than to condemn an innocent one.
ON the afternoon of February 25, 1983, a sunny, dimple-cheeked little girl named Jeanine Nicarico reportedly heard a knock on the front door of the comfortable split-level house where she, her two older sisters, and their parents lived in Naperville, a Chicago suburb. The ten-year-old, home from school with the flu, listened through the door as a man said his car had broken down and he needed help. Jeanine, dressed in a nightgown picturing one of Snow White's dwarfs, with the words "I'm Sleepy," told him she was all alone and couldn't let him in. The man kicked in the front door, carried Jeanine to an upstairs bedroom, wrapped her in a sheet, and taped a towel around her eyes. Her body was discovered forty-eight hours later, less than two miles from the house. An autopsy revealed that she had been sodomized and that her skull had been crushed by a blunt instrument.
The Nicarico murder is every parent's worst nightmare, one that Thomas and Patricia Nicarico have lived with for the past sixteen years. It's the kind of case that leads 75 percent of Americans to support the death penalty. For nearly as many years Rolando Cruz has lived with another kind of nightmare. On February 22, 1985, Cruz was convicted of murder, rape, deviant sexual assault, kidnapping, and burglary in the Jeanine Nicarico murder trial. Despite the fact that the police found no physical evidence linking him to the victim, a judge sentenced Cruz to die by lethal injection. Because of a prosecutorial error, the Illinois Supreme Court ordered a second trial for Cruz, and in February of 1990 he was again found guilty and sentenced to death. That verdict was overturned in 1994. Then, on November 3, 1995, as a third trial got under way, one of the police officers who had provided critical evidence against Cruz acknowledged that he had lied under oath. The judge ordered a directed verdict of not guilty, and Rolando Cruz, having spent nearly twelve years in jail, was a free man.
The policeman's revelation alone didn't prove that Cruz was not guilty, but by then the state's case was a shambles. DNA evidence had all but eliminated Cruz as a suspect in the rape, and implicated another man, Brian Dugan, who, astonishingly, had claimed ten years earlier that he raped and killed Jeanine Nicarico. Dugan had also confessed to five other vicious crimes, including the rape and murder of a seven-year-old girl. Those confessions were credible enough for prosecutors in nearby Kane and LaSalle Counties, who used them to win Dugan's conviction and two consecutive life terms without parole. But the state attorney for DuPage County, James Ryan, now the Illinois attorney general, was convinced that Dugan was lying, and Illinois prosecutors fought for another decade to keep Dugan's testimony out of court while they tried Cruz twice more. They continued with their case despite the resignation of one of their own detectives, who was so certain of the state's error that he had offered to testify for the defense in Cruz's first trial. And they pressed on even after an assistant attorney general, too, resigned, protesting that the state was attempting to execute an innocent man. To date the Nicarico murder remains officially unsolved.
WHY prosecutors were so zealous in their pursuit of Cruz has been a matter of considerable speculation. Clearly, there was enormous public and political pressure on the state attorney's office to solve the highly publicized Nicarico case; it is quite possible that the police and prosecutors became convinced of Cruz's guilt before they had accumulated the facts to prove it, and then stuck with their hunch even as the holes in their case multiplied. Short of unimpeachable exculpatory evidence, prosecutors are loath to back away from an indictment, much less a conviction. No doubt Cruz shares responsibility for his lengthy ordeal, because he foolishly sought to sell the police a fabricated story about the murder in exchange for a $10,000 reward, thereby injecting himself into a situation he might otherwise have avoided. If law-enforcement officials had any doubt about Cruz's guilt, it presumably evaporated with the jury's guilty verdict in the defendant's first trial. When that verdict was set aside, prosecutors probably satisfied themselves that the court's decision turned on nothing more than a technicality. By the time Cruz's third trial rolled around, even the exculpatory DNA evidence was insufficient to shake the prosecution's belief in the rightness of its cause. Even today the leading prosecutors and police officers in the Cruz case insist that he was involved in the crime.
If Rolando Cruz were the only person ever mistakenly condemned to death in the United States, one could find any number of ways to explain his case away. But since the Supreme Court reinstated the death penalty, in 1976, more than eighty death-row inmates have been freed from prison, their convictions overturned by evidence of innocence. That may not sound like many, given the huge U.S. prison population, but it is more than one percent of the 6,000 men and women who were sentenced to death in that same period, and equal to almost 15 percent of those actually executed -- not good odds for the defendants, given the stakes. The reasons for these miscarriages of justice range from simple police and prosecutorial error to the most outrageous misconduct, such as the framing of innocent people, and everything in between: perjured testimony, erroneous eyewitness testimony, false confessions (including the confessions of innocent defendants), racial bias, incompetent defense counsel, and overzealous police officers and prosecutors who may or may not genuinely believe they have the perpetrator of a heinous crime. Taken together, these miscarriages are not only shocking but also a powerful indictment of the way our criminal-justice system operates, particularly with regard to those at the margins of American society. Although we have no way of knowing how many innocent people remain on death row, or how many are serving life or other lengthy prison sentences for crimes they didn't commit, surely the number of innocent people discovered and freed from prison is only a small fraction of those still incarcerated. The other unanswered question is, of course, how many, if any, innocent people have actually been put to death.
Opponents of the death penalty believe that the execution of an innocent person would have a profound impact on public support for capital punishment. In England several wrongful executions played a crucial role in the decision, in 1964, to abolish the death penalty for murder. The execution of an innocent man in Michigan led to abolition in that state in 1846. Death-penalty supporters in this country have invested considerable energy in reassuring the public that the execution of an innocent person is virtually impossible. William G. Otis, formerly a special counsel to President George Bush and now an adjunct professor of law at George Mason University, in Virginia, says, "The administration of the death penalty ought to be, and in my view in fact is, surrounded with the most elaborate and exacting sort of safeguards of any decision that the government makes, and properly so." Paul G. Cassell, a professor of law at the University of Utah and a leading advocate of capital punishment, is even more categorical. "There is no documented case,"he says, "of a factually innocent person who has been executed for at least the last fifty years." Ironically, it is the safeguards Otis refers to -- the often time-consuming constitutional and legal challenges to convictions and death sentences -- that death-penalty supporters have successfully undermined during the past decade, thereby increasing the likelihood of executing an innocent person.
Proving that an innocent person has been executed is difficult. Once a convicted murderer is dead, few people have any incentive to pursue claims of innocence. Witnesses and evidence disappear, memories fade, and defense resources that may have been marshaled to save a life evaporate. Nevertheless, a handful of cases over the past decade have raised troubling questions as to whether the person executed was guilty "beyond a reasonable doubt."
Last December, Florida Supreme Court Justice Gerald Kogan said he had "grave doubts" that at least two people executed during his twelve years on the bench were guilty. In one of the most controversial capital cases to reach the Supreme Court, the late Justice Harry A. Blackmun pointed out that the condemned man had an affidavit from a former state judge swearing that his own client, and not the defendant, was the actual killer. "The execution of a person who can show that he is innocent comes perilously close to simple murder," Blackmun wrote in 1993 in a dissenting opinion.
The 1992 execution of Roger Coleman remains controversial even today. Only hours before Coleman was scheduled to die in Virginia's electric chair, Governor Douglas Wilder allowed the condemned man to take a polygraph test. Coleman flunked and was executed later the same day. "If he had passed it," Wilder said at the time, "it obviously could have -- could have -- influenced my decision [about clemency]." Aside from the fact that some polygraph experts claim that administration of a test under such extreme stress would make it virtually worthless, Wilder's action suggested to many people that he had at least some doubt about Coleman's guilt -- raising the question of why he allowed the execution to proceed. Today Wilder says he is absolutely certain that Coleman was guilty.
Doubts about the guilt of capital offenders have also been raised by jurors who learned after an execution of evidence they hadn't heard during the trial, and by others intimately involved with the fate of capital defendants. Don Cabana, a former warden of the Mississippi state prison, who presided over the 1987 execution of Edward Earl Johnson, says he believes that Johnson was probably innocent. Howard Marsellus, a former chairman of the Louisiana pardon board, admits that he was responding to political pressure when he voted, in 1984, to execute Timothy Baldwin, a man he believed was innocent of the bludgeoning death of an eighty-five-year-old woman. "I'm guilty as sin," Marsellus says. "I did something morally wrong. I gave in to the prestige and power, the things that went with my job. I knew what the governor, the man who appointed me, wanted: no recommendation for clemency in any death case." Marsellus says he is haunted by Baldwin's execution. "The man walked in [to the execution chamber], grabbed the microphone, and looked dead in my face and said, 'Y'all are about to execute an innocent man and someday you'll have to answer for this.' Man, I will carry this to my grave."
Indisputable evidence that an innocent person has been executed in recent years has yet to be produced. But the close calls, as much as any actual execution, expose a myriad of potentially lethal fault lines in the administration of death sentences.
In 1972, in the case of Furman v.Georgia, the Supreme Court ruled 5-4 that the death penalty as then administered violated the Eighth Amendment's proscription against cruel and unusual punishment and the Fourteenth Amendment's equal-protection clause. Individual justices in the majority found much they didn't like about the death penalty. They said that it was disproportionately applied to the "poor and despised," that it was frequently imposed on the "constitutionally impermissible basis of race," and that it was applied in an "arbitrary and capricious" fashion. Although one can make a compelling case that all these criticisms remain valid today, the Supreme Court has since rejected them. The Court has said, however, that it is concerned about the risk of imposing an arbitrary sentence as well as about the proven fact of one. Even Justice Sandra Day O'Connor, a vigorous death-penalty proponent, stated in a 1985 decision that a sentence would have to be struck down if it created "an unacceptable risk that 'the death penalty [had been] meted out arbitrarily or capriciously' or through 'whim ... or mistake.'" If nothing else, the wrongful sentencing to death of more than eighty innocent people would seem to suggest that there remains something both arbitrary and capricious about the way the death penalty has been administered since Furman. "If you have this many mistakes, you can't say we're only executing guilty people," argues Richard Dieter, the director of the Death Penalty Information Center, in Washington, D.C., a nonprofit research organization. "These cases illustrate the possibility of making the worst kind of mistake."
JOHN Justice, the former president of the National District Attorneys Association, and like-minded supporters of capital punishment don't dispute that innocent people have been sentenced to death. But they insist that wrongful death sentences are aberrations. "The system is not perfect," says Justice, a South Carolina district attorney, arguing that "the reversals prove that the system works."
Governor George Ryan, of Illinois, advanced the same argument -- "The system does work and ... the checks and balances are there" -- last February, when his state released Anthony Porter from death row after a group of Northwestern University journalism students working with a private investigator proved that Porter was innocent and obtained a videotaped confession from the actual murderer. But as details of Porter's wrongful sixteen-year incarceration emerged, the governor apparently began having second thoughts about Illinois justice. Police officers involved in Porter's case allegedly ignored suspects identified by a relative of one victim and pressured witnesses and other suspects to testify against Porter. Porter's lawyer acknowledged that he had barely conducted any investigation, because his client's family had come up with only part of his fee. Porter, who has an IQ of 51, came within forty-eight hours of execution by lethal injection in September of last year. He was granted a reprieve so that the state could determine whether he was mentally competent to be executed. Had his IQ been 50 points higher, he would almost certainly be dead.
Governor Ryan recently told reporters that he's "not sure the system worked" in the Porter case. " I think everybody understands what's at stake here," Ryan said. "An innocent man was about to die, and thank God he didn't. And now we want to make sure that scenario doesn't ... come back and haunt us in the future." But Ryan knows as well as anyone that this scenario has reappeared repeatedly in Illinois. Since 1994 ten innocent people have been discovered on the state's death row. Porter's was actually the second Illinois case to be demolished by Northwestern students taking an investigative-reporting class. In 1996 students helped to establish the innocence of four Chicago black men convicted in a 1978 rape and murder involving a young white couple. Dennis Williams, Verneal Jimerson, Kenneth Adams, and Willie Raines spent a combined sixty-five years in prison. Williams and Jimerson spent fifteen and eleven years respectively on death row. In an effort to prevent erroneous death sentences in the future, the Illinois legislature recently passed, and Governor Ryan signed into law, legislation to increase funding for capital defenders and to require that they meet basic standards of competency.
Not surprisingly, Williams, Anthony Porter, and many of the other inmates released from death row over the past two decades are unforgiving of the system's imperfections. Williams says the State of Illinois "attempted to murder me." Immediately after his release Porter told reporters that he'd been "railroaded" by the Chicago police.
That law-enforcement authorities would plot to have a man executed for a crime he didn't commit is probably the most Kafkaesque scenario imaginable for the U.S. justice system -- a scenario that gives paranoids and conspiracy theorists a good name. But even if former death-row inmates truly believe they were framed by police officers and prosecutors, such claims are nearly impossible to prove. In the Rolando Cruz case a special prosecutor, William Kunkle, actually indicted four policemen and three former prosecutors for falsely accusing Cruz, charging them with perjury and obstruction of justice. But this is believed to be the only death-penalty case in U.S. history that has led to such high-level indictments, and earlier this year all the defendants were acquitted.
True, courts have frequently ordered murder convictions overturned as a result of official misconduct. But a Chicago Tribune investigation published earlier this year found that since 1963 at least 381 homicide convictions nationwide have been overturned because prosecutors concealed evidence of innocence or presented evidence they knew to be false. Not one of those prosecutors has been convicted of a crime or barred from practicing law. Although law-enforcement officials invariably insist that miscreants in their ranks should be punished, in practice prosecutors rarely find any reason to investigate, let alone indict, their colleagues. Under existing law, law-enforcement officials are virtually immune from civil and criminal liability. "If a prosecutor withholds evidence, it's not a crime," says Bennett L. Gershman, a professor at Pace Law School, in White Plains, New York, and the author of Trial Error and Misconduct. "The fact is that criminal prosecutions of prosecutors for matters relating to their professional responsibilities in American law are virtually unknown, inconceivable, unthinkable." Gershman believes that there are hundreds of cases of prosecutorial abuse each year, but says that the Justice Department acts on only one or two, "as if to show that they're really being vigorous and diligent in their oversight." And he insists that the same lax oversight prevails among the states. As for the bar associations, which are supposed to discipline their members, Gershman says they are far too timid to take on prosecutors.
The Justice Department contends that instances of prosecutorial misconduct represent a minute percentage of the tens of thousands of criminal cases brought each year. And there is no question that the public generally sees prosecutors as "white hats" who are working to rid our streets of certifiable bad guys like the Unabomber and Timothy McVeigh, who in a single act of terror murdered 168 people in Oklahoma City. Undoubtedly, the country's prisons contain many dangerous predators who are actually guilty of the crimes of which they were convicted, and most of those sentenced to death committed unspeakable acts.
But whether or not one believes that the system works fairly most of the time, there is no denying that innocent people have been found on death row, and that many owe their freedom to factors having little to do with a properly functioning system of justice. The innocence of James Richardson, who was sentenced to death in Florida for the murder of his seven children, was established only after someone broke into a prosecutor's office and stole a file on the case which showed that the state had suppressed evidence of Richardson's innocence and that key witnesses, including a local sheriff, had lied under oath. Richardson spent twenty-one years in prison for a crime he didn't commit. No law-enforcement official was ever held accountable.
Rolando Cruz owes his life to Brian Dugan, who told the police about his own involvement in the Nicarico murder only to escape the death penalty. Joseph Burrows spent five years on death row for murdering an elderly man in 1988. He was freed after the key witness against him, Gayle Potter, was persuaded by a conservative Republican pro-death-penalty lawyer to tell the truth: that she had committed the murder. Most murderers never confess to their crimes, and it's fair to assume that most don't care if innocent people are executed in their place.
Walter McMillian, a black Alabaman who spent six years on death row for murdering an eighteen-year-old white woman, probably owes his freedom to a judge who was determined to have him executed. McMillian, who was dating a white woman at the time of his arrest, was sent to death row before even being tried. Although he had no prior felony record and twelve alibi witnesses placed him at a church fundraiser at the time of the murder, a jury convicted him of murder after a trial lasting a day and a half and sentenced him to life in prison without parole. But that wasn't good enough for Judge Robert E. Lee Key Jr., who overruled the jury. Citing the "vicious and brutal killing of a young lady in the first full flower of adulthood," Key condemned McMillian to die in Alabama's electric chair.
Today Judge Key says he doesn't want to talk about the McMillian case, and volunteers that McMillian "had one of the finest criminal attorneys in the state of Alabama representing him -- a black attorney, by the way." Key says, "I'll go to my grave believing [McMillian] was guilty as hell." What Key doesn't say is that he had the trial moved from a county that was 40 percent black to one that was 13 percent black; that prosecutors withheld exculpatory evidence; that the state's principal witness avoided a capital murder charge by testifying against McMillian; that other witnesses were paid thousands of dollars for their false testimony; that the state's three primary witnesses all later recanted; and that the State of Alabama eventually admitted it had made a terrible mistake. Had Key not demanded the death penalty, however, Walter McMillian would probably be wasting away in prison along with the scores of other convicted murderers who, precisely because they are not facing execution, generate neither public interest nor the attention of the country's top capital defenders, who employ an emergency-room triage system that focuses on those in greatest need.
Just how often the police actually get the wrong man is nothing short of astounding. A 1996 Justice Department report, Convicted by Juries, Exonerated by Science: Case Studies in the Use of DNA Evidence to Establish Innocence After Trial, found that in 8,048 rape and rape-and-murder cases referred to the FBI crime lab from 1988 to mid-1995, a staggering 2,012 of the primary suspects were exonerated owing to DNA evidence alone. Had DNA analysis not been available (as it was not a decade earlier), several hundred of the 2,012 would probably have been tried, convicted, and sentenced for crimes they didn't commit.
DNA testing has without question revolutionized forensic science. Particularly in rape cases, its use is already preventing injustices of the kind that resulted from mistaken eyewitness identifications in the past. The attorney Barry C. Scheck says that his Innocence Project, at the Benjamin N. Cardozo School of Law, at Yeshiva University, has successfully employed DNA evidence to exonerate thirty-six convicted felons, and that nationwide DNA testing has been used to secure the release of sixty-two men sentenced for crimes they didn't commit, including eight on death row. Two death-penalty states, New York and Illinois, have found recent DNA-assisted cases so compelling that they have enacted laws allowing any inmate who feels he has a legitimate claim of innocence to demand post-conviction DNA testing.
The bad news is that there is no logical reason to think that police-error rates in criminal investigations lacking DNA evidence are any better than the 25 percent error rate in those where it is present. In 1984 a Maryland jury concluded that Kirk Bloodsworth, a former Marine with no arrest record, was guilty of raping and murdering a nine-year-old girl, after hearing several eyewitnesses testify that they'd seen him with the girl on the day of the crime. In June of 1993, after Bloodsworth had spent nearly nine years in prison, a new DNA test, unavailable at the time of his trial, demonstrated that semen found on the victim's clothing could not have been his. Had the actual assailant in this case simply murdered the victim and not raped her, DNA testing would have been irrelevant, and Bloodsworth, whose sentence had been commuted to life, would probably still be rotting away in a Maryland prison.
"I was separated from my family and branded the worst thing a man can be called -- a child killer and rapist," Bloodsworth says today. "I don't know why all these things happened to me. Maybe God had a reason. Maybe He was trying to say these things happen to ordinary people."
One can, of course, argue that Kirk Bloodsworth is that rare exception to the proper functioning of the judicial system. But one can make the same case for Walter McMillian, and Joseph Burrows, and Anthony Porter. At some point the accumulating aberrations begin to suggest a more pervasive problem. At some point they raise the troubling suspicion that we as a nation may be tolerating the execution of innocent people.
ALTHOUGH there is a common perception that the average murderer has endless forums in which to make his case, the reality is that once a defendant is found guilty by a jury, doors to an appeal begin slamming shut, and the burden of proof becomes far greater: where the defendant once had to convince a jury that he was not guilty "beyond a reasonable doubt," he now goes before the court under a presumption of guilt and must attempt to prove his innocence. Therefore a defendant's first trial may be his only real opportunity to present a complete case. In gruesome, high-profile cases like the Nicarico murder, a defendant may go to trial with a theoretical presumption of innocence but he or she will have a difficult time proving that innocence. Jurors are naturally reluctant to acquit someone who may have murdered a child, and the more violent and vicious the crime, the more likely a jury is to convict. So-called death-qualification procedures, in which potential jurors are questioned, often for days on end, about their ability to impose the death penalty (they must be willing to call for the death penalty in order to be seated), tend to create an atmosphere in which jurors go into a courtroom assuming that the defendant is guilty and that their only job is to decide on the appropriate sentence. Numerous studies have demonstrated that death-qualified jurors are more likely to convict.
Mike Callahan, who sat on the death-qualified jury in the first Rolando Cruz trial (in which Cruz was tried with a co-defendant), believes that "half of the jurors had their minds made up before the trial even started." Callahan says that on the very first day of the trial, after the judge had ordered jurors not to discuss the proceedings among themselves, the jury foreman said, "Well, they're here, they must have done something." When the jurors finally began their deliberations, Callahan recalls, the first thing the foreman told them was "This'll be a mere formality, so we might as well get on with it." Callahan says he had grave reservations about the defendants' guilt and was stunned when the judge imposed the death sentence. "It wasn't an open-and-shut case, it absolutely wasn't, and to give the death penalty -- I was absolutely appalled." Nevertheless, Callahan had voted to convict, because "I was more than willing to say, 'All right, we'll put you in the slammer for a while, and sooner or later the truth is going to come out.'" That's not exactly how the system is supposed to work.
Callahan and his fellow jurors might be forgiven their erroneous verdict, since they were not presented with all the evidence of innocence. If prosecutors present inaccurate, incomplete, or fabricated evidence, even the most unprejudiced and fair-minded juror may vote to convict an innocent man. And although most prosecutors and police officers presumably do not "cook" the facts, it is difficult to ignore the all-too-common exceptions. The Justice Department's DNA study found that eight of twenty-eight rape and rape-and-murder cases in which juries had convicted innocent men involved allegations of perjured trial testimony, fabricated lab evidence or expert testimony, or the withholding of exculpatory evidence by the police and prosecutors. Manufacturing evidence against an accused murderer may not be easy to get away with, but if the defendant has a criminal record, jurors are likely to give prosecutors the benefit of the doubt.
One troublesome and increasingly frequent source of perjured testimony is the "jailhouse snitch" -- the convicted felon who will testify to just about anything for the prosecution in exchange for a reduced sentence. Walter F. Rowe, a professor of forensic science at George Washington University, says, "The dirty little secret in this country, and it's not such a secret, is that if you perjure yourself for the prosecution, no one's going to prosecute you." One Los Angeles County Jail inmate, Leslie White, acknowledged that he had fabricated a dozen "confessions" by fellow inmates, which he reported to authorities in exchange for more-lenient treatment.
But perjured evidence may come from sources far more insidious than convicted felons. In West Virginia, Frederick Zain, a police chemist and a popular expert witness for the prosecution, was accused of repeatedly falsifying laboratory results and presenting perjured testimony at trial. No fewer than 170 rape and murder convictions in West Virginia and Texas, all based in part on testimony by Zain, were called into question, and six men who served a total of forty years in prison have had their convictions overturned. In Texas, the nation's execution capital, where more than seventy-nine people have been executed in the past three years, prosecutors relied for years on the expert testimony of Ralph Erdmann, a forensic pathologist, who repeatedly falsified autopsy reports to support prosecution arguments in death-penalty cases. A special prosecutor's investigation of Erdmann concluded, "If the prosecution theory was that death was caused by a Martian death ray, then that was what Dr. Erdmann reported." Texas prosecutors also repeatedly relied on James Grigson, a psychiatrist who became known as "Dr. Death" because his expert opinion in 124 capital cases contributed to 115 death sentences. One of those sentenced was Randall Dale Adams, whose wrongful conviction was the subject of the movie The Thin Blue Line. Grigson testified at Adams's 1977 trial that the defendant had a "sociopathic personality disorder" and that "there is no question in my mind that Adams is guilty." Asked if Adams was likely to kill in the future, given the opportunity, Grigson replied, "He will kill again." In fact Adams was innocent, and had never killed anyone. He came within seventy-two hours of execution.
IN Canada, which has no death penalty and only a handful of known wrongful murder convictions, the Ontario government conducted a year-long investigation into a case strikingly similar to that of Rolando Cruz. Guy Paul Morin was convicted of raping and murdering a nine-year-old girl and was freed in 1995 after a DNA test helped to establish his innocence. His family was awarded $1.25 million and an official apology from the attorney general's office. When Fred Kaufman, a retired judge, released a 1,400-page report on the case, in April of last year, he said, "This case is not unique. This case is not an aberration. The causes of Mr. Morin's conviction are rooted in systemic problems as well as the failings of individuals." The report made 119 recommendations for reforming the Canadian criminal-justice system.
In contrast, law-enforcement officials in the United States are just beginning to wake up to the fact that the growing numbers of innocent prisoners who are being discovered on death row raise profound constitutional issues. Although the Justice Department and a handful of state legislatures have examined pieces of the wrongful-conviction puzzle, no government agency, federal or state, has conducted a comprehensive analysis of why such miscarriages occur -- not even in Florida, where at least eighteen innocent men have been discovered on death row since 1977.
In 1935 Supreme Court Justice George Sutherland wrote that a prosecutor is
the servant of the law, the twofold aim of which is that guilt shall not escape or innocence suffer.... It is as much his duty to refrain from improper methods calculated to produce a wrongful conviction as it is to use every legitimate means to bring about a just one.
Since 1977 more than 570 people have been executed in the United States. Executions have become so routine that they are rarely given anything but perfunctory notice by the media. Rational debate over the benefits versus the costs of all these executions has been replaced by the rhetoric of "the paladins and pillars of justice and equity," as William Faulkner described them in Old Man -- men who have become "blind apostles not of mere justice but of all human decency, blind instruments not of equity but of all human outrage and vengeance." In many prosecutorial offices Sutherland's conception of American justice has been replaced by an ethos of winning at any cost.
Examples of the take-no-prisoners approach to justice are legion. In 1995 Newt Gingrich, then the speaker of the House, suggested that Communist Chinese-style executions of "twenty-seven or thirty or thirty-five people at one time" might deter would-be drug smugglers. When flames burst from the head of Pedro Medina during his execution, in March of 1997, Florida's highest law-enforcement official, State Attorney General Bob Butterworth, saw a silver lining. He commented that the incident would send a message to potential lawbreakers: "People who wish to commit murder, they better not do it in the state of Florida, because we may have a problem with our electric chair." Television advertising in recent election campaigns has often featured candidates trying to persuade voters that they're "tougher" with respect to the death penalty than their opponents. Kirk Fordice promised in his campaign for governor that he would make Mississippi the "capital of capital punishment." Texas Governor Ann Richards, who presided over fifty executions during her four years in office, lost to George W. Bush in 1994 after a campaign in which he attacked her for not executing more people more quickly. During his first term Bush presided over seventy-seven executions. To date no fewer than 100 people have been executed on Bush's watch. Elected governors have also taken to boasting about the number of death warrants they have signed, as if this provided some objective yardstick of their fitness to serve. Kentucky Governor Paul Patton signed five execution warrants on his second day in office, though all five cases were still pending in court. Bob Martinez has bragged that he signed some ninety death warrants during his four years as governor of Florida. And Governor Bill Clinton flew to Arkansas during the 1992 New Hampshire presidential primary for the execution of a brain-damaged man who had killed a policeman. Flouting Supreme Court rulings against executing the mentally incompetent, Clinton seized control of the crime issue for the Democratic Party.
Many of these same death-penalty champions dismiss concerns about mistaken convictions and the execution of innocents, assuring voters that gubernatorial clemency provides what Chief Justice William Rehnquist referred to in 1993 as "the fail-safe in our criminal justice system." In several prominent cases where innocent men had exhausted all avenues of redress, clemency proved their only salvation. In Maryland, for example, the wrongfully condemned Kirk Bloodsworth might still be in jail had the pardon power not been available.
Clemency, however, presupposes a degree of integrity and political courage that is not readily apparent among the governors of most death-penalty states. Governors often eschew clemency, citing the sanctity of the jury process and their obligation to carry out the will of the people or to uphold the laws of the state. In cases where evidence of innocence is anything short of overwhelming, a governor facing a tough re-election in a strong pro-death-penalty state might decide against clemency for largely political reasons. The "fail-safe" case that Rehnquist wrote about involved a man convicted of killing two police officers in Texas. No governor would be inclined to grant clemency in that kind of situation.
Since 1973 there have been more than 6,000 death sentences and only forty cases of clemency nationwide. Clemency is most often granted when a governor is leaving office and needn't worry about voter reaction. In Texas, where it's difficult to keep up with reported miscarriages of justice, the Board of Pardons and Paroles almost never consents to defense requests for clemency. The only recent defense request granted was in 1998, when Governor Bush stopped the execution of Henry Lucas, who, although he was an established serial killer, had falsely confessed to dozens of other murders, including the one for which he was about to be executed. Bush wisely decided that it would be unseemly to execute him for a crime he didn't commit.
Unfortunate though political motives may be in the gubernatorial court of last resort, they are far more perfidious in the courthouse. Yet the idea of an independent judiciary -- of judges willing to stand above politics -- has come under relentless assault. Senate Republicans made it clear at the outset of the Clinton presidency that they would challenge any judicial nominee who lacked strong capital-punishment credentials, although the precise standard of political correctness has sometimes been difficult to discern. When Rosemary Barkett, the chief justice of Florida's Supreme Court, was nominated to the U.S. Court of Appeals, Senator Orrin Hatch said he wanted to see if she was "serious enough about the death penalty," even though Barkett had upheld more than 200 death sentences.
In 1996 Supreme Court Justice John Paul Stevens told the American Bar Association that "a campaign promise to be 'tough on crime,' or to 'enforce the death penalty,' is evidence of bias that should disqualify a candidate from sitting in criminal cases." Such a view probably seems tiresomely old-fashioned to a great many lawmakers today. Nowadays politicians are too busy seeking recalls, resignations, and impeachments of judges whose opinions are politically unpopular to be concerned with judicial independence or the separation of powers. In Tennessee, Republican Governor Don Sundquist proclaimed before a 1996 judicial election that he would appoint only death-penalty supporters to be criminal-court judges. Some judges and judicial candidates who must run for office have clearly imbibed a similar message, campaigning for office with promises to impose the death sentence at every opportunity. In thirty-two of the thirty-eight death-penalty states judges may be subjected to voter approval. In most it is highly implausible that a candidate who refused to take a strong position in favor of the death penalty could be elected. Judges are also elected in eight out of the nine states where it is a judicial prerogative to impose a death sentence or to override a jury's sentence of life. Can such judges fairly examine the facts in a gruesome murder case when the public is demanding execution?
Photographs by Loren Santow/Impact Visuals.
The Atlantic Monthly; November 1999; The Wrong Man - 99.11 (Part Three); Volume 284, No. 5; page 66-91.
Photographs by Loren Santow/Impact Visuals.
The Atlantic Monthly; November 1999; The Wrong Man - 99.11 (Part Four); Volume 284, No. 5; page 66-91.