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(The online version of this article appears in four parts. Click here to go to parts one, three, and four.)

Accumulating Aberrations

Photograph by Loren Santow/Impact Visuals
  Sentenced to death: December 9,
   1985. Freed: June 24, 1996.
   Jimerson was one of four men
  arrested for the 1978 murder
  of a young couple. DNA evidence
  later led to exoneration, and
  all four men were released.
  Three others are now in
  prison for the crime.

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.

Related link:

The National Commission on the Future of DNA Evidence
A division of the National Institute of Justice created by the Attorney General whose mission is "to maximize the value of forensic DNA evidence in the criminal justice system."

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.

Death-Qualified Juries

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.

Winning at Any Cost

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?


The online version of this article appears in four parts. Click here to go to parts one, three, and four.

Alan Berlow is a freelance journalist and the author of Dead Season: A Story of Murder and Revenge (1998).

Photographs by Loren Santow/Impact Visuals.

Copyright © 1999 by The Atlantic Monthly Company. All rights reserved.
The Atlantic Monthly; November 1999; The Wrong Man - 99.11 (Part Two); Volume 284, No. 5; page 66-91.