Truth in Justice
June 17, 2000
RETHINKING THE DEATH PENALTY
The past several weeks have seen an explosion of media coverage of the death penalty and factual innocence. Time Magazine did a feature story. Texas Gov. George W. Bush put Ricky McGinn's execution on hold for 30 days to conduct DNA tests that can either confirm his guilt or exclude him as the killer of his step-daughter. US Attorney General Janet Reno said, "There are too many people in this country who do not have competent counsel to represent them in capital cases. People should not be prosecuted for a capital crime until they have a lawyer who can properly represent them and they have the investigative and other resources to properly investigate the charges against them." Her remarks came on the heels of the release of a study report by Columbia University Law Professor James Liebman showing a 68% error rate in death penalty cases.
(See http://truthinjustice.org/68percent.htm for excerpts and a link to the full report.)
Federal legislation is pending that would offer inmates access to DNA testing and would preserve evidence after conviction. A similar measure in Illinois mandates the preservation of evidence in murder cases forever. That bill has been passed by the state legislature and is expected to be signed by Gov. George Ryan.
We're thrilled to see this wave of awareness and concern. We feel like the beggars at the gate, unexpectedly swept into the king's court and invited to the feast. At the same time, we're wary. The politicians appear more concerned with accuracy in execution than in rethinking the basic rightness or wrongness or even the practicality of state-sponsored homicide. Neither Doug nor I have made any pretense about our personal positions on the death penalty. We oppose it because it brings no solace to the grieving and diminishes all of us by reducing us to the level of killers. Doug reached this conclusion as a homicide survivor; his father was senselessly murdered when Doug was seventeen. I arrived at the same place as a direct result of ten years starting and directing two prosecutor-based victim/witness assistance programs.
The death penalty is a system devised and carried out by human beings. No matter how many safeguards are added, innocent people will continue to be executed because no human endeavor will ever be perfect. In the meantime, thousands of other innocent people, sent to prison for life or terms that amount to life for crimes they did not commit languish. Death penalty cases get priority, understandably, and push the lifers back to the end of the line. One step forward, ten steps back into hopelessness. That's the practical effect, and it's as unacceptable as the execution of factually innocent people.
ANTHONY SPEARS
In 1992, Anthony Spears was convicted of killing Jeanette Beaulieu, a 38-year-old bookkeeper from Mesa, Arizona, and was sentenced to death. The day after the verdict was returned, jury foreperson Janet Kovach told the presiding judge that she wanted to recant her verdict. She went to see Spears, and two years later they were married. Janet's belief in Anthony's innocence has been bolstered by bugs -- an entomologist has determined that maggots infesting the murder victim's corpse mean that her death occurred at least a week after Anthony had returned to California.
Read about this unusual route to establishing innocence at
http://truthinjustice.org/spears.htm
TRIAL BY MEDIA
So many cases are prosecuted by the media that the jury verdicts are anticlimactic, foregone conclusions. The satirical magazine The Onion takes a look at the logical extension of this trend. It's funny -- but only a stone's throw from the approach we already take.
See http://truthinjustice.org/murder_suspect.htm
EYEWITNESS IDENTIFICATION
Prof. Gary L. Wells of Iowa State University is one of the foremost experts in the country on eyewitness identification. His website includes articles, video and audio clips, case studies and the first national guidelines on eyewitness evidence from the U.S. Department of Justice. (Prof. Wells participated in drafting these guidelines, which can be downloaded in .pdf format.)
Follow the link at http://truthinjustice.org/witness.htm
or go directly to http://psych-server.iastate.edu/faculty/gwells/homepage.htm
BETTER WAYS TO FIND THE GUILTY
by PETER NEUFELD and BARRY SCHECK
June 5, 2000, New York Times
When Gov. George W. Bush of Texas, who had always denied pleas for reprieves from execution, finally granted one last week, he made the right call, acknowledging the importance of DNA evidence and the right of a condemned man to ask for testing. Whether or not political considerations of Mr. Bush's presidential campaign were at work, the prisoner, Ricky McGinn, now has time for the tests that might clear him of murder. Of course, depending on the results of the tests, Mr. McGinn could wind up eating another last meal in a few months. And the episode throws just a tiny wedge of light onto a criminal justice system that needs to take an unflinching look at the growing evidence of error.
Two other cases last week were far more revealing. In Virginia, Gov. James S. Gilmore III gave permission for advanced DNA testing of Earl Washington, who had already been moved off death row because earlier tests suggested he was innocent of rape and murder. And in Texas, A.B. Butler received a pardon from Governor Bush after spending the last 7 of his 16 years in prison fighting to get the tests that cleared him of kidnapping and rape.
These cases stand for more than the importance of DNA evidence. They reveal how the search for the guilty can go wrong. What matters most is not how these people got out of prison, but how they got in.
We know eyewitnesses sometimes make mistakes. Snitches tell lies. Confessions are coerced or fabricated. Racism trumps the truth. Defense lawyers sleep through trials. Prosecutors and police tell fibs.
Never have these flaws been more starkly exposed than in the last decade, when DNA has freed scores of wrongly convicted people and kept thousands of the wrongly accused out of jail. For the most part, the lessons have been ignored. Of all the statistics tallied by the system, not one shows the number of innocent people sent to prison. Oversight is fundamental for any system in which life or liberty is at stake. We have mechanisms to investigate plane crashes, deaths in hospitals and collapses of buildings. Only the criminal justice system exempts itself from accountability for its mistakes.
Among the bright exceptions to the indifference to accountability is Gov. George Ryan of Illinois, who followed his landmark moratorium on executions with appointment of a commission to find out why 13 men were wrongly sent to death row. New York's governor, George Pataki, has proposed that a committee review all convictions overturned on DNA evidence.
Their findings should be used to make it harder for innocent people to wind up in prison.
And to make it easier for these people to get out, Congress should pass the Innocence Protection Act, which would give inmates the right to DNA tests to prove innocence and would require the preservation of evidence after conviction.
Remember, though, that DNA solves crimes only when there is biological evidence. The quality of old-fashioned evidence can be improved. Eyewitnesses will produce fewer false identifications and just as many correct ones, social scientists say, if police follow a few simple techniques that cut down guessing by witnesses and hints by detectives. False confessions can be curbed by requiring that all interrogations be recorded on tape, as is already done in Minnesota, Alaska, Ireland and Britain.
Convicting an innocent person not only commits a terrible injustice, but leaves a guilty criminal on the streets. Every state and every American has an interest in doing all we can to prevent it from happening.
[Peter Neufeld and Barry Scheck are co-authors of "Actual Innocence."]
Remember, you CAN make a difference.
Doug and Sheila Berry
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