Transcript
Ngozi Ndulue 0:01
Hello, and welcome to Discussions with DPIC. I’m Ngozi Ndulue, DPIC’s Senior Director of Research and Special Projects. This is the first installment of the Death Penalty Information Center’s Rethinking Public Safety series of episodes. In this series, we will talk with people who have spent their careers working for public safety. We’ll learn more about their careers and how their work has shaped their views on the death penalty. Our guest today is Jim Petro, former Ohio Attorney General and the co-author of “False Justice: Eight Myths that Convict the Innocent,” written with his wife, writer, and advocate, Nancy Petro. His 40-year legal career included litigating cases in venues from Mayor’s Court to the United States Supreme Court. He has a long history of public service, serving as Ohio Auditor of State, Ohio Attorney General, and Chancellor of the Ohio Board of Regents. In 28 years as an elected official, he also served as a city councilman, a county commissioner, and a state representative. Welcome to the podcast, Jim.
Jim Petro 1:09
Thank you. It’s really a pleasure to be with you.
Ngozi Ndulue 1:13
Thank you. Now, we’re going to be talking about issues regarding innocence and wrongful conviction in general and then kind of focus on the death penalty. And, you’ve been concerned about the fact that our legal system doesn’t always get it right and, as a result, innocent people have been and continued to be convicted. As Ohio Attorney General, you took an active role in supporting the exoneration of Clarence Elkins, a wrongfully convicted man serving a life sentence. Can you tell us a little bit about how that came about?
Jim Petro 1:47
You know, for me, the case of Clarence Elkins was truly kind of an earth shaking event, because I never really had even been a prosecutor. I never really thought that the system would fail so miserably as to convict and incarcerate, for many years, a person absolutely innocent of the crime. In the case of Clarence Elkins, I had a call one day — I was the Attorney General, working in my office — and I had a call from a very respected legislator, who is actually sitting by the phone with the director of the Ohio Innocence Project. And, he explained to me, the case of Clarence Elkins and pointed out that recent additional DNA testing that was done while Clarence was in prison, and without the approval of the prison authorities, in any event, that DNA testing would reveal that that Clarence was the wrong person. He was not the person who was directly involved in the outside. And I was kind of shocked that that could be true, but, learning more a little bit over the next day or two, getting a couple of my staff members involved, it became very clear that this man had been in prison for seven years, he had a long way to go on a life sentence, but, he was absolutely innocent of the crime and it was DNA that actually conclusively proved his innocence. Again, it was remarkable. I think only because of DNA would he have been exonerated. Without DNA testing and the advances that have occurred because of that, he may have spent the rest of his life in prison, wrongfully. It was a remarkable experience. It was probably the most eye opening experience in my life.
Ngozi Ndulue 3:51
And then, even after leaving office as the Attorney General, you worked pro bono with the Ohio Innocence Project and supported legislation to reduce the likelihood of wrongful convictions. Why did you continue this work?
Jim Petro 4:06
Well, I was concerned. I mean, when I left office as Attorney General, my desire to see public policy move in the right direction didn’t change. I mean, in my years as a state legislator, as an auditor, as the Attorney General of Ohio, I always wanted to make sure that government was doing things right. We weren’t functioning in a fashion that made a lot of mistakes. And so, when I learned that the justice system, from the error, I really wanted to continue to do whatever I could, try to make that better. And I think that’s, that was even in my days when I was a public lawyer, you know, in private practice, where I left government, I still did a lot of work on a pro bono basis, assist in wrongful conviction matters. And I think that’s important for people to be involved in that, recognizing that wrongful convictions aren’t infrequent. They occur more often than I would ever have imagined.
Ngozi Ndulue 5:16
In your book, “False Justice,” one of the myths that you discuss is that conviction errors get corrected on appeal. As you know, this myth is often repeated when people claim that the death penalty is being fairly administered and there are too many appeals in death penalty cases. Can you explain why there could be many appeals, but you will still end up with wrongful convictions and death sentences that go on?
Jim Petro 5:45
I will tell you honestly, the appeal process really doesn’t look carefully at the facts that were presented at trial. It looks instead at procedural matters and other matters that that really don’t deal with the finding of facts by a jury. If a jury reaches a conclusion, and it results in the penalty that could be as severe as a death penalty, that’s not necessarily the issue that’s looked at most carefully on appeal — it’s procedural things, it’s factual things, but not even to the same extent. There are many occasions we discovered where people were convicted of the maximum penalty and later, as all of the elements of the case began to be fully vetted, it was determined that the person was potentially innocent. That’s essentially the role that the Innocence Project has filled so aggressively. When I first learned of the wrongful conviction of an individual in Ohio, the Innocence Project was just getting moving, just getting off the ground. Since that time, they have really, I think, did a great deal to improve the success of the criminal justice system. Because they’re out there — there’s not enough of them — but the Innocence Projects broadly, are out there, taking on cases where innocence was more likely than not; pursuing those cases.
Ngozi Ndulue 7:36
We recently released a report about wrongfully convicted people on death row. The “Innocence Epidemic” report was released this February, and we’ve looked at the 185 death penalty exonerations that have occurred since 1973 -
Jim Petro 7:55
Amazing.
Ngozi Ndulue 7:55
- that includes 11 in Ohio. Yeah, and there were some really stark foundings. First, that 69% of wrongful capital convictions involve official misconduct, and that includes governmental, police, and prosecutorial misconduct.
Jim Petro 7:55
Mmhmm
Ngozi Ndulue 7:57
We also found that official misconduct is more prevalent in the cases of defendants of color, with misconduct present in three-quarters of the cases of Black death row exonerees and two-thirds of the cases of Latinx death row exonerees. Given the continued presence of official misconduct in death penalty exonerations, I think our report really supports one of the points that you’ve made where you say that one of the myths about wrongful conviction is that they result from innocent human error. Can you talk about that myth and what role prosecutors need to play in preventing and remedying wrongful convictions?
Jim Petro 8:56
You know, I believe over the last decade, there is a deeper awareness - even on the part of law enforcement and prosecution — that there’s a greater risk of error than previously has been the case. And, I would say that those instances where a conviction was in error, I think it was, in some cases — despite kind of well meaning efforts at accuracy on the part of law enforcement and prosecution — I don’t know that, in my experience, that law enforcement or the prosecutor really is willingly presenting something that they believe to be false, but they’re doing so in order to win. I don’t doubt that happens occasionally, but, I think the greater error is when you’ve indicted someone you feel you’ve got a case, and then a desire to have your advocacy succeed in getting the result which you think is correct: a conviction of the crime for which the person has been charged. What we’ve learned is that the mistakes are made, even without the intent, more often than we like to think. There’s even occasionally someone who hurts the truth in order to get a win, for example, from someone they think is just a bad actor. And, that’s really, to me, a gross error on the part of the system when that occurs. In both cases, the government, leaders, law enforcement, have made a mistake and that’s something that needs to be part of the system where the watchfulness of every level — both in the trial phase, the appellate phase — that people are watching carefully for the telltale signs that something could be wrong from a factual standpoint and this individual may not be guilty. They need to make sure the system is working to its greatest degree to avoid the risk of a wrongful conviction.
Ngozi Ndulue 11:28
What happens on the back-end after somebody is convicted and how hard it can be to recognize that wrongful convictions happen? I just noticed there the Ohio Attorney General’s capital case report just came out last week and there was this discussion about exoneration and saying, “Oh, only one person who has actually been exonerated is credibly actually innocent.” But, that’s in a situation where we have folks who have kind of won civil suits around actual innocence who were death row exonerees. You know, Joe D’Ambrosio is a case where there’s all this evidence of significant misconduct. So what do you say when years down the line, where there’s so much evidence of wrongful conviction, you’re getting so much resistance to the idea of kind of accepting that the system has made a mistake?
Jim Petro 12:19
When you raise the case of Joe D’Ambrosio, you know, there’s a case where there was significant misconduct on the part of the prosecution. That can’t be tolerated. The system of justice, under prosecutors, judges, every part of that has to be examining every bit of evidence to assure that there’s a highest degree of accuracy in that evidence; that there’s nothing that’s been fudged or taken to an extreme that would make that evidence really subject to significant doubt and so, that’s the part of the system that really needs to be underscored at every level. We can’t undertake a prosecution where we know there’s some significant risk that the individual may not have committed the crime. We have to be extraordinarily aware of that risk from the prosecution’s side.
Ngozi Ndulue 13:25
And, I want to turn a little bit to the legislative role that you had, so, in kind of the evolution of your understanding of the death penalty. As a state legislator, you supported the bill to reinstate Ohio’s death penalty in 1981 -
Jim Petro 13:44
Yes.
Ngozi Ndulue 13:44
- after the United States Supreme Court had declared the capital punishment law unconstitutional. And, you continued to support it during your term as Ohio Attorney General, but, that changed this year, you co-wrote an op-ed arguing that Ohio should repeal the death penalty. Could you talk about that evolution? What changed your opinion?
Jim Petro 14:05
Well, in reality, you understand, I actually supervised 19 executions. That wasn’t an easy thing and, it was my own internal view and the view with my staff where I made it clear as we were approaching these things I had a group of death penalty unit of lawyers and investigators and, I would ask that we kind of reexamine this so that within the Attorney General’s office we were confident the actual crime as charged and convicted did occur. And, it was that level of significance that the death penalty was warranted. And so, we had, I think, a conscious effort to make sure that we were doing the right thing in conforming with the law. You made a question that went back in history. You know, Ohio’s death penalty was struck down, as was the death penalty across the country, in 1978. And, in 1981, I was in my first year as a state legislator. I was a young man - 31 years old. I’d been a prosecutor, been a private lawyer. When I say prosecutor, I was Assistant County Prosecutor in Columbus, Ohio and I was City Prosecutor in Rocky River, Ohio when I went back in northern Ohio to begin a private law practice because that was my home area. At that time, I didn’t even suspect that when death penalties were handed down there actually could have been an error.
Ngozi Ndulue 15:39
Hmm.
Jim Petro 15:44
I presumed the system so tightly handled the risk of an error - a conviction error - in a death penalty case. It’s almost impossible to imagine and, later began to learn that that was not the case. First of all, conviction error did occur. Second of all, it occurred in all cases. Whether they were death penalty cases or life imprisonment cases, mistakes did occur. And in a death penalty case, there’s no reversing, I mean, once they have happened and I know that in the history of the death penalty, people have been executed wrongfully. I can’t pinpoint the case, but there’s no doubt because of the reality of wrongful conviction, the recognition that I have now that, you know, in the great scheme of things, the criminal justice system does make mistakes that are not corrected on appeal. There are factual mistakes, and they result in wrongful conviction, in spite of the fact that the cases appealed all the way up even. That may not change things. And so, if that is true, which I believe it is, then there are individuals who have been executed who are totally innocent of crimes. I’m sure of it.
Ngozi Ndulue 17:19
And is that what really changed your opinion about the death penalty?
Jim Petro 17:22
Yes, that’s part of it: a recognition that the criminal justice system isn’t perfect. So that the ultimate penalty, penalty of death, is potentially something that could go wrong. And, we can’t afford that. Well, you know, where the mistake is on someone who’s in prison for life, at least, they may get their life back when there is recognition of innocence as a result of conviction error.
Ngozi Ndulue 17:57
Now one of the reasons that people who support the death penalty say that capital punishment is important is that it deters violent crime. How does that mesh with your experiences as the prosecutor and then as the state’s top law enforcement official?
Jim Petro 18:15
I came to believe, even as a prosecutor, that the death penalty - and when I was a prosecutor, I was much younger. I was, it was my first job out of law school. I was in my mid 20s. I didn’t have a moral objection to the death penalty, even to the extent that I do today, but, I was concerned as I learned that errors occurred, that the death penalty couldn’t be (unclear) enforced. The issue is over in that case, and if you made a mistake, it’s the greatest law of all in the system: execute an innocent person. You mentioned Joe D’Ambrosio, he’s a very good example. I mean, without a good lawyer and some facts kind of coming to bear, Joe D’Ambrosio was convicted and sentenced to death as I remember.
Ngozi Ndulue 19:17
Yes.
Jim Petro 19:18
It was a long time ago.
Ngozi Ndulue 19:19
Yep.
Jim Petro 19:20
But as I remember, that was the outcome. You know, that those are the things that really concern you, when you consider the flaws that can occur in the justice system. I don’t doubt there have been many, many instances of innocent people being convicted, then executed. I can’t pinpoint one, but I don’t doubt that it’s happened.
Ngozi Ndulue 19:44
What do you think — whether you think that the death penalty actually deters violent crime? Do you see the death penalty as actually being useful for public safety?
Jim Petro 19:57
There was a time I thought that could be the case, but the more I’ve examined it over the years, I don’t really see it as a deterrent. I don’t think it has been a deterrent. I don’t think it deters violent crime. I suppose remotely, there could be an instance where someone commits a crime that would have been a more serious crime on their part, but they didn’t take that next step because they were concerned about the highest penalty being something that could be held against them. I don’t think that really happens. So I don’t think the death penalty is a deterrent to violent or serious crime.
Ngozi Ndulue 20:39
And then, I mean, right now, we’re kind of coming out of this pandemic and states and counties are really focusing on kind of the budget impact and what is next. So, the question about cost has come up a lot. You’ve served as a state representative, a county commissioner, and as the Ohio Auditor of State, has your experience managing government budgets affected your perspective on the financial costs of the death penalty?
Jim Petro 21:07
Well, you know, and the thing that’s so interesting is very often people say they want a death penalty because they don’t want to have to pay for someone being in prison for all those years, as a life imprisoned incarceree, as they’re paying all this money to keep them in prison. It’s cheaper to kill them — no, it’s not. Every study that’s ever been undertaken would indicate very clearly that the cost of the punishment for death is far greater than punishment of life in prison without parole, because the cost of the death penalty, and the appeals, and the risks and all of the things that come along with that, that cost is greater than life in prison without parole.
Ngozi Ndulue 21:58
Ohio is at an interesting place with the death penalty right now. Ohio just became the only state in the nation that specifically exempts the seriously mentally ill from being executed -
Jim Petro 22:11
Yes.
Ngozi Ndulue 22:12
- or sentenced to death. And, also the legislature is currently considering abolishing the death penalty altogether.
Jim Petro 22:20
I’m encouraging that either way.
Ngozi Ndulue 22:21
A question that I had is kind of how public opinion has evolved. A poll released in January 2021 found that a majority of Ohioans, including 48% of Republicans, support replacing the death penalty with a life sentence. Why do you think Ohioans are rethinking the death penalty?
Jim Petro 22:40
Over the years it’s been so clear that the death penalty is a process that so uses the resources of the courts of law enforcement for such a long period. When we’ve seen people who are actually executed and again, I supervised 19 of them, every one of those individuals had gone through 15 to 25 years of appeals and costly seeking of remedies to try to avoid being executed. All that by government is fairly overwhelming; to have convicted that individual of life in prison, and then putting them in prison, without the extraordinary appeals and the extraordinary additional legal engagements that occur is much, much more expensive. So often, voters would say to me, “Well, the death penalty is good, because, you know, I don’t want to keep them in jail for all those years and have to pay for them.” And, I would have to explain to them, it’s much cheaper to keep a convicted criminal who’s convicted of a serious maximum penalty offense. It’s much cheaper to keep them in prison for life than to go through the process of ultimately executing them. So that’s the argument that people would make that we don’t want to pay for them to be in prison forever when we could just kill him. That doesn’t work, doesn’t work that way.
Ngozi Ndulue 24:22
And do you think that the awareness about some of the mistakes that the criminal legal system has made has also affected people’s opinions about the death penalty?
Jim Petro 24:33
Probably to a lesser degree than the financial side. I don’t know that too many people come back and, you know, and argue that the death penalty is dangerous because there’s the risk of of conviction error, that would particularly bring about the execution of an innocent person. I don’t know if people think about that too much. I think about it because in a real sense, as a lawyer who’s been engaged in a lot of cases that involve wrongful conviction, I know they occur, and they occur much more frequently than you’d ever want to admit. The system itself is not perfect. We should strive to make it as perfect as possible. There’s always the risk of imperfection, and if imperfection results in a death penalty, then obviously, that’s the greatest injustice of all.
Ngozi Ndulue 25:32
Thank you so much for joining us today. This has been an education for me and I know it will be for our listeners. For listeners, to learn more about the death penalty, you can visit the DPIC website at deathpenaltyinfo.org. And to make sure you never miss an episode of our podcast, you can subscribe to Discussions with DPIC on your podcast app of choice. Thanks again, Jim.
Jim Petro 25:54
Thank you very much. I enjoyed having the opportunity to speak with you.
