Innocence and the Death Penalty

Troy Davis was executed Sept. 21 in Georgia despite serious doubts about his guilt. Davis was convicted of the 1989 murder of a police officer in Savannah, and always maintained his innocence. A lot of innocent people have been convicted of crimes. Most are guilty, but some aren’t.

Having been a prosecutor for some 10 years and a criminal defense attorney for about 17 years the state of the criminal justice system in the United States raises some significant concerns. I have reviewed thousands of police reports to decide whether to file criminal complaints and what charges would be alleged against people. Being formally charged with a criminal offense results in much turmoil to the accused person and their family. Prosecutors have unlimited power in deciding who to charge and what to charge.

Reading and analyzing police reports in making charging decisions is a process. First, in my method, the decision initially poses the question, did this person commit the crime(s)? Second, if yes, the next question follows, is there sufficient admissible evidence that can be expected to unanimously convince twelve jurors, beyond a reasonable doubt, the person is guilty of the crime? If the answer to both questions is yes, then the complaint is filed. The next task is to prosecute the case. Many books have been written about how to effectively convince a jury of guilt. It is an occupation of art, science and common sense.

Yet the criminal justice system isn’t perfect, largely because of the nature of human beings. The law, in most cases, is precise. But jurors have emotions that affect the facts presented during trial. Judges, prosecutors, and defense attorneys have emotions too.

As of 23 January 2011, 266 people previously convicted of serious crimes in the United States had been exonerated by DNA testing since 1989. Almost all of the convictions related to charges of some form of sexual assault and approximately 25% involved murder. Experts say DNA testing is possible in just 5-10% of all criminal cases. Innocence can be established based on factual evidence, such as DNA. But additionally people can be convicted because of miscarriage of justice. Miscarriage of justice doesn’t necessarily mean factual innocence. It can be for such things as a plea bargain that offers an incentive to the innocent to plead guilty, withholding or destruction of evidence, faulty forensic tests, false confessions, or perjured evidence.

The Innocence Project was established in the wake of a landmark study by the United States Department of Justice and the United States Senate, in conjunction with the Benjamin N. Cardozo School of Law, which found that incorrect identification by eyewitnesses was a factor in over 70% of wrongful convictions. (See also). The original Innocence Project was founded in 1992 by lawyers Barry Scheck and Peter Neufeld as part of the Cardozo School.

In 2007, after an investigation begun by The Innocence Project, James Calvin Tillman was exonerated after serving 18 years in prison for a rape he did not commit. His sentence was 45 years.

In December 2009, James Bain was exonerated by DNA testing for a kidnapping, burglary, and rape he did not commit. Bain’s appeal had previously been denied four separate times. His 35-year imprisonment made him the longest-incarcerated victim of a wrongful conviction to be freed through DNA evidence. Even appellate courts are not perfect.

In June 2010, Barry Gibbs was awarded the largest civil rights settlement by the City of New York to date of $9.9 million. He received an additional $1.9 million settlement from New York State in late 2009. He was wrongly convicted of the 1986 murder of prostitute Virginia Robertson based on coerced testimony by a witness during the investigation by detective Louis Eppolito. Gibbs’ original sentence was 20 years to life for the murder, of which he served just under 19 years. Gibbs never expressed remorse for his crime to the parole board, on the grounds that he was innocent and had no remorse. Every two years at his review, the board denied his parole because of his lack of remorse. Gibbs was exonerated in 2006 with help from the Innocence Project. In addition, the conviction of former detective Eppolito for his sideline as a mob hit man and the change in testimony by a witness in Gibbs’ case helped him.

In September 2010, days before he was to be executed, Kevin Keith was granted clemency by Ohio Governor Ted Stricklandthanks in part to Ohio’s Innocent Project.

A Gallup poll found in 2010 found that 64% of Americans favor capital punishment in murder cases and 29% oppose it. The percentage of those who support the death penalty drops when life without parole is an option. Only nine states do not have a death penalty statute. Nevada does.

The argument that the death penalty is a deterrent to murder is a fallacy. Murders continue in states that still use the death penalty. Life in prison without parole is a better option in my own view.