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 11^th 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 11^th 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 16^th 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.