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According to Steve Bright, director of the Southern Centre for Human Rights in Atlanta, `the presence or absence of good legal representation is the most crucial determinant in most cases of whether death will be imposed'.' According to The Chicago Tribune on 14 November 1999, `the Illinois Supreme Court has upheld scores of death sentences while forgiving trial errors that benefited prosecutors, dismissing the errors as harmless'. According to the ruling, federal appeal courts sit `to ensure individuals are not imprisoned in violation of the Constitution, not to correct errors of fact'.4 Questioned on the ruling, the Assistant Attorney General of Texas revealed the extent of her commitment to the execution process. According to the Columbia Study, Coleman was one of numerous prisoners executed because their claims that they had been sentenced to death in violation of the Constitution failed to meet a procedural requirement of the state in question and was consequently disregarded by both state and federal courts.
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A recent statistical study of American capital appeals reveals a death penalty system `collapsing under the weight of its own mistakes.
The 1987 documentary, `Fourteen Days in May', was the result of an extraordinary permission that gave the BBC access to the last fourteen days in the life of a young black death row inmate, Edward Earl Johnson. Johnson was twenty-eight and had been sent to Parchman Penitentiary, Mississippi, at the age of eighteen to await death by lethal gas. He was a devout Christian. Don Cabana, governor of the prison, experienced a deep sense of conflict about his role in the execution and tried to make Johnson's final days more humane. The documentary begins with his powerfully worded warning to prison staff not to taunt the prisoner. Another early scene shows the execution team testing the gas chamber out on a rabbit. The rabbit leaps in violent contortions before expiring. An unhandcuffed Johnson is filmed helpfully assisting prison staff move his belongings closer to the place of execution. The documentary reveals how much many of the inmates and guards liked him.
Members of the prison staff appear doubtful about whether Johnson is guilty. On the day of the execution, the prison chaplain responds to the dreadful question, `You're saying that, in your opinion, an innocent man is going to go to the gas chamber tonight?' with the words, 'I believe that, yes sir'. The television crew were deeply moved by Johnson's selflessness and calm. Increasingly, they were appalled by the conviction that they were filming the last hours of an innocent man. Thirty minutes before the execution took place, they were obliged to leave. As they did so, the producer embraced Johnson on film.
Johnson asserts on the documentary, as he had always done, that his confession to the murder of a white police officer in 1979 was forced from him in deserted woodland where police threatened to shoot him. (Research conducted by Amnesty International indicates that confessions have been coerced by police officers in the United States.) The only eye-witness to the shooting initially cleared Johnson but later changed her statement to agree with his confession. Johnson came from a poor family and his representation at the trial was inadequate. Late in the appeal process, the expert capital defence attorney, Clive Stafford Smith, took on the case and identified legal errors made by Johnson's first lawyers that had resulted in the failure of the earlier appeals. After Johnson's execution, his defence discovered that a black woman had come forward to provide him with an alibi at his trial but had been told by a white law enforcement officer at the court-house to go away. At the time of his arrest, Johnson did not have a criminal record.
Edward Earl Johnson was executed by lethal gas on 20 May 1987. He maintained his innocence in his final statement and forgave everyone. Don Cabana subsequently became an outspoken abolitionist, haunted by the suspicion that Johnson had been innocent. In an open letter to President Clinton published in 1994, Amnesty quoted the case to support the contention that innocent people appear to have been executed in America.
Edward Earl Johnson had not been proven guilty. He was a poor black man in a Southern community where a black man was believed to have killed a white policeman. Race has been statistically proven to be a factor in the allocation of death sentences in the USA. Most of the people executed have been convicted for the murder of a white victim, despite the fact that the number of whites and blacks who are murdered is about equal. A study of sentencing patterns in Georgia revealed that the chance of a black person being sentenced to death for the murder of someone white was eleven times higher than in cases where the defendant was white and the victim black.
Prosecutors have frequently excluded black people from juries to create all-white juries in capital cases where there was a black defendant.
The destruction of safeguards
The first statistical study of American capital appeals was published last year by the Columbia Law School. The report, which covered the working of the appeal process between 1973 and 1995, concluded:
Our twenty-three years worth of results reveal a death penalty system collapsing under the weight of its own mistakes. They reveal a system in which lives and public order are at stake, yet for decades has made more mistakes than we would tolerate in far less important activities.
The present outcry about the possibility of innocent people being executed in the USA is long overdue. The American Government and legal system have acted steadily in recent years to destroy safeguards through which wrongly convicted people on death row might have received help. Sometimes these decisions have come from the highest court in the land, the Supreme Court.
Poor people, not rich people, end up on death row because they cannot afford a good defence. According to Steve Bright, director of the Southern Centre for Human Rights in Atlanta, `the presence or absence of good legal representation is the most crucial determinant in most cases of whether death will be imposed'.' Capital defence attorneys are poorly paid and have, therefore, no financial incentive to do the enormous amount of research that their work requires. They are frequently inexperienced and unequipped to deal with the complexity of capital law. The prosecution, on the other hand, often possesses experience and funds.
American prosecutors habitually use the testimony of co-defendants in capital trials in exchange for a reduced sentence or acquittal. In many capital trials, the key testimony has been provided by an inmate who had been imprisoned with the defendant and claimed to hear him confess. This kind of evidence is notoriously untrustworthy. Types of prosecutorial misconduct that have been recorded include the suppression of evidence that indicated innocence and the use of false evidence in order to procure a conviction. The Columbia study maintained that an incompetent defence and prosecutorial suppression of evidence that would benefit the defence are two of the most common serious errors which occur at trial, `serious error' meaning error that calls the conviction or sentence into question.
After a defendant has been sentenced to death in the USA, he is presumed guilty. Contrary to the way in which it is often perceived, the appeal system exists to ensure that correct legal procedure has been followed, rather than to re-address questions about innocence directly. The trials of a great many death-row inmates are in fact flawed according to procedural standards. The Columbia study concluded that overall the courts had found serious error in sixty-eight per cent of all capital sentences fully reviewed between 1973 and 1995 and had reversed the sentence of death accordingly. Of these defendants, seven per cent were found on retrial to be innocent. `Almost inevitably' the report concluded, some error must go uncaught and uncorrected.
Faced with a high error rate it is, arguably, convenient for the appeal courts to judge that some error is not sufficiently serious to merit reversal. The Supreme Court gave a lead on this question when it ruled in 1984 that appeals based on mistakes made by the defence at trial did not justify a reversal of the sentence or conviction unless it could be proved that the actual verdict at trial had been affected by the said error. In other words, the burden of proof placed on the defendant had been made unrealistically high. A doctrine of `harmless error' emerged in consequence.
The Texas Court of Criminal Appeals, for example, has upheld death sentences in cases where the lawyer for the defence slept during the trial. According to The Chicago Tribune on 14 November 1999, `the Illinois Supreme Court has upheld scores of death sentences while forgiving trial errors that benefited prosecutors, dismissing the errors as harmless'. In its ruling, the Supreme Court condoned compromise within a process that claims human lives: `the government is not responsible for, and hence not able to prevent, attorney errors'.2
Late innocence claims
The fact that the trial of a death row inmate has satisfied procedural requirements does not in itself, of course, guarantee that he is guilty. The Supreme Court was obliged to weigh the possible innocence of an inmate against his procedurally correct trial when it ruled in 1993 on the case of Leonel Herrera. Herrera was a Latin-American death row inmate in Texas on the point of execution for, allegedly, killing a Latin-American victim. Herrera did not allege that there had been a procedural fault at his trial. He claimed that he was innocent and that he now had the evidence he needed to prove it. When the case came before the Supreme Court, no appeal court had addressed the late innocence claims because they were not linked to a claim about procedure. Additionally, the Texas time-limit for new evidence of innocence claims had expired. The Supreme Court of America was required to determine whether the American Constitution permitted the execution of an innocent person. The Supreme Court found itself unable to arrive at a straightforward conclusion. It judged `that there was no constitutional right to federal relief based on newly discovered evidence of actual innocence where the original trial had been free from procedural error'.3
In order to succeed, a late innocence claim had to prove that a violation of the Constitution had occurred at trial. According to the ruling, federal appeal courts sit `to ensure individuals are not imprisoned in violation of the Constitution, not to correct errors of fact'.4 Questioned on the ruling, the Assistant Attorney General of Texas revealed the extent of her commitment to the execution process. She was asked, `Suppose you have a videotape which conclusively shows the person is innocent, and you have a state which, as a matter of policy or law, simply does not hear new evidence claims, is there a federal constitutional violation?' She answered, `No, Your Honour, there is not ... such an execution would not be violative of the Constitution'.5
The Supreme Court denied Herrera's appeal by six votes to three, creating a disastrous precedent for death row inmates with late claims of innocence. The appeal was Herrera's last. He was executed by lethal injection on 12 May 1993 and died protesting his innocence.
Earlier, in 1992, the Supreme Court had helped establish a precedent whereby a death row inmate could lose his right to federal court review because a procedural requirement of the state courts had unintentionally been violated by the defence. Roger Coleman was a white indigent death row inmate in Virginia accused of killing a white victim. His defence at trial was inadequate. His initial appeal was dismissed by the Virginia Supreme Court because his attorneys, who were competent but unaware of certain procedural laws in Virginia, inadvertently filed it a day late. The federal courts concluded that Coleman had forfeited his right to appeal on constitutional issues, a decision that the Supreme Court upheld.
Justifying its decision, the Supreme Court referred to the need to spare the state courts and court officials from enduring inconvenience. Coleman died on 22 May 1992, in the electric chair. He protested his innocence in his final statement. The appeal which every court had refused to review contained new evidence which suggested he could be innocent. According to the Columbia Study, Coleman was one of numerous prisoners executed because their claims that they had been sentenced to death in violation of the Constitution failed to meet a procedural requirement of the state in question and was consequently disregarded by both state and federal courts.
In 1993, a subcommittee of the US Congress concluded:
Americans are justifiably concerned about the possibility that an innocent person may be executed. Capital punishment in the United States today provides no reliable safeguards against this danger. Errors can and have been made repeatedly in the trial of death penalty cases because of poor representation, racial prejudice, prosecutorial misconduct, or simply the presentation of erroneous evidence. Once convicted, a death row inmate faces serious obstacles in convincing any tribunal that he is innocent.6
In 1988, Congress had established Capital Resource Centres to guarantee that death row inmates would receive adequate legal representation during the state and federal habeas corpus appeal process, a move which partly met the desperate need for legal assistance at these stages. Habeas corpus appeals follow the first stage of the appeal process, the state direct appeal. The direct appeal is the only stage at which an inmate is legally entitled to a defence. The centres were enormously successful and led to a reversal of about forty per cent of all death sentences under habeas corpus review. Competent lawyers were able to expose the inadequacy of the defence that many death row inmates had received at trial. In 1995, allegedly in response to this high success rate, Congress abolished the entire twenty million dollars funding that had been allocated to the centres, forcing most of them to close. Thus Congress increased the risk of executing innocent people that its own subcommittee had identified.
Speeding up the process
In 1994, President Clinton signed the Federal Death Penalty Act, an act which massively expanded the federal death penalty. He signed the Anti-Terrorism and Effective Death Penalty Act in 1996 which deprived the federal courts of their power to overturn the decisions of the state courts except in very rare circumstances and severely restricted an inmate's right to federal court review. The act aimed to increase the pace of executions in the United States. It was passed despite fears voiced directly by Amnesty to the President that the appeal process was already failing to protect the innocent and that the measure would cause the situation to deteriorate still further. According to 'Newsweek' on 12 June 2000, the Act placed death row inmates `in an agonising Catch-22'. After the first stage in the appeal process has finished, the Act requires applications for federal court review to be submitted within twelve months. But at this stage inmates are no longer legally entitled to an attorney and are often without legal help.
Individual states, also, have sought to speed up the appeal process. Many American governors have supported legislation which restricts the access death row inmates have to the appeal courts. When an execution occurs, the same governors will then place the responsibility squarely on the shoulders of the courts whose powers they have restricted. For example, President George Bush Jnr., when Governor of Texas, responded to recent allegations that Gary Graham was innocent with the words, `I'm going to uphold the laws of the land'.7 Graham was an indigent black man accused of killing a white man. He was convicted on the dubious testimony of one witness, without an adequate defence. In 1995, Bush had signed a bill to speed up the appeal process in Texas. In 1999, he vetoed a bill that had been passed by the legislature in Texas which would have improved the quality of legal defence available to poor people. Graham died by lethal injection on 23 June 2000, protesting his innocence.
The Columbia study commented on the policy of speeding up appeal processes with the words:
The high rates of error found at each stage, including even at the last stage, and the persistence of high error rates over time and across the nation, confirm the need for multiple judicial inspections. Without compensating changes at the front-end of the process, the contrary policy of cutting back on judicial inspection, makes no more sense than responding to the insolvency of the Social Security system by forbidding it to be audited.
The Effective Death Penalty Act was challenged by Ellis Felker, a white death row inmate in Georgia who had powerful evidence of innocence. The Supreme Court hastily gathered in the summer of 1996 to address the challenge before its end of term recess and summarily denied it. The Act, it judged, was constitutional. Four dissenting judges objected to this haste as `both unnecessary and profoundly unwise'. A little earlier, a former Justice of the Supreme Court, William Brennan, had observed, `The state does not honour the victim by emulating his murderer. Capital punishment's fatal flaw is that it treats people as objects to be toyed with and discarded.'8 Felker died on 15 November 1996, in the electric chair.
In July 1997, the Death Penalty Information Centre at Washington published this conclusion,
Some courts have now taken the position that it is permissible for executions to go forward even in the face of considerable doubt about the defendant's guilt. The current emphasis on faster executions, less resources for the defence and an expansion in the number of death cases mean that the execution of innocent people is inevitable.
Politics and change
Only a small percentage of convicted murderers are put to death in the USA, but the death penalty has become a powerful political tool. American politicians have relied on the capital punishment issue to win elections. Many of them believe that moral independence on this issue is incompatible with success and that without a pro-death penalty platform they will fail. On 21 April 1996, The Observer published an interview in which Howard Marsellus, former chairman of the Pardons Board in Louisiana, courageously admitted that he had failed to save Timothy Baldwin from the electric chair in 1984, despite believing in his innocence. He acted under political pressure.
What I did was totally wrong. I lacked the courage to vote on the basis of how I felt and what I believed. I gave in to the prestige and power, the things that went with my job. I knew what the Governor, the man who had appointed me, wanted: no recommendation for clemency in any death case.
In the United States, trial judges, appeal court judges, prosecutors, sheriffs and state governors are elected. In other words they are under pressure to make decisions that are popular. Timothy Baldwin died in the electric chair on 10 September 1984. He maintained his innocence in his final statement. The clemency petitions of all six death row inmates who came before the Pardons Board under Marsellus were denied. According to Amnesty, executive clemency fails to fulfil its function of providing a final safeguard in the United States.
Marsellus was not alone in acting against his moral persuasion. Speaking on a 1998 BBC1 Everyman programme, Nick Trenticosta, a capital defence attorney in Louisiana said, `Politicians use the death penalty as a political tool and there are many politicians in this state who quite honestly will tell you that. "If I don't seek death in this case, I may not be re-- elected".' The price of many private defections can be collective adherence to a failing system. Politicians have frequently expressed an assurance that the system is foolproof which has no basis whatsoever in the facts. After Ellis Felker's execution, the Attorney General of Georgia, Michael Bowers, said, `There is rarely any question about the guilt of these people, virtually none. That is a myth ... these guys on death row are the pits.'9
Inconsistently, Bowers has also suggested that the risk of executing someone innocent is tolerable. Referring to the acceleration of the appeals process in Georgia, he commented, 'I tell folks that if they want appeals limited to two or three years, some time we'll execute the wrong person. Of course we will. We're human. But it's a question of will." It is not only the callousness of such a statement that is startling, but the apparent assurance that it can be uttered in public with immunity. Many politicians in the USA have exhibited a confidence that it is politically safe to be pro-death penalty, to the point of recklessness. It is a confidence that in recent months has finally started to be misplaced, as George Bush Jnr., the Republican candidate and exponent of `compassionate conservatism' discovered in his Presidential campaign.
In recent years the rate of crime and support for the death penalty in the USA have dropped. In February 1999, a black death row inmate, Anthony Porter, was released after his innocence had been proved by a class of students at North-western University's Medill school of journalism. The students had obtained a videotaped confession from the actual murderer. Porter's defence at trial was inadequate but the mistakes that had been made by his lawyers were dismissed by the appeal courts as `harmless error'. The Illinois Supreme Court judged the case against Porter to be 'overwhelming'. Porter was one of thirteen innocent men to be released from death row in Illinois since Illinois reinstated the death penalty in 1977. A student on the journalism team, Shawn Armburst, commented, `That's not how the system is supposed to work. Twenty-one-year-olds are not supposed to be responsible for finding the innocent people on death row.'11
On 31 January 2000, the Republican Governor, George Ryan, announced a moratorium on executions in the state of Illinois until he could be morally certain there were no more innocent people on death row. (The Columbia study found that the rate of serious error in Illinois was in fact slightly lower than the national average.) This moratorium was the first since the Supreme Court announced a moratorium on executions in 1972 on the grounds that the death penalty was unfair. The Supreme Court permitted the reinstatement of revised, supposedly fair, death penalty statutes in 1976.
In April 2000, two bills were introduced in Congress calling for a temporary moratorium on executions at both state and federal levels while the present system was assessed. Another bill, the Innocence Protection Act of 2000, sponsored by Senator Patrick Leahy, would undertake to protect innocent people from execution by, among other proposals, making DNA testing available to all convicted criminals and improving the quality of defence in capital cases.. Most states do not give inmates the right to DNA testing, despite its power to establish innocence or guilt. On 1 February 2000, Leahy defended the Innocence Protection Act before the US Senate.
The States have had decades to fix their capital punishment systems. Yet the best they have managed is a system fraught with arbitrariness and error, where innocent people are sentenced to death on a regular basis, and it is left not to the courts, not to the States, not to the Federal Government, but to film-makers and college undergraduates to correct the mistakes. What about the Supreme Court? In 1993, it could not even make up its mind whether the execution of an innocent person would be unconstitutional.12
If the bills are successful, they could lead to an attempt to implement a fairer death penalty. In July 2000, President Clinton decided to postpone the first execution by the Federal Government and to review the cases of all the prisoners on the federal death row. Politicians are discovering that caution towards the death penalty, or at least the appearance of it, is more in keeping with American's present mood than the aggressive attitude of recent years. If the concept of a fairly administered death penalty is where political opportunities lie, it is here that American politicians will make their political investment.
DNA testing could lend credibility to their platform, for those whose only moral objection to carrying out executions is the risk of killing someone innocent. DNA testing would not, however, resolve every case. It remains highly questionable, moreover, whether a system that has proved notoriously incapable of reform could ever rid itself of racism, discrimination against the poor, corruption, contempt for life and political self-- interest. Abolition is the only true acknowledgement of Edward Earl Johnson and others whose lives were exacted by the system's concept of convenience.
Notes
1. `Competently defending those facing death does not lend legitimacy to capital punishment', Life Lines Quarterly Newsletter, The Wing of Friendship. Summer 1998.
2. Fatal flaws: Innocence and the Death Penalty, published by Amnesty International, November 1998.
3. USA: Developments on the death penalty during 1993, published by Amnesty International, March 1994.
4. See note two.
5. See note two.
6. See note two.
7. The Daily Telegraph, 23 June 2000.
8. New York Times, 28 April 1996.
9. USA: Death Penalty Developments in 1996, published by Amnesty International, March 1997.
10. Newsweek, 7 August 1995.
11. Catholics Against Capital Punishment, Newsletter, 5 May 2000.
12. See note 11.
Ruth Evans is a sister in the Poor Clare Community, Woodchester, Stroud, Gloucestershire.
Copyright The Month Mar 2001