TCS Daily

The New York Times Again Cries Wolf - Part 2

By Lester Jackson - September 11, 2009 12:00 AM

NOTE: Bracketed page numbers and footnotes refer to documentation in the detailed paper downloadable here.

Continued from Part 1...


Presumably, what suddenly made the Cooper dissents newsworthy after 95 days was that the Times decided to do its own "review" of death penalty dissents by federal circuit judges and seek out "experts" to confirm the findings. Like the media reporting on their own polls, the paper created its own story. As with any custom creation, the desired results were produced. Even so, the best that the Times could come up with was that there had been a "noticeabl[e]" increase ("dozens") in dissents from decisions sustaining death sentences. There is no indication of how many such dissents there were in prior years and just how much of an increase there was.

More importantly, a Times reader would believe only death penalty opponents were unhappy. In reality, there have been many dissents complaining about judicial sophistry used to rescue clearly guilty brutal murderers [3]. The Times did not compare the dissents on behalf of convicted murderers with those against sparing the clearly guilty. At the very least, some hard numbers should have been provided. Instead, lay persons are left to believe that dissent is a one-way street. There is not a word about dissents by appellate judges who care about victims and fealty to the law.

Most important of all, there is no mention of the numerous Supreme Court dissents from fiats by abolitionist justices who, absent any constitutional amendment, almost completely abolished capital punishment [3-4, 29-30, 43]. Lest there be any doubt about what they have perpetrated, death penalty opponents themselves have observed: "For [its] first 175 years ..., the Constitution was not construed to place any limits on ... capital punishment." Thereafter, in countless cases, the death penalty was slowly but methodically dismembered [29-31; n283]. This did not occur without understandably vehement protest. In case after case, as recently as 2008, there have been vigorous dissents. Examples abound [nn32, 313]: abolition of the death penalty for adult rape [nn98, 265], child rape (2008) [13-16], supposedly routine murder [nn32, 288], felony murder, alleged mental retardation (2002) [11-13], 17-year-olds who proudly commit premeditated torture and murder (2005) [7-8], and many more (e.g., here, here, here, here and here (2007), here (2007), here (2007), here [9-10], and here).

So there have been myriad dissents by judges and justices "frustrated" by decisions saving the clearly guilty. In concealing this fact, the Times engages in yet another media attempt to create an illusory bandwagon to convince a people who overwhelmingly support the death penalty that they are out of step and should get with the elitists' program [33].

"Conservatives" and "Moderates"

A common abolitionist artifice is to pretend not to oppose capital punishment and to be, in fact, "moderate" or even "conservative" [n177]. Some dissenters have "ruled in favor of the death penalty many times," says the Times, omitting that only Justices Brennan and Marshall took the position that the death penalty was unconstitutional period. (By the time Blackmun so opined, his retirement was imminent.) Hence, almost all members of the Supreme Court, as well as lower court judges bound by the Supreme Court, have sustained many death sentences. That did not stop them from, as noted, slowly but surely sabotaging the death penalty over nearly four decades.

In making its case, the Times relies upon three appellate judges, Stephen Reinhardt, Rosemary Barkett and Fletcher. Using Barkett and Reinhardt as authorities on the death penalty is like relying on Mahmoud Ahmadinejad as an authority on religious tolerance or pacifism.

The Times does not tell us that, years before President Obama made "empathy" famous, Reinhardt indicated he used his own values and life experience to decide cases. He was considered at the Supreme Court to be a "renegade judge," becoming "one of the most overturned judges in history" while defiantly boasting that, because the high court takes so few cases, "[t]hey can't catch 'em all." As for the Times' implication that Barkett is a death penalty supporter, she joined the dissent showing great sympathy for Jacob Dougan. Far from any doubt about his guilt, he sent a tape to the victim's mother boasting: "it was beautiful. ... I enjoyed every minute of it. I loved watching the blood gush from his eyes." Because Dougan said his intent was to call attention to racial discrimination, the dissenters asserted this was "a social awareness case. Wrongly, but rightly in the eyes of Dougan, this killing was effectuated to focus attention .... The victim was a symbolic representation of the class causing the perceived injustices." So concern for social justice mitigates the enjoyed murder of a randomly chosen innocent 18-year-old begging for his life! Also, Dougan's "impatience for change ... matured to taking the illogical and drastic action of murder." Here, then, maturing mitigates murder. But, long before a 5-4 Supreme Court held a 17-year-old could not be expected to fully appreciate the wrongfulness of torture-murder [7-8], Barkett filed a sole dissent to save a 17-year-old repeat premeditated murderer based on his immaturity and, also, because it was not entirely his fault - family, schools and society having failed him. She did not explain why almost all teenagers confronting societal and family shortcomings do not commit brutal murder.

Does it concern the Times that Dougan, his guilt of brutal murder 34 years ago uncontested, is still on death row?

Turning to Fletcher, the Times seeks to show he is moderate because he is "hardly a fierce opponent of capital punishment," meaning that he may be an opponent but not a "fierce" one. Fletcher himself snatches a well-used artifice from the abolitionist bag of tricks. Feigning concern for the additional torture they themselves have used the legal system to inflict upon the victims' families, disingenuous death penalty opponents propose to relieve that torture by protecting guilty murderers [49-50]. Fletcher writes that the crime survivors, their families and the murder victims' families have "been traumatized for life. The criminal justice system has made their nightmare even worse. ...We owe it to the victims of this horrible crime ... to get this one right." The Times quotes the last sentence but fails to mention the ploy. Cooper is not only a reprise of the Coleman case; it is also one more example in a long list where those who care about murderers at the expense of victims pretend to do so for the benefit of the victims. The families saw through and rejected Fletcher's pretended solicitude.


The August 14 Times article was not a legitimate news story. It did not fairly report relevant facts concerning an event that had just occurred. Nor was it even an opinion piece, which states what it disagrees with and why. Hence, this is not a responding opinion piece. In the end, the Times produced one-sided anti-capital punishment propaganda. The purpose here has been to present the anatomy of such propaganda.

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