Bang 'Em

Why was the death penalty pursued so doggedly in the Sgt. Stephen Liczbinski case?

by Isaiah Thompson

"Bang 'em!"

So instructed Assistant District Attorney Jude Conroy to a jury as it began deliberations last week over the sentencing of Eric DeShann Floyd and Levon T. Warner, accused of helping gunman Howard Cain murder Philadelphia Police Sgt. Stephen Liczbinski in 2008. Conroy was asking the jury to impose death, using a variation of those same words — "Bang him!" — Floyd allegedly used to urge Cain to shoot Liczbinski, while Warner handed Cain the gun: the basis of their convictions on first-degree murder, despite not having been shooters themselves.

"There is only one sentence, and it's not grounded in vengeance," Conroy said. "Bang 'em, bang 'em." Emotions were hot: A mannequin dressed in Liczbinski's blood-stained uniform — used for a demonstration weeks earlier — was still present during the prosecutor's statement. Still: What a strange statement it was.

There was not, of course, only one sentence: Failure on the jurors' part to vote unanimously for death would result in life-without-parole sentences for the two defendants. And that's exactly what happened on Tuesday afternoon.

In doing so, the jurors — or at least, the reported two of the 12 who dissented — rejected a policy shown to be inconsistent, ineffectual and flawed. The death penalty costs the public far more to carry out than life sentences. It's mind-bendingly slow: Though 220 people sit on death row in this state, only three have been executed since 1978, and none since 1999. It's used disproportionately by race: A study of death penalty cases in Philly by University of Iowa professor David Baldus found that race alone affected the chance of a defendant being sentenced to die as much as an extra aggravating factor, such as "torture." And then there are the mistakes. Nationwide, 254 people have been exonerated in the last two decades by subsequent DNA evidence. Seventeen of those left death row — five of them freed by the work of one team of Northwestern University students.

In this case, the jury agreed the men were guilty of murder. Yet they didn't agree it was the "only" appropriate sentence. Perhaps they were less comfortable than the D.A. with the presented evidence that the two men intended for Cain to kill Liczbinsky: Warner's handing Cain the gun and Loyd's shouting "bang him," details only the men themselves know.

Liczbinski's family, who called for death, will be disappointed. Theirs is a personal rage, and nobody has the right to judge it.

Not so the D.A.'s office. Why was the death penalty pursued so doggedly in this case? Maybe it was vengeance. Or maybe there were other reasons: for example, that the capital case allowed prosecutors to pick a jury more likely to deliver at least a first-degree murder charge in a case where the defendants hadn't fired.

Maybe it made for a good show. According to one attorney knowledgeable in criminal law, the prosecutor's "Bang 'em, bang 'em" remarks alone potentially opened the case to new challenges and, "It's highly unlikely the prosecutor would have made that statement without knowing that it could present an issue on appeal."

Maybe, in other words, however problematic it is, the death penalty is still good politics. Nothing grabs a headline, after all, like "Bang 'em! Bang 'em!"

Isaiah Thompson always grabs headlines. E-mail him at isaiah.thompson@citypaper.net.