Guest post for the Joe Hill Organizing Committee.

The Supreme Court 5-4 on June 29, 2015, approved a substitute drug cocktail that does not rule out botched executions. Justice Breyer wrote an inspiring opinion for the abolition of the death penalty.

We all came to Joe Hill for different reasons. My reason as a trial lawyer is that the death penalty corrupts the system as much today as in Joe Hill’s time. What outrages me the most in the Hill case is the lack of experienced trial counsel and the complete lack of a system that would clean up the messes left by juries. One hundred years later, our system for cleaning up the messes left by the jury system doesn’t seem much better.

I understand the ideology behind Hill’s work. I appreciate the cleaver puns and originality. I understand the importance to the labor movement.

I feel the injustice of the 1914-1915 legal system. As Adam Pritchard said, we lawyers are freed from ambiguity. We don’t need to suggest other suspects or concoct conspiracy. For us, all that is needed to succeed is reasonable doubt. There is always reasonable doubt as to this jury verdict, and I think we have argued persuasively that reasonable doubt should have prevailed in the Hillstrom trial.

It is too much to expect that a jury system, often with elected prosecutors and judges, in a prejudiced community, will spit out the answer 100% of the time. Add in novice lawyers, a missed peremptory challenge, and the rejection or non-presentation of the most reliable exonerating evidence rises to the level of “unusual” if not cruel.

Justice Breyer’s dissent of this week makes exactly that argument. Joe Hill makes my case for abolition of the death penalty.

Kenneth Lougee

Kenneth Lougee is a trial lawyer with 30 years experience. He practices with the Salt Lake Firm of Siegfriend and Jensen. He has Bachelors and Masters degrees in history as well as a law degree. He is the author of Pie in the Sky: How Joe Hill’s Lawyers Lost His Case, Got Him Shot, and Were Disbarred (2011).

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