The Death Penalty: The Need for Quality Control in a Flawed Legal System

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1 Cheung 1 Willi Cheung Professor Park English 101C May 20, 2013 The Death Penalty: The Need for Quality Control in a Flawed Legal System In 2003, two days before leaving office, Illinois Governor George Ryan altered the sentences of 164 death row inmates to life imprisonment without the possibility of parole. The day before, he exonerated four death row inmates. Formerly a death penalty advocate, Ryan had determined that this was the right thing to do (Kurtis 10). It was right to do because in 1998, Ryan s first year in office, Illinois had exonerated its thirteenth death row inmate. This meant, since 1977, the year that many states including Illinois re-instated the death penalty, the state had executed twelve inmates, but as of 1998, it exonerated thirteen death row inmates (Kurtis 11). A startling statistic that indicates for each inmate put to death there is, at least, one innocent inmate waiting to die. This assumes that all twelve of the inmates put to death were actually guilty. When reviewing statistics such as these, it becomes patently obvious that the United States legal system has deep flaws and, if not in need of abolishing the death penalty, is in need of establishing quality controls to ensure the guilt of those sentenced to death, or in the alternative, to life imprisonment without the possibility of parole. It is the goal of this paper to provide a framework of quality control for such cases within the United States legal system. To provide the framework, this paper makes a statement on the death penalty as a deterrent to crime and then moves on to present a history of the death penalty in the United

2 Cheung 2 States. This paper also describes the errors found within the criminal justice system and the reason why change is necessary. Finally, there are recommendations to improve the criminal justice system, overall, but most particularly in cases of capital offenses. For as many studies that support the death penalty as a deterrent to crime, there are opposing studies that conclude the death penalty is not a deterrent to crime (Kurtis 198). This is a controversial issue that is difficult to prove - much like the existence of God a debate that offers no decisive evidence to support the arguer s position. As a result, this paper will leave that decision to others. During colonial America, the reasons for using death penalty were: as a deterrence to future crime and to rid the community of the blood of the offender. As stated by Banner, when describing poetry sold at hangings: Spectators at the 1754 execution of John Ormsby could read: No hope of Favour can he have, From any human Hand, The Blood which he has spilt must be Purged from off the Land. (15) Criminal offenses provided colony communities not only with the desire to prevent future crime, but they also felt a moral obligation to suffer the criminal (Id. 14). Of course, in colonial America, public hanging accomplished most death penalties; and, for the purpose of deterrence, the more who attended the execution, the better. To further impress deterrence effect on the population, trials of capital cases were usually quick and completed within just days of the crime committed. Trials were so fast that it was not unusual to have several capital cases heard in the span of a day (Id. 15). According to Banner, the public nature of executions began to change in

3 Cheung 3 the late 17 th century when they moved from the public venues within towns to the jail yards. At the yards, the public could still view executions but only a selected few (such as the press) were allowed in the yards to attend the executions. Gradually, over a hundred year period, from the 1830 s to 1930 s, the public lost unfettered and direct access to executions (161). Just as public access to executions diminished, the intricacies, requirements and rules of the legal or criminal justice system grew. Capital cases occurred, and still do, on a federal level and a state level. Crimes fell within the definition of capital cases varied from state-to-state as did the method of punishment; with the advent of the electric chair in 1888, states began to move away from execution by the gallows. By the mid s, most states used either the gas chamber or the electric chair to administer the death penalty; some used death by a firing squad. Because states differed in the application of the death penalty, in 1972, the United States Supreme Court suspended the death penalty as a matter of constitutional law in Fuhrman vs Georgia (Banner 231). Fuhrman was a compilation of several cases for the Court s review. In each of the cases, the Court determined that the death penalty was cruel and unusual punishment, and thus unconstitutional, due primarily to the disparate way in which the states applied the death penalty across the cases under review (Id. 263). Within two years, 35 states undertook to resolve the disparities within their death penalty statutes enacting legislation that either more narrowly defined when the death penalty should be applied, or removed application of the penalty at the discretion of the jury by requiring the death penalty for all cases of a certain type. The constitutionality of the new statutes was finally decided in 1976; the review delayed through changing justices and a developing political climate that supported the re-instatement of the death penalty (Id. 271). As of May 1 st, 2013, there have been 1,330 executions in the United States since 1977, beginning with Gary Gilmore; there are

4 Cheung 4 currently 3,125 inmates across the U.S. awaiting execution. Data as late as 2010 indicates death row inmates spend an average of years waiting from the time of sentencing to execution (Death Row 2013). According to the information provided by the Innocence Project, which includes more than the death penalty cases, the average length of time of wrongful incarceration is ten years from the time of sentencing to time of release. Since the first prison exoneration in 1989, the Innocence Project, in conjunction with like innocence organizations across the U.S., has exonerated over 300 prisoners who spent a total of over 4,000 unnecessary hours behind bars. While many states have developed exonerees compensation funds, no amount of money can buy back the damaged reputations and the lost years of freedom. Those who believe that the majority of these inmates probably belong in jail for some reason anyway would be wrong. One of the cases described by Kurtis involved a man, Ray Krone, who by all accounts was a fine upstanding man in the community. He was a Navy veteran who, prior to his conviction, worked for the U.S. post office as a carrier. Krone had no prior legal issues, no assaults, no domestic violence, no traffic tickets; yet once the police and prosecutor determined that their perpetrator must be Krone (accused of raping and brutally killing a female bar manager he did know), they abandoned all other avenues of investigation (33). According to Kurtis, Krone s case represents an epitome of the failure of the current criminal justice system: Krone had an inexperienced defense attorney; the court broke the rules of evidence; questionable behavior occurred on the part of the prosecutor and the State s expert witness; and questionable forensic evidence was allowed at the trial, and at his second trial, on appeal (104).

5 Cheung 5 Krone s appeal trial was an example to those who believe the Court system has adequate quality control through the use of an appellate system. This might be true if the Appellate system at the state and federal level was not so tied to the prior decisions in a case, especially one of trial by jury. Judges and prosecutors are more concerned with upholding the technical decisions of the system rather than defending for justice. Again in Krone s appeal trial, the question of greatest severity was a bite mark found on the victim. First, the trial judge allowed videotape as evidence prepared by the State s expert witness, even though the tape was not acknowledged during discovery. In fact, the defense received the tape only three days prior to Krone s first trial. According to rules of evidence, this prejudicial video should not have been admitted as evidence because the defense had no time to respond to it and provide a rebuttal video; yet, the trial judge allowed the video to be played. Jurors later admitted the video swayed them completely, even though no other evidence linked Krone to the crime. The jurors assumed there had to have other minor errors that would explain other missing evidences, etc. (Id. 95) The bite-mark evidence again became a crucial evidence in Krone s second trial as a result of his appeal. Again, Krone was found guilty by the jury. The Superior Court judge had to stand by the jury verdict even though the judge later admitted that he doubted Krone s guilt verdict because he saw through the evidence presented by the prosecution and believed the defense s rebuttal of the bite-mark video. He had considered ordering a third trial yet declined to do so because it is difficult to tell a jury you think they are wrong. (Id. 98). The safeguard put in place by the legal system known as the appeals system failed miserably in Krone s case. This case and the second one highlighted by Kurtis, that of Thomas Kimball, serve to illuminate additional issues identified by The Innocence Project as the culprits leading to a high level of false imprisonment. Kurtis cited a professor at the Columbia School of

6 Cheung 6 Law, James Liebman, who had reviewed capital cases for 23 years. Professor Liebman identified substantial reversible errors in seven out of ten capital cases that he had reviewed. This means many of these death row inmates had high probability of innocence. The Innocence Project tells the case of Roger O Dell who was sentenced to death in 1985 for the rape, murder, and sodomy of Helen Schartner. The case was heard at all levels of the system, including the Supreme Court, over the course of 12 years; O Dell s appeal for DNA testing remained denied. Although the High Court refused to hear his case, Justice Blackmun seriously questioned O Dell s conviction; yet, Justice Blackmun simply warned of the gross injustice if an innocent man was put to death. The denied appeals led to Roger O Dell s execution in Many strongly believed that Roger O Dell was innocent. The Innocence Project identifies several areas that require reformation across all jurisdictions to order to improve the quality of the U.S. criminal justice system and decrease the likelihood of false imprisonment. These areas of reform include identification by eyewitness, accessing to DNA testing, the quality of defense representation, preservation of the evidence, oversight of forensic determinations, the establishment of innocence commissions, exoneree compensation, and the competency of judges elected to office (175). Inaccurate eyewitness testimony has been an overwhelming factor in cases of false imprisonment. This occurred in the second case that Kurtis highlighted, that of Thomas Kimball. That testimony was the primary determining factor of Kimball s guilt, but eyewitnesses later recanted their earlier testimony. The Innocence Project (TIP) recommends videotaping all interrogations, the use of a double-blind system for witness identification of suspects ( that is neither the witness nor the law enforcement officer administering the lineup has knowledge of the suspect), and, whenever possible, sequential review of lineup participants. According to TIP,

7 Cheung 7 studies have revealed that when lineup participants are shown to the eyewitness one-by-one versus one complete line, eyewitness identification becomes more accurate. Taping of Miranda rights and interrogations ensures no misconduct or coercion by the police unintentionally, or even intentionally. Tangent to eyewitness identification is the use of jailhouse informant testimony; as with the Kimball case, jailhouse informants are inclined to tell the prosecution anything they want to hear as long as it alleviates part of their criminal suffering. As such, jailhouse informant testimony should not be allowed in capital cases. Beyond reforming eyewitness identification, there is a need for reform in accessing DNA testing. While a 2004 law ensured access to DNA testing at the federal level, the states continue to be incongruent in their application of post-conviction testing of DNA, especially in those cases where the defendant pled guilty. TIP further recommends removing procedural obstacles to DNA testing, removing sunset provisions for testing requests, and requiring the preservation and safe-keeping of all biological evidence for the term of one s incarceration. TIP s third priority for reform is that of false confessions. In approximately 25% of wrongful incarcerations, the defendants provided false confessions of their own guilt. This occurs largely as a result of coercion, the suspect s ignorance of the law, and, in some cases, the suspect s mental deficiency. Again, according to TIP, the most obvious solution to this is electronic recording and/or taping of all interrogations. It is interesting that TIP s suggested reform does not include the quality of defense counsel or that of the judges elected into the system. TIP simply suggests bringing all parties to the table through the establishment of innocence commissions. Several states have implemented such commissions to oversee the legal system within their jurisdiction. However, reform is slow to implement from these groups. Beyond the recommendations of these commissions, there

8 Cheung 8 must be given weight to the issue of defense counsel competency, compensation and funds allowed to support the defense s case. In February 2013, the website for the American Bar Association highlighted the 50 th anniversary of the Gideon case. In Gideon, the Supreme Court secured a defendant s right to a government-funded defense attorney if they cannot afford one on their own. Great concept, but these attorneys are often young and inexperienced or just simply incompetent (Bright 155). As the Bar s article questioned, even today, does the Gideon ruling guarantee a Cadillac defense or a Chevy Nova defense? The recommendation is that, for capital cases, only defense attorneys experienced in capital offenses should be assigned to these cases. Bright uses an analogy from the medical community. Hospitals and patients would not use an orthopedist for an operation on the heart nor expect a cardiovascular surgeon to operate on a patient s feet. Hence, why would the criminal justice system allow an inexperienced attorney who may be great at taxes or drafting wills be assigned to capital cases? The final recommendation involves the forensic evidence of a case; as stated by TIP, over 50% of exoneration cases link directly to faulty forensics. As such, the recommendation is the establishment of a national forensic oversight agency. This agency would be much like the accreditation agencies in place within the health care industry, setting benchmarks for quality and overseeing private and public forensic laboratories. In conclusion, why should Americans be concerned with flaws within the U.S legal system presented here? Some legal experts posit that a certain collateral damage should be expected such as the false imprisonment of innocent men and women. Not only should it be expected, it must be accepted if Americans want a criminal system that will deter future crimes

9 Cheung 9 (Bright 153). The American legal system is supposed to mete out justice. According to Merriam Webster, the simple definition of justice is, conformity to truth. Conformity to truth is not possible with the faulty persecutions and verdicts within the criminal justice system. The statistics provided by Liebman s 23-year of review of capital cases, and actual exoneration of over 300 prison inmates since 1989, leads to the obvious conclusion that the United States legal system is deeply flawed. The errors are so egregious that we cannot ensure the guilt of each and every inmate behind bars. The loss of unnecessary years spent in jail is horrendous in itself; however, the thought that the system has put innocent people to death is heinous. It seems true, as pointed out by all the experts referred to in this essay, that the majority of those working within the system, prosecutors, judges, and defense attorneys have become more enamored with the institution of justice than with the justice achieved within the system. To correct this, there must be quality controls put into place such as a national forensic agency, tighter rules on eyewitness identification, the preservation of evidence and the competence of defense counsel. Without implementing reforms that deal with quality control and the assurance of guilt, conformity to truth is not possible. Justice will not be served.

10 Cheung 10 Annotated Works Cited Banner, Stuart. The Death Penalty: An American History. Cambridge, Mass: Harvard University Press, Print. Stuart Banner, a Professor of Law at Washington University in St. Louis, Missouri, provides an in-depth historically look at the death penalty. His book adroitly covers the influence of the English penal code on the new colonies as well as the development of the code as it becomes uniquely American. This work provides a historically region look of North and South, as well as the consideration of race and slavery in the qualification of capital offenses. Within this essay, Stuart s work provides an appropriate backdrop to the development of the death penalty within the United States. Bright, Stephen. "Why the United States Will Join the Rest of the World in Abandoning Capital Punishment." Debating the Death Penalty: Should America Have Capital Punishment? : the Experts on Both Sides Make Their Best Case. Ed. Hugo A Bedau, and Paul G. Cassell. New York, NY: Oxford University Press, Print. Bedau and Cassell, along with Bedau s position on the death penalty, have woven together pro and con arguments from leaders in the U.S. legal and legislative systems, and a third philosopher, Louis Pojman. Bedau and Cassell are both philosophers. However, this book includes positions from two judges and a district attorney who, along with Pojman, support the death penalty while Bedau, two former defense attorneys (one of which is Stephen Bright), and one former governor present positions in opposition to

11 Cheung 11 the death penalty. The essays are informative but, in particular, Stephen Bright s essay is used here to corroborate Bill Kurtis s findings. ""Death Row USA"." Death Penalty Information Center. N.A.A.C.P Legal Defense and Educational Fund, Inc., n.d. Web. 15 May This webpage provides, annually, the number of death row inmates by state. The site specifically reports states with more than ten inmates on death row. It also reports the percentage of death row inmates who are of a minority race. This information works with this essay to provide the current number of death row inmates. In addition, the site provides a link to a report on the average time an inmate spends on death row, as of 2010, that period rose to 178 months or years. Funded by a reputable organization, this website provides reliable death penalty statistics. Kurtis, Bill. The Death Penalty on Trial: Crisis in American Justice. New York: Public Affairs, Print. Academically based as an attorney, Bill Kurtis passed his bar exam in While he was planning to enter the legal profession, his path diverged to investigative journalism as he covered several legal cases of the period. As a death penalty advocate, Kurtis was stunned by the statistics revealed in Illinois in Since 1977, Illinois had executed 12 convicted felons, in 1998, the year George Ryan became Illinois Governor, the State had exonerated a thirteenth inmate of their capital offense. In addition to this startling

12 Cheung 12 statistic, a pre-eminent study of capital offense cases from 1923 to 1995 showed that seven of ten of the cases reviewed contained reversible error. Kurtis life-long faith in the U.S. legal system was shaken. He determined to take an in-depth look at this system. As such, he choose two capital offense cases that were eventually exonerated and took an in-depth look at the alleged crimes, the evidence, the prosecutors, defense attorneys, etc. to determine what happened in these particular cases. He wanted to know just how broken is the U.S. legal system, especially in cases resulting in the death penalty. Kurtis succeeds in bringing to the forefront the issues currently at hand within the U.S. legal system. He makes a strong argument for abolition of the death penalty across the United States. Kurtis book successfully serves as the anchor reference for this paper because he is extremely adept at highlighting the system issues as well as individual case issues. "Texas Experts Review Public Defender Systems as Gideon Anniversary Approaches ABANow ABA Media Relations & Communication Services. American Bar Association, 9 Feb Web. 15 May The U.S. Supreme Court heard the Gideon case in As described by this short Bar article, in Gideon, the Supreme Court decided criminal defendants have the right to counsel funded by the government if the defendant cannot afford to hire a defense attorney. This article briefly discusses whether Gideon guarantees a Cadillac Defense

13 Cheung 13 or a Chevy Nova Defense. For this essay, this article provides a current commentary on one of the primary problems of our legal system, especially in death penalty cases. "The Innocence Project - Fix the System: Priority Issues." The Innocence Project - Home. Benjamin N. Cardozo School of Law at Yeshiva University, n.d. Web. 15 May The Innocence Project is one of the leading innocence organizations in the United States. Working in affiliation with the Cardozo School of Law, the Innocence Project was founded by Barry C. Scheck and Peter J. Neufeld. According to the website, the Innocence Project s mission is nothing less than to free the staggering numbers of innocent people who remain incarcerated and to bring substantive reform to the system responsible for their unjust imprisonment. The organization also serves as a public policy advocate to reform the U.S. legal system. This essay uses the recommendations of The Innocence Project to suggest reform to the U.S. legal system.

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