New Voices - Prosecutors and Attorneys

One Year Later, New Jersey Prosecutors Find No Problem with Abolition of Death Penalty

In December 2007, New Jersey became the first state to legislatively abolish the death penalty in 40 years. In commenting on the absence of capital punishment for one year, a number of state prosecutors found no problems with the new system.  "We have not viewed it as an impediment in the disposition of murder cases," said Hudson County Prosecutor Edward DeFazio, who served on a state study commission that reviewed the death penalty. "As a practical matter, we have really seen no difference in the way we conduct our business in prosecuting murder cases."

Essex County Prosecutor Paula Dow, head of the state association of county prosecutors, said eliminating the death penalty has not hindered prosecutors in pursuing tough sentences for the most violent offenders.

"We are still seeing very aggressive sentences," Dow said, citing instances in which judges have imposed life sentences for murder. Even when the sentence is life instead of life without parole, society is being protected.  Dow noted that a life sentence is 75 years in prison, 85 percent of which must be served without parole. "That's almost the penultimate penalty," she said.

Under the old system, some prosecutors felt pressured to seek the death penalty, despite the lengthy, expensive trials and prolonged appeals.  "It was a very big drain on the limited resources of law enforcement," Dow said. "There were long delays in the resolution of the cases, multiple appeals and very high costs associated with the handling of the litigation."

Victims representative Richard Pompelio agreed, "I don't think it's made much of a difference at all other than that some of the cases that were languishing out there are now getting tried," he said.  Pompelio is the executive director of the New Jersey Crime Victims Law Center. "The important thing for crime victims is that the process have an end, and with the death penalty there never was an end," he noted.

According to the New Jersey Star-Ledger, of the 23 capital punishment cases pending when the death penalty was repealed, seven have thus far resulted in sentences of life without parole. Four other defendants, including three who pleaded guilty, received sentences such as 50 years, 30 years with no parole, and four consecutive life sentences. Twelve cases are pending.

(R. Larini, "A year later, state assesses justice without death penalty," N.J. Star-Ledger,December 15, 2008). See Recent Legislation.

Washington State's Death Penalty Part of a Broken System

Hauge pursued the death penalty only once and the jury returned a split verdict resulting in a sentence of life in prison. Because Washington death penalty cases take so long, Hauge said, “You’re not going to see any expansion of [the death penalty].” In regard to the appeals process, he said, “I think we’re going to continue to live like this,” as the courts try to ensure they do not make a deadly mistake.

Defense attorney Ron Ness does not believe that the state should be in the business of killing people. He agreed that the capital appeals process is long but unlikely to change: "Mistakes can be made," Ness said, "And with the death penalty, there's no way to turn it around. You should have every opportunity to make sure it's the correct verdict, even if it takes 10 to 15 years." State Sen. Adam Kline, D-Seattle, believes the death penalty is too expensive and fails to lower violent crime rates in the states that use it. "It has no deterrent effect, zero," he said. "And its damned expensive."

The recently scheduled execution of Darold Stenson was stayed by both state and federal courts.

The state of Washington has carried out 4 executions in 45 years, the last one being in 2001 when James Elledge waived his appeals and was executed. Some prosecutors, legislators, and defense attorneys are questioning the value of keeping the system. Kitsap County Prosecutor Russell Hauge supports the death penalty but has decided against seeking it in a recent case because he felt the appeals process would simply never end. “In terms of justice, the worst thing that could have happened in that case is the death penalty,” explained Hauge. “It would’ve started another cycle and perhaps 20 more years of appeals, forcing the victim’s family to keep revisiting this tragedy.”

(J. Farley, “Appeals keep death row inmates fighting for life,” Kitsap Sun, November 30, 2008). See Arbitrariness.

Former Texas Prosecutor Now Opposes Death Penalty as New Study is Released on Wrongful Convictions

A former Dallas County prosecutor has abandoned his longstanding support of the death penalty and is now opposed to capital punishment based on recent exonerations in Texas and elsewhere. James Fry, who prosecuted Charles Chatman--a man recently exonerated from prison in Dallas County--said he was “shaken to the core” by the high number of exonerations throughout the nation and by evidence of flawed eyewitness testimony. Formerly a staunch supporter of capital punishment, Fry pointed to the risk of mistakes: “I don’t think the system can prove who is guilty and who is innocent,” he said in a recent interview.

More evidence of such mistakes has been revealed in a recent study by the Dallas Morning News. The paper conducted an 8-month investigation into wrongful convictions (primarily non-death penalty cases) in Dallas County, prompted by numerous exonerations, including that of Michael Blair, who was freed from Texas' death row in 2008 . DNA testing led to capital murder charges against Blair being dismissed in late August, bringing the total number of people exonerated from death row since 1973 to 130.

Dallas County District Attorney Craig Watkins recently announced that he will re-examine nearly 40 death penalty convictions and would halt executions, if necessary, to give the reviews time to proceed. "I don't want someone to be executed on my watch for something they didn't do," he explained. Earlier this year, Mr. Watkins granted a request from the Dallas Morning News to review prosecution files to analyze the root causes of the wrongful convictions. The paper’s reporters also consulted more than 70 current and former prosecutors and police officers, defense lawyers, judges, jurors and exonerees, as well as legal scholars and those who pursue wrongful conviction cases.

The News highlighted the following findings from its 8-month investigation:

•Thirteen of the 19 wrongly convicted men were black. Eight of the 13 were misidentified by victims of another race. Police investigators and prosecutors in the cases were all white, as were many of the juries of the 1980s.

•Police officers used suggestive lineup procedures, sometimes pressured victims to pick their suspect and then cleared the case once an identification was made.

•Prosecutors frequently went to trial with single-witness identifications and flimsy corroboration. Some tried to preserve shaky identifications by withholding evidence that pointed to other potential suspects.

•Judges, governed by case law that has not kept pace with developments in DNA testing or research on eyewitness testimony, routinely approved even tainted pretrial identifications as long as an eyewitness expressed certainty in court. As a result, victims who sought only justice sent innocent men to prison while the real criminals went free and committed other violent crimes. Taxpayers spent more than $3 million in compensation and incarceration for the Dallas County cases alone. And some of the discredited police practices continue to this day.

The three-part feature, including videos and more, can be viewed here.

(J. Emily, “Prosecutor in one of Dallas County’s DNA exonerations no longer supports death penalty,” Dallas Morning News, October 13, 2008; S. McGonigle, J. Emily, “18 Dallas County Cases overturned by DNA relied on heavily eyewitness testimony,” Dallas Morning News, October 12, 2008). See also Innocence, Studies

Former US Attorney Cites Improper Pressure in Use of Federal Death Penalty

Former U.S. Attorney Paul Charlton expressed relief that the Justice Department is no longer seeking to execute a defendant in the case that was cause for his termination. Charlton told the Associated Press that he did not think the government had sufficient evidence to pursue the death penalty in the prosecution of Jose Rios Rico. Charlton's boss, former Attorney General Alberto Gonzalez, wanted him to pursue it anyway and testified to a Senate panel that he fired Charlton over his “poor judgment” in the case. The present administration has reached a plea deal with Rico that takes the death penalty off the table. "A more seasoned group of individuals are reviewing these decisions now," Charlton said of the Department of Justice. Charlton also noted that the Justice Department resisted spending money to exhume a body in the Rico matter despite the fact that this would likely have helped the prosecution's case.

Charlton was one of the nine U.S. attorneys who were fired in 2006 in a controversial move by the Bush administration. Congressional investigations, an internal Justice Department inquiry, and calls on Capitol Hill for the resignation of Gonzales followed. Regarding Gonzalez, Charlton said, “Attorney General Gonzales and his deputy attorney general were primarily concerned with the dogma and political concerns that surround the death penalty as opposed to what was right.”

(C. Kahn, “Former US Attorney relieved with Ariz. Murder case,” Associated Press, September 23, 2008). See Federal Death Penalty and Arbitrariness.

Dallas D.A. to Re-Examine Death Convictions and Possibly Halt Executions

Dallas County District Attorney Craig Watkins announced that he will be reexamining nearly 40 death penalty convictions in his county. No executions will occur in the county until he has reviewed the cases in detail.  Watkins said he will start with the oldest cases as they are most likely to be scheduled first. “I’m not saying I’m putting a moratorium on the death penalty,” said Watkins. “It’s saying that maybe we should withdraw those dates and look at those cases from a new perspective to make sure that those individuals that are on death row need to be there and they need to be executed.” When citing the reasons to examine all of the death sentences his office inherited from his predecessor, he pointed to recent exonerations and problems with the prosecution in those cases.

Law professor at Southern Methodist University Fred Moss said he has never heard of another prosecutor in the country conduct such a review. “It’s really quite extraordinary,” said Moss. In Watkins’ first week in office, Patrick Waller was exonerated for a 1992 robbery-rape. The statute of limitations to prosecute the true perpetrators had passed and they couldn’t prosecute the criminals who had confessed to the crime. Watkin’s predecessor, D.A. Bill Hill had denied DNA testing in this case, which if permitted earlier, could have prevented one of the true perpetrators from being paroled and walking free. “That’s really what got me thinking,” Mr. Watkins said. “This is larger than just having innocent folks in jail. This is about having criminals out on the street with cover to go and commit their offenses.” The office’s recently created Conviction Integrity Unit will be investigating the cases and is starting to review DNA test requests denied under former D.A. Hill. Watkins explained, “I don’t want someone to be executed on my watch for something they didn’t do.”

(J. Emily, S. McGonigle, “Dallas County DA wants to re-examin nearly all of pending death row cases,” Dallas Morning News, September 16, 2008). See also Innocence

Former District Attorney Changes Mind on Death Penalty

A former California deputy district attorney recently explained how he had changed his views on the death penalty after once arguing for it at trial.  From that experience, he concluded he “won’t do it again.” As the prosecutor in a heinous murder case, Darryl Stallworth found himself feeling more hesitant about the use of the death penalty as the trial progressed. Stallworth stated, “I was no longer certain what would be accomplished by executing [the defendant].” Although he argued for the death penalty, the jury returned a sentence of life in prison without parole. He remarked, “Though I had lost, I knew justice had been served. I realized I could no longer argue for the death of another human being no matter what atrocious things he or she may have done. I now understand that the death penalty is an ineffective, cruel and simplistic response to the complex problem of violent crime.”

Stallworth went on to add, “Our limited resources could be better spent on programs that focus on stopping violence before it starts, such as preventing child abuse and drug addiction – programs that will prevent another child from becoming the next [murderer].” After serving as the Alameda County deputy district attorney from 1992 until 2007, he says he hopes “more will realize, as I have, that the state [of California] will be a better and safer place when we replace the death penalty with permanent imprisonment.”
(D. Stallworth, "Death penalty perpetuates vicious cycle of violence,"San Jose Mercury News, July 6, 2008).

American Bar Association President Calls for a Death Penalty Moratorium

William Neukom, the President of the American Bar Association, recently wrote about the death penalty in conjunction with a visit to Duke University Law School in North Carolina, where he addressed the graduating class. In an op-ed, Mr. Neukom noted that the ABA had closely studied the death penalty systems of eight states and found repeated failures to meet minimum standards advocated by the ABA. He renewed the call of the ABA for a halt to executions until these problems are addressed, calling on North Carolina legislators in particular to pass a Racial Justice Act. An excerpt from his op-ed follows:

The American Bar Association takes no position on whether the death penalty is right or wrong. But the association strongly maintains that no person should be executed unless that person has a lawyer and received a fair trial. Yet when teams of experts from eight states' own legal communities applied ABA protocols to examine their death penalty systems, they documented evidence of racial disparities, poorly trained or inadequate lawyers, insufficient defense resources, confused jurors, failure to preserve scientific evidence for follow-up analysis and a host of other problems.

This is why the ABA renewed its call last year for a moratorium on executions in each death penalty jurisdiction, until thorough analysis can uncover each and every shortcoming, and the states can rectify the problems.

The death penalty analyses that have been done in select states demonstrate that the promise of due process often remains unfulfilled. Racially disparate treatment of people in our criminal justice system, from arrest to charging to seeking the death penalty, has been and remains a fundamental issue that we must address.

The Racial Justice Act, pending in the North Carolina General Assembly, is an effort to do so, by allowing courts of appeals to consider whether or not racism was a consideration in imposing a death sentence. Legislators should consider whether this measure will advance justice in capital cases.

(William Neukom, "ABA: Stop Executions Until . . .," Charlotte Observer, May 11, 2008).

Moussaoui Judge:  Seeking Death Penalty Hindered Gathering of Intelligence Information

In a recent speech at the American University school of law, U.S. District Judge Leonie Brinkema, who presided over the trial of 9/11 conspirator Zacarias Moussaoui, said that the government’s decision to seek the death penalty against Moussaoui appeared to be politically motivated. Judge Brinkema also stated that because Moussaoui’s case involved the death penalty, it unnecessarily exposed classified information and interfered with the gathering of other information that could have been useful in investigating terrorist networks.

Moussaoui pleaded guilty to conspiring with al-Qaeda in 2005, and at the sentencing phase of the trial he was permitted to submit into evidence statements from captured al-Qaeda leaders. These statements said that Moussaoui only played a small part in their terrorist plans. Moussaoui was sentenced to life in prison in 2006.

Judge Brinkema also stated in her speech that Moussaoui would have likely cooperated with authorities and given them useful information. She said that if investigators "could put up with his ramblings, that they could have gotten some information from him because he couldn't keep his mouth shut."
(“Moussaoui judge says prosecutors' pursuit of death penalty made more evidence public,” Associated Press, February 2, 2008).

Prosecutors Ambivalent About the Death Penalty

In a recent front-page article in the New York Times, Joshua Marquis, the district attorney in Clatsop County, Oregon, and a vice president of the National District Attorneys Association, indicated that most prosecutors with experience in death penalty cases are ambivalent about it: “Any sane prosecutor who is involved in capital litigation will really be ambivalent about it,” said Marquis, who has long supported the death penalty. According to the Times, he said the families of murder victims suffered needless anguish during what could be decades of litigation and multiple retrials. “We’re seeing fewer executions,” Mr. Marquis added. “We’re seeing fewer people sentenced to death. People really do question capital punishment. The whole idea of exoneration has really penetrated popular culture.” The article also noted that 62% of the country's executions this year occurred in only one state--Texas--and that 40 out of the 50 states had no executions in 2007. (A. Liptak, "U.S. Disparity in Executions Grows as Texas Bucks Trend," N.Y. Times, Dec. 26, 2007.)

Texas Prosecutors Ask for Delay in Executions Until Supreme Court Issues Lethal Injection Ruling

As the U.S. Supreme Court prepares to consider the constitutionality of Kentucky's lethal injection procedures, prosecutors in three Texas counties have decided to await the Justices' ruling rather than ask judges to set execution dates and press forward through the courts. "It seems the common-sense thing to do at this point," said Roe Wilson, who handles death penalty appeals for the Harris County District Attorney's Office in Houston. Harris County sends more inmates to death row than any other county in Texas. Wilson said she plans to ask a judge to withdraw a February 26 execution date for Derrick Sonnier rather than face a court-imposed halt to his execution. Bell County District Attorney Henry Garza has also asked a judge to cancel a scheduled January 24 execution date for the same reason. He noted, "It just seemed to me that the writing was very apparent. Now we'll let them rule and we can come back in and act accordingly." In addition, Nueces County prosecutor Carlos Valdez has said he will not seek any more execution dates until the matter is resolved. There were no executions in the U.S. during October. The Justices will hear arguments in the Kentucky case early next year and a ruling is expected by June. If executions remain on hold, the year will end with a total of 42 executions in the U.S., fewer than any year since 1994. Of those, 26 have been in Texas. (Associated Press, October 31, 2007). UPDATE: The U.S. Supreme Court has recently granted stays of execution in lethal injection challenges from Texas, Virginia, and Mississippi, and upheld stays granted in other states. There is still a pending execution date in Florida: Mark Schwab on Nov. 15. The Florida Supreme Court rejected his challenge to the state's lethal injection process on Nov. 1. Alabama recently set an execution date of Dec. 6 for Tommy Arthur, even though the U.S. Court of Appeals for the 11th Circuit granted a stay to another Alabama inmate on Oct. 24. (DPIC; news sources).

Former Tennessee Attorney General and Federal Judge Cite Crisis in State's Death Penalty

A former Tennessee Attorney General, W.J. Cody, and a U.S. Court of Appeals Judge, Gilbert Merritt, both members of the American Bar Association's Tennessee Death Penalty Assessment Team, called on policymakers to thoroughly review the state's capital punishment laws and implement significant changes that address concerns such as wrongful convictions, meeting the needs of victims' family members, and ensuring that the state complies with minimum standards required for fairness in capital trials. According to Cody, who also served as a U.S. Attorney, and Judge Merritt of the Sixth Circuit, who also served as a U.S. Attorney, the ABA assessment report issued by the Tennessee team in April 2007 detailed problems that are faced by many jurisdictions throughout the nation and that the task of addressing these concerns "cannot be taken lightly."

Cody stated "It is clear that the current system is not working":

In my former roles as the attorney general for the state of Tennessee and a United States attorney, I have made decisions affecting the life and liberty of our fellow citizens.

Once I took the oath of office for those positions, I attempted to follow the law, irrespective of my personal feelings. But over the past 5 years, several events have caused me to have doubts about the fairness and reliability of the administration of the death penalty in Tennessee and to join together with others to look for ways to improve it.

Most recently, I served on the American Bar Association's Tennessee Death Penalty Assessment Team, which conducted a three-year study of the death penalty in Tennessee. In a report issued in April of this year, the committee found that Tennessee fails to comply with most of the nationally recognized standards required for a fair and accurate death penalty system.

Many of these shortcomings are substantial and serious. They illustrate the need for a meaningful and comprehensive review to ascertain how to improve the fairness and accuracy of the Tennessee capital punishment system.

Fortunately, the General Assembly has legislatively mandated a study of our state's death penalty. The Committee to Study the Administration of the Death Penalty is charged with issuing "recommendations designed to make capital punishment in Tennessee uniform in its application and administration so that the capital process is free from bias and error." The bipartisan committee is composed of legislators, representatives of the governor, district attorneys, criminal defense lawyers and experts from various associations who are stakeholders in the criminal justice system. With this committee, Tennessee has a great opportunity to address the serious flaws of its capital punishment system.

This is no small order, and cannot be taken lightly. Tennessee is not alone in its need to undertake a study of this breadth and depth. Other reviews have been conducted on the state and national levels, and we have good examples to learn from.

It is clear that the current system is not working - not for victims' families who wait decades for closure, not for defendants whose lives are at stake in an imperfect system, and not for society at large. It is in everyone's best interest that Tennessee move toward a more fair and accurate system. If the work of the committee is open, detailed and broad in scope, as it should be, it could lead to real improvements in the fairness and reliability of the death penalty system. In a society of laws governing issues of life and death, an improved system is imperative if we are to be true to Tennessee's ideals of justice.

Judge Gilbert noted "The administration of the death penalty nationwide remains broken and arbitrary, and that seems particularly true in Tennessee":

For over 30 years, I have served the United States and Tennessee. As a judge on the United States Court of Appeals for the 6th Circuit and a United States attorney for the Middle District of Tennessee, I reviewed many death penalty cases and have made it a point to study death penalty law.

I served as a member of the American Bar Association's Tennessee Assessment Team, which issued a report earlier this year assessing Tennessee's death penalty system.

Recent death penalty cases from Tennessee show a continued decline in the accuracy and fairness of the state's capital punishment system. The administration of the death penalty nationwide remains broken and arbitrary, and that seems particularly true in Tennessee. Some who have been condemned to death are, in fact, innocent of the crime charged. There is a consistent pattern of ineffective assistance of defense counsel, prosecutorial misconduct and other serious constitutional errors.

Addressing a critical problem

The judicial administration of the death penalty is by far the most difficult, time-consuming, frustrating, and critical joint problem that the Tennessee and federal judiciary have to grapple with on a daily basis. Our current system consumes enormous public resources, involving many years of sustained work by state prosecutors, state defenders, state judges, federal defenders and federal judges.

Unfortunately, until now neither the Tennessee General Assembly, the judiciary, nor the governor's office has taken any serious steps toward correcting obvious problems.

Perhaps this will change. The General Assembly has commissioned a study committee to seriously examine capital punishment in Tennessee. When the Committee to Study the Administration of the Death Penalty convenes later this month, it will be charged with a thorough examination of the death penalty and its administration and, in the end, offer recommendations for change.

Of course, studying Tennessee's death penalty administration process is not new. The report from the ABA Assessment Team found that Tennessee's system fails to meet a majority of nationally recognized standards. In 2002, another distinguished committee of the Tennessee Bar Association was appointed to examine issues surrounding the effective assistance of defense counsel in Tennessee capital cases. The committee also found that "Tennessee is woefully out of step with the national (American Bar Association) standards" in death cases.

Effective assistance of counsel is neither uniformly nor consistently provided to individuals facing the death penalty in this state. Concerns over budget have often trumped the need for competent, well-compensated and adequately prepared counsel.

If Tennessee is to have a fair and accurate death penalty system, then the system must be changed in a number of respects. The legislatively created Committee to Study the Administration of the Death Penalty offers some hope that our state might be taking the first step toward needed reform. (The Tennessean, October 5 & 15, 2007).

Alabama District Attorneys Association Criticizes Attorney General for Politicizing Death Penalty Case

In a letter citing political manipulation of the death penalty by the state's chief prosecutor, 41 members of Alabama's District Attorneys Association called on Attorney General Troy King to apologize to Shelby County District Attorney Robby Owens. King has said that Owens "shirked" his duties when he expressed concerns in a court hearing about the fairness of an inmate's death sentence. "If he cannot recognize the error of his needless attack on the district attorney, perhaps he should consider his fitness for the position he now holds," the association said in a statement issued during a news conference in Montgomery. Russell County District Attorney Kenneth Davis, who heads the DA's Association, said that Owens "has been unfairly and unnecessarily attacked by the attorney general" for doing what he was morally bound to do in seeking equal justice. Davis noted that by attacking Owens, "the attorney general has attacked all of us."

The dispute with King stems from Owens' testimony in the case of LaSamuel Gamble. Owens testified that it would be disproportionate to execute Gamble for killing two people more than a decade ago in light of the fact that his co-defendant, and the crime's triggerman, Marcus Presley, had his death sentence reduced to life under the U.S. Supreme Court ruling that outlawed the death penalty for juvenile offenders. Earlier this month, Shelby County Circuit Judge J. Michael Joiner agreed and ordered a new sentencing hearing for Gamble. After the ruling, King announced he will appeal Judge Joiner's ruling and is taking the case away from Owens.

The District Attorneys Association says that King's decision was politically motivated, stating that King took over the case in retaliation for Owens not supporting his 2006 Attorney General election bid. King and Owens are both Republicans, but Owens endorsed Democrat John Tyson in the race. "I want him to be the attorney general and leave politics at home," Owens said during the news conference. Tyson added, "I had hoped at some point (King) would grow up."
(Associated Press, September 18, 2007).

Alabama Prosecutor Punished for Testifying That a Death Sentence Was Unfair

Alabama Attorney General Troy King recently stripped a capital murder case from veteran Shelby County District Attorney Robby Owens because Owens expressed concerns in a court hearing about the fairness of an inmate's death sentence. Owens testified that it would be disproportionate to execute LaSamuel Gamble for killing two people more than a decade ago in light of the fact that his co-defendant, and the crime's triggerman, Marcus Presley, had his death sentence reduced under the U.S. Supreme Court ruling that outlawed the death penalty for juvenile offenders. Earlier this month, Shelby County Circuit Judge J. Michael Joiner agreed and ordered a new sentencing hearing for Gamble, noting, "It is the re-sentencing of Presley to a non-death sentence that makes Gamble's sentence of death constitutionally unfair." Though King voiced similar concerns about the disparities that sparing juveniles could cause in a brief filed with the U.S. Supreme Court, he now says he will appeal Judge Joiner's ruling and is taking the case away from Owens.

King's 2004 brief, backed by other states that supported keeping the death penalty for juvenile offenders, stated that a decision banning the practice would make sentencing Gamble to death for the murders a "bizarre result" since he didn't kill anyone. King is now criticizing Owens for raising similar points during his testimony. King called Owens' actions "incredible and outrageous" and stated that the District Attorney "acted on the side of the criminal" when he delivered his testimony last year. Though Owens and King are both Republicans, Owens was among 27 Alabama District Attorneys who did not back King's 2006 election bid. King insists that Owens' choice to endorse his Democratic opponent did not play a role in his decision to take over the Gamble case. (Associated Press, September 13, 2007).

Expensive Death Penalty Prosecutions in Florida May Mean Others Don't Go to Trial

Florida State Attorney Harry Shorstein recently said that cuts to his budget could force his staff to make tough decisions with regard to criminal prosecutions. Shorstein said a predicted budget cut for the 20 state attorney offices in Florida would be "catastrophic," projecting that his staff alone would lose 16 members and may have to abandon expensive death penalty cases. "There will be cases that can’t be tried. Will it mean we can’t get to the trials? Will it take longer? Will it, will it clog the criminal justice system? Yes. . . . We are strained to the breaking point. . . . Instead of seeking the death penalty, maybe we'll seek something else," Shorstein said.

He presented statistics from the Florida Department of Corrections that show the Fourth Judicial Circuit (which Shorstein's office covers) leads all other circuits with 42 inmates on death row. The problem, he indicated, is that law enforcement agencies have increased budgets, put more officers on the streets and made more arrests, but that the State's Attorney's Office has not grown to meet the increased prosecution demands. Cuts to the Office's budget would leave staff without the finances need to handle these cases.

Duval County Sheriff John Rutherford echoed Shorstein's frustration, noting that the state plans to increase his budget during the coming year due to an increase in violent crime and the county's murder rate. He said it is frustrating to have his officers make arrests only to have suspects not go to trial because of a shrinking State Attorney's budget. He noted, "We can't keep putting them in jail and letting them go."
(Jacksonville Daily Record, September 13, 2007).

Fewer Death Sentences as Victims' Concerns Are Considered

When weighing whether to seek the death penalty, Tulsa County First Assistant District Attorney Doug Drummond says that he tries to determine how future juries will assess the evidence, as well as how a death penalty case will impact victims' family members. He observes, "Life without parole without appeals might be a better situation for a lot of victims' families. There are some positive things about that. . . A lot of people, at first blush when a loved one is killed, want the death penalty. (But) going through a death-penalty case is a lot of stress (and can produce) a lot of frustrations with the system."

During the past year, six Tulsa County murder defendants were eligible for the death penalty, but not one received a death sentence. In four of the cases, the District Attorney's office agreed to withdraw requests for the death sentence prior to trial, decisions that were made after a careful review of the evidence and in consultation with murder victims' family members. In the remaining two cases, prosecutors did pursue death sentences, but jurors failed to return a death verdict. In one of these cases, jurors acquitted the defendant, a rare outcome in death penalty trials. Drummond and Tulsa County Chief Public Defender Pete Silva both acknowledged that there are "tough hurdles" for prosecutors to secure a death sentence that will not be overturned at the appellate level.

Defense attorney Kevin Adams added that Tulsa County prosecutors "see the death penalty as a justifiable punishment, but are willing to consider some other result if the defendant is willing to accept responsibility." He notes that a prosecutor's decision to not seek the death penalty can save years of court proceedings and "a lot of waiting and a lot of anguish" for victims' families. Adams notes, "We do a pretty good job of assigning blame in the justice system. We don't do as good of a job of helping people cope with a loss."
(Tulsa World, July 30, 2007).

Former Alabama Prosecutor Questions Value of Capital Punishment

Billy Hill spent seven years as a district attorney in Shelby, Coosa, and Clay counties in Alabama, and has reconsidered his stance on capital punishment. Mr. Hill says that he would welcome a moratorium on executions in Alabama while a study commission examines the state's death penalty to evaluate whether it is "a wise and humane use of our resources." Wrongful convictions, the arbitrary nature of capital punishment, poor representation, and the long-term suffering of victims' family members are among Hill's main concerns about current death penalty laws. He believes that life without parole is a better alternative for violent offenders. Hill now works as a Shelby County public defender.

In his criticisms of Alabama's death penalty, Hill notes that two innocent men have already been freed from the state's death row and that many others continue to await their execution without the benefit of "top-flight representation." With regard to the arbitrary nature of the states' capital punishment statute, Hill observes, "Do you realize that if two people are arguing on a street corner and one of them pulls a gun and kills the other one, that is simple murder? But, take the same scenario and put one of them in a car, and it becomes a capital case. . . . [I]n 30 years of observing violent offenders, I find 3 factors present in almost all of them: some kind of childhood abuse, either physical or sexual; some type of chemical dependence, either alcohol or drugs; and neurological damage." Hill also believes that the death penalty fails to serve the needs of victims' family members because execution dates are often set and then canceled several times during repeated appeals. "It just never goes away for the victim's family," said Hill.

Noting that the U.S. is one of the few industrialized nation in the world to use the death penalty, Hill said that he believes that life without parole is the more appropriate sentence for violent offenders. "A lot of people do not realize that in Alabama life without parole means you are not leaving prison except with your toes turned up," he said. If the state insists on keeping capital punishment, Hill observes that lawmakers should be prepared to pay to high costs associated with creating a system that is more fair and accurate.
(The Birmingham News, July 30, 2007).

Freed Death Row Inmates and Former Prosecutor Join Call for Halt to Pennsylvania Executions

(Pictured left to right, Harold Wilson, Barry Scheck, and Sam Millsap)

During a press conference near the Liberty Bell in Philadelphia, 16 former death row inmates whose convictions were overturned joined noted attorney Barry Scheck (pictured) and former Texas prosecutor Sam Millsap (pictured) in calling for a moratorium on executions in Pennsylvania. Harold C. Wilson (pictured), the most recent of six death row exonerees in the state, noted that he spent 16 years on death row for a murder he did not commit. "If it had been up to the State of Pennsylvania, I would be dead today," Wilson told those who gathered to launch the Pennsylvania Moratorium Coalition, a group devoted to halting executions in the state while a review of capital punishment laws is conducted. Wilson and fifteen other former death row inmates from around the country are part of Witness to Innocence, a group established by Sister Helen Prejean to assist wrongly convicted individuals who have been released from death row. They all signed a "Declaration of Innocence" as they urged lawmakers to halt executions.

Scheck, who heads the Innocence Project in New York City, stated that Pennsylvania has executed three men and freed six wrongly convicted men from death row since it reinstated capital punishment. "If the death penalty doesn't deter, if the death penalty is more expensive, and you have the risk of executing the innocent, is it a good policy? No," Scheck stated. Millsap, a former Bexar County, Texas, prosecutor who now believes he may have sent an innocent man to his death, said that his experience proves that even with a "perfect trial," the state can error. "Ruban Cantu received a perfect trial. The system in the Ruben Cantu case worked exactly the way it was supposed to work. . . . And one of the things we have to acknowledge is, he may well have been innocent," Millsap observed.

In 2003, the Pennsylvania Supreme Court recommended a halt to executions in the state, in part because race plays a major, "if not overwhelming," role in deciding whether to impose the death penalty. Since then, an advisory committee has been established to study cases in which convictions have been overturned by DNA evidence or other issues.

Pennsylvania's last execution took place in 1999. There are 225 people on death row in the state.
(Philadelphia Inquirer, April 14, 2007).

Montana Assistant Attorney General Calls for Death Penalty Repeal

Montana Assistant Attorney General John Connor has voiced support for a legislative measure that would abolish capital punishment in his state. Stating his belief that the death penalty does not deter crime and is expensive, Connor told the Montana House Judiciary Committee, "It seems to me to be the ultimate incongruity to say we respect life so much that we're going to dedicate all our money, all our resources, our legal expertise and our entire system to try and take your life. . . . Frankly, I just don't think I can do it anymore." Senator Dan Harrington, who sponsored this year's repeal measure, added that it is wrong to teach children "that to prevent violence we beget violence." He also noted that the death penalty is costly and unfair.

The death penalty repeal measure passed the Montana Senate in February. It is pending in the House. Montana has two people on death row. (Associated Press, March 10, 2007). UPDATE: The repeal bill was defeated in the Montana House Judiciary Committee by a vote of 9-8.

Former State Prosecutor Questions Value of Capital Punishment

Former Connecticut state prosecutor and legal analyst Susan Filan recently stated that the death penalty is not an appropriate sentence, particularly when the crime appears to be a heinous violation of the sanctity of life. In her commentary posted on MSNBC.com, Filan wrote:

As a former prosecutor I believe I understand the emotion involved in a murder case. I have seen firsthand the rage and fury and grief that families of murder victims express. The pain is indescribable. But I have never understood how killing the killer in return achieves justice or relieves pain. Why isn't life in prison without parole punishment enough? If we punish killers, because killing is wrong, why is it right to kill a killer? (MSNBC.com, February 5, 2007).

Victims' Advocates, Prosecutors Caution Against Expansion of Texas Death Penalty

Victims' advocates and prosecutors are urging Texas legislators to exclude the death penalty from new legislation designed to toughen penalties for repeat child molesters. Those opposed to the measure fear that threatening death sentences for sex offenders could lead to fewer reported cases of sex crimes and might even give incentive to offenders to kill their victims to prevent the child from testifying in court.

Annette Burrhus-Clay, executive director of the Texas Association Against Sexual Assault, noted that ninety percent of child-sex victims know their offenders. "We're definitely not concerned with the intent. We're concerned with the unintended consequences. . . . Imagine the pressure the family would experience if grandpa could be given the death penalty," Burrhus-Clay said. Shannon Edmonds, a former prosecutor and director of governmental relations for the Texas District and State Attorneys Association, added, "[J]ust being tough on crime doesn't necessarily advance the ball for public safety." Prosecutors also fear allowing the death penalty for repeat sex offenders will make offenders less likely to plead guilty, which could clog courts and force child victims to take the stand in extended jury trials.

Sen. Bob Deuell, one of several legislators to file a bill that includes the death penalty for repeat child-sex offenders, said, "My goal, of course, is that there be no more victims. But I'm open-minded, and I don't have any delusions that mine is the perfect bill. These are the people we really want to do this for, so we need to hear from them." Victims' rights groups and prosecutors have vowed to work with legislators to craft a bill that protect child-sex victims without including capital punishment as a sentencing option. (Dallas Morning News, January 5, 2007).

New Jersey Commission Represented a Broad Spectrum of Officials and Citizens

The report from the New Jersey Death Penalty Study Commission that called for an end to the state's death penalty was prepared by a group of individuals representing a wide variety of viewpoints and experience. The members of the Commission were:

Governor Jon S. Corzine appointed:

  • Eddie Hicks, a member of Murder Victims Families for Reconciliation;
  • Kathleen Garcia, a member of the New Jersey Crime Victims’ Law Center;
  • the Reverend M. William Howard, Jr., of Bethany Baptist Church in Newark;
  • Rabbi Robert Scheinberg of the United Synagogue of Hoboken;
  • and the Honorable James H. Coleman, Jr., a retired justice of the New Jersey Supreme Court.

The President of the Senate, Richard J. Codey, appointed:

  • the Honorable John F. Russo, former President of the New Jersey State Senate,
  • and West Orange Police Chief James P. Abbott.

The Speaker of the General Assembly, Joseph J. Roberts, Jr., appointed:

  • Kevin Haverty, an attorney in private practice,
  • and Ocean County Prosecutor Thomas F. Kelaher.

The ex officio members of the Commission were:

  • Public Defender Yvonne Smith Segars;
  • the Attorney General;
  • the designee of the President of the New Jersey State Bar Association, Miles S. Winder, III;
  • and Hudson County Prosecutor Edward J. De Fazio, representing the County Prosecutors Association of New Jersey.

The Honorable John Russo filed a minority in which he disagreed with many of the points in the report, but stated: "I concede that if the death penalty is going to be administered as it has been since 1982, it may need to be abolished." (N.J. Death Penalty Study Commission Report, January 2007).

New Jersey Attorney General Says Death Penalty Not Necessary, Not Working

New Jersey Attorney General Zulima Farber recently voiced her support for extending the state's moratorium on executions, noting that she does not believe the death penalty is a "necessary tool" for prosecutors and believes capital punishment does not deter crime. "I don't think it's a deterrent. And I understand revenge. I think some people deserve it. But I don't think it's a necessary tool. . . . I don't have a philosophical or religious opposition to the death penalty, I have a practical opposition to the death penalty," Farber stated. There are 10 people on New Jersey's death row and the state hasn't carried out an execution since 1963, a fact that Farber argues does not make the state less safe. She notes that death penalty cases are very costly and there is no assurance that the results will be perfect. Costs, the needs of victim's family members, and questions about the fairness and accuracy of New Jersey's death penalty are among the chief concerns that will be addressed by a task force that New Jersey legislators established in January 2006. "I support the moratorium being extended. I would welcome the analysis of data and whatever the commission is going to look at and I would not oppose cessation," Farber concluded. (Associated Press, March 16, 2006).

Senior Counsel to 9/11 Commission Questions Death Penalty for Moussaoui

In a recent New York Times op-ed, John Farmer, senior counsel to the 9/11 commission and a former New Jersery attorney general, states that seeking the death penalty for Zacarias Moussaoui detracts from U.S. efforts to seek justice against senior Al Qaeda officials who plotted and carried out the 9/11 attacks. Farmer claims Moussauoi, who was in jail as terrorists plotted and carried out the events of 9/11, was not the "20th hijacker" and is a "poor stand in" for more senior level Al Qaeda leaders who are also in U.S. custody:

"Through a perverse confluence, Mr. Moussaoui's interest in becoming something in death that he never was in life — important — has combined with the government's interest in executing someone for the 9/11 attacks. The likely result is an odd form of assisted suicide, in which Mr. Moussaoui will claim martyrdom as he is executed, and the United States will claim that the rule of law has been vindicated by bringing a terrorist to justice for 9/11.

Neither claim will be justified. . . .

Zacarias Moussaoui is evil, and there is no doubt that he arrived here determined to kill Americans, but he was not a leader of Al Qaeda. He was not even, as initially reported, the "20th hijacker." He was not in contact with the 9/11 hijackers in the United States. His apprehension in late August 2001 did nothing to disrupt the plot's timing. He sat in jail while the attacks unfolded.

Based on his conduct, he should sit in jail some more. Six floors underground, with one hour outside his cell per week. For, oh, 50 more years or so. He should die there, frustrated and forgotten, embittered and anonymous. This could have been achieved without the catharsis of the penalty hearing." (New York Times, April 11, 2006). See DPIC's page on September 11, 2001.

MENTAL ILLNESS: Rutherford Institute Calls Attention to Upcoming Virginia Execution

John W. Whitehead, founder and president of the Rutherford Institute, called for clemency for Percy Lavar Walton, a Virginia inmate scheduled to be executed on June 8. Walton is a psychotic schizophrenic who has suffered with severe mental illness since adolescence. He is on death row for three murders he committed when he was 18 years old. Whitehead writes:

Dubbed “Crazy Horse” by prison officials, Walton . . . is scarcely conscious of the fate that awaits him. While others on death row bide their time in counting down to their final hours, Walton spends his time amassing a large pile of salt, pepper and sugar packets in his prison cell.

And while state officials may view Walton’s pending execution as the final form of punishment, Walton does not see execution as the end of his life. Instead, he believes that his execution will restore life, bringing him, his grandfather and his victims back to life. During his sentencing hearing, he reportedly laughed, waved to family members in the courtroom and wrote incoherent notes to his attorney.

Clearly, this is not a sane man. Nor does he seem to have sufficient mental acuity to view his pending state-enforced death as the ultimate punishment. Most medical experts concur. . . . Two independent doctors have officially diagnosed him as schizophrenic. One doctor noted that Walton has continually suffered from severe depression, an inability to focus and moderate to severe levels of insanity. Another doctor pointed out that he presents symptoms of hallucinations, delusions, bizarre behavior and positive formal thought disorder. State psychiatrist Dr. Patricia General described Walton as “floridly psychotic”. . . .

Walton’s delusions are so far-fetched that he has claimed to be everyone from his own father to the King of Hearts, Superman, Queen Bee and Jesus Christ. He insists that the Bible was written about him and that he hears voices and sees a disturbing image of a face with a fishhook in its eye. Walton also believes that if he closes his eyes, he can become invisible.
. . .

No truly civilized and humane society executes the helpless. To do so is to resort to barbarism. There must be lines beyond which we will not cross, even in the name of seeking justice or a greater good. (Rutherford Institute, Commentary, May 24, 2006).

The Death Penalty 30 Years after Gregg v. Georgia

Stuart Streichler served as a law clerk for the U.S. Court of Appeals for the 11th Circuit shortly after the U.S. Supreme Court's ruling in Gregg v. Georgia. He observed many capital cases and now concludes: "A fundamental idea of American law is that all defendants should receive fair trials all of the time. The persistent failure to come close to that in death penalty cases undermines the integrity of the legal system." Streichler's op-ed appreared recently in the Miami Herald:

This month marks the 30th anniversary of a Supreme Court decision that has had profound consequences in our criminal justice system, perhaps more than any other in the past three decades. Gregg vs. Georgia (1976) reinstated capital punishment four years after the court declared all death penalty statutes unconstitutional. Ever since, the justices have tackled one problem after another to make capital punishment work.

As the court's term drew to a close this year, the justices issued three suggestive decisions on the death penalty.

• One opened a new avenue for challenging lethal injection.

• Another allowed lower courts to review a Death Row inmate's evidence of innocence.

• A third approved mandatory death sentences when juries find aggravating circumstances (for example, committing murder for financial gain) equal to mitigating factors (such as the defendant's emotional state).

The opinions indicate that while the justices recognize current trouble spots in the death penalty system, a majority on the court still believes it's possible to fix whatever problems arise. That view reflects public opinion. Roughly 70 percent of Americans favor capital punishment, despite rising concern that some defendants sentenced to die are later found innocent.

When the Supreme Court ruled the death penalty unconstitutional as administered in 1972, the reason was that jurors had so much discretion they applied this punishment arbitrarily, seemingly at random. Soon after, state legislatures developed new procedures to guide decision-making. Death penalty cases were divided into two parts. The first was the usual trial to establish guilt or innocence. Only if the jury found the defendant guilty did the second phase begin to determine the punishment. Revised death penalty statutes identified aggravating circumstances to supply jurors with criteria for sentencing. Defendants were also permitted to provide evidence on mitigating factors. Gregg vs. Georgia approved this legislative scheme of "guided discretion."

A complex system of death penalty laws has evolved since then. Yet the problems that disturbed Supreme Court justices 30 years ago have not gone away. Despite efforts to reduce arbitrariness, death sentences are not necessarily imposed when the crimes are more severe. Other factors like racial bias and inadequate lawyering have played an important part. Defendants sentenced to death are frequently poor and less educated, African American or Hispanic and, as we have discovered more and more, even innocent of the crimes charged.

These circumstances have moved several justices to express concern over the years. Retired Justice Sandra Day O'Connor, a longtime supporter of capital punishment, conceded that some innocent persons may have been executed. Harry Blackmun, who had voted in the 1970s to keep the death penalty, tried to remedy problems over the next two decades. He gave up in 1994, famously saying "I no longer shall tinker with the machinery of death." Last year, Justice John Paul Stevens described "serious flaws" in the system.

My experience working with death penalty cases has led me to reflect on the problems, too. A few years after Gregg vs. Georgia was decided, I served as a law clerk to a judge on the U.S. Court of Appeals for the 11th Circuit. This court heard cases from Florida, Alabama and Georgia, then and now among the states applying the death penalty most frequently.

The cases I saw highlighted what I believe lies at the root of the difficulties. Capital crimes are by definition the most horrifying. They include torture-murders and children as victims; something that stands out from other killings. It is natural for people to react emotionally. Yet jurors are told to presume the accused innocent until proven guilty. We expect police and prosecutors to maintain their professionalism. Judges must conduct trials fairly.

We ask a lot of everyone involved, perhaps too much. The legal process is part art and part science. We can never eliminate the role of human psychology. Emotions matter. Add to that problems that may lead conscientious jurors to convict the wrong person: victims make mistaken identifications, witnesses lie, police and prosecutors may falsify evidence.

The result? An imperfect system of criminal justice in which problems multiply in capital punishment cases. Undoubtedly there are trials where the death penalty appears to work, with skilled defense counsel, an impartial jury and due process. Yet apparent success in some cases highlights the systemic breakdown that has occurred. A fundamental idea of American law is that all defendants should receive fair trials all of the time. The persistent failure to come close to that in death penalty cases undermines the integrity of the legal system.

After three decades of operating under the regime established in Gregg vs. Georgia, the issue is no longer what the court can do to make capital punishment work. The real issue is why capital punishment won't work, whatever the court does. (Miami Herald, July 13, 2006; Streichler is the author of "Justice Curtis in the Civil War Era: At the Crossroads of American Constitutionalism").

Life Without Parole Offers Prosecutors, Jurors, and Victims an Acceptable Alternative to the Death Penalty

Prosecutors in Utah have stated that the sentencing option of life without parole has been very helpful in giving jurors and family members of victims a viable alternative to the death penalty. Salt Lake County District Attorney David Yocom noted that life without parole is often a better option to present to jurors: "It's a tool for juries as well as prosecutors and defense attorneys, too," Yocom said. "It's an alternative to avoid asking a jury of 12 people to make that decision," to impose the death penalty.

"I've talked to a lot of jurors in death-penalty cases, and the hardest thing you could ask a citizen to do is sit in judgment of life or death over an individual. It's a very difficult job to do," he added.

Robert Stott, another prosecutor with the Salt Lake County District Attorney's Office, said the life-without-parole sentence is seen as just by many victims. "What we found is that oftentimes what the families of victims want is to ensure the person not be able to commit the same kind of crime," Stott said.

He noted that many crime victims don't crave revenge, but simply want to make sure that there are no more victims and that the perpetrator never leaves prison. "I don't mean to speak for all of them, but I've dealt with many who find this satisfies their needs and desires," Stott said.

Utah has 22 prisoners serving life without parole and 9 inmates on death row. (Deseret News, Nov. 13, 2006).

Illinois Execution in 1995 Now Seen in a New Light

Girvies Davis was executed in Illinois in 1995 after a conviction based largely on his own confession. Davis' appellate attorney was David A. Schwartz, who now serves as senior vice-president and baseball legal counsel at CSMG Sports. Schwartz writes in the Chicago Tribune that Davis "confessed" to many crimes, most of which he indisputably did not commit. Davis said that the only reason he confessed to the murder that sent him to death row was that the police threatened to kill him if he did not sign the confession. Schwartz, who was an attorney with Jenner & Block at the time he represented Davis, laments the fact that Davis' case had no DNA and that the times were different from those that led to the clearing of Illinois' death row by Gov. George Ryan in 2003:

I paused on Wednesday, as I do every May 17, to remember a man who was executed for a murder I am certain he didn't commit.

Timing is everything, of course, and former Gov. George Ryan's decision in 2003 to empty Illinois' Death Row came too late to save my client and friend, Girvies Davis, who was put to death on May 17, 1995.

By the time I got involved in the case, 15 years after the trial and five months before the execution, nothing short of finding the real murderer would have saved (Girvies) Davis' life. Our criminal justice system admits mistakes only when it has to, and belated attempts to cast doubt on a verdict are usually swept aside, regardless of merit, unless the defendant can actually prove his innocence.

Proving a defendant's innocence, though, is a tall task. Because there were no witnesses against Davis, there were no statements to recant; because there was no forensic evidence, there were no DNA tests to run.

In December 1978, Charles Biebel was found shot to death in his mobile home near Belleville, an Illinois town outside St. Louis. For 9 months the murder remained unsolved, and Davis was never considered a suspect.

Then, in the fall of 1979, 10 days after Davis was arrested in an unrelated robbery, the police announced that he had confessed to 20 murders and attempted murders.

Davis' "confession" to the Biebel murder was the only non-circumstantial evidence used against him at his trial.

Of the 20 crimes to which Davis supposedly confessed, however, it is now undisputed that he had nothing to do with most of them. Other defendants were later convicted, and prosecutors stated in court (in the other cases) that Davis' confessions were false.

Yet these same prosecutors had no problem using one of the false confessions to secure his death sentence.

According to Davis, here is why he signed the confessions: After he had spent 10 days in custody, the police checked him out of jail at 10 p.m. (the logs at the jail confirmed this) and drove him to a deserted road outside of town.

The police, Davis said, took off his handcuffs and leg shackles, drew their guns and produced a stack of already written confessions. They told him if he didn't sign they would kill him and say he died trying to escape.

Davis signed everything they had.

"You would have signed too," he told me years later, "if you had been on the side of that road instead of me."

The police had their confessions, and Davis was back in jail by dawn.

Davis was certainly not a sympathetic figure, given his long rap sheet, his history as a drug addict and his frequent outbursts in the courtroom. To an all-white jury in Belleville in 1980, this rough-looking 20-year-old black kid from East St. Louis would have appeared guilty even before the lawyers delivered opening statements.

A confession simply sealed the deal, even if there was never an adequate explanation for the middle-of-the-night outing that precipitated it.

All of this happened while I was in grade school. In 1994, fresh out of law school and 14 years removed from Davis' trial, I joined a Chicago law firm and was assigned to work pro bono on a petition seeking clemency for Davis.

Working with a team of attorneys, we found a teacher and a parole officer who signed sworn affidavits stating that Davis was illiterate when arrested and could not possibly have understood what he was signing.

We drafted a clemency petition to then-Gov. Jim Edgar, raising these issues and dozens of others and urging that Davis' death sentence be commuted to life in prison without parole.

We lost.

It was the wrong time, and we had the wrong governor. Our ability to cast doubt on Davis' guilt was not enough to spare his life, and we were never able to prove his innocence. We were unable to reconstruct his whereabouts on the day of the murder to find an alibi. I was certain that Davis was innocent but was never able to prove it, a fact that still haunts me 11 years later.

Davis didn't have the good fortune of Anthony Porter, who came within 48 hours of execution but who ultimately was exonerated when a group of Northwestern University journalism students and a private investigator found the real killer and, against all odds, persuaded him to confess on videotape.

The majority of exonerations in recent years have come about because of advances in technology and DNA testing, but for many convicts, including Davis, there are no tools to prove innocence because there is no forensic evidence to test. These unjustly imprisoned inmates will never gain their freedom.

Davis' case illustrates many of the inadequacies of our criminal justice system. His public defender had no experience in death penalty cases. Prosecutors used their peremptory challenges to exclude every potential black juror, a practice that has since been outlawed by the U.S. Supreme Court. And the appellate courts were more concerned with procedure than with discovering the truth.

I am not a death penalty activist, and people can disagree about whether Davis' actions--crimes he really committed, not what the police fabricated against him--ultimately warranted a death sentence.

To be sure, Davis took part in crimes where innocent people got killed, but he was never the one who did the killing. He openly acknowledged this in the soft-spoken manner that characterized the 36-year-old I knew--the man who learned to read in prison and became an ordained minister, not the rotten 20-year-old he was when convicted.

In the 5 months I spent on his case, Davis never shied away from talking about how much he regretted his bad deeds, including crimes the police never knew he had committed. But he was steadfast in denying any role in the murder that led to his execution.

In the beginning, I spent a lot of time trying to catch Davis in a lie--about anything--but I was never able to do it. Over time, I slowly and grudgingly came to believe his story.

To be honest, I didn't want to believe him; his guilt certainly would have made it easier on me in the days leading to his execution, when it became clear there was nothing more I could do to save his life.

It would have made it easier in the hours before midnight, when I had to say goodbye to Davis in his cell at Stateville prison, my client comforting me more than the other way around.

So frequently, and certainly on the anniversary of his death, I pause to remember that the State of Illinois executed Girvies Davis for a crime I am sure he didn't commit, and that I was powerless to prevent it. (Chicago Tribune, May 22, 2006)

Costs and Geography Contribute to Death Penalty's Arbitrariness

The death penalty is rarely sought in the city of Baltimore, but in adjoining Baltimore County almost every eligible case becomes a capital case. Presently, there are 7 active death-penalty cases in Baltimore County, more than the city of Baltimore has had overall in the past 2 decades. In addition to the different philosophies of the respective State's Attorneys, the costs of the death penalty are a significant factor. Prosecutors estimate that a death penalty case costs taxpayers $500,000, just for the trial and penalty phases. Donald Giblin, one of Baltimore's prosecutors, noted: "I don't have a moral problem with the death penalty; I have a resource problem with it." Baltimore State's Attorney Patricia Jessamy also noted that the years of appeals in a capital case leave the victims' family with constant uncertainty. "Most of the time," she said, "the death penalty doesn't give you closure." By taking the death penalty off the table in a prospective case, she says she can offer some degree of finality to the victims' family by utilizing the sentence of life without parole. (Baltimore Sun, Sept. 3, 2006).

Kenneth Starr and Other Officials Join Discussion of Death Penalty

The Pew Forum on Religion and Public Life, together with the Federalist Society and the Constitution Project, recently sponsored a panel in Washington, D.C., examining the application, morality and constitutionality of the death penalty in the United States.

The panel was moderated by Virginia Sloan of the Constitution Project and featured Samuel Millsap, Jr., former Texas District Attorney, William Otis, Counselor to the Head of the Drug Enforcement Administration, Kenneth Starr (pictured), former Special Prosecutor and now Dean of the Pepperdine Law School, and Bryan Stevenson, Director of the Equal Justice Initiative in Alabama. Excerpts from a transcript of the panel's presentation follow (in order of speaking):

As the former Bexar County district attorney in Texas and the head of the office that prosecuted Ruben Cantu, Samuel Milsap urged vigilance from his fellow prosecutors to ensure that innocent people are not wrongfully convicted:

I've come to the conclusion — and it's based not on the Cantu case specifically but rather on other things that I've seen happen in the criminal justice system — that the system as it relates to capital murder is simply broken. It's my view in fact that because it's driven by human beings and decisions that are made by human beings, it can't be fixed, and that as a result what has to happen is that the option to put people to death has to end.
. . .
I would say to Justice Scalia, who said in his concurring opinion in Kansas v. Marsh that he knew of no innocent man who had been executed, that he needs to look only to the state of Texas, to my state. Cameron Willingham was certainly innocent. In fact, in the Cameron Willingham case, there wasn't even a crime. Carlos De Luna, the most recent, was probably innocent. And the person I prosecuted in 1985, Ruben Cantu, was probably innocent. And it didn't matter as far as I'm concerned in my position today whether Ruben Cantu was in fact innocent or not: the system simply doesn't work. What we see over and over again are situations where witnesses who have no reason to lie recant testimony and for good reasons.
. . .
I would say to the members of the jury in the Cantu case [ ] the following: you did your job very well; you did only what we as prosecutors asked you to do. You made the only decision that you could've made based on the evidence that was available to you. You are not responsible for the execution of Ruben Cantu. I am responsible for the execution of Ruben Cantu as the prosecutor who made all of the decisions that resulted in the presentation of that case to the grand jury, all of the decisions as to how that case would be prosecuted, and all of the decisions as to how that case would be argued and what we would ask the jury to do.

Dean Kenneth Starr talked about his experience representing two death row inmates and highlighted the importance of clemency in the fair administration of the death penalty:

[M]y own experience in recent years — in the Robin Lovitt case in Virginia . . . and in the still-unfolding Michael Morales case in California — suggest to me that governors and their advisors are tending to neglect this historic role of clemency and pardon in the system.
. . .
Michael Morales' case is illustrative of what I think is a terrible trend, abject deference to the judicial system with its inevitable flaws and a frank unwillingness on the part of virtually every governor in the country, and those who advise them, to fulfill their assigned role in our constitutional structure. This isn't just a Supreme Court admonition; it is taking note of a constitutional structural point.
. . .
And even in our bloodiest war, which pit brother against brother, Mr. Lincoln took time to review personally the files of those seeking clemency. It was part of his greatness.

Bryan Stevenson, who defends people facing the death penalty in the south, questioned society's need for capital punishment:

For the last 20 years I've actually been representing people on death row, and I've spent too many hours next to people who are about to be electrocuted, watching the hair shaved off their body before they're put in the electric chair or squirming on lethal injection tables and seeing the tears and the anguish. And I believe that the death penalty ought to be abolished because it is corruptive. It corrupts all of us. It is corrupting our courts. It is corrupting prosecutors. It is corrupting police. It is corrupting defense attorneys. It is corrupting jurors. It is corrupting our society. I think that because I see so much evidence of it, so much pain and trauma. And it's not just that we're unwilling to talk about it. We don't have the will in this country to recognize what we have to do for people who are disfavored.
. . .
The death penalty is largely employed in this country against the poor, the mentally ill, the vulnerable, and so I say we do have to end it. And to me the question isn't whether people deserve to die for the crimes they commit. The death penalty debate has been terribly misaligned. It's not a choice between the death sentence and no punishment; it's a choice really between two kinds of death sentences. Most jurisdictions have life in prison without parole. It's just another kind of death sentence.
. . .
And so in my mind this issue should not be just a question of whether people deserve to die, but whether we deserve to kill. We have tolerated so much error, so much injustice, so much unfairness; we have a system that is driven by poverty, that is undermined by race.
. . .
And with that history and with that awareness and with that consciousness, I think it's time for the death penalty to end. It's time that we put this behind us so we can begin to deal with these vexing problems of poverty and race and dysfunction and injustice.

William Otis spoke against the abolition of the death penalty: There are two central problems, I think, with a strict abolitionist argument. One is that it is a one-size-fits-all, don't-pester-me-with-the-facts sort of position. It simply does not matter, under that position, what the killer did, how utterly incontestable the evidence is of his guilt, how gruesome or cold blooded or calculated it was, how many people he killed, or how many people he killed in the past. None of that matters. A position like that significantly oversteps the justifications typically offered on behalf of the abolitionist position: bad lawyering, possible racism in any given case, that the police are hiding or manufacturing evidence. All of those things can be gone over and are gone over in great detail and over a long period of review in case-by-case analysis under the most exacting standards that the law knows. But that is a far cry from justifying complete abolition in every case no matter what.
. . .
The second basic, overriding problem with outright abolitionism is that it simply shoves off to one side what in any other context is the accepted and indeed the uncontroversial maxim that governs criminal punishment, and that is that the punishment should fit the crime. . . . It's fine to give a long sentence to a carjacker, to a child molester, to someone who poisons kids — teenagers by selling them dangerous drugs, for instance — but that is a different kind of thing. It's frequently said in these debates that death is different. It is different and so are the crimes like Lawrence Horn's and James Perry's and Timothy McVeigh's that bring about the death penalty. Let the punishment fit the crime. (Event Transcript from the Pew Forum, July 21, 2006).

Former Prosecutor Says Death Penalty Not Worth The Costs

Steven P. Grossman, a former New York City prosecutor and a professor at the University of Baltimore School of Law, recently wrote in The Baltimore Sun that the death penalty is "not worth the societal effort it requires and the wounds it causes." The case of Maryland death row inmate Vernon Evans, who received a stay jsut prior to his scheduled execution this month, prompted Grossman to examine capital punishment as it relates to victims' families and whether executions deter future violent crimes. He noted:

The average capital case in this country takes 12 years from crime to punishment, and a staggeringly small percentage of murders ever lead to executions. Further, can it really be argued that the difference in potential sentences between life in prison without parole, if they are caught and convicted, and the even smaller likelihood of being executed will stop potential murderers from taking a life?

I don't know the answer as to whether the death penalty is just or just cruel. But I do know that it is not worth the societal effort it requires and the wounds it causes.

Finally, what about the best interests of the families of the victims?

I prosecuted murder cases in a state that had no death penalty at the time. When my office obtained convictions that led to life sentences, the families of the victims got some closure and could return to their lives, although not without permanent wounds.

But where there is capital punishment, as in the Evans case, the families will wait, get close to the end and only find themselves having to wait again and again for the closure they need.

We have long debated whether capital punishment is just. It is time we ask whether it is worth the price that we pay for it. (The Baltimore Sun, February 12, 2006).

California Moratorium Bill Gains Broad Support From Law Enforcement, Prosecutors and Judges

A group of 40 law enforcement officers, current and former prosecutors, and judges at the state and federal level have urged California lawmakers to enact a temporary halt to executions in the state while a commission examines the accuracy and fairness of the death penalty. In a letter to members of the California Assembly, the bi-partisan group of death penalty supporters and opponents wrote, "[G]iven that DNA testing and other new evidence has proven that more than 121 people who sat on death rows around the country were actually innocent of the crimes for which they were convicted, we agree that a temporary suspension of executions in California is necessary while we ensure, as much as possible, that the administration of criminal justice in this state is just, fair, and accurate."

The legislation, Assembly Bill 1121, calls for a moratorium on executions until January 1, 2009, two years after the newly-established California Commission on the Fair Administration of Justice is set to submit its findings to the legislature and Governor. The letter noted, "We believe that it is not only pragmatic, but prudent to halt executions until these recommendations can be fully considered and, if necessary, acted upon."

Those signing the letter are listed below:

David Angel
Active Deputy District Attorney, 1995-present

Judge Michael Ballachey
Retired, Alameda County Superior Court

James J. Brosnahan
Former Assistant U.S. Attorney, Arizona and California, 1961-1966

Walter F. Brown, Jr.
Former Assistant U.S. Attorney, C. D. of California, 1989-1994

Judge LaDoris Cordell
Retired, Santa Clara County Superior Court

Ed Davis
Former Assistant U.S. Attorney N.D. California, 1974-1978

Judge Roderic Duncan
Retired, Alameda County Superior Court
Former Deputy Attorney General, 1962-1963

Jon Duree
Former Deputy Attorney General for California, 1976-1981

Bruce Enos
Former Deputy District Attorney, Sonoma County, 1977-20005

George Fisher
Former Assistant District Attorney, Middlesex County, Mass., 1987-1991
Former Assistant Massachusetts Attorney General, 1991-1992
Professor, Stanford Law School, Stanford, CA

Judge Ronald Greenberg
Retired, Alameda County Superior Court

Associate Justice Joseph Grodin
California Supreme Court, 1982-1987
Professor, UC Hastings College of the Law, San Francisco, CA

Melinda Haag
Former Assistant U.S. Attorney C.D. California, 1989-1993
Former Assistant U.S. Attorney N.D. California, 1999-2003

Terrence Hallinan
Former District Attorney, City and County of San Francisco, 1995-2004

Ron Hampton
Executive Director, National Black Police Association

Donald Heller
Former Assistant U.S. Attorney E.D. California
Former Assistant District Attorney New York County
Author of the Briggs Initiative of 1978, which created
the present death penalty law in California

Sheriff Michael Hennessey
Sheriff of the City and County of San Francisco, 1979-Present

Aundré M. Herron
Former Assistant Prosecuting Attorney, Jackson County, MO, 1982-1987

Judge Richard Hodge
Retired, Alameda County Superior Court

Peter M. Horstman
Former Deputy District Attorney, Los Angeles County, 1995-2005

Michael J. Hroziencik
Former Deputy District Attorney, San Mateo County, 1996-2003

Peter J. Hughes
Former Assistant U.S. Attorney, Los Angeles and San Diego, CA
Former JAG Corp prosecuting attorney

John Jordan
Former Assistant U.S. Attorney N.D. California
Former Assistant District Attorney, Manhattan, NY

Jan David Karowsky
Former Deputy District Attorney, Sacramento County, 1973-1977

Fern Laethem
Former Deputy District Attorney, Sacramento County, 1976- 1979
Former Assistant U.S. Attorney, E. D. of California, 1979-1980

Laurie L. Levenson
Former Assistant U.S. Attorney, Los Angeles, CA, 1981-1989
Professor, Loyola Law School, Los Angeles, CA

Michael Lightfoot
Former Assistant U.S. Attorney C.D. California, 1968-1971
Department of Justice, Washington, D.C., 1964-1968

Ed Medvene
Former Assistant U.S. Attorney C.D. California, 1968-1971

Ira Reiner
Former District Attorney, Los Angeles County, 1984-1992

Judge Jennie Rhine
Retired, Alameda County Superior Court

Gordon B. Scott
Former Deputy District Attorney, Sonoma County, 1989-2000

Robin Seeley
Former Assistant U.S. Attorney N.D. California, 1993-2000

Margo D. Smith
Retired Deputy District Attorney, 1976-1979 and 1987-2005
Former Assistant U.S. Attorney N.D. California, 1979-1981

Mai Linh Spencer
Department of Justice, Washington, D.C., 1997-2002
Former Assistant U.S. Attorney, D.C., 1997-1998

Carter Stewart
Former Assistant U.S. Attorney N.D. California, 2003-2005

John Taylor
Former Deputy District Attorney, Alameda County, 1967-1980
Assisted in exoneration of Aaron Owens, wrongfully convicted of double murder

Alison Tucher
Former Deputy District Attorney, Santa Clara County, 1995-1998
Attorney for Rick Walker, exonerated for murder, 2003

John Vandevelde
Former Assistant U.S. Attorney C.D. California, 1976-1980

Tony West
Former Assistant U.S. Attorney N.D. California, 1994-1999

Jon Willis
Deputy District Attorney, County of Imperial, 2002-Present
President, Imperial County District Attorneys’ Association (Letter to the California Assembly in Support of AB 1121, January 9, 2006).

California Prosecutors Urge Death Penalty Moratorium

As California lawmakers consider legislation that would put executions on hold for two years while a 13-member commission reviews the problem of wrongful convictions in the state, a group of current and former prosecutors have sent members of the state Assembly a letter urging passage of the measure. "The execution of an innocent person is unacceptable, and it is imperative that California takes every precaution that it never happens. This is not just a matter of justice for these individuals. It is a matter of public safety…. If an innocent person is convicted, that means that the true perpetrator may well still be free to commit more crimes," the prosecutors wrote.

Among the prosectors signing the letter were Donald Heller, who authored the state's 1978 death penalty statute, and Ira Reiner, whose office sent dozens of people to death row when he was Los Angeles County's district attorney from 1984 to 1992. Imperial County deputy district attorney John Willis, San Francisco County sheriff Michael Hennessy, and former California Supreme Court Justice Joseph Grodin also signed the letter.

Heller noted that the California death penalty law "was written to provide a fair method." He added, "In practice it has not worked out that way. ... There are too many variables law can't control." Among Heller's chief concerns is the quality of representation a capital defendant receives. Reiner stated, "I don't see any appropriate argument against a brief moratorium on executions while the death penalty process in California is examined very carefully by serious people. If the state is going to have the moral authority to take a life, it has to be done when there are no questions about the fairness of the trial."

California's Assembly is currently considering the moratorium legislation supported by the prosecutors. Last year, the state's lawmakers passed legislation to create the 13-member California Commission on the Fair Administration of Justice, a group that includes both supporters and opponents of capital punishment. (Los Angeles Times, January 10, 2006)

Manhattan's DA Says Death Penalty "Exacts a Terrible Price"

As New York lawmakers conducted the first in a series of hearings on the state's death penalty, Robert M. Morgenthau, Manhattan's long-serving District Attorney, recommended that New York abandon the practice: "It's the deed that teaches, not the name we give it," Morgenthau said, quoting George Bernard Shaw. He went on to note, "The penalty exacts a terrible price in dollars, lives, and human decency. Rather than tamping down the flames of violence, it fuels them....I urge all of our lawmakers, in the strongest possible terms, not to reinstate the death penalty in New York." Morgenthau presented information to support his position, including F.B.I. statistics showing that states with the death penalty have homicide rates that are 44% higher than those without it. Morgenthau joined legal scholars, victims family members, and other experts in urging New York lawmakers to end capital punishment. The hearing took place in New York City before an Assembly committee and hundreds of spectators. (New York Times, December 16, 2004).

Some lawmakers who had helped to pass the state's death penalty law nearly a decade ago, such as Assemblywoman Sandra Galef, now oppose capital punishment. "I think circumstances do change. I think that views do change. We do have life without parole now (as a sentencing option). The use of DNA has advanced. So I don't believe I would be supportive this time," See DPIC's Web page on the New York Court of Appeals Ruling.

Galef said a serious debate on the issue is sure to occur during the coming legislative term. A shift in public opinion could shape the course of the discussion. A recent Quinnipiac University poll of New Yorkers found that 53% of respondents preferred to impose the sentence of life without parole and only 38% supported the death penalty when given the option. (Rochester Democrat and Chronicle, December 15, 2004).

Lead Prosecutor Questions Value of the Death Penalty

Thomas F. Kelaher, the new president of the County Prosecutors Association of New Jersey, said that it is time to start rethinking the use of the death penalty in the state. Although Kelaher is a supporter of the death penalty, he noted: "If the death penalty hasn't been used in 20 years, society should ask if it should be continued. It was supposed to act as a deterrent. If it hasn't been used in 20 years, you really can't say it's a deterrent."On the Front Line: Law Enforcement Views on the Death Penalty. Kelaher expressed concern about the recent number of high-profile cases in which defendants have been sentenced to death around the country only to be freed after DNA tests proved their innocence. He was also troubled by the high costs of capital punishment. (Asbury Park Press, Sept. 11, 2004).

Massachusetts DA Asks that the Death Penalty Be Avoided

Suffolk County District Attorney Daniel F. Conley has sent a letter to U.S. Attorney General John Ashcroft requesting that the Justice Department not seek the death penalty for a Dorchester drug dealer charged with murdering a rival. Ashcroft has indicated that the 25-year-old defendant, Brima Wurie, could be a candidate for the federal death penalty. Conley believes a federal death penalty case against Wurie would alienate community leaders whose assistance has been a valuable part of efforts to eliminate violence in Boston. "The district attorney feels much of the success in combating urban violence was achieved through partnerships between law enforcement, community members, and faith organizations. He fears that because the death penalty is a sensitive issue among some of those partners, its pursuit could jeopardize those partnerships," said Conley's spokesperson, David Procopio. (Boston Globe and Boston Herald, August 9, 2004) See Federal Death Penalty.

Texas DA Sees "Beginning of the End of the Death Penalty"

In Texas, Jefferson County District Attorney Tom Maness recently noted that the time-consuming and costly nature of capital punishment may lead to its demise. "I think this is the beginning of the end of the death penalty," said Maness after a Criminal District Court Judge recommended that the Court of Criminal Appeals commute the death sentence of Walter Bell to life in prison. On three occassions, Jefferson County spent countless hours of work and hundreds of thousands of dollars to prosecute Bell, who is mentally retarded, a diagnosis that makes him ineligible for the death penalty according the U.S. Supreme Court's 2002 decision in Atkins v. Virginia. Maness added that if Texas juries had the option to sentence those convicted of murder to life in prison without the possibility of parole and the state were to abolish capital punishment, protest from the state's prosecutors would be little more than a grumble. "It's so difficult. It gets more difficult all of the time," said Maness of the time-consuming and stressful work associated with seeking death sentences. Texas is one of two states that has the death penalty and does not offer the alternative sentence of life without parole. (The Beaumont Enterprise, July 24, 2004) See Life Without Parole.

Prosecutor Withdraws from Death Penalty Case

A Kentucky prosecutor raised religious objections to the death penalty in asking to step aside in the case of two men charged with murder. J. Stewart Schneider, the commonwealth's attorney in Boyd County in northeastern Kentucky, said Thursday he filed his motion to withdraw from the case after reflections at a religious retreat. Schneider also is a minister with the Christian Church (Disciples of Christ).

"I spent that weekend in prayer," he said. "The more I thought about it, the more convinced I became that for me to make the decisions in asking for a penalty ... I would be speaking contrary to my calling. I would not be speaking Gospel, but would rather be speaking as a prosecutor. And I don't know that I can do both things, that I can wear two hats in that case."

Kentucky's Attorney General, Greg Stumbo, will appoint a special prosecutor.

Schneider said that with use of the death penalty, "we terminate God's opportunity to work" to change lives. "Even murderers can be redeemed," he said. (Associated Press, June 11, 2004).

Massachusetts District Attorneys Criticize Governor's Death Penalty Plan

District attorneys from several Massachusetts counties, including Suffolk, Norfolk, Middlesex, Essex and Barnstable, had strong reservations about Governor Mitt Romney's attempt to establish a nearly "foolproof" death penalty system in the state. Some noted that nothing can eliminate the possibility of human error in such cases. The district attorneys said that the state's medical examiner's office and crime labs are currently overwhelmed with work, and that the labs do not have the capacity to add the additional responsibility of carrying out Romney's plan. "Let's fix what's wrong first," said Barnstable District Attorney Michael O'Keefe. "We're significantly behind in the Commonwealth in the delivery of forensic services, relative to other jurisdictions."

The plan was created by an 11-member death penalty commission appointed by Romney, and the commission members note that their recommendations will come with a hefty price-tag. Norfolk County District Attorney William R. Keating estimates that using the standards would cost Massachusetts taxpayers at least $5 million per death penalty case, nearly as much as his entire $6.8 million annual budget that funds approximately 19,000 criminal complaints a year. Suffolk County District Attorney Daniel Conley said the release of four wrongly convicted or indicted Massachusetts inmates since he took his job in 2002 "has simply convinced me that while technology like DNA is critical in determining one’s guilt or innocence, the administration of justice is a human endeavor, and we're all fallible." (Boston Globe, May 4, 2004) See Innocence. Also Read the Commission Report.

Law Enforcement Officials Support Bill to End Juvenile Death Penalty

A bipartisan measure to eliminate the juvenile death penalty in Florida has passed the Senate Criminal Justice Committee and is now on its way to the full Senate for consideration. The measure was introduced by Republican Senator Victor Crist, a death penalty supporter who notes that young people are different because they don't have the same understanding of consequences as an adult. The bill also has support from the state’s top law enforcement officers, Florida Attorney General Charlie Crist and Florida Department of Law Enforcement Commissioner Guy Tunnel. "You need to show some compassion, but you can’t forget the needs of victims. I’m a proponent of capital punishment but I think, generally speaking, this is a good thing," said Tunnel of the bill. Earlier this year, Wyoming and South Dakota eliminated the juvenile death penalty, and the U.S. Supreme Court will decide this fall whether the practice is unconstitutional. The federal government and 19 states prohibit the death penalty for offenders who were under the age of 18 at the time of their crime, and 12 additional states do not have capital punishment. (South Florida Sun-Sentinel, April 14, 2004) See Juveniles: Roper v. Simmons.

District Attorney Talks About being "Smart on Crime"

Kamala Harris, the newly-elected San Francisco District Attorney, recently spoke about her approach to keeping the community safe:

The dialogue about public safety in San Francisco and across the country is usually dominated by one simplistic question -- are you "tough" on crime, or are you "soft" on crime? As we start a new era in the district attorney's office today, it's time to put an end to that false choice. Let's start today by being smart on crime. . .

We also need to reject simplistic, reactive public policies. It takes more than building prisons and locking away prisoners to keep our city safe. As district attorney, I will not use 3-strikes enhancements unless the 3rd strike is a violent or serious felony; nor will I ever ask for the death penalty.

At the same time, let me be unmistakably clear that anyone who commits a rape, molests a child, commits murder or any other violent act will be met with the most severe consequences and be removed from this community so that they can do no more harm. (San Francisco Chronicle, January 8, 2004)

Prosecutor Criticizes Federal Government's Decision to Seek Death Penalty

After U.S. Attorney General John Ashcroft authorized a federal death penalty prosecution against two Massachusetts men accused of a gang murder, the local Suffolk County District Attorney, Daniel F. Conley, objected to using capital punishment to end urban violence, stating, "I do not believe the death penalty is a deterrent or appropriate punishment for inner-city homicide. The death penalty runs counter to the strategies for preventing and prosecuting urban crime -- which include sensitivity to the neighborhoods we serve -- that have proven successful in Boston over the last decade." Conley plans to personally appeal to Attorney General Ashcroft to drop the death penalty prosecution against the defendants. Carrie Gethers, the victim's grandmother, has also announced that she does not support the federal government's decision to seek the death penalty. She stated, "It won't do anybody any good. . . I don't see any use for that anymore. I'm not a murderer. Not me. I won't say yes to that. He's gone. It hurts, but this won't bring him back." (Boston Globe, September 19, 2003). See Federal Death Penalty.

Broward County Prosecutors to Continue DNA Testing After Florida Deadline

As the October 1st deadline for Florida inmates to request DNA testing of evidence that could prove their innocence looms, Broward County prosecutors have announced that they will allow inmates access to the crucial testing after the deadline passes. Two of Florida's highest-profile DNA exonerations, Frank Lee Smith, who died of cancer on death row 11 months before he was exonerated by DNA evidence, and Jerry Frank Townsend were both Broward County cases. Carolyn McCann, head of the Broward State Attorney's appeals unit, stated, "Since that's happened, you can't look at these cases with your head in the sand or your head in the rule book. We're going to do the right thing." According to the law that established the deadline, if inmates convicted prior to 2001 fail to file for testing before October 1, 2003, DNA evidence in their cases may be destroyed. The Florida Bar plans to file an emergency petition with the Florida Supreme Court to request a one-year extension of the deadline. (Sun-Sentinel, September 12, 2003)

Prosecutor, Juror Call for DNA Testing in Case of Man They Sent to Death Row

Doubts about the appropriateness of a death sentence have prompted former prosecutor Thomas Vanes to call for new DNA testing in the case of Darnell Williams, a man he sent to death row as a Lake County, Indiana state's attorney. Williams is scheduled to be executed on Friday, August 1. Vanes and John Gnajek, a member of the jury that sent Williams to death row, have filed a suit in federal court asking for a stay of Williams' execution until new DNA testing is completed on blood evidence that played a crucial role in the case. Jurors in the case have stated that if it had not been for the blood found on Williams' clothing, which suggested that he was present during the shootings, they would not have sent him to death row. Testing would determine whether the blood was from the victims or another source. "People were trying to determine whether he was the actual shooter," said Gnajek. "The blood on his shorts seemed to indicate that. Without it, I couldn't have voted for the death penalty." Williams could use the new DNA evidence to seek executive clemency from Governor Frank O'Bannon. The state attorney general has stated that he does not oppose the new tests if the governor requests them for the clemency review. (New York Times, July 24, 2003) See Innocence.

Former San Francisco Prosecutor Denounces Death Penalty

After years of supporting capital punishment, former San Francisco prosecutor Bill Fazio recently changed his position on the death penalty. Fazio, who now serves as a defense attorney, stated, "Life without parole is a viable alternative." He noted that he began to reconsider his stance on capital punishment after the U.S. Court of Appeals reversed his sole death penalty conviction. Fazio noted, "It was an error by the trial judge, and it made me realize that after 21 years there was still no closure in the case. If Coleman had gotten life without parole, it would have been over in 1981." (San Francisco Daily Journal, July 10, 2003).

Prosecutor Urges DNA Testing to Ensure Accuracy

 

In an op-ed that appeared in the Los Angeles Times on the day Indian death row inmate Darnell Williams received a stay of execution to allow testing of crucial DNA evidence that could save his life, the prosecutor from the case, Thomas Vanes, expressed second thoughts about seeking the death penalty. He wrote:

For 13 years I served as a prosecutor, and I was not bashful then in seeking the death penalty. When criminals are guilty, they deserve to be punished.

But I have also learned since leaving the prosecutor's office 13 years ago that "the system" makes mistakes. Last year I learned that a man named Larry Mayes, whom I had prosecuted and convicted, had served more than 20 years for a rape he did not commit. How do we know? DNA testing.
. . .
Hard facts trump opinion and belief, as they should. It was a sobering lesson, and none of the easy-to-reach rationalizations (just doing my job, it was the jurors who convicted him, the appellate courts had upheld the conviction) completely lessen the sense of responsibility - moral, if not legal - that comes with the conviction of an innocent man. I too had been part of "the system." (Los Angeles Times, July 28, 2003).

 

Time Magazine Spotlights Texas District Attorney

A recent article in Time looks at the career of Travis County District Attorney Ronnie Earle. The article traces Earle's evolving opinion on the death penalty since he was first elected D.A. in Texas in 1976, the year the U.S. Supreme Court reinstated the death penalty. Among other concerns, questions of innocence have caused Earle to grow increasingly skeptical about the death penalty. The article notes:

But like the rest of us, Earle has now watched broken souls walk free after years of wrongful incarceration; 56 have been released from death row in the past decade, either because they were deemed innocent or because of procedural mistakes, according to the Death Penalty Information Center. Unlike the rest of us, Earle still has to enforce the death penalty. He is often plagued by doubts when he must decide whether to seek death. "I agonize over it," he says. "There was a time when I thought the death penalty ought to have wider application, but my views have evolved." Today deciding whether to seek the death penalty is easily the hardest part of his job. (Time, July 14, 2003). See Innocence.

Harris County Prosecutors Shocked at DNA Lab's Errors

Harris County, Texas, prosecutors are reeling after recent revelations that mistakes made by a Houston DNA testing lab could place some of the county's convictions in peril. Prosecutor Joe Owmby recently voiced his concern that a re-test of DNA evidence in the state's case against convicted rapist Josiah Sutton conclusively determined that he could not have committed the crime. Owmby noted, "I could see somebody coming back and saying, 'The test we told you is conclusive is now inconclusive.' I could see that happening. What I did not envision, what I did not speculate could conceivably happen, is that they could say, 'We could tell it's not him.' I did not see how that could happen. . . How can you screw that up?" Former District Attorney John B. Holmes, Jr., who was Owmby's boss during the Sutton trial, said, "Anytime there is something that causes one's faith in the criminal justice system to fail, it is always a broad brush and it always hurts." (Houston Chronicle, March 15, 2003)

Former DA, California County Support Death Penalty Moratorium

After a hearing that featured testimony questioning the accuracy and fairness of California's capital punishment system, the Alameda County Board of Supervisors voted to support a death penalty moratorium resolution calling on the state to further review its capital punishment statute. During the hearing, former Alameda County District Attorney John Taylor voiced his support for the measure. He was joined by Aaron Owens, whom Taylor prosecuted for a double murder in 1973, but who was later exonerated. Taylor noted that, if the death penalty had been available at the time he prosecuted Owens, an innocent man may have been wrongly executed. (The Argus, February 27, 2003)

Former Chief U.S. Attorney of NY Talks About the Death Penalty: "From a pure law enforcement perspective, it doesn't work."

Mary Jo White, former United States Attorney in Manhattan recently attended a showing of the play "The Exonerated," which portrays the lives of individuals who were wrongly convicted in capital cases and then freed. Ms. White prosecuted federal death penalty cases. Some of her remarks to the NY Times after the show included:

"My personal view on the death penalty has evolved several times in my life, most of it against the death penalty, because it demeans the state," she said. "That sort of remains."

"My present, evolving view is that I think it's appropriate in a very narrow band of cases, where you are certain that the person is guilty and the crime is such that it kind of rocks the foundations of civilized society," she said. "A child tortured in front of his parents. Terrorism. Society needs to vindicate itself."

"You have to think it should happen from a moral perspective, from a vindication perspective," she said of the death penalty. "From a pure law enforcement perspective, it doesn't work."

Executing someone decades later, she said, is unsatisfactory.

"If it takes 18 years, that diminishes what you're trying to do," Ms. White said. "What truly undermines my rationale is that you need to do it relatively promptly."

"What I thought was most disturbing about what we saw tonight was the zealousness of cops at the cop level," she said. "The degree to which that permeates the American justice system, I fear, is not insignificant."

Ms. White added: "I don't know how bad it is. But the death penalty focuses it in a laserlike way."

(of court appointed attorneys in many capital cases):

"They're paid nothing," she said of the court-appointed lawyers in many state capital cases. "They're paid laughable sums."

Ms. White added that both the state and federal court systems had work to do in another area.

"You have racism all throughout our justice system, which is a major problem," she said.

Ms. White added that she had sought information on the human impact of the death penalty in many ways, including its portrayal in the arts. She recalled going by herself to a midnight show of "Dead Man Walking," the 1995 film starring Sean Penn as a death row inmate who is executed.

"He was guilty, but you watched him being killed," she said, recalling the film. "What the play brings home, in connection with the innocent but even with the not innocent, is that you're doing this to another human being. If you're going to be abstract about it, you may have one result in your thinking. If you have to face another human being, you may have another."

After the show, which is playing at 45 Bleecker Theater, Mr. Buchman introduced Ms. White to Kerry Max Cook, whose horrifying 22-year ordeal on Texas's death row ended when he was cleared by DNA evidence.

In the play, Mr. Cook, played by Chad Lowe, says that freedom after death row is a relative thing.

"The State of Texas executed me over a thousand times, man, and it just keeps on doin' it," he says. The real Mr. Cook lives in Manhattan now and often stops by the theater to talk briefly against the death penalty after the show. In the lobby, he told Ms. White that he had to this day received neither compensation nor an apology from the State of Texas. That did not sit right with Ms. White, who reached for Mr. Cook's arm. "I apologize," she said, "on behalf of the nation." (New York Times, February 15, 2003).

 

Maryland Attorney General Calls for End to State's Death Penalty

Maryland Attorney General J. Joseph Curran, Jr., released an open letter to state leaders and Governor Robert Ehrlich stating his belief that the state's death penalty system should be abolished, in part because of the "intolerable cost of executing, every so often, the wrong person." Curran said that the death penalty is seriously flawed and does not deter crime. Curran has served as the state's top elected law official since 1986 and is widely respected among his colleagues within Maryland's government. Maryland Lt. Governor, Michael Steele, has also voiced his opposition to the death penalty (see below). (Associated Press, January 30, 2003) Read the Attorney General's letter.

Scott Turow Questions Death Penalty in Government Hands

Scott Turow, former federal prosecutor and author who served on Illinois's blue-ribbon Commission on Capital Punishment, reflected on Governor George Ryan's decision to pardon four men and commute the remaining death sentences in the state:

What happened in Illinois is a cautionary lesson. Inaction by legislatures forces more and more of the responsibility for creating remedies into the hands of government executives or the courts. The solutions they arrive at are often unpopular, and the principles that guide them prove subject to constant change because of the irreconcilable tension between individualized decision-making and the constitutional demand that we impose this ultimate sanction on a consistent and reasoned basis.

At the end of the day, perhaps the best argument against capital punishment may be that it is an issue beyond the limited capacity of government to get things right. (New York Times, January 17, 2003) Read the entire article.

President of Illinois Prosecutors' Association Calls Death Penalty "Cruel Hoax"

John Piland, the chief prosecutor in Champaign County and president of the Illinois State's Attorneys Association, recently called the state's death penalty a "cruel hoax." Piland said that if a relative of his was killed, he would ask the prosecutor not to seek the death penalty. " In Illinois we can say that we have [the death penalty], but in fact I'm not sure it's fair to victims' families to suggest to them that it truly exists," Piland said. (New York Times, January 14, 2003).

New York DA Calls Death Penalty "A Hollow Victory"

Queens District Attorney Richard Brown recently called the death penalty a hollow victory because it offers victims' families "a false hope of closure." Brown said that the use of the death penalty is regrettable because the long and expensive appeals process causes victims' family members to relive the crime that took their loved one. He noted that families "hang on" to a false belief that a capital conviction will ease their pain. (Queens Chronicle, December 20, 2002)

Texans Voice Growing Concerns About State's Death Penalty

Concerns about Texas' death penalty have been raised by a number of present and former state officials. Former Bexar County district attorney Sam Millsap, who successfully prosecuted a number of capital cases, noted, "We're talking about some serious, conservative, pro-prosecution people who have some fundamental questions about whether we know what we're doing right now. What we're saying is 'Let's stop the train until we've got a system we're confident works.' " Millsap's sentiments were echoed by State Senator Mike Moncrief, who said, "I think there's a clear possibility - and a high probability - that we have executed innocent people in this state." State Representative Elliott Naishtat also questioned the fairness of the state's application of the death penalty and called for a moratorium on executions until the Texas system can be reviewed. Naishtat stated, "Texas' application of the death penalty is riddled with systemic problems. The Legislature should adopt a joint resolution that authorizes a constitutional amendment giving the governor the authority to declare a temporary moratorium on executions in Texas." (Austin American-Statesman, June 2, 2002).

Illinois Commission Co-Chair Calls for End of Costly Death Penalty

Thomas Sullivan, a former U.S. attorney and co-chair of the Illinois Commission on Capital Punishment, questioned the wisdom of investing limited state resources in capital cases, and called for replacing the death penalty with life imprisonment without parole. In an opinion piece in the Chicago Tribune, he wrote:

"Lawmakers and the public must address the question of costs and the allocation of our limited state resources.

Is capital punishment a luxury we can no longer afford?

I have been involved in the criminal-justice system for more than 45 years as a prosecutor and defense lawyer. I have come to the view that the state will make the best use of public funds by substituting life imprisonment for capital punishment.

We will substantially reduce direct costs, avoid the risk of more near-fatal errors, put an end to questions about racial discrimination in the enforcement of the Illinois death-penalty system, and make funds available for crime prevention and rehabilitation.

We will, as well, focus attention on the compelling need for reforms in the entire Illinois criminal- justice system rather than on the tiny fraction of cases that lead to the penalty of death." (Chicago Tribune, May 15, 2002). See also, Illinois Commission on Capital Punishment

Illinois Commission Chair Questions Wisdom of "Fixing" Death Penalty

Thomas Sullivan, a former U.S. Attorney and Co-Chair of the Illinois Commission on Capital Punishment, stated that spending millions of dollars to salvage Illinois's broken death penalty system would be a "misuse of public funds." It would cost millions of dollars to implement many of the 85 recommendations issued last month by the blue-ribbon Commission appointed by Governor George Ryan in 2000. Sullivan noted that it would be wiser to invest the public's tax dollars into other areas, such as education and rehabilitation. "You have to look at the cost of putting that money into what really is just a few cases," he said. (Associated Press, May 7, 2002). See also, Illinois Commission on Capital Punishment

Scott Turow Urges "Repeal or Repair" for Capital Punishment

Attorney and author Scott Turow recently commented on his experience as a member of the Illinois Commission on Capital Punishment. In an op-ed in the Wall Street Journal, Turow emphasized the unanimous conclusion of the Commission that the system was in dramatic need of reform:

Capital punishment has been one of the most notorious train wrecks of American politics. . .
According to the Death Penalty Information Center, the 100th innocent person was released earlier this year from death row, raising questions about how many innocents have already been executed, while the surviving family members of murder victims often find the wait from trial to execution, averaging 11.5 years in 2000, an insulting protraction of their grieving.
[I] served as one of the 14 members of the commission [appointed by Gov. Ryan in Illinois to address the problems in that state], which delivered its report last week. I believe some aspects of our experience may help make the national debate less heated and more focused.
Our report contained 85 specific recommendations directed to every stage of the criminal process, from police investigation through clemency proceedings. . . .
Before the arguments about the wisdom of specific recommendations gather steam in Illinois and elsewhere, I wanted to focus on one important aspect of the report that may be overlooked. More than 85% of the recommendations we made were unanimous.
This was no small achievement, given the diversity of opinion in the group. The governor appointed, among others, a former U.S. senator, the general counsel to the Chicago Police Department, the current head of the Illinois State Attorneys organization, the public defender in Chicago, a past president of the local bar association and the son of a murder victim.
[N]ine of the 14 members of the commission were present or former prosecutors. . . . [W]hether we supported or opposed the death penalty, we were all able to agree that the capital punishment system as it stood was in need of dramatic reform. (Wall Street Journal, 4/24/02) Read the article. See also, Illinois Commission Report

Former Texas Prosecutor Calls for Re-Trial

Former Texas prosecutor Lorraine Parker has signed an affidavit calling for a new trial for Anibal Garcia Rousseau, whom she helped send to death row for a 1988 murder. One month after Rousseau was convicted and sentenced to death, a Houston Police Department firearms specialist determined that the weapon used in Rousseau's trial was not the gun used to kill the victim. However, this crucial evidence was withheld by prosecutors and only later discovered in a case file. "It bothers me tremendously. I'm terribly afraid that the wrong guy is in jail," said Parker, who believes that the ballistic tests should have spurred further investigation into the murder. (Houston Chronicle, April 21, 2002)

Candidate for Illinois Governor On Ending the Death Penalty

Illinois gubernatorial candidate Ronald Burris said he would sign legislation to end the death penalty if it was presented to him. Burris, a former Illinois Attorney General, says he supports the death penalty in principle, but added that the release of 13 innocent inmates from Illinois's death row has changed his mind about the death penalty in practice. "I don't think we'll ever see the death penalty executed in Illinois again," said Burris. (St. Louis Post-Dispatch, 2/20/02)

Former Prosecutor Calls for Clemency

John W. Pierotti, the former district attorney for Shelby County (Memphis), Tennessee, will head the clemency appeal of Philip Workman, who was convicted in Shelby of the murder of police Lt. Ronald Oliver in 1981. Pierotti, a death penalty supporter, said the Workman case concerns him because new evidence indicates that Workman may not have fired the shot that killed Lt. Oliver. "It would be a miscarriage of justice for this execution to go on," said Pierotti. Workman is scheduled to be executed on January 31, 2001. (The Tennessean, 10/25/00)

Nebraska Prosecutor Decides To "End Suffering" by Not Seeking Death Penalty

Lancaster County Attorney Gary Lacey announced that he would not seek the death penalty against Randolph Reeves at an upcoming resentencing hearing. Reeves, a Native American, was convicted and sentenced to death in Nebraska in 1981 for killing two women. The case drew national attention when some of the family members of the victims began actively opposing his execution, which was scheduled for January 12, 1999. 'The execution was stayed by the state Supreme Court, which ordered a new sentencing hearing for Reeves. In announcing that he will not pursue the death penalty again, Lacey stated, "I had the power to put an end to all the suffering in this case...I have the power to do that, and over the weekend I decided that's what I'm going to do." Since the state is not going to seek the death penalty, Reeves will likely be resentenced to life in prison. (Lincoln Journal Star, 9/8/01)

Some of North Carolina's leading jurists and law enforcement administrators recently voiced their concerns about capital punishment in their state:

  • "The state should not execute another person without testing for DNA, if DNA testing is possible," said Tom Ross, Director of the state Administrative Office of the Courts and former state Superior Court judge. (Ross emphasized that he was speaking personally and not as a AOC director.)
  • Former N.C. Chief Justice, James Exum, said any death penalty law written by humankind "forever and always will be insufficient to decide who should live or who should die.... No matter how we try to dress it up -- doing it by lethal injection and very early in the morning -- it's still the ultimate, brutal act."
  • Guilford County District Attorney Jim Kimel stated that death penalty cases strain the justice system. They make up less than 1% of his caseload, but devour 1/3 of its resources. "They are all consuming," he said. "They demand not just due process, but super due process."
  • "I really question whether the death penalty is worth having in terms of time and money," said former Chief Justice Burley Mitchell, a long time death penalty supporter. "It has warped our court system. I think the time has come to decide whether it's worth the cost." (The News & Record, North Carolina, 8/8/00)

Former Texas District Attorney Supports Death Penalty Moratorium

Sam D. Millsap, Jr., who presided over several death penalty cases in the mid-1980s as the District Attorney in Bexar County, Texas, recently stated:

"I am no longer convinced our legal system guarantees the protection of the innocent in capital murder cases...
I support the call for a moratorium on executions in Texas." (Express-News (TX), 6/29/00)

At her weekly Justice Department news briefing, U.S. Attorney General Janet Reno said too many death penalty cases are being handled by poorly prepared defense lawyers. Defendants should not be prosecuted "for a capital crime until they have a lawyer who can properly represent them, and...the resources necessary to properly investigate the charges," said Reno. (USA Today, 6/16/00)

Former Attorney General Urges Pennsylvania Moratorium

The Pennsylvania Senate Judiciary Committee recently heard testimony on a bill to impose a 2-year moratorium on the state's death penalty. Testifying at the hearing was former state Attorney General Ernie Preate, who, had successfully defended the constitutionality of Pennsylvania's capital statute before the U.S. Supreme Court. Preate, however, testified in favor of a moratorium, citing the politicization of the death penalty, and the weakened state and constitutional safeguards against wrongful convictions. "Piece by piece, through state and federal statute and Supreme Court cases, both in Washington and (in Harrisburg), we have dismantled those protections that assured us of a mathematical certainty that an innocent man would not and could not be put to death in this state or in this nation," Preate said. "I was once a constructor of this apparatus of death,...[b]ut I can no longer support that which I helped to create." (Pittsburgh Tribune-Review, 3/1/00) See also, Moratorium organizations.

Texas Attorney General Dan Morales questioned the fairness of the state's death penalty system. "There is no question," he said, "in certain cases that the process does not appear to be an absolutely fair and equitable system." He criticized the clemency process and was "troubled" by the high percentage of minorities on Texas's death row. He also called on the Court of Criminal Appeals to allow review of cases where the court-appointed defense attorneys had missed filing deadlines by a day or two. Morales is leaving office after 8 years as Attorney General. (Houston Chronicle, 12/20/98).

Former federal prosecutor Thomas Luken criticized the state of Ohio for trying to execute Wilford Berry, who has volunteered for execution. He said: "I am acutely aware of the motivations of prosecutors to build a record of convictions for campaign purposes regardless of the ends of justice." He added that he believed capital punishment should be abandoned completely: "No one can deny that the death penalty is meted out randomly and discriminatorily in this country." (Cincinnati Enquirer, 11/28/98).

Former Virginia Attorney General William Broaddus, once a proponent and enforcer of the death penalty, says he can no longer support capital punishment. Currently in private practice, Broaddus has had the opportunity to see the other side of capital punishment, as a defense attorney for Angel Breard who was executed in Virginia last April. His experience led to concerns about the lack of fairness in the application of the death penalty. "There's just no way I could conclude that the way we do this makes any sense. I have come to conclude that, in fact, we apply the death penalty in a very arbitrary manner."(The Virginian Pilot, 5/24/98)

Iowa Attorney General, Thomas J. Miller, recently wrote to the members of the General Assembly opposing the death penalty. Among his reasons:

"Reinstating capital punishment will not keep our citizens safer. The death penalty will not prevent murders."
"It is highly doubtful that the death penalty can ever be administered fairly and impartially."
"Iowa's entire judicial system would suffer from the overwhelming demands of an added capital caseload." - letter, Feb. 2, 1998.