Cheering for the Ethan Johns defense team could get me beat up here in Madison, home of the family of Deputy Chad Mechels, the man Ethan Johns told a 911 dispatcher he shot and killed. But news that Johns's defense attorney are challenging the constitutionality of South Dakota's death penalty raises my hopes (slightly) for a constructive conversation on capital punishment.
Unfortunately, the defense strategy is unlikely to win. Even if it did, it would not abolish the death penalty. Johns's lawyers are challenging one specific provision of our death penalty laws. For us to kill a man, the state must demonstrate "mitigating or aggravating circumstances." The primary circumstance cited in the Johns case is that he shot Deputy Mechels "for the purpose of avoiding, interfering with, or preventing a lawful arrest or custody" (SDCL 23A-27A-1.9). Attorneys Jeff Cole and Sid Strange argue that that standard is overly broad and is applied in an "arbitrary and capricious manner."
Sigh. The Johns defense team appears determined to play small potatoes. Their invocation of "arbitrary and capricious" stinks of the same technicality-wrangling that I hear from complainers who like to use the word "defamatory" to describe certain blog posts, thinking they'll scare me by using a big legal word that they don't really understand. There doesn't appear to be anything arbitary, capricious or overly broad about the prosecution's contention that Johns saw the uniformed cop, feared arrest, and responded with deadly force.
I suppose I can't count on attorneys Cole and Strange to make the big arguments. They're probably just doing the best they can, grasping for straws within the strictures of existing statute and a losing case. I wish they would just shoot the moon and argue that capital punishment in toto is immoral and unnecessary... but I suspect that other lawyers have tried that argument and run up against the brick wall of the judiciary's obligation to judge the law as written, not legislate.
The defense has yet to offer an argument that promises to either spare Ethan Johns's life or overturn South Dakota's death penalty. If we want to end state-sanctioned cold-blooded murder that puts us all on Johns's moral level, we'll have to do that ourselves through the ballot box and the Legislature.
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