Jewish World Review April 6, 2000 / 1 Nissan, 5760
A must-read horror book
"Don't you worry about it," said the Oklahoma prosecutor to the defense attorney. "We're gonna needle your client. You know, lethal injection, the needle. We're going to needle Robert."
Oklahoma almost did. Robert Miller spent nine years on death row, during six of which the state had DNA test results proving his sperm was not that of the man who raped and killed the 92-year-old woman. The prosecutor said the tests only proved that another man had been with Miller during the crime. Finally, the weight of scientific evidence, wielded by an implacable defense attorney, got Miller released and another man indicted.
You could fill a book with such hair-curling true stories of blighted lives and justice traduced. Three authors have filled one. It should change the argument about capital punishment and other aspects of the criminal justice system. Conservatives, especially, should draw this lesson from the book: Capital punishment, like the rest of the criminal justice system, is a government program, so skepticism is in order.
Horror, too, is a reasonable response to what Barry Scheck, Peter Neufeld and Jim Dwyer demonstrate in "Actual Innocence: Five Days to Execution and Other Dispatches from the Wrongly Convicted." You will not soon read a more frightening book. It is a catalog of appalling miscarriages of justice, some of them nearly lethal. Their cumulative weight compels the conclusion that many innocent people are in prison, and some innocent people have been executed.
Scheck and Neufeld (both members of O. J. Simpson's "dream team" of defense attorneys) founded the pro-bono Innocence Project at the Benjamin N. Cardozo School of Law in New York to aid persons who convincingly claim to have been wrongly convicted. Dwyer, winner of two Pulitzer Prizes, is a columnist for the New York Daily News. Their book is a heartbreaking and infuriating compendium of stories of lives ruined by:
Forensic fraud, such as that by the medical examiner who, in one death report, included the weight of the gallbladder and spleen of a man from whom both organs had been surgically removed long ago.
Mistaken identifications by eyewitnesses or victims, which contributed to 84 percent of the convictions overturned by the Innocence Project's DNA exonerations.
Criminal investigations, especially of the most heinous crimes, that become "echo chambers" in which, because of the normal human craving for retribution, the perceptions of prosecutors and jurors are shaped by what they want to be true. (The authors cite evidence that most juries will convict even when admissions have been repudiated by the defendant and contradicted by physical evidence.)
The sinister culture of jailhouse snitches, who earn reduced sentences by fabricating "admissions" by fellow inmates to unsolved crimes.
Incompetent defense representation, such as that by the Kentucky attorney in a capital case who gave his business address as Kelley's Keg tavern.
The list of ways the criminal justice system misfires could be extended, but some numbers tell the most serious story:
In the 24 years since the resumption of executions under Supreme Court guidelines, about 620 have occurred, but 87 condemned persons--one for every seven executed--had their convictions vacated by exonerating evidence. In eight of these cases, and in many more exonerations not involving death row inmates, the evidence was from DNA.
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One inescapable inference from these numbers is that some of the 620 persons executed were innocent. Which is why, after the exoneration of 13 prisoners on Illinois' death row since 1987, for reasons including exculpatory DNA evidence, Gov. George Ryan, a Republican, has imposed a moratorium on executions.
Scheck, Neufeld and Dwyer note that when a plane crashes, an intensive investigation is undertaken to locate the cause and prevent recurrences. Why is there no comparable urgency about demonstrable, multiplying failures in the criminal justice system? They recommend many reforms, especially pertaining to the use of DNA and the prevention of forensic incompetence and fraud. Sen. Patrick Leahy's Innocence Protection Act would enable inmates to get DNA testing pertinent to a conviction or death sentence, and ensure that courts will hear resulting evidence.
The good news is that science can increasingly serve the defense of innocence. But there is other news.
Two powerful arguments for capital punishment are that it saves lives, if its deterrence effect is not vitiated by sporadic implementation, and it heightens society's valuation of life by expressing proportionate anger at the taking of life. But that valuation is lowered by careless or corrupt administration of capital punishment, which "Actual Innocence" powerfully suggests is intolerably
Comment on JWR contributor George Will's column by clicking here.
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