OP-ED: ​“Capital Punishment and Human Fallibility”

A recent op-ed in the Wall Street Journal by Barry Scheck, co-director of the Innocence Project, highlighs flaws in Texas’s death penalty system that led to the execution of Claude Jones (pictured). Then-governor George Bush rejected Jones’s application for a reprieve. Bush was not informed that the reprieve would allow time for DNA tests to be performed on a strand of hair that was found at the crime scene. This hair had been attributed to Jones at his trial and was the only piece of evidence tying him to the crime scene. Following six years of litigation, DNA testing was finally performed on the hair, and results showed it belonged to the victim, not Jones. Scheck asserts that if this test had been done in 2000, when Jones was facing execution, Jones would have likely been spared and the conviction reversed. The hair “match” was the key evidence cited in a 3-2 decision made by the Texas Court of Criminal Appeals upholding Jones’s death sentence. Scheck calls for a critical look into the death penalty in America, quoting George Will that “capital punishment, like the rest of the criminal justice system, is a government program, so skepticism is in order.” Democrat and Republican Senators are introducing a bill, already approved by the House, that would establish a National Criminal Justice Reform Commission to help prevent wrongful convictions like the case of Claude Jones. Read full op-ed below.

Capital Punishment and Human Fallibility

On Friday, Dec. 7, 2000, as the world waited for a decision from the Florida Supreme Court on whether the recount of that state’s presidential ballot should continue, Texas Governor and soon-to-be President George W. Bush was provided with a final memo from his Counsel’s Office on the fate of death-row inmate Claude Jones.

He was advised to reject Jones’s application for a 30-day reprieve because there was “no doubt about guilt.” Jones had received “full and fair process” in the courts, and “Jones’ hair matched a hair found at the crime scene.”

Incredibly, Mr. Bush was not told that lawyers for Jones had requested the 30-day reprieve so that a mitochondrial DNA test could be performed on this hair, the key piece of evidence in the case and the only piece of physical evidence tying him to the crime scene. Jones was executed by lethal injection that day.

Earlier this month, after six years of litigation, that hair was finally tested. On Nov. 11, Mitotyping Technologies, a private lab in State College, Pa., found that it did not come from Claude Jones, but from the victim of the crime. If this DNA test had been done in December 2000, Claude Jones would not have been executed, and his conviction would likely have been reversed.

The case might have been dismissed altogether because the hair “match” was the key evidence cited in a 3-to-2 decision of the Texas Court of Criminal Appeals to meet a requirement of Texas law that the accomplice testimony used to convict Jones be corroborated.

To me, the most troubling aspect of this case is that I have no doubt that Mr. Bush would have stayed the execution and permitted the DNA test to go forward if only he had been told about the request. He was, to use a term from his recent memoir, “blindsided.”

My certainty comes from the fact that in June 2000 the Innocence Project was recruited at the last minute to seek a DNA test for Ricky McGinn days before his execution. Then Gov. Bush granted a 30-day reprieve to allow the testing, the only reprieve he ever granted, and he made this common-sense statement on the value of post-conviction DNA testing: “To the extent that DNA can prove for certain innocence or guilt, I think we need to use DNA.” The tests incriminated McGinn, who was executed. In 2001, Texas followed Mr. Bush’s lead and passed a statute permitting post-conviction DNA testing.

For the sake of the family of Claude Jones, including a grandson who is in the military defending our country, I sincerely hope that President Bush will publicly acknowledge that the review system failed by not informing him of Jones’s wish to seek DNA tests that we now know could have spared his life.

Some people tell me that the Claude Jones case is not important. They say this rare post-execution DNA test proves, at best, that the prosecution’s case was legally insufficient, or that hair microscopy, as the National Academy of Sciences recently concluded, lacks objective standards and adequate scientific validation. This isn’t the “holy grail,” they say, sought by anti-death-penalty advocates—DNA proof that an innocent was executed. No points have been scored; there’s nothing significant to learn here. And besides, Jones was no saint—he had a serious criminal history.

This perspective is typical, unproductive and unacceptably cynical. Worse still, it misses a trenchant point George Will highlighted for conservatives in 2000 just as post-conviction DNA testing began exonerating death-row inmates before they were executed: “Capital punishment, like the rest of the criminal justice system, is a government program, so skepticism is in order.”

There is growing bipartisan recognition that there are a set of reforms that can make the criminal-justice bureaucracy more accurate, accountable and cost-effective. We can learn from our mistakes, including those made in the hours before Claude Jones’s execution. Sen. Jim Webb (D., Va.), along with 39 co-sponsors including Sens. Lindsey Graham (R., S.C.) and Orrin Hatch (R., Utah), is sponsoring a bill already approved by the House to establish a National Criminal Justice Reform Commission.

The Webb bill would lay out a blueprint of best practices that have proven effective, including ways to reduce prison populations without endangering public safety and investigative procedures that protect the innocent while enhancing the capability of law enforcement to apprehend the guilty. And it would also help prevent wrongful convictions, including in death-penalty cases, by evaluating past procedures and recommending improvements and guidelines. But if the bill is not passed in this brief lame-duck session, it will almost certainly perish, another casualty of partisan gridlock.

So here’s a thought about what might happen next: After reviewing the new evidence in the Claude Jones case, Mr. Bush could tell those who support capital punishment that they should be concerned about the breakdown in the system in 2000, and that steps need to be taken around the country so it doesn’t happen again.

This acknowledgment would, in turn, be applauded by his critics and supporters as a constructive step toward bipartisan criminal-justice reform, and could provide the impetus to pass the Webb legislation. That would be a fitting resolution to an execution that never should have happened.

Mr. Scheck is co-founder and co-director of the Innocence Project, which is affiliated with Yeshiva University’s Benjamin N. Cardozo School of Law.

(B. Scheck, “Capital Punishment and Human Fallibility,” Wall Street Journal, November 28, 2010). See Innocence. Also see Editorials on the death penalty.