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481
THE USE OF THE DEATH PENALTY AS A
B
ARGAINING CHIP IN INNOCENCE CASES
CLAUDIA I. SALINAS
*
TABLE OF CONTENS
I. PLAYING IN A HIGH STAKES GAME .......................................... 481
II. MARILYN MULERO: THE PLAYER FORCED INTO AN
“ALL-IN” SITUATION ................................................................ 484
III. REGGIE COLE: THE PLAYER WHO MADE A GOOD PLAY
GIVEN THE CIRCUMSTANCES .................................................... 486
IV. CHANGING THE GAME .............................................................. 488
V. ELIMINATE THE “BARGAINING CHIP” ....................................... 492
I. PLAYING IN A HIGH STAKES GAME
Winning a case in court, like winning a game of poker, is not al-
ways a matter of holding good cards; sometimes, it all comes down to
playing a poor hand well. Even then, a skilled poker player needs to
have chips to play. At a table full of poker players, it is no shock the
player with the most chips in front of them sets the tone of the table
and becomes the “Big Stack Bully.”
1
More bargaining chips allow for
the player to make more combinations of plays and bluffs. The player
* Claudia I. Salinas, Esq., California Innocence Project Attorney (2023). The
author would like to thank her parents and sister for their love and support, all of the
amazing attorneys, staff, and interns at the California Innocence Project, and specifi-
cally Alex Simpson and Jamila Michael for their contributions to this essay. The
author also extends special thanks to Arya Sadighian and the rest of the California
Western International Law Journal for the invitation to participate in the Cruel and
Modern Punishment: The Death Penalty under International Law Symposium.
1. The term “Big Stack Bully” is used by poker players when referring to the
player in a poker game with the power to out-bet the players with less bargaining chips.
Big Stack Strategies: Going For The Kill, C
ARDSCHAT, https://www.cardschat.com
/poker/strategy/multi-table-tournament/mtt-big-stack/ (last visited Feb. 22, 2023).
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with the biggest stack of chips is able to bully the players with smaller
stacks into folding—even if their cards are better—to avoid having to
go “all-in.” The small stacks are constantly playing on defense waiting
for pocket aces that will actually hold up against the “Big Stack Bully.”
In the criminal legal system, the stakes are always high. The “Big
Stack Bully” is the prosecution; the player with more resources, ad-
vantage, and backed by the might of the state or federal government.
2
The prosecution has the power to call or fold—to take the case to trial
or offer a deal. The small stacks, invariably, are the defendants, those
players who come to the table at a tremendous disadvantage, and who
are always “all in.” In the most serious cases, the prosecution can raise
the stakes to the highest level by leveraging their most advantageous
bargaining chip: the death penalty.
While 70% of the world’s countries have abolished the death pen-
alty, also known as capital punishment, much of the United States
continues to use it in its criminal legal proceedings.
3
According to the
Death Penalty Information Center, at least 190 people were exonerat-
ed prior to their fated execution date after being wrongly convicted
and sentenced to death in the United States.
4
There is no way to tell
how many of the 1,562 people, who have been executed in the United
States, were actually innocent. As there are wrongful convictions still
happening today, it is no surprise that most countries consider the
death penalty a human rights issue.
5
Among others, a frightening number of those exonerations were
the product of official misconduct, perjury or false accusation, or false
or fabricated confession, which often occurs simultaneously.
6
When
the prosecution brings a death penalty bargaining chip to the table,
2. Craig R. Chlarson, The Disparity Among Prosecution and Pub. Def., WASATCH
DEF. LAWS., https://wasatchdefenselawyers.com/the-disparity-among-prosecution-and-
public-defense/ (last visited Feb. 22, 2023).
3. Policy Issues: International, D
EATH PENALTY INFO. CTR., https://death
penaltyinfo.org/policy-issues/international (last visited Feb. 3, 2023) [hereinafter
Policy Issues: International].
4. Policy Issues: Innocence, D
EATH PENALTY INFO. CTR., https://deathpenalty
info.org/policy-issues/innocence (last visited Feb. 3, 2023).
5. Policy Issues: International, supra note 4.
6. Robert Dunham, DPIC Analysis: Causes of Wrongful Convictions, D
EATH
PENALTY INFO. CTR. (May 31, 2017), https://deathpenaltyinfo.org/stories/dpic-analysis-
causes-of-wrongful-convictions.
2
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such a move changes the way a defendant plays their hand. This runs
the risk of an innocent person pleading guilty to something they did
not do—to fold their hand in the face of impossible stakes, guarantee-
ing a wrongful conviction.
The California Innocence Project handled Marilyn Mulero and
Reggie Cole’s cases where the prosecution used the “Big Stack Bully”
tactic.
7
Marilyn Mulero felt coerced into signing a prepared confes-
sion admitting to a murder she did not commit, which ultimately led to
the imposition of the death sentence.
8
Similarly, Reggie Cole, an ex-
oneree who was wrongfully imprisoned, was subsequently accused of
a prison murder while acting in self-defense, and confronted with the
death penalty.
9
These defendants were forced to make an unlikely
combination of moves to overturn their convictions and avoid a death
sentence.
10
Fortunately, both Marilyn Mulero and Reggie Cole’s win-
ning pocket aces held up, and they were rightfully exonerated.
11
All
too often, however, others in similar situations do not beat the odds.
7. Freed Clients, CAL. INNOCENCE PROJECT, https://californiainnocenceproject
.org/freed-clients/ (last visited Feb. 26, 2023). See also Marilyn Mulero, C
AL. INNO-
CENCE
PROJECT, https://californiainnocenceproject.org/read-their-stories/marilyn-
mulero/ (last visited Feb. 26, 2023) [hereinafter Marilyn Mulero] (explaining Mari-
lyn Mulero’s journey to exoneration); Reggie Cole, C
AL. INNOCENCE PROJECT, https://
californiainnocenceproject.org/read-their-stories/reggie-cole/ (last visited Feb. 26,
2023) [hereinafter Reggie Cole] (explaining Reggie Cole’s journey to exoneration).
8. Former Ill. Death-Row Prisoner Marilyn Mulero, Framed by Disgraced
Chicago Detective, Exonerated After 29 Years, D
EATH PENALTY INFO. CTR. (Aug.
11, 2022), https://deathpenaltyinfo.org/news/former-illinois-death-row-prisoner-
marilyn-mulero-framed-by-disgraced-chicago-detective-exonerated-after-29-years/
[hereinafter Former Ill. Death-Row Prisoner].
9. Reggie Cole, supra note 7.
10. Michael S. Perry & Maurice Possley, Reggie Cole, T
HE NAT’L REGISTRY
EXONERATIONS, https://www.law.umich.edu/special/exoneration/Pages/casedetail
.aspx?caseid=3113 (last updated July 19, 2017); Maurice Possley, Marilyn Mulero,
T
HE NAT’L REGISTRY EXONERATIONS, https://www.law.umich.edu/special/exoneration
/Pages/casedetail.aspx?caseid=6378 (last updated Aug. 22, 2022).
11. Perry & Possley, supra note 10; Possley, supra note 11.
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II. MARILYN MULERO: THE PLAYER FORCED
INTO AN “ALL-IN” SITUATION
On May 12, 1992, two members of the Latin Kings Street Gang
were fatally shot in Humboldt Park on Chicago’s northwest side.
12
The next day, Chicago police officers arrested Marilyn Mulero and
Jackie Montanez.
13
The police took them to the station to be inter-
viewed separately.
14
After the police denied legal representation, both
women were each subjected to over nine hours of questioning.
15
Throughout her interrogation, Marilyn denied any involvement in
the crime.
16
However, it was not long before the detectives brought
out their “bargaining chips” and told her she had two options: (1) con-
fess to one of the murders; or (2) be prosecuted for both and die by
lethal injection.
17
Police began “bluffing” by telling Marilyn that Jack-
ie already confessed, implicating her in both murders.
18
They told
Marilyn she would never see her children again unless she con-
fessed.
19
The prosecution implied the death penalty was merely a
placeholder and they would never actually pursue capital punishment
in a case where Latinos shot each other.
20
Without having many bar-
gaining chips of her own, Marilyn was forced to go “all-in.” She
signed a prepared statement by the prosecution, implicating herself in
both murders.
21
Without conducting any basic investigation into Marilyn’s case,
her attorney entered a blind plea of guilty on her behalf, which ex-
posed her to the risk of a death sentence.
22
Soon after, based on the
jury’s recommendation, Marilyn became the first woman to be sen-
tenced to death in Illinois.
23
12. Possley, supra note 10.
13. Id.
14. Marilyn Mulero, supra note 8.
15. Id.
16. Possley, supra note 10.
17. Id.
18. Id.
19. Id.
20. Id.
21. Marilyn Mulero, supra note 8.
22. Possley, supra note 10.
23. Id.
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Justin Brooks, founder of the California Innocence Project, trav-
eled to Illinois and met with Marilyn in prison, where she adamantly
maintained her innocence.
24
While Justin could not be sure whether
she was truly innocent of these murders, he was stunned at the reality
that a defendant could be sentenced to death without a trial.
25
As a re-
sult, he began litigating the case as a due process issue.
26
In May of
1997, the Illinois Supreme Court ordered a new sentencing hearing
after vacating Marilyn’s death sentence.
27
The result of the hearing led
to Marilyn being resentenced to life in prison without the possibility
of parole.
28
Justin continued his investigation into Marilyn’s case.
29
Over
time, he began to expose the weaknesses in the prosecution’s cards.
30
For example, defense investigators determined it was impossible for
the prosecution’s main eyewitness to have observed the alleged crime
from their vantage point.
31
Marilyn filed habeas petitions using this
information, but state and federal courts denied her claims.
32
The
United States Supreme Court ultimately denied certiorari.
33
Justin
went so far as to argue that the Illinois criminal legal system violated
international human rights law by sentencing people to death without
trials, however, the courts took no action based on those claims.
34
In January, 2017, Jackie came forward to admit she shot both
men, affirming Marilyn’s innocence.
35
Meanwhile, an overwhelming
amount of evidence revealing the misconduct by detectives involved
in Marilyn’s case surfaced.
36
On August 9, 2022, the district attor-
ney’s office was forced to lay their weak cards down on the table and
24. Id.
25. Id.
26. Id.
27. Id.
28. Id.
29. Id.
30. Id.
31. Id.
32. Id.
33. Id.
34. Id.
35. Id.
36. Id.
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agreed to vacate Marilyn’s conviction.
37
Marilyn became the 190th
person to be exonerated from death row in the United States.
38
The prosecution’s hand consisted of a false confession, a bad
eyewitness identification, and instances of government misconduct.
39
Marilyn’s case is a perfect example of the prosecution using capital
punishment to gain a better position throughout the entire criminal le-
gal process. In other words, the prosecution used the death penalty in a
manner similar to a high stakes bluff. If you ask anyone other than
Marilyn’s original lawyer, they will agree that being sentenced to
death on a plea bargain does not seem like much of a bargain at all,
especially if you are innocent.
III. REGGIE COLE: THE PLAYER WHO MADE A GOOD PLAY
GIVEN THE CIRCUMSTANCES
The case of Reggie Cole is another example of the state using the
death penalty as a bargaining chip.
40
On August 1, 1995, Reggie was
sentenced to life in prison without the possibility of parole for a mur-
der he did not commit.
41
While serving his 25-to-life sentence, Reggie
stabbed another incarcerated person in self-defense during a prison
fight.
42
The prosecution decided to go “all-in” by putting the death penal-
ty on the table, given this would be Reggie’s second murder convic-
tion.
43
The attorney representing Reggie had a mediocre hand and
knew he would have to play intelligently to stand a chance against the
“Big Stack Bully.”
44
Reggie’s attorney knew he would have to make a combination of
moves to win this hand and started looking into the integrity of Reg-
gie’s original conviction on the off chance that he could gain some
bargaining power of his own.
45
The attorney recognized the prosecu-
37. Id.
38. Former Ill. Death-Row Prisoner, supra note 8.
39. Possley, supra note 10.
40. Reggie Cole, supra note 7.
41. Perry & Possley, supra note 10.
42. Reggie Cole, supra note 7.
43. Perry & Possley, supra note 10.
44. Id.
45. Id.
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tion’s discretion to charge Reggie with the death penalty under the
special circumstances enumerated in section 190.2 of the Penal Code,
created some “outs” for his hand to get stronger by the “river.”
46
In
California, if a person is facing the death penalty for a prison murder,
the defendant is allowed to challenge the original grounds of their in-
carceration.
47
This extremely specific section of the California Penal
Code was Reggie’s “out.”
Reggie’s attorney, with the help of the California Innocence Pro-
ject, discovered the prosecution was playing dirty, “with a hidden ace
up their sleeve,” by withholding evidence.
48
The prosecution knew
their main eyewitness fabricated his testimony in Reggie’s original
trial.
49
In April of 2009, the superior court judge vacated Reggie’s
original conviction based on withheld evidence and ineffective repre-
sentation.
50
Unfortunately, Reggie remained in prison for the murder commit-
ted in self-defense.
51
Another year passed before his attorneys could
successfully argue for Reggie to receive credit for his original time
served under the vacated conviction.
52
The district attorney’s office
was “tilted”
53
from losing the original hand. They then filed new
46. In poker, there are situations when you are putting your bargaining chips in
without a completed hand, with the idea that you will be able to make a stronger
hand on the later streets, such as the “river,” that will ultimately beat your opponent.
Those unseen cards that will complete a player’s drawing hand are called, “outs,”
which are used in determining a hand’s equity at any time during play. The “river” is
the final card dealt to the board before the last round of betting in a hand, which is
when the player will want to have the strongest hand. What is River in Poker?, UP-
SWING POKER, https://upswingpoker.com/poker-terms-glossary/ (last visited Feb. 26,
2023).
47. In a hearing regarding the motion to strike Reggie’s prior, his attorney,
Christopher Plourd, argued People v. Horton calls for this type of hearing and the
presiding judge agreed. People v. Horton, 11 Cal. 4th 1068 (1995).
48. Reggie Cole, supra note 7.
49. Perry & Possley, supra note 10.
50. Id.
51. Id.
52. Id.
53. “Tilted” is a poker slang term that is often used to describe a player who is
angry or in a frustrated emotional state. The word “tilted” is commonly associated as
the result of simply taking a bad beat or losing a big poker hand. Barbara Connors, Un-
derstanding Tilt, P
OKEROLOGY, https://www.pokerology.com/lessons/understanding-tilt
/ (last visited Feb. 26, 2023).
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charges against Reggie for allegedly concealing a razor blade in his
prison mattress.
54
Fortunately, Reggie was acquitted on that charge
and finally released on May 15, 2010.
55
The importance of Reggie’s case cannot be understated. Reggie’s
case exposed prosecutorial misconduct; the prosecution misplayed its
hand by attempting to use the death penalty as a bargaining chip. The
prosecution’s strategy forced Reggie to go “all in” and play his hand
for any possible “outs” due to the severity of the consequences. Lucki-
ly, in this “all-in” situation, Reggie made the stronger hand that
proved his innocence, and won his freedom after years of wrongful
incarceration.
56
IV. CHANGING THE GAME
At the core of both of these cases is the startling fact that two in-
nocent people risked being executed. Central to both cases is the com-
bination of luck and chance. However, these cases are not unique. It is
not uncommon for the prosecution to use the threat of execution as a
strategy to better position the State in the “game” of the criminal legal
system. Implementing this strategy gives the prosecution an unfair ad-
vantage. Indeed, it bleeds into many cases, even those cases reasona-
ble people would not consider “death worthy.”
57
In 2021, the Pew Research Center conducted a study to better un-
derstand America’s view of the death penalty.
58
The study concluded
that 60% of adults in the United States favor the death penalty for
54. Perry & Possley, supra note 10.
55. Id.
56. Reggie Cole, supra note 7.
57. THE CASE AGAINST THE DEATH PENALTY, A
M. CIV. LIBERTIES UNION,
https://www.aclu.org/other/case-against-death-penalty (last visited Feb. 26, 2023).
The Court has made clear that the death penalty is constitutional when it is applica-
ble to those denominated “the worst of the worst,” therefore, implying there are
some cases that are “death worthy.” See also Jules Epstein, Examining Modern Ap-
proaches to Prosecutorial Discretion: Death-worthiness and Prosecutorial Discre-
tion in Capital Case Charging, 19
TEMP. POL. & CIV. RIGHTS L. REV. 389 (2010).
58. Most Americans Favor the Death Penalty Despite Concerns About Its
Administration, P
EW RSCH. CTR. (June 2, 2021), https://www.pewresearch.org
/politics/2021/06/02/most-americans-favor-the-death-penalty-despite-concerns-about-
its-administration/.
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people convicted of murder, 27% of adults strongly favor it.
59
Propo-
nents of the death penalty often argue the simple threat of the death
penalty deters criminals from killing or committing other heinous
acts.
60
In theory, prosecutors should only be threatening the death penal-
ty in the worst possible cases. However, in practice and as applied to
individual cases, the threat of the death penalty is up to the subjective
determination of the prosecutor and does not aim to punish “the worst
of the worst.”
61
For example, in California, Penal Code section 190.2,
lists twenty-two of the special circumstances that could trigger a death
sentence in a murder case.
62
Some of the circumstances include mur-
ders that are carried out for financial gain; in efforts to avoid or pre-
vent lawful arrest; for purposes of preventing testimony; by means of
lying in wait; or in the commission of one of twelve enumerated felo-
nies.
63
The special circumstances are broad enough to encompass cre-
ative reasonable arguments for almost any murder to fall within the
scope of capital sentencing.
64
Therefore, the copious number of spe-
cial circumstances creates more opportunities for prosecutors to use
this bargaining power. The very possibility of the death penalty allows
prosecutors to play their advantageous bargaining chip. This strategy
results in the overcharging and bullying of defendants to negotiate a
lesser sentence, which does not result in death.
The way the prosecutors used the death penalty in Marilyn and
Reggie’s case, and many like them, used the death penalty goes
against the two premises Judge Carney highlighted in Jones v. Chap-
pell: (1) that the government does not seek death arbitrarily, but in-
stead must only do so when it furthers the interests of society; and (2)
that the death penalty must be applied consistently and reliably to sim-
ilarly situated cases and defendants, so that the system—and society—
59. Id.
60. THE CASE AGAINST THE DEATH PENALTY, supra note 57.
61. Jules Epstein, supra note 57.
62. Cal. Pen. Code § 190.2 (West 2019).
63. Id. (the twelve enumerated felonies include: Robbery, Kidnapping, Rape,
Sodomy, lewd or lascivious acts upon a child under the age of 14 years, Oral copula-
tion, Burglary in the first or second degree, Arson, Train wrecking, Mayhem, Rape,
or Carjacking).
64. Id.
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can be sure that death is the appropriate punishment in any specific
case.
65
The very act of negotiating down from a more severe punishment
to a lesser punishment in exchange for waiving rights is coercive on
its face. That issue is further compounded when the possibility of
death is on the table. Indeed, Defendants may not ordinarily consider
pleading to a sentence of life without parole. However, when faced
with the possibility of the death penalty, defendants are more inclined
to accept pleas that would otherwise be rejected.
66
The difference is
matter of life and death. There are concerns that the threat of the death
penalty will coerce defendants who are not “death-worthy.”
67
This
issue includes those who may be innocent, but plead guilty in an effort
to spare their life.
68
Consequently, the death penalty is not used as in-
tended to further the “interest of society,” —deterring or punishing the
serious or heinous acts—but rather is used by prosecutors as bargain-
ing power to guarantee convictions.
The issue of innocence within the death penalty debate gained
significant attention in 2014 after the National Academy of Sciences
(NAS) reported at least 4.1% of defendants on death row are inno-
cent.
69
The report also suggests the number of innocent people is like-
ly more than double the number of those actually exonerated and freed
from death row.
70
With prosecutors wielding such high bargaining
power, it is arguably inevitable that innocent people will continue to
be convicted and sentenced to death for crimes they did not commit.
Shockingly, even after NAS released the report, the Pew Research
Center found that only 78% of people in the United States believe
some risk of wrongful convictions exists.
71
Additionally, only 21% of
adults think adequate safeguards are currently in place to prevent
65. Jones v. Chappell, 31 F. Supp. 3d 1050 (C.D. Cal. 2014), rev’d sub
nom. Jones v. Davis, 806 F.3d 538 (9th Cir. 2015).
66. Susan Ehrhard, Plea Bargaining and the Death Penalty: An Exploratory
Study, 29 T
HE JUST. SYS. J. 313, 314 (2008).
67. Id.
68. Id.
69. National Academy of Sciences Reports Four Percent of Death Row Inmates
are Innocent, C
AL. INNOCENCE PROJECT (Apr. 28, 2014), https://innocenceproject.org
/national-academy-of-sciences-reports-four-percent-of-death-row-inmates-are-innocent/.
70. Id.
71. P
EW RSCH. CTR., supra note 58.
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wrongful convictions.
72
Thirty-percent of death penalty supporters
believe adequate safeguards exist to spare innocent people from exe-
cution.
73
Given that the error rate of the death penalty is greater than zero,
there are no effective safeguards that exist. State legislatures must im-
plement more safeguards to prevent prosecutor strategy from resulting
in the murder of innocent people.
States should consider eliminating—or at the very least clarify-
ing—many of the special circumstances enumerated within the respec-
tive death penalty sentencing schemes. As currently enumerated, these
over encompassing sentencing schemes allow prosecutors to play
“more aces” than a deck typically has by choosing which murder case
they want to impose the death penalty on. The death penalty is intend-
ed to punish the “worst of the worst” criminals.
74
But, “as California
Governor Gavin Newsome stated in his executive order, the punish-
ment too often falls on the young, especially youth of color, disabled,
mentally ill, and on those raised in abusive environments and extreme
poverty.”
75
It is difficult to conceptualize that the sentencing scheme
accurately narrows down these marginalized groups as the “worst of
the worst.”
A prosecutor should be forced to “play with their cards face up.”
This means the intention of utilizing the death penalty should be
abundantly clear from the beginning: when the defendant is charged
with a capital crime. Specifically, prosecutors should be able to indi-
cate, and support with solid evidence, the extreme circumstances that
would elevate a first-degree murder to a capital murder. Their decision
to pursue the death penalty should be reviewed with strict scrutiny by
an independent agency. This objective review would help assist in
regulating the prosecutors who intentionally overcharge in hopes of
coercing defendants to give up their constitutional rights to a fair trial
or into deals they normally would not have made, but for death being
on the table. Independent review would add an additional protection to
ensure no racial and socioeconomic disparities in the prosecutor’s de-
cision exist.
72. Id.
73. Id.
74. Ehrhard, supra note 66.
75. Id.
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Finally, prosecutors should only be allowed to play in “the game”
if they are able to abide by the table rules. A death sentence should
only be imposed when a prosecutor can unequivocally prove, beyond
a reasonable doubt, that the defendant committed a capital offense.
While this is the legal standard prosecutors are held to, criminal de-
fense attorneys would argue it is not uncommon for the prosecution to
have shadows of doubt in their cases but still be able to manipulate the
emotions of the jurors to secure convictions, consequently, against
innocent people. At the very least and under no circumstances should
there ever be death sentences imposed without a trial or on a plea deal.
V. ELIMINATE THE “BARGAINING CHIP”
Many defense advocates would agree getting convicted of a crime
when the prosecution has all the “bargaining chips” is much easier
than going against “all odds” to overturn a conviction and prove inno-
cence once a conviction is final. Marilyn and Reggie’s cases demon-
strate the imbalance of bargaining power in the criminal legal system,
favoring the prosecution. The consequences of this imbalance are
deadly and irreversible. Given the harrowing stories about the wrong-
ful convictions and misuse of the death penalty, at some point, the
poker floor manager needs to eliminate the bargaining chip from the
international game all together, so that the others in the game can have
a shot at winning.
12
California Western International Law Journal, Vol. 53, No. 2 [2023], Art. 7
https://scholarlycommons.law.cwsl.edu/cwilj/vol53/iss2/7
