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.