Friday, September 3, 2010

Many Kind Words for Cory Maye

I continue to be amazed by three-sigma people. Those are people who reside in a world at least three standard deviations beyond the mean. More specifically, they are among the top (or bottom) 0.3% of their field. They may be three-sigma athletes, artists, dancers, mathematicians, beaders, entreprenuers, fire investigators or origamists. I don't care so much about their particular field of achievement as I do about their capacity for extreme performance.

I guess I shouldn't have been surprised, therefore, to learn of a group of people who are three-sigma book reviewers. A substantial number of bibliophiles review books on Amazon, voluntarily, as an avocation. These people seem to compete with one another to be ranked high as an Amazon reviewer. The ranking seems to be based on number of reviews, and some  ratio of positive to negative feedbacks on their reviews. The highest ranked (classic) reviewer is Harriet Klausner with 22,694 reviews. Lawrance M. Bernado is second, currently at 6,666 reviews.

Some of these reviewers leave their email address on their Amazon profile page. I browsed through the list of top 100 hundred reviewers, found a few that I thought would be interested a book such as The Skeptical Juror and The Trial of Cory Maye, and sent each an email asking if they would  be interested in reviewing my book. Surprisingly, about half of those I wrote said they would indeed be interested. Most of those noted their large backlog of reading, but all provided a postal address. I sent each a review copy of my book.

Two days after sending the books, I received an email from one reviewer saying he had read the book and posted his review. Had my chair not been properly constructed, I would have fallen over backwards. I went to Amazon and reviewed his review, and the amazement was complete. Not only had he read the book, he had comprehended it and was able to speak to the details. He had also written an extensive review in seemingly less time than I will be able to write this preface.

I am of course pleased by his 5 star rating. The Amazon reviewers take pride in their review being trustworthy, and don't provide good reviews without cause. Many are reluctant to provide poor reviews, and avoid that by declining to review works they didn't care for. Therefore, simply having a review by a highly-rated reviewer is generally a compliment all by itself.

But beyond the result of the review, I am amazed that such people exist in such numbers. Imagine yourself receiving a book in the mail, reading it in its entirety, understanding it in detail, and posting an extensive review before you go to bed. Then imagine yourself doing that another 1500 times, as has Dennis Littrell, the person who reviewed my book for Amazon, and currently the 34th highest classic reviewer on the Amazon list.

I am impressed, and I appreciate his time and talent. I present his review below, but it would be better to read it in its original presentation here, then mark it as "Helpful" if you find it to be so.
5.0 out of 5 stars A very readable and different way to expose a miscarriage of justice, August 31, 2010
This review is from: The Skeptical Juror and The Trial of Cory Maye (Paperback)
It is evening, the day after Christmas, 2001. The place is Prentiss, a small rural town in Mississippi. The police have planned a drug bust and pull up to a small yellow duplex. There are eight of them. They have it on reliable authority that there are drugs in one of the duplexes. Just to be safe they have search warrants for both apartments. They fan out and more or less surround the premises. What happens next is in great dispute; however the result is a dead white police officer named Ron Jones and a black man named Cory Maye who would be beaten and arrested, and then tried and convicted of capital murder, and then sentenced to death.

What interests J. Bennett Allen about this case is his belief that Cory Maye is innocent and that the police lied during the trial in order to get the conviction and to cover up their ineptness. This is a story right out of "The Innocence Project" but with a twist. What Allen does after an exhausted study of the trial transcripts is to imagine that he is one of the jurors. He writes a fictional narrative about the jury deliberations. This is the central part of the book. He follows that with his personal reconstruction of the events leading up to and concluding on the night of December 26, 2001 based on his understanding of the evidence.

The key question that the jury had to answer was, Did Cory Maye know that when he fired his Lorcin .380 pistol he was willfully aiming at a police officer? The actual jury found that he did; but Allen presents a most convincing case that Maye was frightened and didn't know who he was shooting at. You might want to read this most interesting book and decide for yourself.

At any rate, I want to make some observations: One, this is a sad and totally avoidable tragedy that is a direct result of the so-called "war on drugs." It's not just another drug bust gone wrong, but is in a larger sense an example of the continuing racial divide that exists in the state of Mississippi and elsewhere in America. Had Cory Maye been white there is little doubt in my mind that the charge against him would have been something like manslaughter and not capital murder. This case is a prime example of the continuing unequal justice before the law that is a mainstay of Southern jurisprudence.

Two, had Cory Maye had the financial means to hire competent counsel, the malfeasance of the police would have come to light during the trial and the charge of capital murder would have been unsustainable.

Three, there is a feeling among some law enforcement officers that is okay to misrepresent the evidence against someone if that someone is certifiably a "bad guy" in their judgment. This is a natural human failing: we know so-and-so has committed other crimes and has done bad things for which he has not been held responsible. Therefore it is morally justifiable to "augment" the evidence or even to plant some evidence at the scene in order to ensure a conviction. This behavior is further rationalized by considering that should this "bad person" go free, he might commit further crimes.

Of course legally this is all gravely in error and against everything the law should stand for. In the case of Cory Maye it was obvious to the judicial system of Prentiss, Mississippi that he was (1) illegally in possession of a handgun; (2) an unemployed man living in the apartment of his girlfriend while she went to work at a chicken processing plant; (3) that he smoked marijuana; (4) he was a young black male; and (5) the man he shot was a white police officer.

Allen is to be commended for bringing the facts of this case to light and for his diligent work on the evidence and even for his imaginings on what might have taken place during jury deliberations. The book itself is well and engagingly written. I especially like the way he presented his "Alternate Scenario."

There is nothing in the practice of law and the administration of justice worse than the conviction of an innocent man. Thanks to the work of journalist Radley Balko, whom Allen acknowledges as being most instrumental in bringing this miscarriage of justice to public scrutiny, and to Allen himself and others, it is likely that Cory Maye will get a new trial. Stayed tuned.

A Few Kind Words for Byron Case

Katey Clees recently posted on my Facebook wall a 12-exclamation-mark review for The Skeptical Juror and The Trial of Byron Case.
I just read the trial of Byron Case. Wow!!!! How wonderful!!!! I just got the case of Cory Maye. Just started reading. I hope it is as good as the last book!!!! 
Katey Clees, whom I do not know, is obviously an insightful and expressive person.

While I have a Facebook account, I only occasionally look at it, and rarely post. I'm not particularly comfortable with social media such as Facebook and Twitter. My assessment is that Twitter is for those who write sentences, Facebook is for those who write paragraphs, and a blog is for those who write essays. Since I write primarily of my own research and analysis, I'm most comfortable with a blog format. 

ADDENDUM:

I wrote to Katey Clees to make sure she was not bothered by my use of her words on this blog.  I received a rely just recently.
Re: Byron Case
You may use my remarks. I think that book was wonderful!!!!!
What struck me as funny is that she used five exclamations marks to finish the sentence, rather than a mere four as before. Makes me smile. 

I mentioned this latest effusive moment to The Skeptical Wife / Publisher. She said "I'd like to see her keyboard. The exclamation mark is probably all worn off."

Thank you Katey for brightening my day.

Wednesday, September 1, 2010

On The Rate of Wrongful Conviction: Chapter 10.1

As I have mentioned many times previously, I am preparing a monograph on the rate of wrongful conviction. Each chapter will deal with one estimate of that rate, beginning with zero and ending beyond 10%. I am posting the draft chapters here, as I write them.  I have so far posted the following: 

Chapter 0.027: The Scalia Number
Chapter 0.5: The Huff Number
Chapter 0.8: The Prosecutor Number
Chapter 1.0: The Rosenbaum Number
Chapter 1.3: The Police Number
Chapter 1.4: The Poveda Number
Chapter 1.9: The Judge Number
Chapter 2.3: The Gross Number
Chapter 3.3: The Risinger Number
Chapter 5.4: The Defense Number
Chapter 9.5: The Inmate Number

In this chapter, I use a numerator and a denominator to go nose-to-nose with the likes of Marty Rosenbaum, Tony Poveda, Samuel Gross, and Michael Risinger. Wish me luck.


Chapter 10.1
A Skeptical Juror Number

I propose a system by which we can quantify our county’s wrongful conviction rate. I propose a series of publicly-funded panels of distinguished jurists that would carefully review a large sample of verdicts. Each panel would offer its assessment of whether specific defendants were factually guilty or factually innocent. These panels would be granted insight into the cases beyond that available to the juries. They would be able to take years, even decades, to reach their final judgements.

Each panel would allow both prosecution and defense to submit their cases in carefully crafted documents and, in some cases, to appear before the panel itself. Each panel would be required to review the cases so carefully and reach its final judgements with such confidence that it would be willing to publish its results for all to see. Each panel would be so confident in its decisions that it would allow other similar panels to review its work.

As a society, we could decide that, at least for the purpose of calculating our wrongful conviction rate, the judgment of the panel system would be final. Any person exonerated as a result of the panel review system would be declared factually innocent, at least for the purpose of making our wrongful conviction rate calculation. Any person who definitively stood no chance of ever being exonerated by the panel review system would be declared factually guilty, at least for the purpose of making our wrongful conviction rate calculation. As a society, we would then divide the number of factually innocent people by the number of cases definitively ruled upon by the panel system, and declare that to be the official wrongful conviction rate.

The math would be simple. If the panel system found 10 defendants to be factually innocent and 90 to be factually guilty, the wrongful conviction rate would be calculated as:

Wrongful Conviction Rate = 10 / (90 + 10) = .10 = 10%

The rate would be applicable only to the types of cases well-represented in the large sample of cases reviewed by the panel system. If for example, the panel system reviewed a large number of drug-related trials, the number would be applicable to those people convicted as a result of a drug-related trial. If the panel system had reviewed a large number of cases where the defendant had pled guilty to arson charges, the result would be applicable to those people who pled guilty to arson.

<<>>

I hereby claim we already have an approximation of a panel review system such as I just proposed. We call it our appellate court system. I claim further that the appellate court system approximates the panel review system only for death penalty cases, and only for those cases finally and irretrievably decided.

For the narrow purpose of calculating our country’s wrongful conviction rate (specifically for capital murder cases), a person is declared factually guilty when that person is executed. That case is then irretrievably decided. There may be those, such as myself, who argue it is statistically impossible that the population of those executed did not include a fair number of innocent people. For the narrow purpose of the calculation at hand, those people must stand mute.

Furthermore, for the narrow purpose of calculating our country’s wrongful conviction rate (specifically for capital murder cases), a person is declared factually innocent under one of three scenarios. The first scenario consists of the case being overturned by the appellate court system and the person being acquitted during retrial. The second scenario is similar; it consists of the case being overturned by the appellate court system followed by the prosecution deciding not to re-try it. The third scenario consists of an absolute pardon being granted by the governor after the discovery of new evidence. For those people exonerated as just described, their case has been irretrievably decided. They cannot be retried for the same crime.

There may be those, such as Joshua Marquis and Justice Scalia, who might argue that some of those removed from death row merely had their death sentences overturned, and that others were convicted of lesser crimes. I would counter that as long as those people breathed, they still had some hope of exoneration, minimal as that chance might be. Their case had not been irretrievably decided, and it should therefore be excluded from the calculation.

Only cases finally and irretrievably decided by a thorough and persistent panel review system should be included in this particular wrongful rate calculation.

For the narrow purpose of this calculation, those people who were executed despite years or decades of appellate reviews are deemed to be finally and irretrievably guilty. As of September 1, 2009, they number 1224.

For the narrow purpose of this calculation, those people who were exonerated after being placed on death row are deemed to be finally and irretrievably innocent. As of September 1, 2009, they number 138.

Based on these two numbers, I calculate our country’s wrongful conviction rate for capital murder cases to be:

138 / (1224 + 138) = .101 = 10.1%

As of September 1, 2009, we have 3,261 inmates on death row. Given a wrongful conviction rate of 10.1%, we have 329 innocent people wrongfully awaiting execution by this country.

<<>>

The astute among you may see similarities in my calculation and those of Marty Rosenbaum (Chapter 1.0), Tony Poveda (Chapter 1.4), Samuel Gross (Chapter 2.3), and Michael Risinger (Chapter 3.3). Each of them did something similar. Each divided a number of murder exonerations by a number of murder convictions, yet they calculated a wrongful conviction rate somewhere between one-third and one-tenth the number I have so compelling calculated here. How can that be? Each of us used a reasonable numerator and each of  us used a reasonable denominator, so how is that we arrived at such widely varying rates?

The answer lies in our denominators. We are pretty consistent in defining our numerators. Inmates must be pretty well exonerated before they are counted as such, though Samuel Gross is a bit lax in that regard for some critics. With respect to our denominators, however, we don’t see eye-to-eye.

The denominator in each case is some number of convictions. For my predecessors, convictions equate to the sum innocent people (presumed equal to those exonerated) and guilty people (presumed equal to those not exonerated.)

I equate convictions to the sum of those irretrievably exonerated (same as my predecessors) and those irretrievably guilty (those who were executed and beyond any hope of exoneration.) In other words, my predecessors assume that at some point short of execution inmates must be guilty if they haven’t been exonerated. I do not make that assumption. I use death penalty cases specifically because they provide a clear cut distinction between irretrievably innocent and irretrievably guilty. All other cases which exit the death penalty arena I declare to be still unresolved.

Because I am equally demanding in defining factual guilt as I am in defining factual innocence, I include fewer convictions in my denominator. And that has made all the difference.

<<>>

Two roads diverged in a yellow wood
and sorry I could not travel both
And be one traveller, long I stood
and looked down one as far as I could
to where it bent in the undergrowth;

Then took the other, as just as fair,
and having perhaps the better claim
because it was grassy and wanted wear;
though as for that, the passing there
had worn them really about the same,

And both that morning equally lay
in leaves no feet had trodden black.
Oh, I kept the first for another day!
Yet knowing how way leads on to way,
I doubted if I should ever come back.

I shall be telling this with a sigh
Somewhere ages and ages hence:
Two roads diverged in a wood, and I --
I took the one less travelled by,
and that has made all the difference.


Notes:
1. My calculations include only those cases decided since the re-institution of the death penalty in 1976.

2. For the number of executions since 1976, see The Death Penalty Information Center at http://www.deathpenaltyinfo.org/executions

3. For the number of exonerations from death row since 1976, see The Death Penalty Information Center at http://www.deathpenaltyinfo.org/innocence-list-those-freed-death-row

4. For the number of those on death row, see The Death Penalty Information Center at http://www.deathpenaltyinfo.org/death-row-inmates-state-and-size-death-row-year#state

5. Poem by Robert Frost: “The Road Not Taken”

Friday, August 27, 2010

Convictions Talk, Reason Walks

One way to reduce the number of wrongful convictions is to reduce the number of convictions. We have 5% of the world's population and 25% of the world's prisoners. Assuming we could struggle by with  as many prioners per capita as the rest of the world, we could reduce our wrongful conviction numbers by 80%. Instead of having around 200,000 people wrongfully imprisoned, we would have "only" 40,000 people wrongfully imprisoned.

I don't claim to have all the solutions. I do, however, want to talk about the magnitude of the numbers. They are appalling and a national embarrassment. I also want to listen to what others have to say. Consider if you will, this 7 minute video by someone who has put some thought into the matter.

The Well-Orchestrated Trail and Execution of David Wayne Stoker

In my search for the 54 innocent people I calculate Texas has executed, I recently reviewed the case of David Wayne Stoker. Stoker was charged and tried for murder based almost exclusively on evidence and testimony provided by “low-life scum drug dealer” Cary Todd. I adopt Todd’s unofficial title of “low-life scum drug dealer” from the prosecutor’s description of him during trial.

Though the prosecution considered Cary Todd to be a “low-life scum drug dealer”, they nonetheless paid him with cash and time-off for his role in convicting David Wayne Stoker. The prosecution then lied to the jury about doing so.

Even though I have yet to describe the details of the case, I hope that you already have some doubt that David Wayne Stoker was guilty as charged, and some doubt as well that he was properly killed by the people of Texas.

<<>>

During his six years as governor, George W. Bush presided over 152 executions. Regarding them he said: “I take every death penalty case seriously and review each case carefully ... Each case is major because each case is life or death.” He explained that for each case, he received a brief from his legal counsel and reviewed the arguments made by the prosecution and defense raising "any doubts or problems or questions.” He described his approach as “fail-safe.”

Below, I will describe Stoker’s case to you as it was described to then Governor Bush. Though Bush did not find the description provided to be inadequate, I do. I will therefore annotate freely.

Allow me to begin by presenting page 1 of the 3-page summary Bush received regarding the impending execution of David Wayne Stoker. As always, click on it to enlarge.

 

Right away, there are matters of interest to discuss. Note that the summary was prepared by Alberto R. Gonzales. For such fine work as this life-or-death summary, George Bush would later select Alberto Gonzales to be the Attorney General for all these United States. Gonzales served after John Ashcroft stepped down, resigned amid several controversies and allegations of perjury before Congress, and was replaced by Harriet Miers.

As Governor Bush's chief counsel, Gonzales reviewed all clemency requests. During Bush's six years in office, during the six years in which Bush's "fail-safe" plan was in effect, 152 people were executed by Texas while only one case was overturned.

Note now the date of the summary: June 16, 1997.

Note now the subject: Scheduled Execution of David Wayne Stoker #892 on Monday, June 16, 1997, at 6 P.M.

The Gonzales summary is dated on the same day as the execution. It gets worse though. Stephen Latimer, the person who represented Stoker in his clemency appeal, claimed he received a call from Gonzales' office about a week to ten days before the execution, advising him that there would be no reprieve. If that is correct, then the decision to go ahead with the execution was made a week to ten days before Bush could have possibly seen Gonzales' summary. It casts considerable doubt over Bush's claim that he carefully reviewed each case before execution. It's not likely Bush's "fail-safe" plan was either seriously implemented or particularly effective.

<<>>

Time to move on to the details of the "BRIEF SUMMARY OF THE FACTS".
David Wayne Stoker was convicted of capital murder for the murder of 50-year-old convenience story clerk, David Manrrique, while in the course of committing a robbery. Stoker was convicted on October 26, 1987, and sentenced to death the next day in the 242nd Judicial District Court of Hale County.
So far, so good.
On November 9, 1986, sometime between approximately 5:30 a.m. and 5:50 a.m., Mr. Manrrique was shot on the top of his head and twice in the chest with a .22 caliber Ruger.
Actually, the victim was shot once in the head and twice in the back. It's a minor quibble. Let's proceed.
When Ms. Gracie Sanchez, the assistant manager, arrived at approximately 5:50 a.m., she noticed customers waiting to be served. Ms. Sanchez went into the store and found both cash registers opened with $96.00 missing. Ms. Sanchez also noticed the back door was left open and found Mr. Manrrique's body lying face down in a pool of blood.
Another quibble. Gracie Sanchez noticed the cash register drawers were opened, but did not determine that $96 were missing. Instead, she called the store manager. The manager audited the receipts and estimated that $96 had been taken.
Ms. Sanchez immediately called both the police and her store manager to report what she had discovered. Medical personnel arrived on the scene quickly and administered first aid when they discovered that Mr. Manrrique was still alive, albeit with a very weak pulse. Mr. Manrrique was rushed to the hospital. After several efforts to resuscitate him failed, he was pronounced dead at 7:08 a.m., approximately one hour after receiving emergency medical attention. According to the autopsy, his death was the result of multiple gunshot wounds. Police records reflect there were no fingerprints at the scene. Only three spent shell casings were found on the premises.
Close enough. I think Gonzales should have mentioned that two bullets were retrieved from the body, but I'll not press that point.
According to trial testimony, twenty-seven-year-old David Wayne Stoker admitted to at least two people that he had killed the clerk at the convenience store.
Now I have a problem with Gonzales' summary. While it's true that two people did testify at trial that Stoker confessed to them, the witnesses and testimony were of dubious quality. Consider first Debbie Thompson.

While it's easy to cast aspersions, during my research I saw Debbie Thompson referred to as someone who would trade sex for methamphetamine. More specifically, I saw her described as a "methamphetamine whore." Perhaps it was only coincidence that at the time of her trial testimony, Debbie was living with a methamphetamine pusher, Cary Todd. That must have been a bit awkward for the prosecution since Cary Todd was the person most likely to have shot and killed David Manrrique.

Debbie's living arrangement was also awkward since she was at that time married to another man. In fact, she was married to Ronnie Thompson, the other person to whom Stoker allegedly confessed. Ronnie now claims that Stoker never confessed to him, that he signed a statement written by wife Debbie only because she told him that David Wayne Stoker had raped her. By the time of the trial, Ronnie no longer believed his beloved to be truthful, perhaps because she had shacked up with “low-life scum drug dealer” Cary Todd. When he tried to recant just before providing his testimony, the prosecutor threatened him with perjury based on his earlier statements. From Ronnie's perspective, the only way to avoid being convicted of perjury was to commit perjury.

I suggest these issues reflecting on the credibility of two crucial witnesses should have been mentioned in Gonzales' summary memo to George Bush, else the "fail-safe" system might fail.
However, Stoker maintains his innocence and argues that, with the choice of weapons in his possession, he would never have used an old and unreliable weapon if he were planning to murder someone.
Hahahaha! Nice job summarizing Stoker's defense. Only in Gonzales' summary did I ever see anyone offer this defense. It is merely a case of damning with faint inculpatory praise.
Stoker readily admits to drug use and sales, but disputes that those who testified against him were credible witnesses.
Perhaps Gonzales could have discussed here the nature of Debbie Thompson's conflict of interest and Ronnie Thompson's claim his testimony was coerced by the state. Perhaps that would have resulted in a more balanced summary than simply stating that Stoker "disputes" their testimony.
The prosecution's main witness was a police informant who purchased drugs from Stoker.
Gonzales elected to refer to Cary Todd merely as a "police informant" rather than as a "low-life scum drug pusher," as did the prosecution. Gonzales also failed to mention that Todd was the person who provided the murder weapon to the police. The .22 caliber Ruger Todd provided was consistent with the two bullets removed from the body, and was the weapon that fired the three shell casings found beside the body. Todd explained, however, that he had been given the gun by Stoker.
That purchase provided evidence that resulted in a thirty-year sentence for delivery of methamphetamines which he [Todd] is serving concurrently with his present incarceration.
Gonzales would have the reader believe that Cary Todd voluntarily walked into a police station, gave them a murder weapon, explained that he had the murder weapon only because the real killer had given it to him, confessed that he knew the murderer only because he bought large quantities of meth from him, and was then shocked to receive a 33-year sentence for his good-Samaritan effort.

A astute reader might note also that the sentence was being served concurrently, not consecutively. In other words, the sentence added no additional time to his confinement. What the reader can't possibly know, based only upon the writing of Alberto Gonzales, is that Cary Todd had drug and weapons charges dropped against him in another jurisdiction on the same day he testified, but only after he testified. The jury was unaware of this tit-for-tat because prosecution witnesses swore under oath it never happened and proof of the deal was found only after Stoker's conviction.

The jury was unaware also that Cary Todd was awarded $1000 for assisting the police, given as part of the crime-stoppers program. The prosecution witnesses lied about this fact as well. And, by the way, Debbie Thompson claimed half of the $1000 reward for corroborating the claims of the man she was sleeping with in exchange for meth.

Even though Gonzales made it sound as if Cary Todd should be believed because he was doing hard time, Cary Todd in fact managed to avoid a capital murder charge, to have drug and weapons charges dropped in another jurisdiction, to receive no incremental time for the drug charges in the local jurisdiction, and to be rewarded $1000 in crime-stoppers money, simply for being the primary witness against David Stoker, who could not otherwise be tied to the crime. Good one, Alberto.
One court opinion states that the evidence is solely circumstantial.
In fact, one federal appellate judge concluded that Todd was just as likely the murderer.
Nonetheless, experts did determine that the .22 Ruger admitted into evidence, seen in Stoker's possession by his own bother within the weeks following the murder, was actually the murder weapon.
This was the closing line in Alberto's "brief summary of the facts", and it was a doozie. Two people actually testified they saw Stoker with the weapon sometime after the murder. One was in fact Stoker's brother, Danny Stoker to be precise. Danny Stoker testified his brother only had the gun because Cary Todd had given it to him, asking him to fix the trigger.

Wayne Reed also testified he saw Stoker with the gun after the shooting. Wayne testified further that Cary Todd told him he had "set [Stoker] up to take the big fall."

On the other hand, two witnesses (presumably Danny Stoker and Wayne Reed) testified they saw Cary Todd with the gun just before the shooting.

So there you have it: Alberto's Gonzales' "brief summary of the facts" annotated with my more extensive summary of the facts. You can decide for yourself which would be more valuable to an allegedly "fail-safe" system preventing innocent people from execution.

I have prepared an Actual Innocence Scorecard for David Wayne Stoker. I score him at 73. I think its more likely that he did not kill David Manrrique than he did. Where most others are certain, one way or another, I claim only a probability based on imperfect knowledge. Of this much, however, I am confident: the totality of the evidence in this case, not just that presented to the jury, did not merit a guilty verdict for capital murder.