Bill Kurtis Describes His Shift on the Death Penalty

A&E tele­vi­sion host and well-known inves­tiga­tive jour­nal­ist Bill Kurtis chron­i­cles his jour­ney from death penal­ty sup­port­er to cap­i­tal pun­ish­ment oppo­nent in his new­ly released book, The Death Penalty on Trial: Crisis in American Justice. In an inter­view with the Kansas City Star, Kurtis stat­ed, ​“Look, I was for the death penal­ty, but look­ing at these cas­es and the rapid­ly increas­ing num­ber of exon­er­a­tions, there are just too many pos­si­bil­i­ties for error.” He went on to observe, ​“You have a sys­tem with too many work­ing parts. We have mal­prac­tice in med­i­cine. We don’t expect the Yankees to win all their games. And yet we assume the crim­i­nal jus­tice sys­tem is with­out error.” Kurtis’s new book exam­ines two cas­es of death row exonerees, detail­ing the errors that led to their wrong­ful con­vic­tions. Through his inves­ti­ga­tion, Kurtis came to the real­iza­tion that cap­i­tal pun­ish­ment must end because the sys­tem can­not guarantee accuracy.
In his call for aban­don­ing cap­i­tal pun­ish­ment, he states, ​“We have two lit­tle final obsta­cles to get over. One is that we have to con­vince peo­ple that life with­out parole is bad. Worse than killing some­body. And sec­ond­ly, we have to get over the fact that it’s some kind of clo­sure for the fam­i­lies. The only rea­son the death penal­ty is still there is that we want to do some­thing for the vic­tims. It’s ​‘clo­sure.’ But what if you lose your wife from can­cer, or a car wreck? Someone killed in Iraq — what do you do then? It’s not clo­sure. It nev­er is.” (Kansas City Star, December 16, 2004). See New Voices. See also Life Without Parole and Victims.

Sister Helen Prejean’s New Book: The Death of Innocence

In her new book, The Death of Innocents: An Eyewitness Account of Wrongful Executions, Sister Helen Prejean uses her per­son­al expe­ri­ences as a coun­selor to those on death row to explore the issue of inno­cence and the like­li­hood of exe­cut­ing a wrong­ly con­vict­ed per­son. The book also traces the his­tor­i­cal and legal under­pin­nings of the death penal­ty in the U.S. Prejean, who authored the #1 New York Times best­seller ​“Dead Man Walking,” begins her new book by focus­ing on the cas­es of Joseph Roger O’Dell and Dobie Gillis Williams, both of whom she believes received unfair tri­als and prob­a­bly were inno­cent. O’Dell was exe­cut­ed in Virginia in 1997 and Gillis was exe­cut­ed in Louisiana in 1999. Prejean was close­ly involved with each of their cas­es and accom­pa­nied both men to the death cham­ber. Their cas­es sparked ​“The Death of Innocents” and Prejean’s clos­er look at wrong­ful con­vic­tions, inad­e­quate defense, the cap­i­tal appeals process, race, pover­ty, and the pol­i­tics of cap­i­tal pun­ish­ment. (Random House, 2005). See Innocence.

Massachusetts’ ​“Foolproof Death Penalty” Idea Achieves Questionable Status

In its annu­al eclec­tic col­lec­tion of ideas from the past year, The New York Times Magazine includ­ed the ​“Foolproof Death Penalty” propsed by Massachusetts Governor Mitt Romney. The Times attempts ​“to salute the absurd­ly wide range of human orig­i­nal­i­ty” and culls its entries not only from main­stream sources but also from the ​“tat­too cul­ture and fast food man­age­ment, hor­ti­cul­ture and shoe design.” In response to Romney’s notion of ​“error-free cap­i­tal pun­ish­ment,” Berkeley law pro­fes­sor Franklin Zimring said that the pro­posed leg­is­la­tion could be ​“the first effort to write a sole­ly sym­bol­ic crim­i­nal statute.” The mag­a­zine notes that the idea has lit­tle chance of being adopt­ed, and the gov­er­nor has­n’t even intro­duced a bill based on the pro­pos­al. (The New York Times Magazine, December 12, 2004).

Center on Wrongful Convictions Examines ​“The Snitch System”

The Center on Wrongful Convictions at Northwestern University School of Law has released a new report enti­tled, The Snitch System: How Snitch Testimony Sent Randy Steidl and Other Innocent Americans to Death Row. The report high­lights 51 cas­es of Americans who were wrong­ful­ly con­vict­ed and giv­en death sen­tences based on the tes­ti­mo­ny of wit­ness­es with incen­tives to lie. According to the Center, snitch tes­ti­mo­ny is the pri­ma­ry cause for approx­i­mate­ly 45% of all wrong­ful cap­i­tal con­vic­tions, mak­ing it the lead­ing prob­lem result­ing in inno­cent peo­ple being sent to death row.
The report pro­vides in-depth infor­ma­tion on the cas­es of death row exonerees Verneal Jimerson, Gordon Steidl, Joseph Burrows, Perry Cobb, Steven Smith, Gary Gauger, Steven Manning, Rolando Cruz, and Madison Hobley. It con­cludes with rec­om­men­da­tions on improv­ing the reli­a­bil­i­ty of tes­ti­mo­ny used to con­vict and sen­tence defen­dants in cap­i­tal cas­es. (Center on Wrongful Convictions, 2004). See Resources. Note: Snitch tes­ti­mo­ny was used to con­vict Cameron Willingham, who was exe­cut­ed in Texas in 2004. A recent inves­ti­ga­tion (see below) by the Chicago Tribune now indi­cates Willingham might have been innocent.

Chicago Tribune Investigation Concludes Texas May Have Executed Innocent Man

After exam­in­ing evi­dence from the cap­i­tal pros­e­cu­tion of Cameron Willingham, four nation­al arson experts have con­clud­ed that the orig­i­nal inves­ti­ga­tion of Willingham’s case was flawed and it is pos­si­ble the fire was acci­den­tal. The inde­pen­dent inves­ti­ga­tion, report­ed by the Chicago Tribune, found that pros­e­cu­tors and arson inves­ti­ga­tors used arson the­o­ries that have since been repu­di­at­ed by sci­en­tif­ic advances. Willingham was exe­cut­ed ear­li­er this year in Texas despite his con­sis­tent claims of inno­cence. He was con­vict­ed of mur­der­ing his three chil­dren in a 1991 house fire.
Arson expert Gerald Hurst said, ​“There’s noth­ing to sug­gest to any rea­son­able arson inves­ti­ga­tor that this was an arson fire. It was just a fire.” Former Louisiana State University fire instruc­tor Kendall Ryland added, “[It] made me sick to think this guy was exe­cut­ed based on this inves­ti­ga­tion.… They exe­cut­ed this guy and they’ve just got no idea — at least not sci­en­tif­i­cal­ly — if he set the fire, or if the fire was even intentionally set.”
Willingham was con­vict­ed of cap­i­tal mur­der after arson inves­ti­ga­tors con­clud­ed that 20 indi­ca­tors of arson led them to believe that an accel­erent had been used to set three sep­a­rate fires inside his home. Among the only oth­er evi­dence pre­sent­ed by pros­e­cu­tors dur­ing the the tri­al was tes­ti­mo­ny from jail­house snitch Johnny E. Webb, a drug addict on psy­chi­atric med­ica­tion, who claimed Willingham had con­fessed to him in the county jail.
Some of the jurors who con­vict­ed Willingham were trou­bled when told of the new case review. Juror Dorinda Brokofsky asked, ​“Did any­body know about this pri­or to his exe­cu­tion? Now I will have to live with this for the rest of my life. Maybe this man was inno­cent.” Prior to the exe­cu­tion, Willingham’s defense attor­neys pre­sent­ed expert tes­ti­mo­ny regard­ing the new arson inves­ti­ga­tion to the state’s high­est court, as well as to Texas Governor Rick Perry. No relief was grant­ed and Willingham was exe­cut­ed on February 17, 2004. Coincidentally, less than a year after Willingham’s exe­cu­tion, arson evi­dence pre­sent­ed by some of the same experts who had appealed for relief in Willingham’s case helped free Ernest Willis from Texas’s death row. The experts not­ed that the evi­dence in the Willingham case was near­ly iden­ti­cal to the evi­dence used to exon­er­ate Willis. (Chicago Tribune, December 9, 2004). Read the Chicago Tribune arti­cle. See Innocence Case Descriptions #117 regard­ing Ernest Willis’ case.


New Jersey Governor Calls for Death Penalty Moratorium

New Jersey Governor Richard Codey pro­posed a mora­to­ri­um on exe­cu­tions until a study com­mis­sion could deter­mine whether the state’s death penal­ty sys­tem is fair and cost effec­tive. The gov­er­nor announced his mora­to­ri­um pro­pos­al as the leg­is­la­ture began con­sid­er­ing a bill to ini­ti­ate the study. ​“The gov­er­nor does not think it makes sense to do a study with­out a mora­to­ri­um. So he does sup­port a mora­to­ri­um right now, and he sup­ports it for 18 months to two years,” Codey’s spokes­woman, Kelley Heck, stat­ed. Codey, who is also President of the New Jersey Senate, called for the halt to exe­cu­tions as he stalled a Senate vote on leg­is­la­tion that would have cre­at­ed a 13-mem­ber death penal­ty study com­mis­sion. The bill would cre­ate a pan­el to deter­mine whether the death penal­ty is con­sis­tent with ​“evolv­ing stan­dards of decen­cy,” whether it is dis­crim­i­na­to­ry, and whether it is worth its cost — both in mon­ey for lawyers and the risk of exe­cut­ing an inno­cent defen­dant. Senator Shirley Turner, spon­sor of the study com­mis­sion leg­is­la­tion, echoed Codey’s call for a mora­to­ri­um and added, ​“If we’re going to study the death penal­ty, I think we should not allow any­one to be exe­cut­ed until the report is in.” New Jersey has not exe­cut­ed any­one in 41 years, and exe­cu­tions in the state are cur­rent­ly on hold as the Department of Corrections devis­es new lethal injec­tion rules. The cur­rent exe­cu­tion pro­ce­dures were struck down in February because they shroud­ed exe­cu­tions in secre­cy and made no pro­vi­sions for halt­ing one once it was start­ed, even in the event of a last-minute reprieve. (Star-Ledger, December 7, 2004).

Louisiana’s Death Penalty Record Comparable to Illinois’: Moratorium Called For

A review of Louisiana’s death penal­ty in recent years revealed that twice as many con­demned inmates have walked free from death row than have been exe­cut­ed. Since 1999, of the 22 peo­ple whose cas­es were final­ly resolved, 12 had their death sen­tences reversed and were ordered to serve less­er sen­tences, 6 were freed after courts ordered their charges dis­missed, 1 died of nat­ur­al caus­es, and 3 were exe­cut­ed. Of the three who were exe­cut­ed, two were rep­re­sent­ed by attor­neys no longer allowed to prac­tice law. One of the dis­barred lawyers was found to have par­tic­i­pat­ed in a long list of improp­er behav­ior over sev­er­al cas­es, and the oth­er attor­ney lost his license because of men­tal health prob­lems. ​“That 27% of all cap­i­tal con­vic­tions led to exon­er­a­tions is shock­ing. I can’t see how any crim­i­nal jus­tice sys­tem can tol­er­ate that lev­el of error, par­tic­u­lar­ly in the mat­ter of the death penal­ty. It is unac­cept­able,” said Stuart Green, a Louisiana State University law pro­fes­sor spe­cial­iz­ing in con­sti­tu­tion­al and crim­i­nal justice issues.
Four years ago, the State Bar of Louisiana adopt­ed a res­o­lu­tion ask­ing the gov­er­nor to halt exe­cu­tions while state death penal­ty statutes were reviewed. At the time, then-Governor Mike Foster refused to take that step, but cur­rent Governor Kathleen Blanco has stat­ed that she would con­sid­er a mora­to­ri­um if sta­tis­tics indi­cat­ed prob­lems. Backed by the num­bers of mis­takes, many attor­neys and legal experts are urg­ing Blanco and oth­er law­mak­ers to impose a mora­to­ri­um and autho­rize a cap­i­tal pun­ish­ment review in order to ensure the fair­ness and accu­ra­cy of the sys­tem. ​“No mat­ter how you feel about the death penal­ty, peo­ple of integri­ty want to make sure that we take par­tic­u­lar care when the sen­tence is death. These num­bers say we are not care­ful,” said Denise LeBoeuf, direc­tor of the Capital Post-Conviction Project of Louisiana. (The Advocate, November 29, 2004). See Representation.

Former FBI Chief and Texas Judge Call for Halt to Texas Executions

William S. Sessions, who served as direc­tor of the FBI from 1987 to 1993, and Charles F. Baird, a for­mer Texas Court of Criminal Appeals Judge from 1990 to 1998, have called for a halt to exe­cu­tions in Texas because of the risk of exe­cut­ing an inno­cent per­son. Sessions and Baird, both of whom are native Texans, cit­ed the prob­lems at the Houston Crime Lab as a prin­ci­pal rea­son for their doubts about the reli­a­bil­i­ty of the death penalty system:

Since November 2002, when its police depart­men­t’s crime lab prob­lems first sur­faced, Houston cit­i­zens have react­ed with dis­may to each new revelation.

The prob­lems ini­tial­ly seemed lim­it­ed to fair­ly minor phys­i­cal break­downs at the lab build­ing. At every turn, how­ev­er, these prob­lems have mul­ti­plied. Most recent­ly, author­i­ties dis­cov­ered about 280 box­es filled with crime evi­dence involv­ing as many as 8,000 cas­es. What is most wor­ri­some is that these cas­es were con­sid­ered closed, many with a per­pe­tra­tor behind bars and the vic­tims seem­ing­ly assured that jus­tice had been done. But because these box­es remain unin­ven­to­ried, we can­not be sure that the right per­son is in prison, or if the true per­pe­tra­tor is still on the streets, endan­ger­ing us all.

We are Texans and mem­bers of a bipar­ti­san com­mit­tee spon­sored by the Constitution Project’s Death Penalty Initiative. We joined the com­mit­tee in 1999 because we believe the risk of con­vict­ing and exe­cut­ing the wrong peo­ple is unac­cept­ably high. Since the ini­tia­tive’s cre­ation, the num­ber of indi­vid­u­als who have been exon­er­at­ed and released from death row has reached 117 nation­wide, includ­ing eight from Texas. The dis­cov­ery of the box­es from the Houston crime lab rais­es the poten­tial that many more wrong­ful­ly con­vict­ed peo­ple are being housed in our Texas prisons.

While our com­mit­tee includes mem­bers who sup­port the death penal­ty, and oth­ers who oppose it, we all agree that the risk of wrong­ful con­vic­tions is too high and that sys­temic reforms are urgent­ly need­ed to try to make the sys­tem fair­er and more accurate.

One of our rec­om­men­da­tions is that states allow DNA and oth­er bio­log­i­cal evi­dence to be prop­er­ly test­ed in any case and any time if the evi­dence might shed light on the guilt or inno­cence of the inmate, so that we can be as sure as pos­si­ble that we are pros­e­cut­ing the right person.

Our com­mit­tee has not tak­en a posi­tion on a mora­to­ri­um, but the Houston trav­es­ty requires us to join with the many promi­nent Texans who are now call­ing for a mora­to­ri­um until the evi­dence in the Houston crime lab box­es is inven­to­ried and, if appro­pri­ate, tested.

We are in good com­pa­ny. Houston Police Chief Harold Hurtt has noted,‘I think it would be very pru­dent for us as a crim­i­nal jus­tice sys­tem to delay fur­ther exe­cu­tions until we have had time to review the evi­dence.’ The dean of the Texas Senate, John Whitmire, who rep­re­sents part of Houston and also chairs the Senate Criminal Justice Committee, joined in the chief’s call for a mora­to­ri­um. In a let­ter to Gov. Rick Perry, Whitmire stat­ed, ​‘It’s just nuts, to sum it up, that we would not hold off on exe­cu­tions until we go through each and every piece of evidence.’

Former Gov. Mark White and Charles Terrell, a for­mer chair­man of the Texas Department of Criminal Justice, have also called on the gov­er­nor to act, as have major Texas news­pa­pers. Judge Tom Price of the Texas Court of Criminal Appeals has also recent­ly joined the call for a moratorium.

Yet, with­in the last few weeks, five exe­cu­tions have gone for­ward involv­ing death row inmates from Houston, with anoth­er sched­uled for ear­ly December. District Attorney Chuck Rosenthal has resist­ed an inde­pen­dent review of the crime lab and has joined the tri­al judges in oppos­ing a post­pone­ment of the exe­cu­tions, even just until a prop­er inven­to­ry and any appro­pri­ate test­ing of the evi­dence is done.

We can­not under­stand this posi­tion. If the evi­dence con­firms the guilt of the per­son sched­uled to be exe­cut­ed, the exe­cu­tion should go for­ward. But if the evi­dence exon­er­ates the inmate, no Texan would want to see an execution.

Texans know that the crime lab prob­lems are not just the­o­ret­i­cal and are not lim­it­ed to death row inmates. In 2003, Josiah Sutton was exon­er­at­ed of a crime he did not com­mit after spend­ing four years in prison. Earlier this month, George Rodriguez was released after spend­ing more than 17 years in prison. He was con­vict­ed on the basis of faulty DNA analysis.

Since rein­tro­duc­tion of the death penal­ty, Texas has exe­cut­ed 336 men and women. Our state has been respon­si­ble for more than 35 per­cent of all the exe­cu­tions in America. Too many of these exe­cu­tions occurred despite of pro­found ques­tions about the facts of these cas­es, includ­ing in some instances ques­tions about whether the defen­dant was actually innocent.

The two safe­ty valves that sup­pos­ed­ly pre­vent our state from exe­cut­ing an inno­cent per­son have not worked as they should, and in some cas­es have failed entire­ly. The Court of Criminal Appeals, an elect­ed and par­ti­san body, has been crit­i­cized by the U.S. Supreme Court for not prop­er­ly review­ing cas­es. A just released Texas Monthly arti­cle about the court is called ​‘And Justice for Some.’ And — bor­row­ing a phrase from the Texas oil fields — clemen­cy in Texas is sim­ply a dry hole, with crit­i­cal facts either not pre­sent­ed to the gov­er­nor or not meaningfully considered.

Many experts believe that the death penal­ty does not deter crime. Some of us are not sure one way or the oth­er. But, we should not be deterred from exer­cis­ing com­mon sense. We have a run­away train with no one at the con­trols, and that is no way to run a rail­road. We sup­port a moratorium.

(Op-ed, Austin American-Statesman, November 25, 2004). See New Voices.

Editorials Note Growing Unease With Death Penalty

Editorials in papers around the coun­try have not­ed that many Americans are rethink­ing the death penal­ty because it is deeply flawed. Among the recent edi­to­r­i­al obser­va­tions were the following:

New Jersey’s Star-Ledger

Fewer peo­ple are being giv­en the death penal­ty in the United States, accord­ing to the Justice Department, which says such sen­tences are at a 30-year low. Last year, the num­ber of peo­ple who were sen­tenced to die totaled 144.

While these num­bers are heart­en­ing in that they reflect a decrease in exe­cu­tions, they ought to cause states to rethink the wis­dom and fair­ness of the death penalty altogether.

Getting sen­tenced to death has become just what the U.S. Supreme Court, in its land­mark 1972 Furman vs. Georgia rul­ing, said it should not be — a pun­ish­ment so ​“wan­ton­ly and so freak­ish­ly imposed” that it is like get­ting struck by lightening.

Whatever one’s moral views on the death penal­ty, there are com­pelling rea­sons to con­sid­er get­ting rid of it.

Cost is one. It takes from $2.3 mil­lion to $3.2 mil­lion to bring a death pros­e­cu­tion in New Jersey.

Human error is anoth­er rea­son. In recent years, more than 100 death-row inmates nation­wide have been exon­er­at­ed, most­ly using DNA evidence.

The ques­tion is whether any­body is will­ing to kill this bad­ly bro­ken sys­tem. (Star Ledger Editorial, November 20, 2004).

Florida’s Daytona Beach News-Journal

Over the past 10 years, Americans have been forced to face real­i­ty: Death penal­ty laws are deeply flawed.

More than 100 death row inhab­i­tants have been freed after their con­vic­tions were over­turned, many of them exon­er­at­ed by DNA evi­dence that con­clu­sive­ly proves their inno­cence. Years, some­times decades, pass between con­vic­tion and exe­cu­tion. And exe­cu­tions grue­some­ly botched have many recoil­ing in horror.

Why are Americans turn­ing away from this ves­tige of fron­tier jus­tice? One pos­si­ble expla­na­tion is the grow­ing inter­na­tion­al pres­sure on the United States as the last indus­tri­al­ized nation to so enthu­si­as­ti­cal­ly apply the death penal­ty. But a more like­ly the­o­ry hits clos­er to home. The con­tin­u­ing spate of sto­ries about inequities in the way the death penal­ty in admin­is­tered has forced many to con­sid­er whether the notion of ret­ribu­tive jus­tice is itself fundamentally flawed.

The myth that cap­i­tal pun­ish­ment is a deter­rent has been explod­ed. Death penal­ty pro­po­nents argue that over the past 10 years, the num­ber of exe­cu­tions increased while mur­der rates have decreased. But that’s true in states that don’t have the death penal­ty — and on aver­age, their mur­der rates are drop­ping faster than they are in the states that still exe­cute, the Death Penalty Information Center reports.

The oth­er like­ly con­trib­u­tor is the num­ber of death sen­tences over­turned, a sta­tis­tic that throws the per­ma­nent, irrev­o­ca­ble nature of the death penal­ty into sharp focus. As DNA evi­dence has freed increas­ing num­bers of inmates, the num­ber of Americans who say they favor the death penal­ty has remained fair­ly sta­ble — but the num­ber of Americans who say they oppose the death penal­ty has steadi­ly increased. While 60 to 70% of Americans say they approve of the death penal­ty, the num­ber drops to about half when they are asked to choose between death and life in prison without parole.

This grow­ing uneasi­ness about the death penal­ty is already bear­ing fruit. Last month, President Bush signed the Justice For All Act, which (among oth­er things) pro­vides more hope to inmates await­ing DNA tests that could prove their inno­cence. The act does not go far enough — it lim­its access to oth­er sci­en­tif­ic tests, for exam­ple — but it will pro­vide $25 mil­lion to states over the next five years to con­duct post-con­vic­tion DNA tests.

Yet too many death penal­ty inmates are still tried, con­vict­ed and sen­tenced in states that deny them ade­quate legal rep­re­sen­ta­tion. Without a com­pe­tent lawyer at tri­al, the accused lose much of their abil­i­ty to appeal wrongful convictions.

A bet­ter solu­tion — the right solu­tion — is to rec­og­nize the death penal­ty for what it is — inef­fi­cient, inef­fec­tive, expen­sive, slow, unjust and moral­ly rep­re­hen­si­ble — and abol­ish it now, rather than wait for it to with­er away. (Daytona Beach News-Journal Editorial, November 17, 2004).

Colorado’s Denver Post

It’s prob­a­bly too ear­ly to call it a rad­i­cal change, but there’s a flick­er of hope that American soci­ety is com­ing to think of cap­i­tal pun­ish­ment as a cru­el anachronism.…[A] new report has found that the num­ber of death ver­dicts hit a 27-year low last year. Possible fac­tors include the exon­er­a­tion of about 100 death-row inmates and the fact that jurors now have the option of impos­ing life with­out parole in 47 states.
…
Despite sup­port in pub­lic-opin­ion sur­veys, jurors seem less enthu­si­as­tic about cap­i­tal pun­ish­ment. ​“I’m not sur­prised at the reluc­tance on the part of American juries to impose the death penal­ty,” said U.S. District Judge John Kane, who spec­u­lat­ed that some death-penal­ty jurors may hes­i­tate because of news reports and tele­vi­sion shows about errors in death-penalty cases.

Over time, the Supreme Court has nar­rowed appli­ca­tion of the death penal­ty, ban­ning exe­cu­tion of the men­tal­ly retard­ed, for exam­ple. Early this year, the court agreed to re-exam­ine exe­cu­tion of defen­dants who were juve­niles when their crimes were committed.

The Post has opposed cap­i­tal pun­ish­ment since 1965. Perhaps grow­ing antipa­thy for actu­al­ly impos­ing the death penal­ty will some­day lead the court to con­clude that it has tru­ly become a ​“cru­el and unusu­al pun­ish­ment” and ban it alto­geth­er. (Denver Post Editorial, November 21, 2004).

See Editorials. See also Costs, Deterrence, and Representation.

Former Missouri Chief Justice Reiterates His Concerns About Capital Punishment

Former Missouri Supreme Court Chief Justice Charles Blackmar