope Stephen VII who accused Formosus of perjury and of having acceded to the papacy illegally.

Historians like to call this trial the Cadaver Synod or the Cadaver Trial because Formosus died a year earlier which required that his corpse be removed from its tomb and brought to the papal court for judgement. In the photographic reproduction above of the painting by Jean Paul Laurens, we see the corpse of Formosa propped up on a throne with a deacon at the dock appointed to answer for the deceased pontiff.

There are only a handful of instances in history where a dead person was brought to trial and none that I could find in American jurisprudence. Likewise you will never find a court case where a dead person petitions a court to overturn his wrongful conviction. I will explain why later in this article.

I bring this up because a reader calling himself FrancisChalk left the following comment in response to my article If You Murder Someone Refuse to Have a Cellmate:

1. Despite Bernie’s insight on a number of issues, the threat posed by Islam in particular, he has a very big blind spot when it comes to violent criminals, particularly those facing the death penalty—the scum of the scum. Bernie’s default setting is “anyone convicted of heinous crimes and sentenced to death is innocent.”


2. He justifies his mindless assertions with platitudes about corrupt DAs, sleeping jurors and untrustworthy jailhouse snitches as if the only factors in the determination of guilt in death penalty cases hinges on these things. The fact is: it takes an overwhelming case to secure the death penalty.


3. Testimony by a cellmate would never account for anything more than a tiny fraction of the evidence used to convict. The Shawshank Redemption was only a movie, Bernie.


4. Furthermore, the evidence of evil must be greater in the penalty phase then it was in the trial phase to obtain the death penalty.


5. Sadly, people like Bernie are loathe to admit that never, not once, has a convict been acquitted or proved innocent after being put to death. Removed from death row--yes, later found innocent--no, not ever in US history.


6. And please, the tiny few death penalty cases where some, emphasis on the SOME, of the evidence is called into question after the sentence is carried out is hardly the equivalent of a “not guilty” verdict, as people like Bernie are quick to erroneously assert.


7. However, there are countless cases of totally guilty, exceeding evil mass killers, going free or living a life of relative comfort in prison (at Bernie’s expense) long after they should have been put down like the animals they are.


8. Bernie’s complete rejection of the death penalty, regardless of the crime and the evidence of guilt, is an odd curiosity for a man so seemingly matter of fact on other issues. The human mind is a strange thing.

I inserted the numbered bullet points to make it easier for me to answer the various assertions. Here are my responses:

1. I do not feel everyone convicted of murder is innocent nor do I have a blind spot regarding murderers. In fact, I personally believe in the death penalty even when there is no murder - for example in my article Killing when No One has Died, I wrote: "I happen to think, in principle, that the death penalty is just dandy for men truly guilty of child-rape. In practice however, the death penalty, for any crime, is wrong because we can never know if someone is truly guilty even if they confess."

   What should make any civilized person sick is the execution of innocent people. According to a study done by Northwestern University School of Law, at least 39 executions have been carried out in the United States in the face of compelling evidence of innocence (1).

   There are two kinds of people in the world: those like English jurist William Blackstone who believe life is so precious that it is "Better that ten guilty persons escape than that one innocent suffer," and those who are so callous of human suffering that they believe it better for ten innocent to suffer than let one guilty person escape punishment. FrancisChalk seems to frolic in the latter camp.



2. These are not platitudes, but my observations after having watched and studied thousands of criminal trials. You left out mistaken eyewitness testimony as one of the factors that make me doubt the guilt of those accused of violent crimes: Newsweek in a 2009 article (2) reported that "of the more than 230 people in the United States who were wrongfully convicted and later exonerated by DNA evidence, approximately 77 percent involved cases of mistaken eyewitness identification, more than any other single factor."


3. According to Death Penalty Information Center, testimony by a jailhouse snitch accounts for at least 10% of proven wrongful convictions (3). Not really a tiny fraction. Now this is just for those already cleared of guilt in the murder. There are thousands more convicted of murder where DNA evidence is not available to prove their innocence or those for whom DNA evidence is moot because they are dead.

   And while The Shawshank Redemption is certainly only a movie, that fact is not proof that no innocent people have ever been convicted of murder.



4. No evidence of evil is required for the death penalty. Larry Griffin was executed on the testimony of one mistaken eyewitness (4). No gut-wrenching testimony of a brutal, sadistic murder or anything even close. You are delusional if you believe the death penalty phase has anything to do with brutality or evil.


5. There is a reason that no one has ever been acquitted or proved innocent after being put to death: in our judicial system there is no process for post-execution exoneration (5).

   Even if we had a video of the actual killer committing the murder, the confession of the real killer, new evidence recently discovered of a written note in the victim's own handwriting shortly before dying of his wounds accusing the real killer and exonerating the innocent party, signed affidavits from the police that they fabricated the evidence, and snitches recanting their testimony, even with all these, there is no judicial mechanism for the wrongly accused and executed person to get a new hearing to officially be acquitted.

   In America we do not hold trials for dead people. Not to find them guilty nor to exonerate them of guilt. Nice try, FrancisChalk, a disingenuous attempt, but nice try.



6. After the sentence is carried out no amount of evidence is considered good enough because states do not want to admit that they killed an innocent man. In 1998 there was a request for the DNA evidence of Joseph Roger O'Dell III, who was executed in Virginia in 1997 for a rape and murder. Fearing that he might be innocent, the prosecutor convinced the court that it would not be a good thing if the DNA proved that "Virginia executed an innocent man." And so the court ordered that the evidence be destroyed (6).

   This was not a hearing to exonerate O'Dell, I already mentioned that there is no such process in our country for post-execution exoneration. This was a hearing on whether DNA samples held by the state should be released for testing.

   So when one argues that post-execution there is no "real" evidence of innocence - the reason is simple. The states and the prosecutors won't give it up.

   But let's consider things that are hardly the equivalent of a “not guilty.” In 1939, Joe Arridy, who had an IQ of 46, was executed as an accomplice to a murder that occurred in 1936. David Martinez, an attorney for Arridy, had spent years compiling 600 pages of evidence to prove Arridy's innocence. In 7 January 2011, 72 years after that execution, the governor of Colorado granted a full and unconditional posthumous pardon to Joe Arridy, the first such pardon in Colorado history (7). Now I admit that this is hardly the equivalent of a “not guilty.” But a decent, humane, civilized, intelligent person can easily see that an innocent person was indeed executed.



7. As to living a life of comfort in prison - if it's such a nice place why do we bother sending anyone, even petty criminals, there? However, what our prisons should be like is a discussion for another day.

   As for living it up at my expense - a life sentence is many times cheaper than executing someone (8). So please, have the decency to allow me to save some money.



8. If you studied more than a few hundred murder trials you would quickly conclude that what you call evidence of guilt is usually, in overwhelming number of cases, the testimony of lying police and jailhouse snitches.

   As for my complete rejection of the death penalty being an odd curiosity, it happens that some of the greatest legal minds in the country eventually come around to my view of the subject. Consider the late Supreme Court Justice Harry Blackmun who originally decided the death penalty constitutional (in Furman v. Georgia, 1972) but eventually saw the light in his final death-penalty dissent (in Callins v. Collins, 1993) that there exists "the inevitability of factual, legal, and moral error" in capital punishment cases, "a system we know must wrongly kill some defendants."

Most of this rebuttal will not be necessary in a few years. I have no doubt that before I celebrate my 75th birthday in the year 2020, the death penalty will by then have been abolished in all 50 states. It took our country decades before we gave blacks and women the right to vote. But eventually we did the right and moral thing.