NEW BOOKS: "The Dead Alive" Explores Wrongful Convictions

Rob Warden, Executive Director of the Center on Wrongful Convictions at Northwestern University School of Law, has written a book about one of the first accounts of a death penalty exoneration in the U.S.  Wilkie Collins, a British author, had written a novel entitled "The Dead Alive" about the convictions and death sentences of Jesse and Stephen Boorn for a murder committed in 1819.  They were later exonerated.  Warden's book is entitled "Wilkie Collins's The Dead Alive: The Novel, the Case, and Wrongful Convictions" and he provides examples of other mistakes in capital cases.  Scott Turow wrote the Foreward for this new book. 

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Exonerations Lead Virginia Governor to Call for Sweeping DNA Review

The release of two Virginia men who were exonerated after the state conducted new DNA testing on evidence from 31 cases has prompted Governor Mark Warner (pictured) to call for a more sweeping review of the state's stored biological evidence. Warner has ordered 660 boxes containing thousands of files from 1973 through 1988 to be examined for cases that can be retested using the latest DNA technology.

"I believe a look back at these retained case files is the only morally acceptable course, and what truth they can bring only bolsters confidence in our system," Warner said. Virginia's review marks one of the first instances in which a governor has ordered a broad examination of DNA cases. Virginia, which has executed more people than any state except Texas since capital punishment was reinstated in 1976, has had the accuracy of its justice system called into question after several high-profile innocence cases.

"This is a 7 percent innocence rate -- among people who never even asked for testing -- that should give pause to people who think mistakes in our criminal justice system are flukes. This should be a beacon for other governors across the country to implement post-conviction DNA testing," said Peter Neufeld, co-director of the New York-base Innocence Project.

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NEW VOICES: Former Texas DA Millsap Now Opposes Death Penalty

Former San Antonio District Attorney Sam Millsap, who once proclaimed himself a "lifelong supporter of the death penalty," now opposes capital punishment. Millsap says his decision to oppose the death penalty was recently affirmed as evidence surfaced that Texas may have killed an innocent man when it executed Ruben Cantu, a San Antonio man who was sentenced to die while Millsap was DA.

"It is troubling to me personally. No decision is more frightening than seeking the death penalty. We owe ourselves certainty on it," Millsap stated in an interview during which he used words like "painful," "horrible," and "haunting" to categorize Cantu's case. Millsap said that he used to have confidence in the death penalty "when I was in my 30s and knew everything." Now, he says the revelations about Cantu's case are painful to him because the case happened on his watch. He said that if Cantu was innocent, that means the person who committed the murder remains free and that "the misconduct by police officers could be addressed today."

"It's horrible when you find out you participated in what ended up being a bad result, especially when a death is involved," Millsap noted.

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Birmingham News Reverses Its Position on the Death Penalty

Editorial series calls for end to capital punishment

The Birmingham News, a consistent supporter of capital punishment in the past, is now advocating that the state abandon the use of the death penalty. In an editorial series that was published November 6 - 11, 2005, the paper stated that there are serious flaws in the application of the death penalty in Alabama. It also said that the death penalty is inconsistent with the paper’s commitment to a culture of life.

According to the News, “[These editorials] will document over the next several days how the death penalty is applied arbitrarily in Alabama, how the system for defending those accused in capital cases is deficient and how the argument that capital punishment deters crime is open to question. These findings will be troubling on their own. When you consider
these uncertainties in the context of a culture of life . . . it becomes harder to defend a flawed system for deciding who lives and who dies.”

Alabama is a leading death penalty state. According to DPIC there have been 34 executions in Alabama since 1976, and 191 people are currently on death row. According to the News report, 75% of those sentenced to die in Alabama had killed a white person, even though the majority of the state's murder victims are black. Five people have been freed from Alabama's death row on the basis of innocence.

By examining individual cases, the News series highlights injustices in the death penalty system. Though it recommended abolishing Alabama's death penalty, the paper said that short of that, the state should enact a lengthy list of reforms to ensure that the death penalty is applied more fairly. The following are excerpts from the editorial series.

Alabama’s Error Rate in Capital Cases Far Exceeds the National Average

The News notes: “It should be no comfort to death penalty supporters that in the process leading to execution, mistakes are so common.” In particular, The News provides the following example:

  • “A massive study by Columbia University Law School professors in 2000 put the national error rate for capital cases at 68 percent while Alabama’s error rate exceeded 77 percent for capital convictions and death sentences.”

Flaws in System Put State at Risk for Executing an Innocent Person

The News asserts, “[T]hose who value life must demand at minimum a fair, impartial system designed to prevent the abhorrent possibility of the state killing an innocent person,” and provides evidence of exonerations throughout the country and in Alabama: Name of Exoneree
Year of Conviction
Year of Release
Walter McMillian
Randall Padgett
Bo Cochran
Gary Drinkard
Wesley Quick

  • “Since 1973, 121 inmates in 25 states have been released from Death Row”
  • Anthony Ray Hinton is currently on death row in Alabama. The News provides evidence of his possible innocence. To read the editorial on Anthony Ray Hinton click here.

The Death Penalty is Applied in a Haphazard Fashion

According to the News, “[W]e should be assured the ultimate punishment is inflicted fairly and accurately. That's not the case. If it were, the horror of a particular crime and the guilt of a particular defendant would determine whether a case ended with a sentence of death. Instead, the outcomes often hinge on the status of the accused, the quality of the defense, the race of the victim, even the location of the crime.” Arbitrary factors influence who is sentenced to death. The News claims “ those who get the ultimate punishment are not necessarily the worst of the worst.”

  • “The factors that determine which cases end with death are arbitrary. Socioeconomic status of defendants, quality of defense, race of victim.”

Race Could Play a Role in Who Gets the Ultimate Punishment

According to the News, race plays a part in who is sentenced to death. For instance:

  • “In 2003, for instance, blacks made up 60 percent of the homicide deaths. Of murder victims whose killers were sentenced to death over the past 30 years, more than 75 percent were white.”

Race of Homicide Victims
in Alabama 1994 - 2003

Race of Victim for
Defendants Sentenced to Death
in Alabama 1994 - 2003

Race of Victim for Defendants Executed
in Alabama Since 1976

Source: Birmingham News

Source: Birmingham News
Source: NAACP LDF Death Row USA

Discretion Leads to an Arbitrary Application of the Death Penalty

“Alabama has one of the nation's broadest capital punishment laws, allowing the death penalty for 18 varieties of murder. Despite the sizable number of murders that qualify, only a fraction end up with a death sentence.” The News emphasizes how discretion can impact the decision of who is sentenced to death. “Even biases that are buried can emerge in capital cases because humans make the call about who gets life and who gets death.” There are several ways that discretion comes into the process. For example:

Prosecutors Determines Who is Charged with Capital Murder

“Eighteen varieties of murder but not everyone who commits one of these crimes is condemned to die.” Prosecutors must first decide whether to charge a person with murder or with capital murder. Prosecutors determine whether or not a person should be prosecuted capitally in different ways.

  • “How fair can it be when a crime in one county is deemed worthy of the state’s worst punishment, while an almost identical crime in another county is not?”
  • “Jefferson County District Attorney David Barber says his philosophy is to charge any crime that meets any of the legal criteria as capital murder - and to seek the death penalty. ‘That way we won't get in a situation of picking and choosing,’ he said.”
  • “Shelby County's Robby Owens does pick and choose. He says he doesn't go after the death penalty unless the murder was calculated, there's no question of guilt and he believes the defendant isn't worth saving.”

Source: Birmingham News

Judicial Overrides
Judges with the Most Overrides

Braxton Kittrell,
Mobile - 7

Ferril McRae,
Mobile - 5

Randall Thomas,
Montgomery - 5

  • "Judges, too, play a role - more so in Alabama than in most other states. Here, judges can impose a death sentence even when a jury recommends against it.”
  • “Since 1982, 53 judges have handed down 83 death sentences against a jury's wishes--20 percent of the people on Death Row. More than 1 in 5 overrides were the work of just three judges.”

Lack of Adequate Legal Representation Brings the Reliability of the System into Question

“Alabama must ensure a decent legal defense if it is going to embrace and encourage death for those who commit the most serious crimes against society. Anything less,” the News contends, “unconscionably devalues life.” The facts demonstrating how lack of legal representation influences the reliability of death sentences are:

Alabama Has No Public Defender System

  • “One of the most dangerous flaws in Alabama's capital punishment system is the lack of a statewide public defender system. Instead, the state offers a hodgepodge, bare-bones way of providing lawyers to defend poor suspects.”

Inexperienced Attorneys Often Handle Capital Cases

  • “Court-appointed lawyers often have little experience in capital cases, and limits on pay discourage highly qualified lawyers from taking cases.”
  • “Conversely, a district attorney's office, which prosecutes individuals charged with capital crimes, may have highly experienced attorneys who deal with homicide trials regularly.”

Attorney Pay Rates Are Low

  • “The great majority of today's death row inmates were convicted before 2000. Yet until 1999, court-appointed lawyers were paid $20 an hour for out-of-court work and $40 an hour for in-court work; until 2000, they got $30 an hour out of court and $50 an hour in court. Also until 2000, the court-appointed lawyers were capped at $1,000 for out-of-court fees, meaning they were limited in the pretrial hours they could work on a case, unless they worked for free.”

Attorneys Are Not Guaranteed for Appeals

  • “In a system like Alabama's that does not pay for or guarantee a high-quality, aggressive defense at trial for each death penalty case, it's even more important that the trial get a close examination on appeal. But the death penalty appeals process is stacked heavily against somebody fighting for his life.”
  • Alabama provides no “system of assuring lawyers for defendants for the crucial second and third round of appeals where miscarriages of justice are most often uncovered.”

The Majority of Alabamians Question Fairness of Death Penalty—Majority Favor Moratorium

  • “While more than 7 in 10 favor capital punishment, about 57 percent of those surveyed say they favor a moratorium until questions over the way the death penalty is applied can be worked out.”
  • “Only 47 percent believe the death penalty is applied fairly in Alabama, according to the poll.”
  • “80 percent of those polled think the state could execute someone who is not guilty.”

How do you feel about the use of the death penalty in Alabama?

Do you believe the death penalty is applied fairly in Alabama regardless of gender, race or income?

Do you believe an innocent person may be convicted and executed?

Source: Birmingham News

Source: Birmingham News
Source: Birmingham News

The News Offers Recommendations for Improving the Reliability of the Death Penalty in Alabama

According to the News: “The ultimate punishment is inflicted, at best, haphazardly. The outcome of capital murder trials can be affected by arbitrary factors such as the status of the accused, the race of the victim and more than a little luck. One of the most crucial factors is the quality of legal representation; Alabama doesn't provide for an adequate defense, much less the vigorous defense a life-or-death case demands. That raises the specter of the worst failure the state's criminal justice system could ever experience: the execution of an innocent man or woman.” Until the state abandons its use of the death penalty, the News suggests the following reforms:

Commission a Study on Capital Punishment in Alabama

  • “The people of Alabama - in the form of their state government - should conduct a thorough review of their own.”

Impose a Moratorium on the Death Penalty

  • “The Legislature, in the session that begins in January, quickly should pass a law suspending the death penalty while a commission examines problems with Alabama's system of capital punishment.”

Stop Jury Overrides

  • “Take away the power of circuit judges to impose death sentences when a jury recommends a sentence of life in prison without parole. Alabama is one of only a handful of states that grant judges this power and the only state where it is used liberally. Political pressure can be (and has been) used to urge judges, who are elected, to resort to the override power. The state should remove that temptation.”

Establish a Way to Review the Prosecutor’s Decision to Seek Death

  • “Establish a uniform system with state oversight to guide prosecutors in deciding when to seek the death penalty. The system should include a process of review so that defendants can challenge a prosecutor's decision on the front end.”

Require Full Disclosure by Prosecutors in Capital Cases

  • “Require prosecutors in a capital case to turn over every bit of evidence - helpful or not - to the defense. They already are required to turn over helpful information; but sometimes, disputes occur over whether a particular piece of information would aid the defense.”

Establish Safeguards for Unreliable Testimony

  • “Put safeguards in place to address chronic problems that crop up in death penalty cases with regard to eyewitness testimony, the use of jailhouse snitches and police interrogation procedures.”

Decrease Capital Offenses

  • “Reduce the number of crimes that qualify for a death sentence.”

Define Mental Retardation

  • “Set up reasonable guidelines about what constitutes mental retardation in keeping with the U.S. Supreme Court decision striking down executions of the retarded.”

Pass Law to Ban Execution of Juveniles

  • “Pass laws outlawing the execution of people for crimes they committed as juveniles in keeping with another U.S. Supreme Court ruling.”

Preserve Evidence in Capital Cases

  • “Make sure evidence in capital cases is preserved to allow for DNA testing where it could determine guilt or innocence, and ease the way for the testing to take place.”

Make Reforms Retroactive

  • “Devise a system to review death penalty cases prosecuted before these reforms (while lawyer pay was deplorably low) to try to ensure no innocent person is executed.”

Examine Proportionality of Capital Prosecutions and Sentences

  • “Study the correlation between race and the death penalty, and make changes to the law or in practices to try to ensure that the ultimate punishment is about the severity of the crime, not the skin color of the defendant and victim.”

Ban the Execution of Persons with Mental Illness

  • “Protect people with serious mental illness from being executed for crimes they committed while psychotic.”

Despite Reforms, The News Says System May Not Be Fixed

  • “Taken together, these proposals are not an inexpensive proposition. The state already spends $40 million a year paying court-appointed lawyers to defend poor suspects. A statewide indigent defense system likely would cost much more. That means it's even less likely the Legislature, which every year patches together an operating budget with smoke and mirrors, will undertake these reforms.”
  • Even if all these steps were taken, they would not be enough to satisfy the News' editorial board that the death penalty is appropriate for Alabama.

Read the Full Text of the Birmingham News' Editorials

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Editorials Criticize Texas Death Penalty

As evidence surfaces that Texas may have killed an innocent man when it executed Ruben Cantu in 1993, recent editorials by the Austin American-Statesman and the Dallas Morning News have criticized Texas' death penalty and called on the state to take a closer look at its "flawed" capital punishment system.

The Austin American-Stateman wrote:

We all should remember (Ruben) Cantu's case and the lessons it offers as the country carries out its 1000th execution since 1976 scheduled for today in North Carolina. It now appears that Cantu was right. That means that Texas executed an innocent person. He was 17 at the time of the crime.

Cantu's case should shock even hard-core death penalty opponents. Cantu was no saint. He tangled with the criminal justice system from a young age. But he apparently didn't rob and shoot Pedro Gomez to death in 1984. Yet in 1993, Cantu was strapped to a gurney and injected with lethal drugs for that crime.

Texas' system is barbarous. What else can be said of a system that fails to sort the innocent from the guilty? What else can be said of a system whose checks and balances focus almost exclusively on whether the process was followed and deadlines met rather than the more important — and moral — questions of innocence and fairness?

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Conservatives Urge Virginia Governor to Grant Clemency Request as 1,000th Execution Nears

A clemency petition filed with Virginia Governor Mark Warner on behalf of Robin Lovitt, who is scheduled to be executed on November 30, has gained the backing of some of the state's most conservative voices. Among those encouraging Warner to commute Lovitt's sentence to life are former Republican Virginia attorney general Mark L. Earley, Rutherford Institute founder John W. Whitehead, and Lovitt's attorney Kenneth Starr, who now serves as dean of the Pepperdine University School of Law.

In May 2001, three weeks after Virginia legislators passed a bill ordering that all biological evidence in death penalty cases be sent to the state forensics lab for safekeeping in case future DNA or other testing was needed, the Arlington County Court ordered destruction of evidence in Lovitt's case. The clerk responsible for destroying the evidence claimed ignorance of wrongdoing.  Original DNA testing in Lovitt's case was inconclusive. In his appeal for clemency for Lovitt, Starr noted that DNA testing has greatly improved since the original tests were conducted and that "through no fault of his own," Lovitt cannot take advantage of new DNA technologies.

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Investigative Series Reveals Texas May Have Executed An Innocent Man

A two-part investigative series by the Houston Chronicle casts serious doubt on the guilt of a Texas man who was executed in 1993.  Ruben Cantu had persistently proclaimed his innocence and was only 17 when he was charged with capital murder for the shooting death of a San Antonio man during an attempted robbery. Now, the prosecutor and the jury forewoman have expressed doubts about the case.   Moreover, both a key eyewitness in the state's case against Cantu and Cantu's co-defendant have come forward to say that Texas executed an innocent man.

Juan Moreno, who was wounded during the attempted robbery and was a key eyewitness in the case against Cantu, now says that it was not Cantu who shot him and that he only identified Cantu as the shooter because he felt pressured and was afraid of the authorities. Moreno said that he twice told police that Cantu was not his assailant, but that the authorities continued to pressure him to identify Cantu as the shooter after Cantu was involved in an unrelated wounding of a police officer. "The police were sure it was (Cantu) because he had hurt a police officer. They told me they were certain it was him, and that's why I testified. . . . That was bad to blame someone that was not there," Moreno told the Chronicle.

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122nd Inmate Freed From Death Row

Harold Wilson is the 6th Person Exonerated in Pennsylvania

More than 16 years after a Pennsylvania jury returned three death sentences against Harold Wilson, new DNA evidence has led to his acquittal. During Wilson's 1989 capital trial, the prosecution used racially discriminatory practices in selecting the jury.

In 1999, Wilson’s death sentence was overturned when a court determined that his defense counsel had failed to investigate and present mitigating evidence during his original trial. A later appeal led to the overturning of his conviction and a new trial because of the race bias in selecting the jury. The court held that at the new trial the death penalty could not be sought. On November 15, 2005, a new jury that did not have to be "death-qualified" and that was properly chosen, acquitted Wilson of all charges. DNA evidence revealed that blood from the crime scene did not come from Wilson or any of the victims, a finding suggesting the involvement of another assailant.

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Pennsylvania Man Becomes the 122nd Inmate Freed From Death Row

More than 16 years after a Pennsylvania jury returned three death sentences against Harold Wilson (pictured), new DNA evidence has helped lead to his acquittal. Yesterday, Wilson became the nation’s 122nd person freed from death row according to the Death Penalty Information Center (DPIC). During his 1989 capital trial, Wilson was prosecuted by former Philadelphia Assistant District Attorney Jack McMahon, a man best known for his role in a training video that advised new Philadelphia prosecutors on how to use race in selecting death penalty juries.

In 1999, Wilson’s death sentence was overturned when a court determined that his defense counsel had failed to investigate and present mitigating evidence during his original trial. A later appeal led the Pennsylvania Supreme Court to call for a new hearing because of evidence that McMahon used racially discriminatory practices in jury selection. In 2003, a trial court found that McMahon had improperly exercised his peremptory strikes to eliminate potential black jurors and granted Wilson a new trial, a decision that the District Attorney’s office did not appeal.  The court stated that in the new trial the death penalty could not be sought.  The jury in this most recent trial acquitted Wilson of all charges on November 15, 2005, after new DNA evidence revealed blood from the crime scene that did not come from Wilson or any of the victims, a finding suggesting the involvement of another assailant.

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VIDEO EDITORIAL: Dayton Daily News Urges Ohio Governor To Halt Spirko Execution

A recent Dayton Daily News video editorial urged Ohio Governor Bob Taft to grant clemency to John Spirko, an Ohio death row inmate scheduled to be executed on November 15. The video states that Spirko's case was plagued with gaps and inconsistencies, and that he may actually be innocent. The video was partly shot inside Ohio's "death house" in Lucasville prison. To view the video on the Web, click here.

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