Copyright 2000 The Washington Post
The Washington Post
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April 6, 2000, Thursday, Final Edition
SECTION: OP-ED; Pg. A23
LENGTH: 809 words
HEADLINE:
Innocent On Death Row
BYLINE: George F. Will
BODY: "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."
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 the 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 persons 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 persons--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 persons 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, an intensive investigation is undertaken 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 heightens 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.
LOAD-DATE: April 06, 2000