Innocence and the Death Penalty: Assessing the Danger of Mistaken Executions

Posted on Dec 31, 1993

• Innocence

In 1972, when the Supreme Court ruled in Furman v. Georgia that the death penalty as then applied was arbitrary and capricious and therefore unconstitutional, a majority of the Justices expected that the adoption of narrowly crafted sentencing procedures would protect against innocent persons being sentenced to death. Yet the promise of Furman has not been fulfilled: innocent persons are still being sentenced to death, and the chances are high that innocent persons have been or will be executed.

No issue posed by capital punishment is more disturbing to the public than the prospect that the government might execute an innocent person. A recent national poll found that the number one issue raising doubts among voters regarding the death penalty is the danger of a mistaken execution.[1] Fifty-eight percent of voters are disturbed that the death penalty might allow an innocent person to be executed.

Earlier this year, the Subcommittee on Civil and Constitutional Rights heard testimony from four men who were released from prison after serving years on death row — living proof that innocent people are sentenced to death.[2] The hearing raised two questions: (1) just how frequently are innocent person convicted and sentenced to death; and (2) what flaws in the system allow these injustices to occur? In order to answer these questions, Subcommittee Chairman Don Edwards called up on the Death Penalty Information Center to compile information on cases in the past twenty years where inmates had been released from death row after their innocence had been acknowledged. This staff report is based on the research of the Center.

Staff Report by the Subcommittee on Civil and Constitutional Rights Committee on the Judiciary One Hundred Third Congress, First Session Issued October 21, 1993 Chairman Don Edwards of the House Judiciary Committee’s Subcommittee on Civil and Constitutional Rights directed the subcommittee majority staff to prepare this report. This report has not been reviewed or approved by other members of the subcommittee. Prepared with the assistance of the Death Penalty Information Center

Section II of the report briefly describes each of the 48 cases in the past twenty years where a convicted person has been relased from death row because of innocence. Sections III and IV examine why the system of trials, appeals, and executive clemency fails to offer sufficient safeguards in protecting the innocent from execution. The role fo current legal protections is addressed by looking closely at a few of the cases where death row inmates were later found to be innocent or were executed with their guilt still in doubt. The report concludes that there is a rela danger of innocent people being executed in the United States. II. Recent Cases Involving Innocent Persons Sentenced to Death The most conclusive evidence that innocent people are condemned to death under modern death sentencing procedures comes from the surprisingly large number of people whose convictions have been overturned and who have been freed from death row. Four former death row inmates have been released from prison just this year after their innocence became apparent: Kirk Bloodsworth, Federico Macias, Walter McMillian, and Gregory Wilhoit.

At least 48 people have been released from prison after serving time on death row since 1930 with significant evidence of their innocence.[3] In 43 of these cases, the defendant was subsequently acquitted, pardoned, or charges were dropped. In three of the cases, a compromise was reached and the defendants were immediately released upon pleading to a lesser offense. In the remaining two cases, one defendant was released when the parole board became convinced of his innocence, and the other was acquitted at a retrial of the capital charge but convicted of lesser related charges. These five cases are indicated with an asterisk (*).

YEAR OF RELEASE: 1973

1. David Keaton (Florida, Conviction: 1971) Sentenced to death for murdering an off duty deputy sheriff during a robbery. Charges were dropped and he was released after the actual killer was convicted.

1975

2. Wilbert Lee (Florida, Conviction: 1963)

3. Freddie Pitts (Florida, Conviction: 1963) They were convicted of a double murder and sentenced to death. They were released when they received a full pardon from Governor Askew because of their innocence. Another man had confessed to the killings.

1976

4. Thomas Gladish (New Mexico, Conviction: 1974)

5. Richard Greer (New Mexico, Conviction: 1974)

6. Ronald Keine (New Mexico, Conviction: 1974)

7. Clarence Smith (New Mexico, Conviction: 1974) The four were convicted of murder, kidnapping, sodomy, and rape and were sentenced to death. They were released after a drifter admitted to the killings and a newspaper investigation uncovered lies by the prosecution’s star witness.

1977

8. Delbert Tibbs (Florida , Conviction: 1974) Sentenced to death for the rape of a sixteen-year-old and the murder of her companion. The conviction was overturned by the Florida Supreme Court because the verdict was not supported by the weight of the evidence. Tibbs’ former prosecutor said that the original investigation had been tainted from the beginning.

1978

9. Earl Charles (Georgia, Conviction: 1975) Convicted on two counts of murder and sentenced to death. He was released when evidence was found that substantiated his alibi. After an investigation, the district attorney announced that he would not retry the case. Charles won a substantial settlement from city officials for misconduct in the original investigation.

10. Jonathan Treadway (Arizona, Conviction: 1975) Convicted of sodomy and first degree murder of a six-year-old and sentenced to death. He was acquitted of all charges at retrial by the jury after 5 pathologists testified that the victim probably died of natural causes and that there was no evidence of sodomy.

1979

11. Gary Beeman (Ohio, Conviction: 1976) Convicted of aggravated murder and sentenced to death. Acquitted at the retrial when evidence showed that the true killer was the main prosecution witness at the first trial.

1980

12. Jerry Banks (Georgia, Conviction: 1975) Sentenced to death for two counts of murder. The conviction was overturned because the prosecution knowingly withheld exculpatory evidence. Banks committed suicide after his wife divorced him. His estate won a settlement from the county for the benefit of his children.

13. Larry Hicks (Indiana, Conviction: 1978) Convicted on two counts of murder and sentenced to death. He was acquitted at the retrial when witnesses confirmed his alibi and when the eyewitness’ testimony at the first trial was proved to have been perjured. The Playboy Foundation supplied funds for the reinvestigation.

1981

14. Charles Ray Giddens (Oklahoma, Conviction: 1978) Conviction and death sentence reversed by the Oklahoma Court of Criminal Appeals on the grounds of insufficient evidence and the charges were dropped.

15. Michael Linder (South Carolina, Conviction: 1979) Linder was acquitted at the retrial on the grounds of self-defense.

16. Johnny Ross (Louisiana, Conviction: 1975) Sentenced to death for rape. He was released when his blood type was found to be inconsistent with that of the rapist’s.

1982

17. Anibal Jarramillo (Florida, Conviction: 1981) Sentenced to death for two counts of first degree murder. He was released when the Florida Supreme Court ruled the evidence did not sustain the conviction.

18. Lawyer Johnson (Massachusetts, Conviction: 1971) Sentenced to death for first degree murder. The charges were dropped when a previously silent eyewitness came forward and implicated the state’s chief witness as the actual killer.

1986

19. Anthony Brown (Florida, Conviction: 1983) Convicted of first degree murder and sentenced to death. At the retrial, the state’s chief witness admitted that his testimony at the first trial had been perjured and Brown was acquitted.

20. Neil Ferber (Pennsylvania, Conviction: 1982) Convicted of first degree murder and sentenced to death. He was released at the request of the state’s attorney when new evidence showed that the conviction was based on the perjured testimony of a jail-house informant.

1987

21. Joseph Green Brown (Florida, Conviction: 1974) Charges were dropped after the 11th Circuit Court of Appeals ruled that the prosecution had knowingly allowed false testimony to be introduced at trial. Brown came within 13 hours of execution.

22. Perry Cobb (Illinois, Conviction: 1979)

23. Darby Williams (Illinois, Conviction: 1979) They were convicted and sentenced to death for a double murder. They were acquitted at retrial when an assistant state attorney came forward and destroyed the credibility of the state’s chief witness.

24. Henry Drake* (Georgia, Conviction: 1977) Resentenced to a life sentence at his second retrial. Six months later, the parole board freed him, convinced he was exonerated by his alleged accomplice and by testimony from the medical examiner.

25. John Henry Knapp* (Arizona, Conviction: 1974) Knapp was originally sentenced to death for an arson murder of his two children. He was released in 1987 after new evidence about the cause of the fire prompted a judge to order a new trial. In 1991, his third trial resulted in a hung jury. Knapp was again released in 1992 after an agreement with the prosecutors in which he pleaded no contest to second degree murder. He has steadfastly maintained his innocence.

26. Vernon McManus (Texas, Conviction: 1977) After a new trial was ordered, the prosecution dropped the charges when a key prosecution witness refused to testify.

27. Anthony Ray Peek (Florida, Conviction: 1978) Convicted of murder and sentenced to death. His conviction was overturned when expert testimony was shown to be false. He was acquitted at his second retrial.

28. Juan Ramos (Florida, Conviction: 1983) Sentenced to death for rape and murder. The decision was vacated by the Florida Supreme Court because of improper use of evidence. At his retrial, he was acquitted.

29. Robert Wallace (Georgia, Conviction: 1980) Sentenced to death for the slaying of a police officer. The 11th Circuit ordered a retrial because Wallace had not been competent to stand trial. He was acquitted at the retrial because it was found that the shooting was accidental.

1988

30. Jerry Bigelow (California, Conviction: 1980) Convicted of murder and sentenced to death after acting as his own attorney. His conviction was overturned by the California Supreme Court and he was acquitted at the retrial.

31. Willie Brown (Florida, Conviction: 1983)

32. Larry Troy (Florida, Conviction: 1983) Originally sentenced to death after being accused of stabbing a fellow prisoner, they were released when the evidence showed that the main witness at the trial had perjured himself.

33. William Jent* (Florida, Conviction: 1980)

34. Earnest Miller* (Florida, Conviction: 1980) A federal district court ordered a new trial because of suppression of exculpatory evidence. They were released immediately after agreeing to plead guilty to second degree murder. They repudiated their plea upon leaving the courtroom and were later awarded compensation by the Pasco County Sheriff’s Dept. because of official errors.

1989

35. Randall Dale Adams (Texas, Conviction: 1977) He was ordered to be released pending a new trial by the Texas Court of Appeals. The prosecutors did not seek a new trial due to substantial evidence of Adam’s innocence. Subject of the movie, The Thin Blue Line.

36. Jesse Keith Brown* (South Carolina, Conviction: 1983) The conviction was reversed twice by the state Supreme Court. At the third trial he was acquitted of the capital charge but convicted of related robbery charges.

37. Robert Cox (Florida, Conviction: 1988) Released by a unanimous decision of the Florida Supreme Court on the basis of insufficient evidence.

38. Timothy Hennis (North Carolina, Conviction: 1986) Convicted of three counts of murder and sentenced to death. The State Supreme Court granted a retrial because of the use of inflammatory evidence. At the retrial, Hennis was acquitted.

39. James Richardson (Florida, Conviction: 1968) Released after reexamination of the case by Janet Reno of the Miami State’s Attorney’s office which concluded he was innocent.

1990

40. Clarence Brandley (Texas, Conviction: 1980) Awarded a new trial when evidence showed prosecutorial suppression of exculpatory evidence and perjury by prosecution witnesses. All charges were dropped. Brandley is the subject of the book White Lies by Nick Davies.

41. Patrick Croy (California, Conviction: 1979) Conviction overturned by state Supreme Court because of improper jury instructions. Acquitted at retrial after arguing self-defense.

42. John C. Skelton (Texas, Conviction: 1982) Convicted of killing a man by exploding dynamite in his pickup truck. The conviction was overturned by the Texas Court of Criminal Appeals due to insufficient evidence.

1991

43. Gary Nelson (Georgia, Conviction: 1980) Nelson was released after a review of the prosecutor’s files revealed that material information had been improperly withheld from the defense. The county district attorney acknowledged: “There is no material element of the state’s case in the original trial which has not subsequently been determined to be impeached or contradicted.”

44. Bradley P. Scott (Florida, Conviction: 1988) Convicted of murder ten years after the crime. On appeal, he was released by the Florida Supreme Court because of insufficiency of the evidence.

1993

45. Kirk Bloodsworth (Maryland, Conviction: 1984) Convicted and sentenced to death for the rape and murder of a young girl. He was granted a new trial and given a life sentence. He was released after subsequent DNA testing confirmed his innocence.

46. Federico M. Macias (Texas, Conviction: 1984) Convicted of the slaying of Robert Haney. He was granted a federal writ of habeas corpus because of ineffective assistance of counsel and possible innocence. A grand jury refused to reindict because of lack of evidence.

47. Walter (Johnny D) McMillian (Alabama, Conviction: 1988) Conviction was overturned by the Alabama Court of Criminal Appeals and was freed after three witnesses recanted their testimony and prosecutors agreed case had been mishandled.

48. Gregory R. Wilhoit (Oklahoma, Conviction: 1987) Convicted of killing his estranged wife while she slept. His conviction was overturned and he was released in 1991 when 11 forensic experts testified that a bite mark found on his dead wife did not belong to him. The appeals court also found ineffective assistance of counsel. He was acquitted at a retrial in April, 1993.

These 48 cases illustrate the flaws inherent in the death penalty systems used in the states. Some of these men were convicted on the basis of perjured testimony or because the prosecutor improperly withheld exculpatory evidence. In other cases, defense counsel failed to conduct the necessary investigation that would have disclosed the exculpatory information.

Racial Prejudice: Clarence Brandley

“The court unequivocally concludes that the color of Clarence Brandley’s skin was a substantial factor which pervaded all aspects of the State’s capital prosecution of him.”

—Judge Perry Pickett

Sometimes racial prejudice propels an innocent person into the role of despicable convict. In 1980, a 16 year-old white girl named Cheryl Dee Ferguson was raped and murdered at a Texas high school. Suspicion turned to the school’s five janitors. One of the janitors later testified that the police looked at Clarence Brandley, the only black in the group, and said, “Since you’re the nigger, you’re elected.” [7]

Brandley was convicted and sentenced to death by an all-white jury after two trials. The prosecutor used his peremptory strikes to eliminate all blacks in the jury pool. [8] Eleven months after the conviction, Brandley’s attorneys learned that 166 of the 309 exhibits used at trial, many of which offered grounds for appeal, had vanished.

After six years of fruitless appeals and massive civil rights demonstrations in support of Brandley, the Texas Court of Criminal Appeals ordered an evidentiary hearing to investigate all the allegations that had come to light. The presiding judge wrote a stinging condemnation of the procedures used in Brandley’s case, and stated that “The court unequivocally concludes that the color of Clarence Brandley’s skin was a substantial factor which pervaded all aspects of the State’s capital prosecution of him.” [9] Brandley was eventually released in 1990 and all charges were dismissed.[10]

It took many years and a tremendous effort by outside counsel, civil rights organizers, special investigators, and the media to save Brandley’s life. For others on death row, it is nearly impossible to even get a hearing on a claim of innocence.

The Pressure to Prosecute: Walter McMillian

“I was wrenched from my family, from my children, from my grandchildren, from my friends, from my work that I loved, and was placed in an isolation cell, the size of a shoe box, with no sunlight, no companionship, and no work for nearly six years. Every minute of every day, I knew I was innocent … .”

—Walter McMillian, Written testimony at Subcommittee Hearing, July 23, 1993.

In 1986, in the small town of Monroeville, Alabama, an 18-year-old white woman was shot to death in the dry cleaners around 10 AM. Although the town was shocked by the murder, no one was arrested for eight months. Johnny D. (Walter) McMillian was a black man who lived in the next town. He had been dating a white woman and his son had married a white woman, none of which made Johnny D. popular in Monroeville. [11]

On the day of the murder, Johnny D. was at a fish fry with his friends and relatives. Many of these people gave testimony at trial that Johnny D. could not have committed the murder of Ronda Morrison because he was with them all day. Nevertheless, he was arrested, tried and convicted of the murder. Indeed, Johnny D. was placed on death row upon his arrest, well before his trial. No physical evidence linked him to the crime but three people testifying at his trial connected him with the murder. All three witnesses received favors from the state for their incriminating testimony. [12] All three later recanted their testimony, including the only “eyewitness,” who stated that he was pressured by the prosecutors to implicate Johnny D. in the crime.

The jury in the trial recommended a life sentence for Johnny D. but the judge overruled this recommendation and sentenced him to death. His case went through four rounds of appeal, all of which were denied. New attorneys, not paid by the State of Alabama, voluntarily took over the case and eventually found that the prosecutors had illegally withheld evidence which would have pointed to McMillian’s innocence. A story about the case appeared on CBS-TV’s program, 60 Minutes, on Nov. 22, 1992. Finally, the State agreed to investigate its earlier handling of the case and then admitted that a grave mistake had been made. [13] Mr. McMillian was freed into the welcoming arms of his family and friends on March 3, 1993.

Inadequate Counsel: Federico Macias

Federico Macias’ court -appointed lawyer did virtually nothing to prepare his case for trial. Macias was sentenced to death in Texas in 1984. Two days before his scheduled execution he received a stay. New counsel from the large Skadden, Arps law firm had entered the case and devoted the firm’s considerable resources and expertise to turning this case around. Mr. Macias’ conviction was overturned via a federal writ of habeas corpus which was upheld by a unanimous panel of the U. S. Court of Appeals for the Fifth Circuit in December, 1992. The court found that not only was Macias’ original counsel grossly ineffective, but also that he had missed considerable evidence pointing to Macias’ innocence. The court concluded:

We are left with the firm conviction that Macias was denied his constitutional right to adequate counsel in a capital case in which actual innocence was a close question. The state paid defense counsel $11.84 per hour. Unfortunately, the justice system got only what it paid for. [14]

Thereafter, Macias was freed when the grand jury, which now had access to the evidence developed by the Skadden, Arps attorney, refused to re-indict him.

There are many similar stories of defendants who have spent years on death row, some coming within hours of their exeuction, only to be released by the courts with all charges dropped.[15] What is noteworthy about the cases outlined above is that they are very recent examples which illustrate that mistabken death sentences are not a relict of the past.

Official Misconduct: Chance and Powell

While Clarence Chance and Benny Powell were not sentenced to death, their convictions for murder illustrate the dangers of overzealous police work. They were released from prison last year after Jim McCloskey of Centurion Ministries took on their case and demonstarted their innocence. The City of Los Angeles awarded them $7 million and the judge termed the police department’s conduct “reprehensible” while apologizing for the “gross injustices” that occurred.

To some degree, the cases discussed in Section III illustrate the inherent fallibility of the criminal justice system. (Sensational murder cases often ten, however, to ami;ify the flaws of the system.) Mistakes and even occasional misconduct are to be expected. The cases outlined above might convey a reassuring impression that, although mistakes are made, the system of appeals and reviews wil ferret out such cases prior to execution. In one sense, that is occasionally true: the system of appeals sometimes allows for correction of factual errors.

But there is another sense in which these cases illustrate the inadequacies of the system. These men were found innocent despite the system and only as a result of extraordinary efforts not generally available to death row defendants.

Indeed, in some cases, these men were found innocent as a result of sheer luck. In the case of Walter McMillian, his volunteer outside counsel had obtained from the prosecutors an audio tape of one of the key witnesses’ statements incriminating Mr. McMillian. After listening to the statement, the attorney flipped the tape over to see if anything was on the other side. It was only then that he heard the same witness complaining that he was being pressured to frame Mr. McMillian. [17] With that fortuitous break, the whole case against Johnny D. began to fall apart.

Similarly, proving the innocence of Kirk Bloodsworth was more a matter of chance than the orderly working of the appeals’ process. Only a scientific breakthrough, and an appellate lawyer’s initiative in trying it, after years of failed appeals, allowed Bloodsworth to prove his innocence. And even then, the prosecutor was not bound under Maryland law to admit this new evidence. [18]

Furthermore, not every death row inmate is afforded, after conviction, the quality of counsel and resources which Walter McMillian and Federico Macias were fortunate to have during their post-conviction proceedings. Many of those on death row go for years without any attorney at all.

Most of the releases from death row over the past twenty yhears came only after many years and many failed appeals. The average length of time between conviction and release was almost 7 years for the 48 death row inmates released since 1970.

Innocence Is Not Generally Reviewed

Too often, the reviews afforded death row inmates on appeal and habeas corpus simply do not offer a meaningful opportunity to present claims of innocence. As will be discussed more fully below, in many states there simply is no formal procedure for hearing new evidence of a defendant’s innocence prior to his execution. After trial, the legal system becomes locked in a battle over procedural issues rather than a reexamination of guilt or innocence. search for truth. The all-night struggle to stay the execution of Leonel Herrera in 1992, even after the U.S. Supreme Court had agreed to hear his constitutional challenge, is an example of how much pressure is exerted to proceed with executions. [19]

Accounts which report that a particular case has been appealed numerous times before many judges may be misleading. In fact, most often, procedural issues, rather than the defendant’s innocence are being argued and reviewed in these appeals. For example, when Roger Keith Coleman was executed in Virginia last year, it was reported that his last appeal to the Supreme Court “was Coleman’s 16th round in court.” [20] However, the Supreme Court had earlier declared that Coleman’s constitutional claims were barred from any review in federal court because his prior attorneys had filed an appeal too late in 1986. [21] His evidence was similarly excluded from review in state court as well. Instead, Coleman’s innocence was debated only in the news media and considerable doubt concerning his guilt went with him to his execution. [22]

This section will examine some of the means, both extra-judicial and within the system, by which the cases of innocence are uncovered. But first, it is necessary to clarify what is meant in this report by the term “innocent.”

Meaning of “Innocent”

In the criminal justice system, defendants are presumed to be innocent until proven guilty beyond a reasonable doubt. Thus, a person is fully entitled to a claim of innocence if charges are not brought against him or if the charges brought are not proven. A person may be guilty of other crimes or there may be some who still insist he is guilty, but with respect to the charge in question, he is innocent.

In some cases, the investigative process does conclusively determine innocence. A piece of evidence may demonstrate that a suspect or defendant could not have been the perpetrator, or someone else confesses, eliminating other suspects. Under the law, there is no distinction between the definitively innocent and those found innocent but about whom there may remain a lingering doubt.

Extra-Judicial Redress

In the absence of adequate legal mechanisms, the most serious errors in the criminal justice system are sometimes uncovered as a result of such extra-judicial factors as the media and the development of new scientific techniques. These following cases illustrate the randomness of how the legal system works.

Role of the Media: Randall Dale Adams

One unpredictable element which can affect whether an innocent person is released is the involvement of the media. In Randall Dale Adams’ case, film producer Errol Morris went to Texas to make a documentary on Dr. James Grigson, the notorious “Dr. Death.” [23] Grigson would claim 100% certainty for his courtroom predictions that a particular defendant would kill again, and he made such a prediction about Randall Adams.

In the course of his investigation of Grigson, Morris became interested in Adams’ plight and helped unearth layers of prosecutorial misconduct in that case. Morris’ movie, The Thin Blue Line, told Randall Adams’ story in a way no one had seen before. The movie was released in 1988 and Adams was freed the following year.

Role of the Media: Other Cases

Similarly, all charges and death sentences against Thomas Gladish, Richard Greer, Ronald Keine, and Clarence Smith were dropped in 1976 thanks, in part, to the Detroit News investigation of lies told by the prosecution’s star witness. [24]

Walter McMillian’s case was featured on 60 Minutes shortly before his release. So was the case of Clarence Brandley. Brandley was also aided by the civil rights community which organized opposition to his execution. Supporters were able to raise $80,000 for his defense.[25] Obviously, these advantages are not available to everyone on death row who may have been wrongly convicted.

Unpredictable Emergence of New Scientific Tests: Kirk Bloodsworth

In 1984, a 9-year-old girl named Dawn Hamilton was raped and murdered in Baltimore County, Maryland. Two young boys and one adult said they had seen Dawn with a man prior to her death. They thought that Kirk Bloodsworth looked like the man who had been with her. Again, no physical evidence linked Bloodsworth to the crime. He was convicted and sentenced to death because he looked like someone who might have committed the crime. [26]

There was some evidence taken from the crime scene, but it gave the police no clue as to who the killer was. Tests were conducted on the girl’s underwear, but the tests were not sophisticated enough at that time to detect and identify DNA material from the likely assailant. Fortunately for Mr. Bloodsworth, he was granted a new trial when a judge ruled that the state had withheld evidence from the defense attorneys about another suspect. This time he received a life sentence. Bloodsworth, however, continued to maintain his innocence and the life sentence gave him the time to prove it. [27]

When a new volunteer lawyer agreed to look into Bloodsworth’s case, he decided to try one more time to have the evidence in the case tested. He sent the underwear to a laboratory in California which used newly developed DNA techniques. The defense attorney was astonished when he learned that there was testable DNA material. The tests showed that the semen stain on the underwear could not possibly have come from Mr. Bloodsworth. The prosecution then agreed that if these results could be duplicated by the FBI’s crime laboratory, it would consent to Mr. Bloodsworth’s release. On Friday, June 25, the FBI’s results affirmed what Bloodsworth had been saying all along: he was innocent of all charges. On June 28, he was released by order of the court from the Maryland State Correctional facility in Jessup, after 9 years in prison — two of which were on death row.

The next section of the report will look at the traditional avenues which an innocent defendant can use to prevent or overturn a sentence of death.

Trial is Critical, but often Hampered by Poor Legal Representation

The trial is obviously the critical time for the defendant to make his or her case for innocence. Unfortunately, the manner in which defense counsel are selected and compensated for death penalty trials does not always protect the defendants’ rights at this pivotal time. Most defendants facing the death penalty cannot afford to hire their own attorney and so the state is required to provide them with one. Some states have public defender offices staffed by attorneys trained to handle such cases. In other states, attorneys are appointed from the local community and the quality of representation is spotty. [28]

Federico Macias is certainly not alone with respect to ineffective counsel. The stories regarding deficient representation in death penalty cases are rampant.[29] The Subcommittee has held several hearings documenting this problem.[30] Although death penalty law is a highly specialized and complex form of litigation, there is no guarantee that the attorney appointed to this critical role will have the necessary expertise. There is no independent appointing authority to select only qualified counsel for these cases and attorneys are frequently underpaid and understaffed, with few resources for this critical undertaking.

Proving Innocence After Trial: Defendant’s Burden

Before trial, the arrested defendant need do nothing to prove his innocence. The burden is completely on the prosecution to prove that the individual is guilty of the crimes charged beyond a reasonable doubt. However, after someone has been found guilty, the presumption shifts in favor of the state. The burden is now on the defendant to prove to a court that something went wrong in arriving at the determination of guilt. It is no longer enough to raise a reasonable doubt. To overturn a conviction, the evidence must be compelling, and violations of Constitutional rights by the state will be forgiven as long as they were “harmless.” [31]

The Appellate Process

If an innocent defendant is convicted, he generally has little time to collect and present new evidence which might reverse his conviction. In Texas, for example, a defendant has only 30 days after his conviction to present new evidence, and the state strictly adheres to that rule. Sixteen other states also require that a new trial motion based on new evidence be filed within 60 days of judgment. [32] Eighteen jurisdictions have time limits between 1 and 3 years, and only 9 states have no time limits. [33]

Thus, even a compelling claim of innocence, such as a videotape of someone else committing the crime (as recently hypothesized by Justice Anthony Kennedy in oral arguments of Herrera,[34]discussed below), does not guarantee a review in state or federal court.

All death row inmates are assured representation to make one direct appeal in their state courts. If that appeal is denied, representation is no longer assured. [35] In states like Texas and California with large death rows, many defendants sentenced to death are not currently being represented by any attorney.[36] Obviously, such a defendant’s opportunity to uncover evidence to prove his innocence is greatly reduced, even assuming a court would hear the evidence if it was found.

Habeas Corpus: The Great Writ

When someone has been unjustly convicted under circumstances similar to those described above, he can challenge that conviction in federal court through the writ of habeas corpus. Although numerous legislative proposals to limit habeas corpus in the past few years have failed, the opportunity for using this writ has already been stringently narrowed by recent Supreme Court decisions. The following cases illustrate some of the barriers erected by the Court to claims of innocence.

Leonel Herrera

The Supreme Court has denied habeas review of claims from prisoners on death row with persuasive, newly discovered evidence of their innocence. Leonel Herrera presented affidavits and positive polygraph results from a variety of witnesses, including an eyewitness to the murder and a former Texas state judge, both of whom stated that someone else had committed the crime. However, the Supreme Court ruled that Herrera was not entitiled to a federal hearing on this evidence and was told that his only recourse was the clemency process of the state of Texas. [37] Herrera was executed in May of this year.

Gary Graham

Death row inmates who claim their innocence are therefore forced to rely on procedural claims. But those, too, are being foreclosed by the Supreme Court.

For example, Gary Graham’s case has gained national attention because he has made a substantial claim of innocence. However, the barriers to getting such new evidence before the courts has necessitated that the defense pursue other claims which only affect his sentence. Death penalty attorneys realize that proving their client innocent after he is executed is of no value to him.

But when Gary Graham claimed that the Texas death penalty procedures did not allow consideration of his youth at the time of the crime, the U. S. Supreme Court refused to even consider the question. The Court said that even if he was right in his claim, ruling in his favor would supposedly create a “new rule” and no such rule could apply retroactively to his case. [38]

Another recent narrowing of the writ requires federal courts to reject all claims if the proper procedures were not followed by the defendant in state court. Roger Coleman, for example, filed his Virginia state appeal three days late and this error by his attorneys barred any consideration of his federal constitutional claims. [39] Coleman was executed without a federal court hearing his claim. Similarly, if a claim is not raised on a defendant’s first habeas petition, the claim (with rare exceptions) is automatically rejected, even if the government withheld the very evidence the defendant would have needed to raise the claim in his first petition. [40]

Clemency

For the innocent defendant, the last avenue of relief is clemency from the executive branch. All death penalty states have some form of pardon power vested either in the governor or in a board of review. [41] However, clemencies in death penalty cases are extremely rare. Since the death penalty was re-instated in 1976, 4,800 death sentences have been imposed but less than three dozen clemencies have been granted on defendants’ petitions. [42] In Texas, the state with the greatest number of executions, no clemencies have been granted.

The procedures for clemency are as varied as the states. In many states the governor has the final say on granting a commutation of a death sentence. Since the governor is an elected official and since there is virtually no review of his or her decision, there is the danger that political motivations can influence the decisions. [43]Many of the commutations which have been granted in the past 20 years were granted by governors only as they were leaving office.

Other arrangements are also subject to political pressures. In Texas, a board must first recommend a clemency to the governor. However, the board is appointed by the governor and is not required to meet or hear testimony to review a case. Recently, a judge in Texas held that this lack of process violated Gary Graham’s constitutional rights and ordered a hearing to review his claims of innocence. [44]

In Nebraska, Nevada and Florida, the chief state prosecutor sits on the clemency review board. [45] And generally, there are no procedural guarantees to assure that a claim of innocence which has been barred review by the courts will be fully aired for clemency. As Justice Blackmun recently pointed out:

• Whatever procedures a State might adopt to hear actual innocence claims, one thing is certain: The possibility of executive clemency is not sufficient to satisfy the requirements of the Eighth and Fourteenth Amendments.[46]

Thus, the prospect of clemency provides only the thinnest thread of hope and is certainly no guarantee against the execution of an innocent individual.

It is an inescapable fact of our criminal justice system that innocent people are too often convicted of crimes. Sometimes only many years later, in the course of a defendant’s appeals, or as a result of extra-legal developments, new evidence will emerge which clearly demonstrates that the wrong person was prosecuted and convicted of a crime.

Americans are justifiably concerned about the possibility that an innocent person may be executed. Capital punishment in the United States today provides no reliable safeguards against this danger. Errors can and have been made repeatedly in the trial of death penalty cases because of poor representation, racial prejudice, prosecutorial misconduct, or simply the presentation of erroneous evidence. Once convicted, a death row inmate faces serious obstacles in convincing any tribunal that he is innocent.

The cases discussed in this report are the ones in which innocence was uncovered before execution. Once an execution occurs, the small group of lawyers who handle post-conviction proceedings in death penalty cases in the United States move on to the next crisis. Investigation of innocence ends after execution. If an innocent person was among the 222 people executed in the United States since Furman, nobody in the legal system is any longer paying attention.

Many death penalty convictions and sentences are overturned on appeal, but too frequently the discovery of error is the result of finding expert appellate counsel, a sympathetic judge willing to waive procedural barriers, and a compelling set of facts which can overcome the presumption of guilt. Not all of the convicted death row inmates are likely to have these opportunities.

Judging by past experience, a substantial number of death row inmates are indeed innocent and there is a high risk that some of them will be executed. The danger is inherent in the punishment itself and the fallibility of human nature. The danger is enhanced by the failure to provide adequate counsel and the narrowing of the opportunities to raise the issue of innocence on appeal. Once an execution occurs, the error is final.