Copyright 2000 Plain Dealer Publishing Co.
The
Plain Dealer
April 7, 2000 Friday, FINAL / ALL
SECTION: EDITORIALS & FORUM; Pg. 11B
LENGTH: 767 words
HEADLINE:
HOW THE INNOCENT LAND ON DEATH ROW
BYLINE: By George
Will
DATELINE: WASHINGTON "DON'T YOU WORRY ABOUT IT,"
SAID THE OKLAHOMA PROSECUTOR TO THE DEFENSE ATTORNEY. "WE'RE GONNA NEEDLE YOUR
CLIENT. YOU KNOW, LETHAL INJECTION, THE NEEDLE. WE'RE GOING TO NEEDLE ROBERT."
BODY: Oklahoma almost did. Robert Miller spent nine
years on death row, during six of which the state had DNA test results proving
his sperm was not that of the man who raped and killed a 92-year-old woman. The
prosecutor said the tests only proved that another man had been with Miller
during the crime. Finally, the weight of scientific evidence, wielded by an
implacable defense attorney, got Miller released and another man indicted.
You could fill a book with such hair-curling true stories of blighted
lives and justice traduced. Three authors have filled one. It should change the
argument about capital punishment and other aspects of the criminal justice
system. Conservatives, especially, should draw this lesson from the book:
Capital punishment, like the rest of the criminal justice system, is a
government program, so skepticism is in order. Horror, too, is a reasonable
response to what Barry Scheck, Peter Neufeld and Jim Dwyer demonstrate in
"Actual Innocence: Five Days to Execution and Other Dispatches from the Wrongly
Convicted." You will not soon read a more frightening book. It is a catalog of
appalling miscarriages of justice, some of them nearly lethal. Their cumulative
weight compels the conclusion that many innocent people are in prison, and some
innocent people have been executed.
Scheck and Neufeld (both members of
O.J. Simpson's "dream team" of defense attorneys) founded the pro-bono Innocence
Project at the Benjamin N. Cardozo School of Law in New York to aid people who
convincingly claim to have been wrongly convicted. Dwyer, winner of two Pulitzer
Prizes, is a columnist for the New York Daily News. Their book is a
heartbreaking and infuriating compendium of stories of lives ruined by:
Forensic fraud, such as that by the medical examiner who, in one death
report, included the weight of the gallbladder and spleen of a man from whom
both organs had been surgically removed long ago.
Mistaken
identifications by eyewitnesses or victims, which contributed to 84 percent of
the convictions overturned by the Innocence Project's DNA exonerations.
Criminal investigations, especially of the most heinous crimes, that
become "echo chambers" in which, because of the normal human craving for
retribution, the perceptions of prosecutors and jurors are shaped by what they
want to be true. (The authors cite evidence that most juries will convict even
when admissions have been repudiated by the defendant and contradicted by
physical evidence.)
The sinister culture of jailhouse snitches, who earn
reduced sentences by fabricating "admissions" by fellow inmates to unsolved
crimes.
Incompetent defense representation, such as that by the Kentucky
attorney in a capital case who gave his business address as Kelley's Keg tavern.
The list of ways the criminal justice system misfires could be extended,
but some numbers tell the most serious story: In the 24 years since the
resumption of executions under Supreme Court guidelines, about 620 have
occurred, but 87 condemned people - one for every seven executed - had their
convictions vacated by exonerating evidence. In eight of these cases, and in
many more exonerations not involving death row inmates, the evidence was from
DNA.
One inescapable inference from these numbers is that some of the
620 people executed were innocent. Which is why, after the exoneration of 13
prisoners on Illinois' death row since 1987, for reasons including exculpatory
DNA evidence, Gov. George Ryan, a Republican, has imposed a moratorium on
executions.
Scheck, Neufeld and Dwyer note that when a plane crashes
there is an intensive investigation to locate the cause and prevent recurrences.
Why is there no comparable urgency about demonstrable, multiplying failures in
the
criminal justice system? They recommend many
reforms, especially pertaining to the use of DNA and the
prevention of forensic incompetence and fraud. Sen. Patrick Leahy's Innocence
Protection Act would enable inmates to get DNA testing pertinent to a conviction
or death sentence, and ensure that courts will hear resulting evidence.
The good news is that science can increasingly serve the defense of
innocence. But there is other news.
Two powerful arguments for capital
punishment are that it saves lives, if its deterrence effect is not vitiated by
sporadic implementation, and it enhances society's valuation of life by
expressing proportionate anger at the taking of life. But that valuation is
lowered by careless or corrupt administration of capital punishment, which
"Actual Innocence" powerfully suggests is intolerably common. "
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