| MISTAKES
�When DNA meets death row, it�s the system that�s tested.� (The Washington Post) �DNA testing has been a major factor in changing the criminal justice system. It has provided scientific proof that our system convicts and sentences innocent people � and that wrongful convictions are not isolated or rare events. Most importantly, DNA testing has opened a window into wrongful convictions so that we may study the causes and propose remedies that may minimize the chances that more innocent people are convicted.� (The Innocence Project website) What kind of mistakes are made? Mistakes are cases in which possibly-innocent defendants are convicted and sentenced to death. The taken-for-granted standard used in most discussions of mistakes is the legal criterion � beyond a reasonable doubt. Because of the shoddy way that the DP system operates, three basic types of doubtful cases are common - but not all of these genuinely involve innocent defendants. 1. Legal-technical mistakes � in many if not most of the sham trial cases, the defendants are probably guilty, but there are legal problems involving fair trial issues. Most of the DP cases overturned by appeals courts involve mistakes of this type. 2. Weak evidence sham trial mistakes � because it is easy for prosecutors to get convictions in sham trial cases, in many DP cases there is some (weak) evidence of guilt based on circumstantial evidence, unreliable witness evidence, and/or false confessions. While many of the defendants in these cases might be guilty and a lesser number innocent, this is hard to sort out after the fact because the trials are so flawed. 3. Wrong person mistakes � these are cases in which people who turn out to be completely innocent are convicted and sentenced to death. There is much dispute between opponents and defenders of the DP over how many of the 100+ �exonerated� (many through DNA evidence) post-Furman defendants fit this category rather than one of the above categories. An often-overlooked point here is that only about one third of DP cases are based on any physical evidence at all, and thus about two thirds of wrong person mistakes cannot be corrected by DNA evidence, and most go undetected. Executing people who are probably guilty but did not receive a reasonably fair trial is traditionally taboo, at least in the ideal versions of Western legal systems. There is an old saying that reflects this value: �better to free ten guilty than to convict one innocent person.� In reality it is doubtful that any legal system lives up to the high ideals, especially where poor and minority people are concerned. But it is a far step away from these ideals when the legal system is willing to convict (and execute) based on weak evidence (category 2 above) and doing so opens the system to an �error rate� of category 3 cases, actually innocent people. How many mistakes are there � what is the �error rate�? Not surprisingly, estimates of the error rate in death sentencing vary wildly. Prosecutors and other defenders of the system claim that there have been �only a handful� of mistakes, and no executions of innocent people. Some critics of the DP, on the other hand, have estimated very high error rates. For example, in Illinois, of 25 cases that had reached a final disposition when the governor imposed a moratorium on executions, 12 people had been executed but 13 had been exonerated, an error rate over 50%. Further, with such a high rate of exonerations, critics argued, it was likely that some of those executed were also innocent. Focusing on the presumably smaller category of wrong person mistakes, we tried in the mid 1990s to estimate an error rate for death sentencing in Arizona, by reviewing all of Arizonas post-Furman DP cases. Of about 170 death sentences, we found about 20 that were very likely wrong person mistakes, and about half of those defendants had been released through appeals court rulings, retrials, or other arrangements (sometimes guilty pleas to a lesser offense to avoid another DP trial). This would be about a 10% error rate. But there were also many weak evidence cases and some of these turned out later to be wrong person mistakes (e.g., Ray Krone, who was category 2 in our study but was later cleared by DNA evidence which identified another suspect who was later convicted of the crime). So our estimate of the error rate turned out to be at least 10% of all death sentences, and if this were an accurate average across all DP states, it would mean that more than 300 people (and probably significantly more than that!) on US death rows waiting to be executed are innocent people. How and why do the mistakes happen? In studying cases of wrongful convictions, we found three main factors that coalesce to produce errors: 1. Some evidence � in most error cases there was some evidence pointing to the accused, but usually little or no physical evidence or at least none used at trial. Because of the large number of homicides in most American cities, homicide investigators often abandon the crime-centered approach (based on evidence) for a suspect-centered approach (based on who appears to be the most likely suspect). Once the police develop a �probable cause� case against a suspect, prosecutors begin to put together evidence to establish guilt at least superficially �beyond a reasonable doubt� (the court standard). The evidence in error cases typically consists of one or more of the following: circumstantial evidence; witness identifications (which are notoriously unreliable); false confessions (often including bogus �facts that only the killer could know� fed to defendants by police); and co-defendant and �snitch� confessions (also notoriously unreliable and often obtained through bargaining). 2. Prosecutor �belief� in the case (also common among police, victims families, and juries) � in most error cases, once a clear suspect is identified by police (and they suspend doubt and believe that they have the right suspect) the focus shifts to developing the legal �case� to take to prosecutors. Because the police have to convince the prosecutor that the case is viable, it is important that all involved �get committed� to the case and the suspect (that is, further suspend all doubt). At this point (if not before) the suspect becomes �the bad guy� and getting �justice� for the victims family becomes the focus. Once committed to the case, police and prosecutors will often do anything to keep the case on track, including hiding and manipulating evidence. Once committed, the costs of backing away are very high (the victims family will be upset, the rules have already been bent to build a case, etc.). This situation has been called �the ratchet� by critics - blind belief plus the awful consequences of doubt mean that the case can only move in one direction (the belief is so strong that police and prosecutors often reject even DNA evidence that later clears a defendant, insisting that he was somehow involved). 3. Weak defense and Sham Trials � mistakes cases almost never occur in cases where defense attorneys are competent, well-paid, and have adequate resources for investigation and trial preparation, because the weak cases will be dismissed or plea bargained and only the strongest cases, which are much less likely to be mistakes, will be taken to trial. Almost all mistakes cases result from sham trials. Some specific problems that result: 1. An inadequate discovery process, which allows the prosecutors to manipulate and control the evidence, leads to lack of motions and objections by the defense and lack of groundwork for later appeals, When the case does go on appeal, the right of the defendant to raise many issues regarding the evidence has been �waived� because the issues should have been raised at trial. 2. Lack of independent investigation by the defense weakens the ability of the defense to challenge weak evidence - no answer to prosecution evidence from the defense makes weak evidence seem convincing. 3. Lack of resources means that trials will be short, the defense will have no independent evidence to present to counter the prosecution case, and no mitigating evidence will be developed for presentation in the sentencing phase. 4. The lack of appeals groundwork makes the case difficult for appeals attorneys - problems must be in the trial record for consideration on appeals. This is a dilemma for both defense appeals attorneys and appeals courts. Both know that there are problems with the trial but the attorneys are handicapped by the waiver rules and the appeals courts are handicapped by the Supreme Court approval of sham trials. 5. Juries often notice problems with the inadequate defense, but usually think that the appeals process will correct the mistakes. Prosecutors are the key problem In a system like this with a typically inadequate defense leading to sham trials, the prosecutors are the key problem. The process would work much better if prosecutors held to the ideal of �justice.� But the election of prosecutors (and the politics of the DP) undermines this � it warps and politicizes prosecutors as agents of a system that claims to pursue justice: - Prosecutors have to balance ideals of justice and fairness with �getting the bad guys.� - Prosecutors unlimited power corrupts, undermines the adversarial system and creates an "unequal playing field" - The politics - of particular cases and of the DP itself � pressures prosecutors to convict by any means. - Peer pressure among elite prosecutors means that they cannot acknowledge mistakes. - Career politics � prosecutors with high conviction rates often become candidates for higher office (judge, governor, attorney general, etc.). Appeals and Commutes The appeals process is the legal �last resort� for correcting mistakes and the commute process is the political last resort. The appeals process is ineffective in correcting mistakes because that is not its focus and because the trial records are inadequate. But the maze of appeals has inadvertently prevented some mistakes when the long delays gave some innocent defendants and their lawyers enough time to reinvestigate cases. Conservative attempts to expedite the appeals process and thus decrease these delays would lead to more executions of innocent people. In most DP jurisdictions, the governor or an appointed board has the power to commute death sentences to prison sentences, and with the pre-Furman DP this happened fairly often, although the commute process was usually racially discriminatory. In the politically conservative atmosphere of the post-Furman DP, commutes have greatly decreased and, with a few exceptions, have not been a significant factor in dealing with mistakes cases. Conclusion It would probably be impossible to completely eliminate the risk of executing innocent people, and this is a major reason why many countries have abolished the DP and many more continue to do so. The use of DNA evidence has, for the first time, proven scientifically that the system makes numerous mistakes, and this is probably one of the major reasons for the decline of death sentencing and executions in the US since the 1990s. Copyright � 2009 Ernie Thomson. All rights reserved. email: [email protected] |