Innocence and the Death Penalty: The Increasing Danger of Executing the Innocent

Posted on Jul 01, 1997

• Innocence

The dan­ger that inno­cent peo­ple will be exe­cut­ed because of errors in the crim­i­nal jus­tice sys­tem is get­ting worse. A total of 69 peo­ple have been released from death row since 1973 after evi­dence of their inno­cence emerged. Twenty-one con­demned inmates have been released since 1993, includ­ing sev­en from the state of Illinois alone. Many of these cas­es were dis­cov­ered not because of the nor­mal appeals process, but rather as a result of new sci­en­tif­ic tech­niques, inves­ti­ga­tions by jour­nal­ists, and the ded­i­cat­ed work of expert attor­neys, not avail­able to the typ­i­cal death row inmate.

This report tells the sto­ries of peo­ple like Rolando Cruz, released after 10 years on Illinois’s death row, despite the fact that anoth­er man had con­fessed to the crime short­ly after his con­vic­tion; and Ricardo Aldape Guerra, who returned to Mexico after 15 years on Texas’s death row because of a pros­e­cu­tion that a fed­er­al judge called out­ra­geous and designed to sim­ply achieve anoth­er notch on the prosecutor’s guns.

In 1993, the Death Penalty Information Center was asked by Representative Don Edwards, then Chair of the House Judiciary Subcommittee on Civil and Constitutional Rights, to pre­pare a report on the prob­lem of inno­cent peo­ple on death row. The Center ​‘s report list­ed 48 defen­dants who had been released from death row in the pri­or 20 years because of sub­se­quent­ly dis­cov­ered evi­dence of inno­cence. The grow­ing num­ber of addi­tion­al cas­es in the ensu­ing years has prompt­ed us to issue another report.

This report par­tic­u­lar­ly looks at the dra­mat­ic nar­row­ing of the oppor­tu­ni­ty to appeal and to raise new­ly dis­cov­ered evi­dence of one’s inno­cence. The fed­er­al fund­ing for the death penal­ty resource cen­ters, which helped dis­cov­er and vin­di­cate sev­er­al of the inno­cent peo­ple cit­ed in this report, has been com­plete­ly with­drawn. Some courts have now tak­en the posi­tion that it is per­mis­si­ble for exe­cu­tions to go for­ward even in the face of con­sid­er­able doubt about the defendant’s guilt.

The cur­rent empha­sis on faster exe­cu­tions, less resources for the defense, and an expan­sion in the num­ber of death cas­es mean that the exe­cu­tion of inno­cent peo­ple is inevitable. The increas­ing num­ber of inno­cent defen­dants being found on death row is a clear sign that our process for sen­tenc­ing peo­ple to death is fraught with fun­da­men­tal errors – errors which can­not be reme­died once an execution occurs.

Perhaps the bleak­est fact of all is that the death penal­ty is imposed not only in a freak­ish and dis­crim­i­na­to­ry man­ner, but also in some cas­es upon defen­dants who are actu­al­ly inno­cent. -Justice William J. Brennan, Jr., 1994[1]

In mid-1993, the Death Penalty Information Center received a request from Rep. Don Edwards, then Chair of the House Judiciary Subcommittee on Civil and Constitutional Rights, to pre­pare a report on the prob­lem of inno­cent peo­ple on death row. At that time, crime bills were being intro­duced which involved an expan­sion of the fed­er­al death penal­ty and a cur­tail­ing of the cap­i­tal appeal process. There also had been a series of high­ly pub­li­cized releas­es of peo­ple from death row in which it had belat­ed­ly been dis­cov­ered that the wrong per­son had been con­vict­ed and sen­tenced to death.

The Center pre­pared a report for the Subcommittee, bas­ing its research on its own mon­i­tor­ing of this issue and on ground­break­ing work done by oth­er researchers, most notably Professors Michael Radelet and Hugo Bedau.2The report list­ed 48 defen­dants who had been released from death row in the pri­or 20 years because of sub­se­quent­ly dis­cov­ered evi­dence of inno­cence. It also explored why such crit­i­cal mis­takes had been made in the legal process, and whether it was like­ly that such errors would continue.

The report was released as a Staff Report of Rep. Edwards’s Subcommittee in October, 1993[3] and received con­sid­er­able media cov­er­age and pub­lic atten­tion. It con­tin­ues to be wide­ly cit­ed. The Appendix to this Report con­tains the orig­i­nal list of 48 cas­es of peo­ple released from death row because of evi­dence of their innocence.

The Need For a New Report

The prob­lem of inno­cent peo­ple fac­ing exe­cu­tion because of errors in the crim­i­nal jus­tice process has in no way dimin­ished since 1993. For exam­ple, in the sum­mer of 1996, the state of Illinois dropped all charges against four men who had been con­vict­ed of a 1978 mur­der. Two of the men had been sen­tenced to death. The inves­ti­ga­tion which led to the dis­cov­ery that the wrong men had been con­vict­ed was con­duct­ed by three jour­nal­ism stu­dents who had been assigned the case in class. These releas­es came on the heels of the release from death row of two oth­er men in Illinois, Rolando Cruz and Alejandro Hernandez. Three for­mer pros­e­cu­tors have been indict­ed for obstruc­tion of jus­tice in that case. Although the pub­lic may have learned some­thing about these dra­mat­ic rever­sals, they prob­a­bly have heard lit­tle about the con­tin­u­ous string of mis­takes in cap­i­tal cas­es which throws doubt on the reli­a­bil­i­ty of the entire death penalty process.

There is con­sid­er­able evi­dence that the cri­sis of wrong­ful death penal­ty con­vic­tions has wors­ened: the annu­al aver­age of peo­ple released from death row because of their inno­cence has increased since the first report was pre­pared, while the oppor­tu­ni­ty to appeal and to raise new­ly dis­cov­ered evi­dence of one’s inno­cence has recent­ly shrunk dra­mat­i­cal­ly. The fed­er­al fund­ing for the death penal­ty resource cen­ters, which helped dis­cov­er and vin­di­cate sev­er­al of the inno­cent peo­ple cit­ed in this report, has been com­plete­ly with­drawn. Some courts have now tak­en the posi­tion that it is per­mis­si­ble for exe­cu­tions to go for­ward even in the face of con­sid­er­able doubt about the defen­dan­t’s guilt. Yet, recent research indi­cates that there may be a greater chance of mis­tak­en con­vic­tions in death cas­es than in non-death cases.4

Part I of this report dis­cuss­es why so many inno­cent defen­dants are being found on our nation’s death rows and the prospects for less­en­ing the dan­ger of mis­tak­en exe­cu­tions in the future. Part II lists the new releas­es from death row and also dis­cuss­es addi­tion­al cas­es which may be added to the list when the cas­es are concluded.

Pace of Innocent Cases Increases

Since Innocence and the Death Penalty: Assessing The Danger of Mistaken Executions was released in 1993, 21 more cas­es have been added to the list of mis­tak­en con­vic­tions in cap­i­tal cas­es. Seventeen of those releas­es occurred after the orig­i­nal report’s release, and the oth­er four were cas­es which would have been includ­ed in the orig­i­nal report had the infor­ma­tion about these releas­es been known ear­li­er. In the twen­ty-one-year span of the first report, there was an aver­age of 2.5 releas­es of inno­cent defen­dants per year from 1973 to 1993. The 17 releas­es over the past three and a half years rep­re­sents a pace of 4.8 releas­es per year, almost twice the pace of the previous report.

For the orig­i­nal 48 cas­es, it took an aver­age of approx­i­mate­ly six and a half years between con­vic­tion and even­tu­al release. With the 21 addi­tion­al cas­es includ­ed in this report, the aver­age time spent on death row before release is now about sev­en years. This length of time is impor­tant because both state and fed­er­al leg­is­la­tion in recent years will short­en the length of time death row inmates have before their exe­cu­tion. Currently, the aver­age time between sen­tenc­ing and exe­cu­tion is eight years5. If that time is cut in half, then the typ­i­cal inno­cent defen­dant on death row will be exe­cut­ed before it is dis­cov­ered that a fatal mis­take has been made.

Reasons for Increased Risk of Error

The most obvi­ous rea­son for the increase in the num­ber of inno­cent cas­es being dis­cov­ered among those on death row is the over­all expan­sion of the death penal­ty. The num­ber of peo­ple on death row has been increasing6, and this expan­sion is like­ly to con­tin­ue as states and the fed­er­al gov­ern­ment broad­en the death penal­ty to new crimes, and new states such as New York and Kansas begin sen­tenc­ing peo­ple to death. With the greater use of the death penal­ty, there is a greater like­li­hood of mistakes.

Secondly, the death penal­ty has become even more polit­i­cal as leg­is­la­tors, pros­e­cu­tors, and even judges pro­mote the death penal­ty in their campaigns7. This results in the expan­sion of death penal­ty crimes and a short­er and nar­row­er appeal process. Prosecutors, with vir­tu­al­ly unbri­dled dis­cre­tion to seek the death penal­ty, may pur­sue a death sen­tence even when the evi­dence is weak, and they may be reluc­tant to change course when con­tra­dic­to­ry evi­dence lat­er arises.8Even judges, many of whom are also sub­ject to elec­tions, can be influ­enced in their deci­sions to ignore evi­dence of inno­cence unless it is absolute­ly irrefutable. And recent changes in the appeals process, espe­cial­ly in fed­er­al courts, have made it more like­ly that exe­cu­tions will pro­ceed even in the face of evi­dence rais­ing doubts about a defen­dan­t’s guilt.9

For many years, the ABA has con­duct­ed stud­ies, held edu­ca­tion­al pro­grams, and pro­duced stud­ies and law review arti­cles about the admin­is­tra­tion of the death penal­ty. As a result of that work, the Association has iden­ti­fied numer­ous, crit­i­cal flaws in cur­rent prac­tices. Those flaws have not been redressed, indeed, they have become more severe in recent years, and the new fed­er­al habeas law and the defund­ing of the [resource cen­ters] have com­pound­ed these prob­lems. This sit­u­a­tion requires the spe­cif­ic con­clu­sion of the ABA that exe­cu­tions cease, unless and until greater fair­ness and due process pre­vail in death penal­ty imple­men­ta­tion. -Report in sup­port of American Bar Association Resolution, 1997[10]

Professor Samuel Gross, a not­ed author and researcher at the University of Michigan Law School who has writ­ten exten­sive­ly about cap­i­tal pun­ish­ment, recent­ly explored the rea­sons why mis­takes are more like­ly in cap­i­tal cas­es than in oth­er crim­i­nal matters.11 Among the rea­sons he gave in sup­port of this thesis are:

• The great pres­sure on police and pros­e­cu­tors to ​“solve” the most noto­ri­ous mur­ders in a community

When a police offi­cer is killed or a child bru­tal­ly raped and mur­dered, the pub­lic is watch­ing every day until a sus­pect is pro­duced. The ter­ri­ble mur­der of 10-year-old Jeanine Nicarico in a Chicago sub­urb in 1983 at first result­ed in months of frus­tra­tion with no indict­ments. Eventually, the police and pros­e­cu­tors set­tled on the wrong sus­pects: Rolando Cruz and Alejandro Hernandez. Even though their con­vic­tions and death sen­tences were repeat­ed­ly over­turned on appeal, the pros­e­cu­tors con­tin­ued to retry them. They were not offi­cial­ly cleared and released until 1995. Now three pros­e­cu­tors and four police offi­cers have been indict­ed for obstruc­tion of jus­tice in this prosecution.12

• Lack of eyewitness testimony

When some­one is mur­dered by a stranger, which is often the case in death penal­ty crimes, there is rarely an eye­wit­ness to the killing. Thus, in pros­e­cut­ing the case the state relies more heav­i­ly on less reli­able sources of evi­dence such as accom­plices, jail-house snitch­es, and pres­sured con­fes­sions from the defen­dant. The real killer has a strong moti­va­tion in a cap­i­tal case to divert atten­tion from him­self and to put the onus, in whole or in part, on anoth­er indi­vid­ual who may be com­plete­ly inno­cent. Randall Dale Adams, whose saga was por­trayed in the doc­u­men­tary, The Thin Blue Line, faced exe­cu­tion in Texas because the real killer, a young man with good fam­i­ly con­nec­tions in Texas, was able to con­vince author­i­ties that the out­sider, Adams, must have been the killer.

A con­fes­sion by the defen­dant is not a depend­able indi­ca­tor of guilt.13 Manipulation and pres­sure by the police, or the pres­ence of men­tal retar­da­tion or men­tal ill­ness on the part of the defen­dant can lead an inno­cent sus­pect to be over­ly coop­er­a­tive with the author­i­ties by sup­ply­ing infor­ma­tion the police obvi­ous­ly want to hear.

• Heightened pub­lic­i­ty

At tri­al, the height­ened pub­lic­i­ty sur­round­ing cap­i­tal cas­es can influ­ence jurors by sup­ply­ing them with infor­ma­tion that may be inad­mis­si­ble, mis­lead­ing, and inflam­ma­to­ry. Such jurors may be swept up in the com­mu­nal out­rage about the crime as con­veyed by the media, mak­ing them more like­ly to ignore legit­i­mate doubts raised by the defense.

• Death qual­i­fied juries

Juries in death penal­ty cas­es are always quizzed about their atti­tudes on cap­i­tal pun­ish­ment before the start of the tri­al. Those who could not impose a death ver­dict are elim­i­nat­ed from the jury pool. According to many stud­ies, the result­ing ​“death-qual­i­fied” jury is not only pre­pared to return a death sen­tence, but is more like­ly to erro­neous­ly con­vict the defen­dant in the first place.14 The very rais­ing of the issue of what the pun­ish­ment will be before the tri­al can send a sig­nal to prospec­tive jurors that the issue of guilt is in little doubt.

• Limited resources of the defense attorney

Defense coun­sel in a cap­i­tal case must not only pre­pare for the guilt/​innocence phase of the tri­al, but also simul­ta­ne­ous­ly ready them­selves for the sen­tenc­ing phase. Since the defense’s resources are often severe­ly curbed by state spend­ing lim­its, the attor­ney must decide whether it would be bet­ter to risk the clien­t’s con­vic­tion but save his life by spend­ing more time prepar­ing for the sen­tenc­ing phase. If this prepa­ra­tion occurs at the expense of inves­ti­gat­ing evi­dence which might pro­duce an acquit­tal, it height­ens the chance that a mis­tak­en con­vic­tion will result.

• Heinousness of death penalty cases

Related to the prob­lem of pre-tri­al pub­lic­i­ty is the heinous­ness of the typ­i­cal death penal­ty case. Regardless of whether the jurors heard such evi­dence before the tri­al, they will cer­tain­ly be exposed to it dur­ing the tri­al. The heinous­ness of the facts alone can make it more like­ly that the jury will ignore rea­son­able doubts and return a guilty ver­dict. Releasing a defen­dant who is prob­a­bly guilty (but not guilty beyond a rea­son­able doubt) of a bru­tal slay­ing is much more dif­fi­cult than releas­ing some­one who is prob­a­bly guilty of only a mis­de­meanor. Professor Gross acknowl­edges that there are coun­ter­vail­ing pres­sures which may make a mis­take less like­ly in a cap­i­tal case, such as more thor­ough rep­re­sen­ta­tion by the defense and more care­ful review of the case on appeal. But, he notes, these mea­sures are uneven­ly applied. In many states, the amount of mon­ey offered for defend­ing a cap­i­tal case is total­ly inad­e­quate and requests for co-coun­sel, expert tes­ti­mo­ny and pre-tri­al inves­ti­ga­tions are rou­tine­ly turned down. Similarly, the appeals process is being sharply cur­tailed, mean­ing that ade­quate time will not be avail­able to dis­cov­er mis­takes. Thus, Professor Gross concludes:

The steady stream of errors that we see in cas­es in which defen­dants are sen­tenced to death is a pre­dictable con­se­quence of our sys­tem of inves­ti­gat­ing and pros­e­cut­ing cap­i­tal mur­der.… At best, we could do an imper­fect job of catch­ing errors after they occur, and in many cas­es we don’t real­ly try. As a result, most mis­car­riages of jus­tice in cap­i­tal cas­es nev­er come to light.15

Reform Needed: Allowing for Residual Doubt in Death Cases

While there is guilt for Ronald Monroe, in an exe­cu­tion in this coun­try the test ought not be rea­son­able doubt; the test ought to be is there any doubt.” ‑Louisiana Governor Buddy Roemer, 198916

After the U. S. Supreme Court over­turned exist­ing death penal­ty statutes in 1972, many states wrote statutes which close­ly par­al­leled the rec­om­men­da­tions of the American Law Institute’s (ALI) Model Penal Code.17 Indeed, in Gregg v. Georgia, which gave approval to some states’ new statutes, the Court specif­i­cal­ly referred to the Model Penal Code as a source for con­struct­ing an accept­able statute.18 In this code, there was an attempt to min­i­mize mis­tak­en exe­cu­tions by allow­ing the tri­al court to with­hold a death sen­tence if the evi­dence left some doubt about the defen­dan­t’s guilt. These drafters real­ized the lin­ger­ing pos­si­bil­i­ty of inno­cence despite a con­vic­tion ​“beyond a rea­son­able doubt.” The Model Penal Code con­tained the following provision:

§ 210.6 Sentence of Death for Murder; Further Proceedings to Determine Sentence.

(1) Death Sentence Excluded. When a defen­dant is found guilty of mur­der, the Court shall impose sen­tence for a felony of the first degree [i.e., a non-death sen­tence] if it is satisfied that:

* * * * (f) although the evi­dence suf­fices to sus­tain the ver­dict, it does not fore­close all doubt respect­ing the defen­dan­t’s guilt.19

The ALI explained the need for such a pro­vi­sion in its Commentary to this subsection:

[S]usbsection (1)(f) … is an acco­mo­da­tion to the irrev­o­ca­bil­i­ty of the cap­i­tal sanc­tion. Where doubt of guilt remains, the oppor­tu­ni­ty to reverse a con­vic­tion on the basis of new evi­dence must be pre­served, and a sen­tence of death is obvi­ous­ly incon­sis­tent with that goal.20

Unfortunately, although many states employed a list of aggra­vat­ing and mit­i­gat­ing cir­cum­stances for cap­i­tal cas­es sim­i­lar to the Model Penal Code’s suggestions,21 no state or fed­er­al juris­dic­tion has adopt­ed this pro­tec­tion against the exe­cu­tion of the inno­cent. In light of the height­ened dan­ger of error in cap­i­tal cas­es, and because it has become appar­ent that these errors are more per­va­sive than pre­vi­ous­ly real­ized, it is imper­a­tive to at least amend exist­ing statutes in line with the Model Code’s rec­om­men­da­tions. An addi­tion­al revi­sion would be need­ed to allow appel­late courts to take sim­i­lar action when evi­dence of inno­cence does not emerge until well after the trial.

Besides the crit­i­cal­ly impor­tant goal of sav­ing inno­cent lives, such leg­isla­tive changes could quick­ly elim­i­nate from the lengthy death penal­ty appeals process some of the most trou­bling and time-con­sum­ing cas­es, i.e., those approach­ing exe­cu­tion with a legit­i­mate claim of inno­cence. This would save the crim­i­nal jus­tice sys­tem both time and money.

Innocence on Appeal

Once a defen­dant has been found guilty at tri­al, the pre­sump­tion of inno­cence is shed and replaced with a pre­sump­tion of guilt. The appeals process is not direct­ly con­cerned with whether the jury made a mis­take in its ver­dict, but rather focus­es on the pro­ce­dures which were fol­lowed in the tri­al lead­ing up to that ver­dict. Most states have strin­gent time lim­its on pre­sent­ing the court with new evi­dence of one’s innocence.22 For exam­ple, under Virginia’s ​“21-day rule,” the defen­dant must present new evi­dence of his inno­cence with­in 21 days of his con­vic­tion in order for it to be con­sid­ered by the courts on appeal.23 Likewise, fed­er­al courts review­ing a state cap­i­tal case review only con­sti­tu­tion­al vio­la­tions and not new fac­tu­al evi­dence point­ing to innocence.24

When Leonel Herrera’s attor­neys tried to intro­duce evi­dence that his broth­er Raul had con­fessed to the crime for which Leonel was fac­ing exe­cu­tion, the fed­er­al courts con­clud­ed that such evi­dence was irrel­e­vant to their delib­er­a­tions. Such claims, the Court said, should be raised in a clemen­cy peti­tion – an unlike­ly source of relief for some­one like Herrera accused of killing a police offi­cer in Texas. The Court did leave open the remote pos­si­bil­i­ty that the Constitution bars the exe­cu­tion of some­one who con­clu­sive­ly demon­strat­ed that he was actu­al­ly innocent,25 but such cas­es will be rare or non-exis­tent. Of one thing, how­ev­er, I am cer­tain. Just as an exe­cu­tion with­out ade­quate safe­guards is unac­cept­able, so too is an exe­cu­tion when the con­demned pris­on­er can prove that he is inno­cent. The exe­cu­tion of a per­son who can show that he is inno­cent comes per­ilous­ly close to sim­ple mur­der. -Justice Harry Blackmun, Herrera v. Collins, 1993[26]

When Paris Carriger brought both his con­sti­tu­tion­al and inno­cence claims before the U.S. Court of Appeals for the Ninth Circuit, he was still denied relief. The chief wit­ness against Carriger was a police infor­mant, Robert Dunbar, who was giv­en immu­ni­ty for three felonies in exchange for his tes­ti­mo­ny. Later Dunbar admit­ted that it was he, not Carriger, who had com­mit­ted the mur­der and that he had lied at the tri­al. He even admit­ted his guilt in court and again just before his death. 27(Dunbar was incon­sis­tent in his recan­ta­tion, at times tak­ing back his admis­sion of guilt.)

When a three judge pan­el of the Court of Appeals reviewed this new evi­dence, they con­clud­ed that, ​“Dunbar’s recan­ta­tion does, how­ev­er, show his gen­er­al unre­li­a­bil­i­ty as a wit­ness.… We there­fore enter­tain seri­ous doubts about Dunbar’s cred­i­bil­i­ty, and these doubts are par­tic­u­lar­ly trou­bling because the gov­ern­ment relied heav­i­ly on Dunbar’s tes­ti­mo­ny in pros­e­cut­ing Carriger.“28 Doubt about the gov­ern­men­t’s chief wit­ness led to doubt about Carriger’s guilt: “[W]e acknowl­edge,” the court wrote, ​“that Carriger is not unques­tion­ably guilty. Compared to many oth­er cap­i­tal cas­es we have seen, the evi­dence of guilt here is not over­whelm­ing.” However, the court would still not grant Carriger any relief: ​“The thin­ness of the pros­e­cu­tor’s case, how­ev­er, is an insuf­fi­cient basis on which to grant relief under Herrera and its prog­e­ny, which put the bur­den on the peti­tion­er to show he is unques­tion­ably inno­cent. This Carriger has not done.“29 Clearly, inno­cent defen­dants face a daunt­ing task in try­ing to avoid exe­cu­tion under this standard.

Joseph Payne faced a sim­i­lar dilem­ma on the eve of his sched­uled exe­cu­tion in Virginia in November, 1996. Numerous eye­wit­ness­es to the crime of which he was accused had come for­ward after his tri­al to tes­ti­fy that Payne was not involved in the prison mur­der. Here, too, the courts acknowl­edged their doubts about Payne’s guilt. The Fourth Circuit Court of Appeals acknowl­edged that Payne offered ​“copi­ous evi­dence” in his favor and ​“a wealth of evi­dence” that the chief wit­ness against him was ​“an appalling and known prevaricator.“30 But those doubts were not enough for it to issue a stay from his pend­ing exe­cu­tion. Fortunately, because of the doubts about his guilt, the Governor of Virginia stepped in just a few hours before the exe­cu­tion and com­mut­ed Payne’s sen­tence to life.31

The crit­i­cal fac­tor regard­ing evi­dence of inno­cence in a cap­i­tal case is tim­ing. If one is for­tu­nate enough to have com­pe­tent coun­sel and the resources to thor­ough­ly inves­ti­gate the case before tri­al, and if the nec­es­sary evi­dence of inno­cence is avail­able then, there is a chance that a con­vic­tion and death sen­tence can be avoid­ed. On the oth­er hand, if the com­pe­tent coun­sel or the new evi­dence does not become avail­able until after tri­al, the same evi­dence will often be reject­ed on tech­ni­cal procedural grounds.

Changes in Law Increase the Risk of Executing Innocent People

The case of Lloyd Schlup stark­ly illus­trates the change which is tak­ing place in the courts’ assess­ments of claims by death row inmates that they are inno­cent. Schlup, whose con­vic­tion and death sen­tence were upheld by all the Missouri courts which reviewed them, was final­ly giv­en the chance to prove his inno­cence and his tri­al lawyer’s incom­pe­tence when the United States Supreme Court cor­rect­ed a low­er court’s over­ly nar­row approach to the degree of proof need­ed on a claim of innocence.32 However, short­ly there­after, Congress passed the Anti-Terrorism and Effective Death Penalty Act of 1996,33 which dis­card­ed the Supreme Court’s stan­dard and replaced it with one that is vir­tu­al­ly impos­si­ble to meet.

The fed­er­al District Court judge review­ing the over­whelm­ing evi­dence of inno­cence in Schlup’s case grant­ed him a new hear­ing in accor­dance with the Supreme Court’s guide­lines. But, the judge not­ed, if oth­er stan­dards (equiv­a­lent to those now imposed by Congress) had applied to Schlup’s case, he would not have got­ten relief.34 Thus, Congress has sure­ly sealed the fate of some inno­cent defen­dants whose cas­es will arise under the new law. They will be exe­cut­ed despite evi­dence of inno­cence which would be trou­bling to any reasonable juror.

Lack of Counsel

Of course, the stan­dard for inno­cence is irrel­e­vant if one does not have an attor­ney to research the facts and argue them before the court. When Exzavious Gibson appeared recent­ly before a Georgia court review­ing his cap­i­tal con­vic­tion, the pros­e­cu­tion was well rep­re­sent­ed by expe­ri­enced attor­neys. Mr. Gibson, how­ev­er, had no one at his side. He kept repeat­ing to the judge that he did not know the law and had no attor­ney to rep­re­sent him.35 Despite this bla­tant­ly unbal­anced con­test, the judge pro­ceed­ed with the hear­ing and sub­se­quent­ly denied Mr. Gibson’s appeal.

Earlier, Mr. Gibson might have been rep­re­sent­ed by the fed­er­al­ly fund­ed Georgia Resource Center. However, in 1996 all the fed­er­al fund­ing for that law office, and 19 oth­er sim­i­lar offices around the coun­try, was with­drawn by Congress.36 Lloyd Schlup, whose case is out­lined above, was saved from exe­cu­tion and grant­ed a new tri­al only because the now-defunct Missouri Resource Center com­plete­ly rein­ves­ti­gat­ed the facts and dis­cov­ered a score of wit­ness­es who should have been called at tri­al and who said that Schlup was not involved in the crime for which he was con­vict­ed. If Schlup did not have the Resource Center rep­re­sent­ing him, he would have been mis­tak­en­ly exe­cut­ed as scheduled.

Similarly, the Alabama Resource Center vig­or­ous­ly pur­sued the inno­cence of its client, Walter McMillian, until his con­vic­tion was thrown out and he was released from death row. Now, both the Alabama Resource Center and the Missouri Resource Center are closed because of the with­draw­al of fed­er­al funds. Many sim­i­lar sto­ries can be told of thor­ough rep­re­sen­ta­tion result­ing in rever­sals of con­vic­tions and sen­tences by oth­er resource cen­ters around the coun­try. This whole struc­ture has been dis­man­tled and the chances that inno­cent peo­ple will be exe­cut­ed has gone up considerably.

I shall ask for the abo­li­tion of the death penal­ty until I have the infal­li­bil­i­ty of human judg­ment demon­strat­ed to me. -Marquis de Lafayette

What fol­lows is the list of 21 indi­vid­u­als who had been sen­tenced to death and for whom there is now con­vinc­ing evi­dence of their inno­cence. All of these defen­dants were for­mal­ly exon­er­at­ed. These cas­es are in addi­tion to the 48 cas­es of inno­cence dis­cussed in the orig­i­nal report. (See Appendix).

A sec­ond group of cas­es con­sists of eight indi­vid­u­als whose cap­i­tal con­vic­tions have been reversed, but there has been no for­mal exon­er­a­tion. In some of these cas­es there may be a re-tri­al, in oth­er cas­es the charges may be offi­cial­ly dropped lat­er. If the defen­dant is final­ly cleared, that case would be added to the list of cas­es in the first cat­e­go­ry. This list is not an exhaus­tive com­pi­la­tion of all rever­sals in death cas­es, but rather a col­lec­tion of promi­nent cas­es in which exon­er­a­tion appears probable.

A third group con­sists of eight cas­es in which the defen­dant has been tak­en off of death row and evi­dence of inno­cence has emerged, but a con­vic­tion against him or her in the under­ly­ing charges remains. Some of these cas­es are the result of com­pro­mise between the pros­e­cu­tion, which threat­ens to seek the death penal­ty again after a rever­sal on appeal, and the defense, which is claim­ing com­plete inno­cence. In order to avoid the uncer­tain­ty, expense and trau­ma of anoth­er tri­al, the defen­dant agreed to plead guilty to a less­er charge in exchange for imme­di­ate release. In oth­er cas­es, a gov­er­nor, trou­bled by a defen­dan­t’s pos­si­ble inno­cence, has com­mut­ed the death sen­tence to a life sen­tence. Again, this list is not exhaus­tive of all cas­es in which the death sen­tence was lifted.

Finally, the report dis­cuss­es a few cas­es which may fall into one of the above cat­e­gories in the future, but for now remain unresolved.

A. Acquittals/​Charges Dropped (21 cases) + (48 cases in original report)[37]

Pre-1993 Cases (infor­ma­tion not avail­able at the time of earlier report):

49. Samuel A. Poole North Carolina Conviction 1973 Released 1974

After being con­vict­ed of first degree bur­glary and giv­en a manda­to­ry death sen­tence, Poole had his con­vic­tion over­turned by the N.C. Supreme Court because the case lacked sub­stan­tial evi­dence that Poole was the per­son who broke into the home.

50. James Creamer Georgia Conviction 1973 Released 1975

Creamer was sen­tenced to death for a mur­der alleged­ly com­mit­ted with six oth­er indi­vid­u­als. After an inves­ti­ga­tion by the Atlanta Constitution, a fed­er­al judge declared that the pros­e­cu­tion had with­held and destroyed evi­dence, a wit­ness admit­ted she had lied in court, and anoth­er man con­fessed to the crimes. The con­vic­tions against all sev­en men were over­turned, and charges were later dropped.

51. Dale Johnston Ohio Conviction 1984 Released 1990

Johnston was sen­tenced to death for the mur­der of his step­daugh­ter and her fiancee. His con­vic­tion was over­turned in 1988 by the Ohio Supreme Court because the pros­e­cu­tion with­held excul­pa­to­ry evi­dence from the defense, and because one wit­ness had been hyp­no­tized. The state lat­er dropped charges against Johnston.

52. Jay C. Smith Pennsylvania Conviction 1986 Released 1992

Smith, a for­mer high school prin­ci­pal, was con­vict­ed of the 1979 mur­der of 3 peo­ple, though his death sen­tence was lat­er reduced to life. He was freed on Sept. 18, 1992 after the Pennsylvania Supreme Court unan­i­mous­ly ruled that the pros­e­cu­tion had with­held cru­cial evi­dence, call­ing the state’s action ​“egre­gious” misconduct.

Recent Releases:

53. James Robison Arizona Conviction 1977 Released 1993

Robison was con­vict­ed of mur­der and con­spir­a­cy in 1977 in the death of a reporter, Don Bolles. His con­vic­tion was over­turned in 1980, but he was recharged with the offense in 1990. He was acquit­ted at retri­al in December, 1993.

54. Muneer Deeb Texas Conviction 1985 Released 1993

Deeb was orig­i­nal­ly sen­tenced to death for alleged­ly con­tract­ing with three hit­men to kill his ex-girl­friend. The hit­men were also con­vict­ed and one was sen­tenced to death. Deeb con­sis­tent­ly claimed no involve­ment in the crime. Deeb’s con­vic­tion was over­turned by the Texas Court of Criminal Appeals in 1991 because improp­er evi­dence had been admit­ted at his first tri­al. With an expe­ri­enced defense attor­ney, Deeb was retried and acquit­ted in 1993.

55. Andrew Golden Florida Conviction 1991 Released 1994

Golden, a high school teacher in Florida, was con­vict­ed of mur­der­ing his wife. His con­vic­tion was over­turned by the Florida Supreme Court in 1993. The court held that the state had failed to prove that the vic­tim’s death was any­thing but an acci­dent. Golden was released into the wait­ing arms of his sons on January 6, 1994.

56. *Clarence Smith Louisiana Conviction 1985 Released 1994

Smith’s con­vic­tion was over­turned by the state Supreme Court because the jury was improp­er­ly instruct­ed. He was acquit­ted at a retri­al in March, 1994 and released. The prin­ci­pal wit­ness­es at both tri­als were two con­victs with a long list of crimes who were giv­en immu­ni­ty and plea bar­gains in exchange for their tes­ti­mo­ny. (*Subsequent to this report, Clarence Smith was con­vict­ed in a fed­er­al tri­al of charges which includ­ed the mur­der for which he was acquit­ted in Louisiana. For this rea­son, this case will be dropped from the report.)

57. Joseph Burrows Illinois Conviction 1989 Released 1994

No phys­i­cal evi­dence linked Burrows to the mur­der of William Dulin. The pros­e­cu­tion’s two chief wit­ness­es recant­ed their tes­ti­mo­ny against Mr. Burrows, and one of them con­fessed to the mur­der for which Burrows had been sent to death row. One of the wit­ness­es said he had been coerced by pros­e­cu­tors and police. Burrows was released in September, 1994, and the Illinois appel­late courts have upheld the over­turn­ing of his conviction.

58. Adolph Munson Oklahoma Conviction 1985 Acquitted 1995

Munson’s con­vic­tion was unan­i­mous­ly over­turned by Oklahoma’s high­est crim­i­nal appeals court in December, 1994 because the state with­held mate­r­i­al evi­dence tend­ing to exon­er­ate Munson. Some of the foren­sic evi­dence at tri­al was pro­vid­ed by Dr. Ralph Erdmann, who was sub­se­quent­ly con­vict­ed of sev­en felony counts involv­ing mis­rep­re­sen­ta­tion of facts in oth­er cas­es and stripped of his license. Munson was acquit­ted at a re-tri­al in April, 1995.

59. Robert Charles Cruz Arizona Conviction 1981 Released 1995

Cruz was charged with plan­ning the killing of two peo­ple in Phoenix in 1980. He went through five tri­als, includ­ing two con­vic­tions and two mis­tri­als, before his acquit­tal on June 1, 1995. The chief pros­e­cu­tion wit­ness, a con­vict­ed bur­glar and for­mer drug deal­er, was giv­en immu­ni­ty for his tes­ti­mo­ny. Another co-defen­dant, Joyce Lukezic, had been acquit­ted at re-tri­al in 1985.

60. Rolando Cruz Illinois Conviction 1985 Released 1995

Cruz was sen­tenced to death for the mur­der of 10-year-old Jeanine Nicarico. Another man, Brian Dugan, who had already pled guilty to two rapes and mur­ders, includ­ing that of an 8‑year-old girl, autho­rized his lawyer to tell the pros­e­cu­tors that he killed Nicarico. Cruz was con­vict­ed at a sec­ond tri­al in 1990, at which Dugan did not tes­ti­fy. In July, 1994, the state Supreme Court over­turned Cruz’s sec­ond con­vic­tion. An assis­tant state attor­ney gen­er­al resigned because she thought the evi­dence showed Cruz was inno­cent and thought it wrong to pur­sue the pros­e­cu­tion. Other law enforce­ment offi­cials also protest­ed the con­tin­ued efforts to pros­e­cute Cruz. Cruz was final­ly acquit­ted at his retri­al in November, 1995. The judge did not even wait for the defense to put on its case before enter­ing a direct­ed ver­dict of not guilty. Three pros­e­cu­tors and four law enforce­ment offi­cers involved with the pros­e­cu­tion of Cruz and his co-defen­dant (see below) have been indict­ed for obstruc­tion of jus­tice in this case.

61. Alejandro Hernandez Illinois Conviction 1985 Released 1995

Hernandez was sen­tenced to death along with Rolando Cruz for the mur­der of Jeanine Nicarico in 1983. Hernandez was re-tried in 1990, but the tri­al end­ed in a hung jury. A third tri­al in 1991 result­ed in a con­vic­tion and an 80 year prison sen­tence. The con­vic­tion was over­turned by the Illinois Supreme Court in January, 1995. Only his own indi­rect state­ments, not any direct phys­i­cal evi­dence, linked Hernandez, who is bor­der­line retard­ed, to the killing. He was released on bond, and charges were sub­se­quent­ly dropped on Dec. 8, 1995. The man who has con­fessed to the mur­der of Jeanine Nicarico, and whose DNA has been linked to the crime, has not been charged in the case. The U.S. Dept. of Justice is con­sid­er­ing an inves­ti­ga­tion into civ­il rights vio­la­tions in this case.

62. Sabrina Butler Mississippi Conviction 1990 Released 1995

Butler was sen­tenced to death for the mur­der of her nine-month-old child. When she found her baby not breath­ing, she per­formed CPR and took him to the hos­pi­tal. She was inter­ro­gat­ed by the police and then pros­e­cut­ed. Her con­vic­tion was over­turned by the Mississippi Supreme Court in 1992. Upon re-tri­al, she was acquit­ted on Dec. 17, 1995 after a very brief jury delib­er­a­tion. It is now believed that the baby may have died either of cys­tic kid­ney dis­ease or from sud­den infant death syn­drome (SIDS).

63. Verneal Jimerson Illinois Conviction 1985 Released 1996

Jimerson was sen­tenced to death in 1985 for a mur­der which occurred in 1978. The chief wit­ness against him was Paula Gray, who has an IQ of 57. In her orig­i­nal sto­ry to the police, she did not men­tion Jimerson. Then she added his name to her account, along with three oth­er names, includ­ing Dennis Williams (see #64). She lat­er recant­ed her entire tes­ti­mo­ny, say­ing the police had forced her to lie. The orig­i­nal charges against Jimerson were dis­missed, but they were res­ur­rect­ed sev­en years lat­er when the police offered to drop some charges against Gray if she would impli­cate Jimerson. Gray’s 50 year sen­tence was con­vert­ed to 2 years pro­ba­tion. In 1995, the Illinois Supreme Court unan­i­mous­ly reversed Jimerson’s con­vic­tion, because Gray had been allowed to tes­ti­fy false­ly about her bar­gain. Jimerson was released on bond in ear­ly 1996, and charges against him were subsequently dropped.

64. Dennis Williams Illinois Conviction 1979 Released 1996

Williams was con­vict­ed, along with three oth­ers (includ­ing Verneal Jimerson, above), for the mur­der of a young cou­ple in 1978. After spend­ing 18 years in prison, Williams was released on June 14, 1996 because new evi­dence point­ed to the fact that all four men were wrong­ly con­vict­ed. Much of the inves­tiga­tive work which led to the defen­dants’ release was done by three jour­nal­ism stu­dents. Recent DNA tests indi­cate that none of the four men were involved in the crime, and anoth­er man has con­fessed to the mur­der. Charges against Williams, and two oth­ers who received less­er sen­tences in the same case, were dropped on July 2, 1996. Cook County State’s Attorney Jack O’Malley apol­o­gized to the four wrong­ly con­vict­ed defen­dants, includ­ing Verneal Jimerson, who had also been on death row.

65. Roberto Miranda Nevada Conviction 1982 Released 1996

Miranda was released in September 1996 after the pros­e­cu­tion declined to retry him fol­low­ing the rever­sal of his con­vic­tion. Miranda had main­tained his inno­cence through his 14 years on death row. He orig­i­nal­ly came to the U.S. from Cuba dur­ing the Mariel boatlift. Prosecutors orig­i­nal­ly offered him a plea bar­gain where­by he would serve as lit­tle as 10 years in prison, but he refused because he was inno­cent. One day after being released from death row with only the clothes on his back and a few belong­ings, he was incar­cer­at­ed by the Immigration Service. He was sub­se­quent­ly released pend­ing a depor­ta­tion hear­ing. At tri­al, Miranda had been rep­re­sent­ed by an attor­ney with one year’s expe­ri­ence who had inher­it­ed the case when his col­league died. In over­turn­ing his con­vic­tion, the judge wrote: ​“The lack of pre­tri­al prepa­ra­tion by tri­al coun­sel … can­not be justified.”

66. Gary Gauger Illinois Conviction 1993 Released 1996

Gauger was con­vict­ed of killing his par­ents in April, 1993. In March, 1996, the U.S. District Court over­turned his con­vic­tion, rul­ing that author­i­ties nev­er had prob­a­ble cause to even arrest Gauger or to sub­ject him to 21 hours of inten­sive ques­tion­ing. He was released in October, 1996 by the same judge that had sen­tenced him to die by lethal injec­tion. His sen­tence had ear­li­er been reduced to life in prison. The pros­e­cu­tion did not chal­lenge his release.

67. Troy Lee Jones California Conviction 1982 Released 1996

The California Supreme Court ruled in June, 1996 that Jones should have a new tri­al because he was not ade­quate­ly defend­ed at his orig­i­nal tri­al for the mur­der of Carolyn Grayson in 1981. The Court found that the defense attor­ney failed to con­duct an ade­quate pre­tri­al inves­ti­ga­tion, speak with pos­si­ble wit­ness­es, obtain a rel­e­vant police report, or seek pre­tri­al inves­tiga­tive funds. Moreover, the attor­ney elicit­ed dam­ag­ing tes­ti­mo­ny against his own client dur­ing cross exam­i­na­tion of a wit­ness. The pros­e­cu­tion announced that it was drop­ping all charges against Jones in November, 1996, after he had been on death row for 14 years.

68. Carl Lawson Illinois Conviction 1990 Released 1996

Lawson was con­vict­ed of killing Terrence Jones in a fam­i­ly dis­pute. He was tried three times. The first tri­al result­ed in a con­vic­tion and death sen­tence, but that con­vic­tion was over­turned in part because Lawson’s pub­lic defend­er had been an assis­tant pros­e­cu­tor when Lawson was arrest­ed. The sec­ond tri­al result­ed in a hung jury, report­ed­ly 11 – 1 for acquit­tal. Nevertheless, the pros­e­cu­tors tried Lawson again and again sought the death penal­ty. This time Lawson was acquit­ted and freed on December 12, 1996.

69. Ricardo Aldape Guerra Texas Conviction 1982 Released 1997

Guerra was sen­tenced to death for the mur­der of a police offi­cer in Houston. Federal District Judge Kenneth Hoyt ruled on Nov. 15, 1994 that Guerra should either be retried in 30 days or released, stat­ing that the actions of the police and pros­e­cu­tors in this case were ​“out­ra­geous,” ​“inten­tion­al” and ​“done in bad faith.” He fur­ther said that their mis­con­duct ​“was designed and cal­cu­lat­ed to obtain … anoth­er ​‘notch in their guns.’ ” Judge Hoyt’s rul­ing was unan­i­mous­ly upheld by the U.S. Court of Appeals. A new tri­al was grant­ed to Guerra, but Houston District Attorney Johnny Holmes dropped charges on April 16, 1997 instead. Guerra returned to his native Mexico. • • • •

B. Reversals With the Probability of Innocence (8 cases)

As the above list shows, new cas­es of inno­cent peo­ple on death row are fre­quent­ly being dis­cov­ered. Cases are not added to the list, how­ev­er, until the defen­dant is cleared of the charges. If a retri­al is like­ly, then a per­son is not includ­ed. Nevertheless, there have been some notable rever­sals of con­vic­tions in death penal­ty cas­es in recent years where there is a strong like­li­hood that the defen­dant will ulti­mate­ly be com­plete­ly cleared. In some of these cas­es, the defen­dant has already been released from prison. The defen­dants have not been com­plete­ly exon­er­at­ed because the state has indi­cat­ed it will retry them.

Andrew Lee Mitchell Texas Conviction 1981 Released 1993

The Texas Court of Criminal Appeals over­turned the mur­der con­vic­tion of Mitchell, with­in two days of exe­cu­tion in 1984, because the sher­if­f’s depart­ment sup­pressed state­ments from law offi­cers who report­ed see­ing the vic­tim alive two hours after the alleged mur­der. A key wit­ness also recant­ed his tes­ti­mo­ny. The pros­e­cu­tor in Mitchell’s case filed an affi­davit say­ing that Mitchell had not received a fair tri­al. Mitchell was freed in 1993 and no re-tri­al has been held.

Curtis Kyles Louisiana Conviction 1984 Not Released

Kyles’s con­vic­tion was over­turned by the U.S. Supreme Court on April 19, 1995, because the pros­e­cu­tion had with­held mate­r­i­al evi­dence from the defense, there­by under­min­ing the ver­dict. Kyles’s suc­cess­ful appeal was in the form of a fed­er­al habeas cor­pus peti­tion, since he had lost all of his appeals in state court. The state had with­held con­sid­er­able infor­ma­tion about a paid infor­mant who may have been the actu­al mur­der­er. The retri­al of Kyles result­ed in a hung jury. The next steps are unclear, but Kyles may be released.

Benjamin Harris Washington Conviction 1984 Not Released

The U.S. Court of Appeals for the 9^th Circuit vacat­ed Harris’s con­vic­tion on September 12, 1995, because his orig­i­nal tri­al lawyer was incom­pe­tent. Harris main­tains his inno­cence and says he was framed for the 1984 mur­der of Jimmie Turner. Harris’s attor­ney inter­viewed only 3 of the 32 wit­ness­es list­ed in police reports and spent less than 2 hours con­sult­ing with Harris before tri­al. Harris’s co-defen­dant was acquit­ted. Harris has been found to be men­tal­ly incom­pe­tent. The pros­e­cu­tion is unsure about retrying Harris.

Joseph Spaziano Florida Conviction 1976 Not Released

Spaziano was tried for the mur­der of a young woman which had occurred two years ear­li­er. No phys­i­cal evi­dence linked him to the crime. He was con­vict­ed pri­mar­i­ly on the tes­ti­mo­ny of a drug-addict­ed teenag­er who, after hyp­no­sis and ​“refreshed-mem­o­ry” inter­ro­ga­tion, thought he recalled Spaziano describ­ing the mur­der. This wit­ness has recent­ly said that his tes­ti­mo­ny was total­ly unre­li­able and not true. Hypnotically induced tes­ti­mo­ny is no longer admis­si­ble in Florida. Death war­rants have been repeat­ed­ly signed for Spaziano, even though the jury in his case had rec­om­mend­ed a life sen­tence. In January, 1996, Florida Circuit Court Judge O.H. Eaton grant­ed Spaziano a new tri­al, and this deci­sion was upheld by the Florida Supreme Court on April 17, 1997.

Donald Gunsby Florida Conviction 1988 Not Released

Gunsby was con­vict­ed in a two-day tri­al of a mur­der at a con­ve­nience store in 1988. He suf­fers from retar­da­tion and was rep­re­sent­ed by a court appoint­ed lawyer less than a year out of law school. The pros­e­cu­tors with­held impor­tant evi­dence dur­ing the tri­al. The Florida Supreme Court grant­ed him a new tri­al in January, 1996 because of the com­bined effect of pros­e­cu­to­r­i­al mis­con­duct, inef­fec­tive assis­tance of coun­sel and new­ly discovered evidence.

Lloyd Schlup Missouri Conviction 1985 Not Released

Schlup was con­vict­ed in 1985 of a mur­der while in prison. However, a prison video­tape shows him to be in the cafe­te­ria around the time of the mur­der at a dif­fer­ent loca­tion. One prison guard has tes­ti­fied that the tape, along with his obser­va­tion of Schlup just before he went to the cafe­te­ria, prove he could not have been present at the mur­der. Twenty oth­er wit­ness­es also swear that he was not at the scene of the crime. The U.S. Supreme Court gave Schlup the oppor­tu­ni­ty for a hear­ing con­cern­ing his new evi­dence, despite the fact that he had exhaust­ed his ordi­nary appeals. Following the hear­ing in fed­er­al District Court in December 1995, the court held that no rea­son­able juror would have found Schlup guilty. On May 2, 1996, Schlup was grant­ed a writ of habeas cor­pus on the ground that his orig­i­nal tri­al attor­ney failed to ade­quate­ly rep­re­sent him. Schlup will now receive a new tri­al. The State of Missouri unsuc­cess­ful­ly attempt­ed to apply the new fed­er­al habeas cor­pus law which was signed on April 24, 1996 to Schlup’s case. Under the new law, Schlup prob­a­bly would have been executed.

Kerry Max Cook Texas Conviction 1978 Not Released

Cook was orig­i­nal­ly con­vict­ed of killing Linda Jo Edwards in 1978. In 1988, he came with­in 11 days of exe­cu­tion, when the U.S. Supreme Court ordered the Texas Court to review its deci­sion. Cook’s con­vic­tion was over­turned in 1991. He was re-tried in 1992, but the tri­al end­ed in a hung jury. In 1993, a state dis­trict judge ruled that pros­e­cu­tors had engaged in sys­tem­at­ic mis­con­duct, sur­press­ing key evi­dence. In 1994, Cook was tried again, and this time found guilty and again sen­tenced to death. On Nov. 6, 1996, the Texas Court of Criminal Appeals reversed his con­vic­tion, say­ing that ​“pros­e­cu­to­r­i­al and police mis­con­duct has taint­ed this entire mat­ter from the out­set.” The court ruled that key tes­ti­mo­ny from the 1994 tri­al could not be used in any fur­ther pros­e­cu­tion. It is uncer­tain whether he will be re-tried.

Robert Lee Miller, Jr. Oklahoma Conviction 1988 Not Released

Miller was con­vict­ed of the rape and mur­der of two elder­ly women in 1988. However, recent DNA evi­dence points to anoth­er defen­dant who was already incar­cer­at­ed on sim­i­lar charges. Oklahoma County Special Judge Larry Jones dis­missed the charges against Miller in February, 1997, say­ing that there was not enough evi­dence to jus­ti­fy his con­tin­ued impris­on­ment. Miller’s orig­i­nal con­vic­tion was over­turned in 1995, and he was grant­ed a new tri­al. The pros­e­cu­tion is appeal­ing Judge Jones’s ruling. • • • •

C. Released from Death Row, Probable Innocence

In the orig­i­nal report of 48 cas­es of inno­cence, there were five cas­es in which there was con­sid­er­able evi­dence of the defen­dan­t’s inno­cence and he was released from death row, but not com­plete­ly exon­er­at­ed. In some cas­es, the per­son agreed to plead guilty to a less­er charge in order to get the state to agree not to under­take anoth­er tri­al in which he could face death. The plea then result­ed in the per­son­’s imme­di­ate release, and often a state­ment was issued that the plea was for the pur­pose of end­ing a very dif­fi­cult and fright­en­ing expe­ri­ence, not an admis­sion of guilt. No such cas­es were includ­ed in the 21 cas­es which this report adds to the list of inno­cent cas­es. However, a sam­pling of cas­es not in the orig­i­nal report in which the defen­dant is prob­a­bly inno­cent despite a con­vic­tion are: 38

Larry Dean Smith Oklahoma Conviction 1978 Released 1984

Smith was con­vict­ed of the mur­der of a man who burned to death in a camper pick-up truck. Although he at first admit­ted his involve­ment in the relat­ed rob­bery, he main­tained he had noth­ing to do with the mur­der. The U.S. Supreme Court vacat­ed his death sen­tence, and the Oklahoma Attorney General rec­om­mend­ed that the mur­der con­vic­tion be set aside. On remand, the Oklahoma Court of Criminal Appeals refused to uphold Smith’s con­vic­tion for the robbery.

Sonia Jacobs Florida Conviction 1976 Released 1992

Jacobs and her com­pan­ion, Jesse Tafero, were sen­tenced to death for the mur­der of two police­men at a high­way rest stop in 1976. A third co-defen­dant received a life sen­tence after plead­ing guilty and tes­ti­fy­ing against Jacobs and Tafero. The jury rec­om­mend­ed a life sen­tence for Jacobs, but the judge over­ruled the jury and imposed death. A child­hood friend and film­mak­er, Micki Dickoff, then became inter­est­ed in her case. Jacobs’s con­vic­tion was over­turned on a fed­er­al writ of habeas cor­pus in 1992. Following the dis­cov­ery that the chief pros­e­cu­tion wit­ness had failed a lie-detec­tor test, the pros­e­cu­tor accept­ed a plea in which Jacobs did not admit guilt, and she was imme­di­ate­ly released. Jesse Tafero, whose con­vic­tion was based on much of the same high­ly ques­tion­able evi­dence, had been exe­cut­ed in 1990 before the evi­dence of inno­cence had been uncovered.

Herbert Bassette Virginia Conviction 1979 Commuted to life 1992

Bassette was con­vict­ed of mur­der­ing a gas sta­tion atten­dant in 1979. Doubt lat­er arose about the tes­ti­mo­ny pre­sent­ed at tri­al, and a police state­ment indi­cat­ed that one of the wit­ness­es had impli­cat­ed anoth­er per­son in the killing. Governor Douglas Wilder com­mut­ed Bassette’s sen­tence to life with­out parole after express­ing doubts about the conviction.

Earl Washington Virginia Conviction 1984 Commuted to life 1994

Earl Washington suf­fers from men­tal retar­da­tion. After he was arrest­ed on anoth­er charge in 1983, police con­vinced him to make a state­ment con­cern­ing the rape and mur­der of a woman in Culpeper in 1982. He lat­er recant­ed that state­ment. Subsequent DNA tests con­firmed that Washington did not rape the vic­tim, who had lived long enough to state that there was only one per­pe­tra­tor of the crime. The DNA results com­bined with the vic­tim’s state­ment all but exon­er­at­ed Washington. Shortly before leav­ing office in 1994, Governor Wilder com­mut­ed Washington’s sen­tence to life with the pos­si­bil­i­ty of parole. He remains incarcerated.

Mitchell Blazak Arizona Conviction 1974 Released 1994

Blazak was orig­i­nal­ly con­vict­ed of a mur­der in which a ski-masked gun­man killed a bar­tender and a cus­tomer at a bar in Tucson in 1973. The con­vic­tion was based large­ly on the tes­ti­mo­ny of a small time con man, Kenneth Pease, who was arrest­ed for a num­ber of felonies in New Mexico and Arizona. Pease tes­ti­fied after being grant­ed immu­ni­ty. A fed­er­al court in 1991 termed Pease’s tes­ti­mo­ny to be ​“a mass of con­tra­dic­tions.” The court also ruled that the tri­al judge had failed to ensure that Blazak was com­pe­tent to stand tri­al. Rather than pur­sue a new tri­al, the pros­e­cu­tor offered a no con­test plea in September, 1994, which allowed Blazak to be released before the end of the year. There was some evi­dence that a deputy sher­iff named Michael Tucker plant­ed hair evi­dence in the case. Three days after Blazak walked out of prison, Tucker was arrest­ed for car theft.

Anthony Scire Louisiana Conviction 1985 Released 1994

Scire was sen­tenced to death for hir­ing Clarence Smith to mur­der a police infor­mant. The chief wit­ness­es at the tri­al were mem­bers of a motor­cy­cle gang giv­en immu­ni­ty for this and oth­er crimes in exchange for their tes­ti­mo­ny. The con­vic­tions of both Scire and Smith (see #56 above) were over­turned. At retri­al, Smith was acquit­ted. Scire plead­ed guilty to manslaugh­ter, while main­tain­ing his inno­cence. He was imme­di­ate­ly released in exchange for time served.

Donald Paradis Idaho Conviction 1981 Commuted to life 1996

Considerable doubt arose about whether Paradis had any involve­ment in the mur­der of a young woman, whether he was at the place the mur­der occurred, or even whether the mur­der occurred in the State of Idaho. The lawyer appoint­ed to rep­re­sent Paradis had only been prac­tic­ing for 7 months and had nev­er tried a crim­i­nal case before a jury or had a client fac­ing a felony charge. Some of the tri­al wit­ness­es have now recant­ed their tes­ti­mo­ny. In May, 1996, the gov­er­nor com­mut­ed Paradis’s sen­tence to life without parole.

Joseph Payne Virginia Conviction 1986 Commuted to life 1996

Although the defense knew of 17 wit­ness­es will­ing to tes­ti­fy on Payne’s behalf, they only used one, and Payne was con­vict­ed of mur­der by arson of anoth­er inmate at the Powhatan Correctional Center in Virginia. While the jury was delib­er­at­ing, the pros­e­cu­tion offered Payne a plea where­by he would receive a sen­tence to run con­cur­rent­ly with the sen­tence he already was serv­ing, but the offer was refused because his lawyers thought an acquit­tal was like­ly. Instead, he was sen­tenced to death and was sched­uled to be exe­cut­ed on Nov. 7, 1996. The chief wit­ness against Payne, Robert Smith, received a 15 year reduc­tion in sen­tence. At one point, Smith admit­ted that he had lied at Payne’s tri­al. Three hours before his exe­cu­tion, and after Payne agreed not to appeal, Payne’s sen­tence was reduced to life with­out parole by Governor George Allen.

Other Cases of Possible Innocence

Finally, with over 3,000 peo­ple on death row, undoubt­ed­ly more cas­es will be dis­cov­ered where the accused is actu­al­ly inno­cent. Hopefully, these mis­takes will be dis­cov­ered before the indi­vid­u­als are exe­cut­ed, though there is cer­tain­ly no guar­an­tee this will hap­pen. Even if only 1% of death row con­vic­tions are mis­tak­en (a min­i­mal esti­mate based on the record of the past 20 years), there would be over 30 more peo­ple to add to the inno­cence lists. Some of the cas­es in which the con­vic­tion and death sen­tence still stand, despite con­sid­er­able evi­dence of innocence are:

Paris Carriger Arizona Conviction 1978

Carriger was sched­uled to die on December 6, 1995 for a mur­der he stead­fast­ly main­tains he did not com­mit. Another man, Robert Dunbar, has twice con­fessed that he lied at Carriger’s tri­al, and that it was he who com­mit­ted the mur­der. As a result of his orig­i­nal tri­al tes­ti­mo­ny against Carriger, Dunbar was giv­en immu­ni­ty for oth­er charges. Dunbar has since died. A three judge pan­el of the 9^th Circuit U.S. Court of Appeals upheld Carriger’s death sen­tence, not­ing that while his case raised doubts, he must prove by clear and con­vinc­ing evi­dence that ​“he is unques­tion­ably inno­cent.” Review of the case by the entire 9^th Circuit was grant­ed in February, 1997.

John Spirko Ohio Conviction 1984

The chief wit­ness against Spirko at his tri­al for the mur­der of the Postmaster in Elgin, Ohio said that he was only 70% sure of his iden­ti­fi­ca­tion. Substantial infor­ma­tion from a Postal Service Investigation was with­held from the defense. Recently released records indi­cate that Spirko’s sup­posed co-defen­dant was actu­al­ly 600 miles away at the time of the crime. The new evi­dence impli­cates oth­ers in the mur­der. It may mer­it a new tri­al and pos­si­bly lead to the acquit­tal of Spirko.

Joseph O’Dell Virginia Conviction 1986

New DNA blood evi­dence has thrown con­sid­er­able doubt on the mur­der and rape con­vic­tion of O’Dell. In review­ing his case in 1991, three Supreme Court Justices, said they had doubts about O’Dell’s guilt and whether he should have been allowed to rep­re­sent him­self. Without the blood evi­dence, there is lit­tle link­ing O’Dell to the crime. In September, 1996, the 4^th Circuit of the U.S. Court of Appeals rein­stat­ed his death sen­tence and upheld his con­vic­tion. The U.S. Supreme Court refused to review O’Dell’s claims of inno­cence and held that its deci­sion regard­ing juries being told about the alter­na­tive sen­tence of life-with­out-parole was not retroac­tive to his case. O’Dell has asked the state to con­duct DNA tests on oth­er pieces of evi­dence to demon­strate his innocence.

David Ronald Chandler U.S. Conviction 1991

Chandler was the first per­son sen­tenced to death under the 1988 fed­er­al death penal­ty law for mur­ders in the course of drug con­spir­a­cy. The pros­e­cu­tion alleged that Chandler was a large mar­i­jua­na grow­er in Alabama, and that he paid Charles Jarrell $500 to kill Marlin Shuler, who was involved in the drug trade. Jarrell com­mit­ted the mur­der, and in exchange for his tes­ti­mo­ny against Chandler, state mur­der charges against him were dropped, and he was giv­en a 25 year sen­tence on mar­i­jua­na dis­tri­b­u­tion charges. Now Jarrell admits that he lied at the tri­al and that Chandler was not involved in the mur­der. Jarrell said he was coerced by pros­e­cu­tors into tes­ti­fy­ing against Chandler. Jarrell says he killed Shuler, who was his broth­er-in-law, because Shuler was abus­ing Jarrell’s sis­ter and moth­er. Chandler had been sched­uled for exe­cu­tion in 1995. The District Court in Birmingham denied his request for a new tri­al on April 7, 1997 and that peti­tion is on appeal.

Determining Innocence After An Execution

This report does not include in its totals the cas­es of pos­si­bly inno­cent per­sons who have been exe­cut­ed. Reports of exe­cu­tions of inno­cent peo­ple weighed heav­i­ly in some oth­er coun­tries’ deci­sions to stop using the death penal­ty. Two American researchers, Professors Hugo Bedau and Michael Radelet, report­ed 23 instances in which inno­cent peo­ple have been exe­cut­ed in the United States in this century.39

Among the cas­es not­ed by Bedau and Radelet are cas­es in the south of black men tried by all white juries and exe­cut­ed for the rape of a white woman. In some of these cas­es, sub­se­quent evi­dence revealed that the woman had an ongo­ing sex­u­al rela­tion with the accused, but such evi­dence was con­sid­ered either unbe­liev­able or irrel­e­vant at the time.

The dif­fi­cul­ty with such cas­es is that gen­er­al­ly no court decides that an exe­cut­ed per­son was inno­cent. Courts hear cur­rent cas­es brought by live peti­tion­ers. Whether an exe­cut­ed per­son was inno­cent becomes a mat­ter of his­tor­i­cal research (which is rarely under­tak­en) and an evolv­ing con­sen­sus among the pub­lic. This is a much slow­er and less pre­cise process than a retri­al end­ing in an acquittal.

Recent Cases of Possible Mistaken Executions

Since the death penal­ty was rein­stat­ed in 1976, there have been inmates with rea­son­ably cred­i­ble claims of inno­cence who were nev­er­the­less exe­cut­ed, some with­out a full review of those claims. In 1992, for exam­ple, Roger Keith Coleman made head­lines with his dual plea that he was inno­cent and that no court would review his evidence.40

Coleman’s rep­re­sen­ta­tion at tri­al was shod­dy. On appeal, his new attor­neys mis­read the state statute gov­ern­ing the time for sub­mit­ting an appeal and filed their brief a day too late. The Virginia state courts held that this late fil­ing was the same as no fil­ing and refused to review his issues. The fed­er­al courts then said that he could not raise a fed­er­al claim because he had waived his state review. Finally, the Supreme Court said that he could not com­plain that it was his attor­ney who erred, since he was not enti­tled to an attor­ney in the first place.41 Coleman was exe­cut­ed with­out a full review of his innocence claims.

Leonel Herrera may have been inno­cent, but he was not inno­cent enough to sat­is­fy the Supreme Court.42 A for­mer Texas judge sub­mit­ted an affi­davit stat­ing that anoth­er man had con­fessed to the crime for which Herrera was fac­ing exe­cu­tion. Numerous oth­er pieces of new evi­dence also threw doubt on his con­vic­tion. Still, the Court said that at this late stage of his appeal, he need­ed an extra­or­di­nary amount of proof to stop his exe­cu­tion. He was exe­cut­ed in Texas in 1993.

Another kind of inno­cence was illus­trat­ed in the case of Jesse Jacobs, who was exe­cut­ed in Texas on January 4, 1995.43 Jacobs had been con­vict­ed and sen­tenced to death after the state had put on evi­dence to show that he was the actu­al killer in an abduc­tion end­ing in mur­der which also involved a co-defen­dant. At the lat­er tri­al of the co-defen­dant, the state reversed its sto­ry and said it was the co-defen­dant, not Jacobs, who pulled the trig­ger. In fact, the pros­e­cu­tion used (and thus vouched for) Jacobs’s own tes­ti­mo­ny that he did not do the shoot­ing and did not even know that his co-defen­dant had a gun. The co-defen­dant was also con­vict­ed, though not sen­tenced to death. Despite the admis­sion by the pros­e­cu­tion that the argu­ments they made at Jacobs’s tri­al were false, Jacobs was executed.

Jacobs was not inno­cent in the full sense of the word. He had admit­ted­ly par­tic­i­pat­ed in the under­ly­ing crime, but it is doubt­ful that the jury would have sen­tenced him to death if the pros­e­cu­tors had acknowl­edged that he was not direct­ly involved in the actu­al mur­der. Three Supreme Court Justices were high­ly crit­i­cal of this decep­tion on the pros­e­cu­tion’s part. Justice Stevens wrote: ​“It would be fun­da­men­tal­ly unfair to exe­cute a per­son on the basis of a fac­tu­al deter­mi­na­tion that the state has for­mal­ly dis­avowed. I find this course of events deeply troubling.“44

Senator Arlen Specter, an ardent death penal­ty sup­port­er and for­mer dis­trict attor­ney, was also dis­tressed at this devel­op­ment, and in address­ing the Senate he warned against such impo­si­tions of the death penal­ty in ​“a cal­lous or unrea­son­able fashion.“45 The European Parliament like­wise passed a res­o­lu­tion express­ing ​“shock” at this exe­cu­tion; there were no votes oppos­ing the resolution.46

The recent exe­cu­tion of Coleman Wayne Gray in Virginia is anoth­er exam­ple of improp­er state tac­tics used to tip the bal­ance toward a death sen­tence. At the time of Gray’s sen­tenc­ing hear­ing, the state cir­cum­vent­ed the rules of dis­clo­sure and at the last minute raised the prospect of oth­er noto­ri­ous offens­es by Gray (even though he had not been charged in these alleged offens­es). With no chance to ade­quate­ly refute these alle­ga­tions, Gray was sen­tenced to death. Federal District Court Judge James Spencer found the state’s action unfair, but found him­self con­strained by the new Anti-Terrorism and Effective Death Penalty Act of 1996 from grant­i­ng Gray any relief. He wrote: ​“One can­not moral­ly sup­port the death penal­ty with­out some assur­ance, by evi­dence or faith, that the ulti­mate penal­ty is imposed fair­ly.” Gray was exe­cut­ed on February 26, 1997.47

Does the System Work?

The fact that so many cas­es of inno­cent peo­ple on death row have been over­turned could con­vey the impres­sion that the appeals sys­tem in cap­i­tal cas­es pre­vents a fatal mis­take from being made. However, a review of why many of these mis­takes were dis­cov­ered leads to a very different conclusion.

Randall Dale Adams’s inno­cence was pri­mar­i­ly estab­lished when an inde­pen­dent film mak­er, Errol Morris, went to Texas to do a doc­u­men­tary on the infa­mous psy­chi­a­trist who repeat­ed­ly tes­ti­fied for the state that each defen­dant he con­sid­ered pre­sent­ed an ongo­ing threat to soci­ety and hence should be exe­cut­ed. The course of that doc­u­men­tary took an unusu­al turn when the real killer con­fessed to the crime. The result­ing movie, The Thin Blue Line, was a crit­i­cal fac­tor in Adams’s release.48

Clarence Brandley was con­vict­ed of mur­der and rape in a racial­ly charged case in Texas. Fortunately, the civ­il rights com­mu­ni­ty mount­ed a major effort to prove his inno­cence, and a 60 Minutes doc­u­men­tary added to the con­sid­er­able doubt about the verac­i­ty of the orig­i­nal tri­al. Brandley was exon­er­at­ed, but such resources, though crit­i­cal, are not avail­able to most death row defendants.49

Kirk Bloodsworth was exon­er­at­ed in Maryland because DNA test­ing became avail­able years after his tri­al. This was a for­tu­itous sci­en­tif­ic devel­op­ment, not the nor­mal work­ings of the appeals process.50

Similarly, recent rever­sals such as those of Rolando Cruz, Alejandro Hernandez, Verneal Jimerson and Dennis Williams were all helped by the devel­op­ment of DNA test­ing. In the case of Cruz and Hernandez, the state con­tin­ued to pros­e­cute them despite the fact that anoth­er man had con­fessed to the crime and the evi­dence against them was unre­li­able. One assis­tant in the Attorney General’s office resigned rather than con­tin­ue the pros­e­cu­tion of these men. But the state pressed on, part­ly under the guid­ance of a pros­e­cu­tor who became the State’s Attorney General. Now both inmates are free, with all charges dropped. Three for­mer pros­e­cu­tors and four police offi­cers have been indict­ed for obstruc­tion of jus­tice in this case.51

Fortunately, Cruz and Hernandez were assist­ed by an excel­lent defense team, includ­ing experts from Northwestern University Law School and well-known author Scott Turow. Considerable media atten­tion over many years also aid­ed the defen­dants in this case. Clearly, if their appeals had run out four or five years after their con­vic­tions, they would be dead today instead of free.

Verneal Jimerson and Dennis Williams were involved in anoth­er Illinois case involv­ing four defen­dants. All have been freed, and the state has admit­ted that it pros­e­cut­ed the wrong defen­dants. The break­through came when a jour­nal­ism pro­fes­sor, David Protess, assigned the case to some of his stu­dents. They rein­ves­ti­gat­ed, dis­cov­ered that the wrong men had been con­vict­ed, and sup­port­ed their find­ings with DNA testing.52 The jour­nal­is­tic review process worked well – the appeals process had not.

System Now Lacks Critical Resources

Some of the most effec­tive work of rein­ves­ti­gat­ing cap­i­tal cas­es lead­ing to new tri­als and releas­es from death row was done in recent years by the death penal­ty resource cen­ters. These cen­ters were cre­at­ed dur­ing the Reagan admin­is­tra­tion to assist attor­neys in the com­plex area of cap­i­tal appeals. They worked on death penal­ty cas­es full-time and shared their exper­tise with oth­ers. Condemned inmates such as Walter McMillian in Alabama, Lloyd Schlup in Missouri, Curtis Kyles in Louisiana, Andrew Golden in Florida and Federico Macias in Texas had their con­vic­tions over­turned either through direct resource cen­ter rep­re­sen­ta­tion or with their help.

Today, how­ev­er, all fed­er­al fund­ing for the 20 resource cen­ters has been with­drawn. Most of these cen­ters have closed. Some con­tin­ue with reduced staff, no longer able to offer even tem­po­rary rep­re­sen­ta­tion to the thou­sands of death row inmates. Yet the appeals sys­tem is only as effec­tive as the attor­neys who bring the cas­es before the courts. Some states, such as Georgia, Mississippi and Louisiana, pro­vide no defense mon­ey for state post-con­vic­tion appeals. Volunteer lawyers and large law firms will­ing to take these cas­es for free are large­ly tapped out. The appeals sys­tem has been short­ened and sig­nif­i­cant­ly nar­rowed over the past few years. Now, ade­quate rep­re­sen­ta­tion for even this cur­tailed process is doubt­ful in many cas­es. Some inmates will con­tin­ue to ben­e­fit from excel­lent and expe­ri­enced attor­neys who invoke the legal process, and even the media when nec­es­sary, to expose the injus­tices which led to wrong­ful con­vic­tions. But there is no reli­able sys­tem which ensures that every­one fac­ing exe­cu­tion will have any­where near that kind of help. New peo­ple will be released from death row each year, but many more will be exe­cut­ed, and it is increas­ing­ly like­ly that some of those killed are innocent.

Scope of the Problem

Since 1973, approx­i­mate­ly 6,000 peo­ple have been sen­tenced to death.53 During this same peri­od, 69 peo­ple have been released from death row with sub­stan­tial evi­dence of their inno­cence. This trans­lates to a rate of over 1 inno­cent death row inmate for every 100 death sen­tences. As the analy­sis above indi­cates, the rate may be con­sid­er­ably high­er, since extra­or­di­nary efforts are gen­er­al­ly need­ed to free a death row inmate, and most inmates do not have those extra resources avail­able to them.

Professors Radelet and Bedau report­ed 416 cas­es this cen­tu­ry of mis­tak­en con­vic­tions in ​“poten­tial­ly cap­i­tal cas­es,” that is, those whose crime could mer­it the death penal­ty, assum­ing such a law was in place.54 While those authors point out that there prob­a­bly have been many oth­er erro­neous con­vic­tions, their rate of about 4.5 inno­cent per­sons con­vict­ed each year in cap­i­tal cas­es is com­pa­ra­ble to the rate of 4.8 per­sons per year released from death row in recent years. This is some indi­ca­tion that the prob­lem of crit­i­cal mis­takes in cap­i­tal cas­es is per­sis­tent and very dif­fi­cult to eradicate.

Another view of the scope of the prob­lem of error in the crim­i­nal jus­tice sys­tem is con­tained in a 1996 Department of Justice Report on the use of DNA evi­dence. The report cat­a­logs numer­ous cas­es, most­ly from the late 1980s, in which pre­vi­ous con­vic­tions were over­turned upon DNA test­ing. Some of these cas­es involved defen­dants on death row.55

In com­men­tary accom­pa­ny­ing the report, Peter Neufeld and Barry Scheck note how often the police focus on the wrong suspect:

• Every year since 1989, in about 25 per­cent of the sex­u­al assault cas­es referred to the FBI where results could be obtained … the pri­ma­ry sus­pect has been exclud­ed by foren­sic DNA test­ing.… The fact that these per­cent­ages have remained con­stant for 7 years, and that the National Institute of Justice’s infor­mal sur­vey of pri­vate lab­o­ra­to­ries reveals a strik­ing­ly sim­i­lar 26-per­cent exclu­sion rate, strong­ly sug­gests … under­ly­ing sys­temic prob­lems that gen­er­ate erro­neous accu­sa­tions and convictions.56

The fact that 1 out of 4 defen­dants accused of a seri­ous crime such as sex­u­al assault is inno­cent, or that at least 1 out of 100 of those actu­al­ly sen­tenced to death is inno­cent, is dis­turb­ing. Certainly, such a record would be total­ly unac­cept­able for a car com­pa­ny whose cars were so defec­tive that they caused fatal crash­es in 1 out of 100 vehi­cles. Some would con­clude that since death penal­ty errors are com­plete­ly avoid­able by switch­ing to a sen­tence of life with­out parole, the cap­i­tal pun­ish­ment process should be stopped all togeth­er. Others, like the American Bar Association, have con­clud­ed that at the very least such evi­dence demands that cap­i­tal cas­es be giv­en the most thor­ough and care­ful atten­tion that the legal sys­tem can pro­vide if the death penal­ty is to con­tin­ue at all. They recent­ly con­clud­ed that the present sys­tem does not pro­vide ade­quate pro­tec­tions and that exe­cu­tions should be stopped.57

The risk that inno­cent peo­ple will be caught in the web of the death penal­ty is ris­ing. The increased rate of dis­cov­ery of inno­cent peo­ple on death row is a clear sign that, even with the best of inten­tions, the crim­i­nal jus­tice sys­tem makes crit­i­cal errors – errors which can­not be reme­died once an exe­cu­tion occurs. Courts are allow­ing exe­cu­tions to go foward even in the pres­ence of seri­ous doubts about the defen­dan­t’s guilt. The cur­rent empha­sis on faster exe­cu­tions, less resources for the defense, and an expan­sion in the num­ber of death cas­es means that the exe­cu­tion of inno­cent peo­ple is inevitable.

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

Staff Report by the Subcommittee on Civil and Constitutional Rights, Committee on the Judiciary, 103^rd Congress, 1^st Session — October, 1993 (pre­pared with the assis­tance of the Death Penalty Information Center)

INMATES RELEASED FROM DEATH ROW SINCE 1970

At least 48 peo­ple have been released from prison after serv­ing time on death row since 1970 with sig­nif­i­cant evi­dence of their inno­cence. 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) Tillis 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.