Mistakes in Death Sentencing

Mistakes in Death Sentencing

DPIC Website:

DPIC webpage - InnocenceOld Report - July 1997But still useful ....

Lawyers’ perspective


DPIC points to a number of issues:

The great pressure on police/prosecutors to "solve" the most notorious murders in a community - often terrible cases

Lack of eyewitness testimony (the “gold standard” for lawyers and trials – but actually very unreliable – based on huge amount of research!!)


Heightened publicity

"Death qualified" juries

Limited resources of defense attorney (understatement!!)


Appeals don’t help:

Presumption of guilt following convictionAppeals focus on procedures, not substantive

Limits on introduction of new evidence


Kirk Bloodsworth video15 minutes

Illinois Video15 minutes


MISTAKES

Three kinds of doubtful cases -

not all involve actually innocent defendants:


1. Legal-technical “errors” -- probably guilty -- but problems with fair trial issues

(e.g., Texas brother/sister case)


2. Weak evidence + sham trial

-- some evidence of guilt, but sham trial

don’t know whether they really did it or not

(e.g., “sleeping lawyer” cases in Texas Ray Krone case in Arizona))


3. “Wrong person” mistakes -- innocent people convicted

100+ prisoners released post-Furman, mostly because of DNA and other physical evidence.

(Some based on reinvestigation – cases overturned on appeal and re-investigation exposes weak evidence of

guilt and little/no chance of conviction in a real trial)


How many mistakes (innocent people)?

My estimate (based on Arizona study/data): at least 10% of all death sentences

300+ innocent people now on death row

Most will never be discovered!!


???

Confessions

Co-defendant

Etc.

???

Circumstantial

Eyewitness

DNA

Physical

Evidence


How and Why do they happen?

Three factors:

1. Some “evidence” 2. “Belief” 3. Weak defense


1. Some evidence

(usually little or no reliable physical evidence in mistake cases)


Crime-centered vs. Suspect-centered police investigation

(police “belief” a major factor)

e.g., OJ Simpson, Scott Peterson

(Note: why suspect centered vs evidence centered?)


Role of prosecutor --

convert police “probable cause” to

“beyond a reasonable doubt”

Sham trials make this easy!


Circumstantial evidence

Witness identifications (notoriously unreliable)

False confessions (and “facts only the killer could know”)

Co-defendant and “snitch” confessions (bargaining)


2. Prosecutor “belief”

(also police, survivors, juries, public, victims families, etc.)

Irrational “beliefs” have become a major cultural phenomenon in America – why educators focus somuch on “critical thinking” skills


"Getting committed” to a defendant --

"bad guys" and getting "justice" for the victims family.


Manipulating evidence --

do anything to keep the "bad guy" from getting off.


“Costs” of backing away once committed

let down the victims familyusually have already “bent the rules”loss of status and prestigeetc.


“The ratchet” --

blind belief + the awful consequences of doubt.


3. Weak defense

not consistentno lawyer who “knows the case”inexperience, low pay, etc.no resources for investigation


Inadequate discovery process

(allows prosecutors to manipulate evidence)

Note: the “Waiver” and discovery


No independent investigation ---

no answer from the defense makes even weak evidence seem convincing to juries

Only hear one side of case, one version of the “evidence”


Weak defense at trial

short trialsno independent defense evidenceno mitigating evidence at sentencing

Sham trials!!


Lack of appeals groundwork

problems must be in trial record for appeals process to work

the Waiver


Note: juries often notice problems but think that appeals process will correct mistakes


In a system with completely inadequate defense, prosecutors are the key problem.

The process would be somewhat better if prosecutors held to ideal of “justice” instead of focus on conviction rates.

Election of prosecutors undermines this - Warps & politicizes prosecutors position


Personal characteristics of prosecutors justice/fair trial vs. “getting bad guys”

Power -- unlimited power undermines the adversary nature of system

("unequal playing field")


Politics --

of particular casesof prosecutors public postureof the DP itself

Peer pressure -- elite of prosecutors, can’t acknowledge mistakes.


Career “politics” --

elite of prosecutors - fast track for higher office

(judge, governor, attorney general, etc.)


The appeals process does almost nothing (usually an obstacle!!) to correct mistakes & commutes are politically unworkable.


Bottom Line: mistakes are systemic, and virtually inevitable.


Note:

this is main dilemma related to speeding up the appeals process -- virtually guarantees execution of innocent people

Mistakes in Death Sentencing

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