Is it time to rethink the death penalty?

By Bill Kurtis Star-Ledger (New Jersey)
November 21, 2004

As a California jury decides whether Scott Peterson should be put to death
for murdering his pregnant wife, arguments about the morality of the death
penalty are swirling anew. But we have reached the point in this country where we need to reconsider the death penalty, and morality has nothing to do with it.

There are, quite simply, too many errors in the criminal justice system and
too many innocent people turning up on death row. Lawyers have known this for a long time, but it has taken DNA testing to confirm the flaws.

How could an innocent defendant be wrongfully convicted in the first place?
The answer is mistakes -- simple, often tiny, mistakes that can lead to a
sentence of death.

Take the case of Ray Krone, who was arrested for the murder of a bar manager in Phoenix, Ariz., in 1991. An inexperienced forensics expert made a mold of Krone's teeth and placed it around the victim's nipple, hoping to compare the mold with bite marks left by the killer. The mold made contact with the skin and, because a corpse's skin is not resilient, the marks from the mold stayed, creating new evidence from which other experts made their judgments.

Simple mistake. But it became the central piece of evidence that a jury used
to convict Krone of murder and sentence him to death. Some 10 years later, DNA tests cleared Krone as a suspect. A sexual offender who lived six blocks away from the victim was the match. He later confessed to the murder.

Investigators might have found the sex offender if they hadn't been directed
to build a case against Krone within a few days of the crime. It's a common
mistake, focusing too quickly on someone who seems to fit the evidence
available. This is called "expectational bias." If the Krone case was a once-only mistake we wouldn't look twice, but DNA's peek through the keyhole of the criminal justice system is telling us such "small mistakes" happen far too often to ignore.

Some errors are not so innocent. A prosecutor learns of an expert witness who
does not support his case, and despite his obligation to inform the court about exculpatory evidence he "forgets" to pass it on because it might weaken his
case. A jailhouse informant tells the prosecutor what he wants to hear in
exchange for lenient treatment. An interrogator uses physical and psychological torture to coerce a confession. An eyewitness confuses media images of the accused or line-up pictures with what she thinks she saw.

Then there's the cozy relationship between police labs and prosecutorial
teams -- an issue raised by the case of Dennis Williams, who was convicted of a 1978 rape and double murder near Chicago. An Illinois forensic scientist
testified that three hairs found in Williams' car matched the hair of the victims.
Eight years later, Scotland Yard examined the hair evidence and said it did not match. Unfortunately, the hair testimony had already sent Williams to death row. He was exonerated in 1996 by DNA testing.

Was it forensic error or forensic fraud? Just when we thought DNA was the
ultimate piece of evidence for guilt or innocence, we learn that it can be
distorted. Rob Warden, director of the Center on Wrongful Convictions at
Northwestern University School of Law reports that "forensic scientists have with disturbing frequency misled juries and sometimes blatantly lied about laboratory results." That's why a defense attorney must always order independent forensic tests. But many of them don't.

In Illinois, Gov. George Ryan commuted the death sentences of 164 death row inmates to life without parole just before he left office in January 2003.
Prosecutors criticized his decision, but Ryan said he acted because Illinois,
since 1977, had released more innocent men from death row (13) than it had
executed (12). One-third of the 164 inmates, moreover, had been represented by lawyers who had been disbarred or disciplined.

Ineffective counsel is often a problem in death penalty trials. In 1980, for
instance, Gary Nelson was charged with killing a 6-year-old girl in Georgia.
He was tried, convicted and sentenced to death -- all in just two days. His
lawyer offered an eight-sentence argument on behalf of his client and was later disbarred.

Likewise, Federico Macias was given the death penalty in 1984 for bludgeoning a couple to death with a machete during a burglary in El Paso, Texas. His court-appointed lawyer was paid $11.84 an hour. The lawyer failed to call alibi witnesses who would have placed Macias elsewhere during the murders. He failed to cross-examine eyewitnesses. The case was eventually reversed.

Supreme Court Justice Ruth Bader Ginsberg has said: "I have yet to see a
death penalty case among the dozens coming to the Supreme Court on
eve-of-execution stay applications in which the defendant was well represented. .. People who are well represented at trial do not get the death penalty."

How many errors occur in death penalty cases? Professor James Liebman of
Columbia University School of Law studied 23 years of capital cases and found reversible error in almost seven of every 10 capital sentences, a national average of 68 percent. He concluded in January 2000 that "flaws in America's
death-penalty system have reached crisis proportions." Liebman's study is not without critics. Prosecutors point out that having a case reversed doesn't mean a defendant is innocent. They argue that it means the system of judicial review is working, ensuring that we won't execute an innocent person.

However, the mistake in Ray Krone's case wasn't caught by an appellate court.

There is no guarantee that mistakes inevitably committed in the subtle depths
of a trial's tactical decisions or the nuances of testimony and arguments
would be caught, either.

I used to support the death penalty. But after the Illinois experience, I was
shaken by the reality that when DNA testing was applied to the performance of the criminal justice system, 13 inmates on death row were found to be
innocent. If we can make that many mistakes, should death hang in the balance?

In the 1976 case Gregg vs. Georgia, in which the U.S. Supreme Court allowed state legislatures to reinstate the death penalty if they provided proper
guidelines, Justice Thurgood Marshall wrote a dissenting opinion. In it, he said the American people are largely unaware of critical information about the death penalty, saying, "... if they were better informed, they would consider it
shocking, unjust and unacceptable."

Few people, for instance, are aware that almost no credible study regards the
death penalty as a deterrent anymore -- or that the average expense of a
capital trial is running around $2 million and threatens to bankrupt county
budgets in some cases. Similarly, few people know that the quality of justice
differs dramatically among the myriad jurisdictions in the United States. The
argument against capital punishment grows even stronger when you consider that poor defendants do not get the same quality of defense as wealthy defendants or those defendants whose trials are covered by 24-hour cable networks.

Some states are responding to the warning signs. After Ryan's dramatic
action, Illinois enacted more than 80 reforms to ensure that its capital punishment is fair, just and accurate.

I now agree with the American Bar Association that we should abolish the
death penalty. And I agree with the late U.S. Supreme Court Justice Harry Blackmun when he wrote, in a dissenting opinion in the 1994 case of Callins vs. James:

"The basic question -- does the system accurately and consistently determine
which defendants 'deserve to die' -- cannot be answered in the affirmative.
... (T)he problem is that the inevitability of factual, legal and moral error
gives us a system that fails to deliver the fair, consistent, and reliable
sentences required by the Constitution."

After a lifetime of upholding the constitutionality of the death penalty,
Blackmun withdrew his support, writing, "I feel morally and intellectually
obligated simply to concede that the death penalty experiment has failed."

Bill Kurtis anchors the A&E program "American Justice" and is author of the
new book "The Death Penalty on Trial: Crisis in American Justice."