BLIND JUSTICE - Death Penalty Information Center Report · Blind Justice, the most recent report to be released by the Death Penalty Information Center (DPIC), is the first to focus

BLIND JUSTICE:

JURIES DECIDING

LIFE AND DEATH

WITH ONLY

HALF THE TRUTH

How Death Penalty Jurors areUnfairly Selected, Manipulated,

and Kept in the Dark

A Death Penalty Information Center ReportWritten by Richard C. Dieter,

Executive DirectorWashington, DC

www.deathpenaltyinfo.org

October 2005

Going into the trial, I wasn’tsure where I stood on the deathpenalty. Today, knowing what Iknow about wrongful convictionsand the kinds of problems thatresult in putting innocent people’slives on the line, I would no longervote for a death sentence. . . . Idon’t think many jurors feelcomfortable playing RussianRoulette with people’s lives. Jurorsare recognizing that life in prison isperhaps the only responsible way tovote.

-Kathleen Hawk Norman, founder,Jurors for Justice

My uneasiness about theverdict in the Amrine case has to dowith the fact that the defenseattorney [] gave us very little towork with. . . . I got the impressionthat when he was presenting thedefense case, he was meeting hiswitnesses for the very first time.

-Larry Hildebrand, death penaltyjuror—defendant later exonerated

To identify before the factthose characteristics of criminalhomicides and their perpetratorswhich call for the death penalty,and to express these characteristicsin language which can be fairlyunderstood and applied by thesentencing authority, appear to betasks which are beyond presenthuman ability.

-McGautha v. California, U.S.Supreme Court, 1971

BLIND JUSTICE:JURIES DECIDING LIFE AND DEATH

WITH ONLY HALF THE TRUTH

Table of Contents

Executive Summary iii

Introduction 1I. Skewing the Jury: Removing Jurors for Personal Beliefs 2

Graph: Prosecutors Strike Black Jurors at Higher Rates 4

Graph: Percent of U.S. Groups Opposing the Death Penalty 5

II. What Jurors are Not Told:Withheld Evidence and Failures to Investigate 8

Chart: Death Row Inmates Exoneratd 2000-2005After Official Misconduct 9

Graph: Decline in Death Sentences 11

Graph: Death Penalty Jurors’ Views of Prosecution and Defense 16

III. What Jurors are Allowed to Hear 17

IV. Jurors’ Understanding of the Sentencing Process 22

V. The Scope of Official Misconduct 25

Conclusions 27

Appendix: Exonerated Death Row Inmates 2003-2005 withFindings of Official Misconduct 28

Endnotes 31

ii

BLIND JUSTICE: JURIES DECIDING LIFE AND DEATH

WITH ONLY HALF THE TRUTH

Executive Summary[Jury selection in death penalty cases] creates an atmosphere in which jurors

are likely to assume that their primary task is to determine the penalty for apresumptively guilty defendant.

-Justice John Paul Stevens, 2005

Blind Justice, the most recent report to be released by the Death Penalty Information Center(DPIC), is the first to focus on the problems of the death penalty from the perspective of jurors.While jurors have always occupied an esteemed position in the broader criminal justice system inthe United States, in capital cases the responsibility of jurors is even more critical as they decidewhether defendants should live or die. Even with this unique authority in capital cases, they aretreated less than respectfully. Frequently, they are kept in the dark regarding key information aboutthe case and are often barred from serving based on their beliefs or their race.

Deciding guilt beyond a reasonable doubt is not easy. But there is clarity in that task and 225years of tradition to support it. Judging whether a person should be condemned to die is far moredaunting and the difficulty is compounded by a complex formula that even many lawyers andjudges do not understand. The modern death sentencing system was adopted by the SupremeCourt in 1976, and the results have been disturbing.

This report examines the ways in which the death penalty fails jurors and, in turn, fails as asystem of justice. It looks at the distorted way jurors are selected in capital cases. It describes howcritical information is often withheld from jurors, and how the evidence they do hear is oftenunreliable. It describes how the complex rules of death sentencing procedures ensure a sense offrustration and emotional pain as jurors are asked to make one of the most difficult choices of theirlives.

As Blind Justice discusses in detail, jurors are manipulated in capital cases in many ways:

Their deeply held personal views on capital punishment are picked apart and used as alitmus test of their ability to serve as member of the jury. Those adhering to beliefspreventing a death sentence will be rejected, even though those beliefs are well within themainstream of public opinion.

Jurors’ color and gender will often play a key role in whether they are chosen for a deathpenalty trial. In recent Gallup Polls, far more blacks and women oppose the death penaltythan white males, making it more likely that they will be excluded from capital juries.Similar considerations work against those with certain religious beliefs.

Jurors in capital cases are not representative of the population as a whole. Those allowed toserve will be more pro-prosecution and conviction-prone than those who are excluded.

iii

Those jurors who are selected might expect a high-quality pursuit of justice on a levelplaying field, but the truth will often be hidden from them: prosecutors may withholdcritical evidence and defense attorneys may fail to investigate basic facts. Junk science,jailhouse informants and overly confident eyewitnesses will be offered as if they reliablyestablished the defendant’s guilt.

Since 2000, 37 people have been freed from death row after they were exonerated. In 62percent (23) of these cases, state misconduct in misinforming the juries played a significantrole in the wrongful convictions.

Far beyond their traditional role of determining guilt and innocence, jurors are instructed toweigh the terrible aspects of the crime against any redeeming qualities of the defendant.From such an abstract comparison they are expected to arrive at a decision with life anddeath consequences.

Jurors’ emotions will be acutely played upon as the most gruesome aspects of the crime aredisplayed in graphic detail, and as the victim’s family is pitted against the defendant and hisfamily. They will be told nothing about more heinous cases in the same jurisdiction wherethe death penalty was not even sought, much less imposed.

Once their decision is made, jurors will be largely ignored. If they have second thoughts afterlearning new facts, it will be too late. In many cases, their work will be for nothing – theirdecisions overturned because of errors by others beyond their control.

Slowly, jurors are beginning to react to the flagrant flaws in this system. Some have offeredaffidavits to judges and governors about what they would have done had they known the wholetruth. In increasing numbers, they are voting for life sentences, given what they have seen and heardabout abuses in the system. As one juror in Louisiana said after sentencing someone to death whowas later exonerated, “I don’t think many jurors feel comfortable playing Russian Roulette withpeople’s lives. Jurors are recognizing that life in prison is perhaps the only responsible way to vote.”

Death sentences have dropped by over 50 percent in the past five years in the wake of somany inmates being exonerated of their crimes. The fundamental questions of whether the deathpenalty can be made to fit within our principles of equality, the protection of the innocent, and theappropriate limitation of governmental power are being openly raised by many judges, legislators,and the broader public.

Yet, the system continues with many of the same problems that have plagued it in the past.Those most likely to see the flaws in this system are the least likely to be chosen for the next capitalcase. Death sentences are handed down in isolation with little chance to explore the larger issues.Once imposed, the presumptions in favor of death become even stronger and harder to reverse.

The costs in terms of mistakes, the conviction and even execution of innocent people, areexceedingly great. But there is also a cost to the respect afforded our system of justice. Jurors are notthe problem—rather the problem is in the failed attempt to twist a system designed to identify theclearly guilty into a system for weighing life and death. The stakes in these cases encourage bendingthe truth and the elimination of jurors who might question the process. There is much to emulate inour tradition of citizen participation in the criminal justice system, but its application to the deathpenalty has not served us well.

iv

BLIND JUSTICE, p. 1

INTRODUCTION

America puts enormous trust in itsjurors: it shoulders them with the ominousresponsibility of deciding guilt orinnocence, and then, in capital cases, asksthem to choose between life and death. Weare proud of the Constitutional protectionguaranteeing defendants the right to a juryof their peers. The Supreme Court turns tothe wisdom of jurors to measure society’s“evolving standards of decency.”1 We callthem the “conscience of the community,”and many consider it both an honor and aduty to serve.

In death cases, however, this idealizedpicture of juries dissolves quickly as a “win-lose” mentality takes over. Instead of a juryof one’s peers, jurors will have to pass apolitical litmus test on their capitalpunishment opinions. Some will even bestricken from serving because of their color.

Once selected, jurors in capital cases areoften not given the whole truth they need tomake their decisions. In these high-profilecases, evidence is chronically withheld,alternative suspects ignored, andquestionable forensic evidence is presentedas if it held scientific certainty.

Jurors are not told why their case waschosen for the death penalty while others,often involving more heinous crimes, takeanother route. Jurors are instructed tosimply choose between life and death forthe defendant, but then are given hopelesslycomplex instructions that have confusedlawyers and the courts for decades. Notsurprisingly, they often act in directcontradiction to what the court intended inexplaining the labyrinth of death penaltylaw.

The trial and sentencing proceeding willbe visually graphic and emotionallydraining, probably like nothing they haveexperienced before. They can only hope thatthe defense lawyer was given the resourcesto conduct a thorough investigation of thedefendant’s past in order to counter-balancethe horrors of the crime. In such a seriousdeliberation, jurors might expect that nocorners were cut and that they have beenpresented with everything they need torender a decision, but that is rarely the case.

After their verdict, they will bedismissed, left to deal with the trauma ofthe trial on their own. If they complain thatthey were misled during the proceedings,they will probably be ignored. Many oftheir decisions will be overturned, typicallynot because of any mistake on their part,but because the prosecutors, defenseattorneys, and judges did not do their jobsproperly. Some cases will be retried, butmany will be handled by the system of pleabargains and deals where juries and theconscience of the community carry littleweight.

Our jury system, though never perfect,has been a noble experiment in democracythat has withstood the test of time for twoand a quarter centuries. But in the deathpenalty area, the experiment has not faredwell.2 While most Americans never serveon a capital jury, everyone is affected by asystem that fails to respect those who doserve and that falls woefully short of justice.

BLIND JUSTICE, p. 2

I. SKEWING THE JURY:REMOVING JURORS FOR PERSONAL BELIEFS

[B]ecause the prosecutor can challenge jurors with qualms about the deathpenalty, the process creates a risk that a fair cross-section of the community willnot be represented on the jury.

-Justice John Paul Stevens, speech to the American Bar Association, 20053

Jurors are treated with disdain as soonas they are seated as prospective candidatesfor a death penalty trial. Although manypeople are relieved when they are excusedfrom jury service, for most it is both aprivilege and a duty to serve. It is akin tovoting, a right we sometimes exercisebegrudgingly, but one that we would fightdearly to preserve. Yet most jurors incapital cases will be rejected because of theirdeeply held beliefs about capitalpunishment, not because they know thedefendant or the victim. It is disturbing thatin capital cases this quintessential hallmarkof American citizenship is granted only tothose whose conscience meetsgovernmental approval.

Catholics who have heeded theirChurch’s call to end the death penalty,believers of all stripes who find the deathpenalty immoral, conservatives who holdthat the government should not be trustedwith so much power, and liberals who willnot apply capital punishment because it isnot meted out fairly--all will be eliminatedif they adhere to these views. They will notbe able to serve even in the guilt-innocencephase of the trial, where one’s view on thedeath penalty should be irrelevant. Stillothers may be prevented from serving oneven more insidious grounds.

Race and Jury SelectionIn death penalty cases, one juror can

mean the difference between a sentence oflife and death. In almost all states, deathsentencing determinations are made by ajury rather than a judge.4 Constitutionally,any juror who has serious doubts about hisor her ability to impose a death sentence

may be eliminated from the jury pool. Butadditional jurors can be excluded withoutany legal cause solely upon the discretion ofthe prosecution or defense attorney. Abelief that members of some races, religions,or genders might generally be less inclinedto impose a death sentence can influence theprosecution to allow as few of these types ofjurors as possible.5

The Supreme Court has forbidden racialand gender discrimination in jury selection.6But the motivation behind eliminating aparticular juror is often not easily discerned.The state may want to exclude a black jurorso as to improve its odds of getting a deathsentence, but when challenged for racialdiscrimination can offer other justificationsfor this exclusion, such as the juror’semployment status. In a training session fornew prosecutors, Jack McMahon of thePhiladelphia District Attorney’s officeencouraged new recruits to eliminate youngblack women from their juries. To avoid thecharge of discrimination, he urged them to“mark things down” about the undesiredjurors so that when challenged they couldoffer a reason different from race forexcluding them.7

McMahon practiced what he preached.In a 1988 capital murder trial, he eliminated19 potential jurors, all black. Whenchallenged, he claimed he struck someblacks because of their residing with theirparents or because of their low level ofeducation, even though he had acceptedwhite jurors with similar characteristics.The defendant, William Basemore, wasconvicted and sentenced to death. In 2001,a Philadelphia court overturned theconviction and sentence, finding “a patternof discrimination.”8

BLIND JUSTICE, p. 3

In some prosecutors’ offices, at leastprior to the Supreme Court’s condemnationof the practice, there were written manualsabout excluding classes of jurors. A 1963training manual for prosecutors in Dallasstated: “Do not take Jews, Negroes, Dagos,Mexicans, or a member of any minority raceon a jury, no matter how rich or welleducated.”9 This manual was exposed in acase that was argued recently in the U.S.Supreme Court.10 Although the manualwas no longer the stated policy at the timeof Thomas Miller-El’s trial in 1986, veteransof the prosecutor’s office testified that atleast some of the prosecutors continued tofollow an unwritten rule to exclude blacksfrom the jury.11

“Do not take Jews,Negroes, Dagos, Mexicans,or a member of any minorityrace on a jury, no matterhow rich or well educated.”

-Dallas prosecutors’ earliertraining manual

In its 8-1 decision in favor ofMiller-El, the Supreme Court wrote:

Even if we presume at thisstage that the prosecutors inMiller-El’s case were not part ofthis culture of discrimination,the evidence suggests they werelikely not ignorant of it. Bothprosecutors joined the DistrictAttorney’s Office when assistantdistrict attorneys received formaltraining in excluding minoritiesfrom juries. The supposition thatrace was a factor could bereinforced by the fact that theprosecutors marked the race ofeach prospective juror on theirjuror cards.12

Suspicions of a pattern of discriminationwere not just idle speculation. A DallasMorning News study of 100 trials near the

time of Miller-El’s trial found thatprosecutors had eliminated 92% of thepotential African-American jurors. Ten ofthe eleven black potential jurors wereeliminated in Miller-El’s trial.13

Recently, the same paper repeated itsearlier study and again found systematicexclusion of blacks from juries. In a two-year study of over 100 felony cases in DallasCounty, blacks were dismissed from juryservice by the prosecution twice as often aswhites. Even when the paper comparedsimilar jurors who had expressed opinionsabout the criminal justice system (a reasonthat prosecutors had given for theelimination of jurors, claiming that race wasnot a factor), black jurors were cut at amuch higher rate than whites. Of jurorswho said that either they or someone closeto them had a bad experience with thepolice or the courts, prosecutors struck100% of the blacks, but only 39% of thewhites.14

Other recent accusations of biased juryselection come from a former prosecutorwho admitted that he excluded Jews andblack women from his death penalty juries.Jack Quatman was the prosecutor at FredFreeman’s capital trial in California in 1987.He recently testified, in support ofFreeman’s request for a new trial, that thejudge in the case advised him that people ofJewish descent would never sentence a manto death. Quatman says he took the judge’sadvice, but that it was already commonpractice in his office to exclude Jews incapital cases.15 Quatman also passed on thisadvice at a symposium for death rowprosecutors in 1993.16

“The facts are there, the statistics arethere,” he said in defending his statementsabout the broader practice in AlamedaCounty after a California court found hisclaims about the judge were not credible.He cited an independent study that foundJewish jurors were excluded in 93% ofCalifornia death row cases in AlamedaCounty and that the odds of that occurringby chance was 1 in 5 million.17

BLIND JUSTICE, p. 4

Indirect Impact on Race throughDeath Penalty Views of Jurors

The jury in a death penalty case can bedeprived of minority members even if noracial bias occurs. Because political andmoral views can determine eligibility forservice on capital juries, there will be fewerblacks and fewer women on a death penaltyjury than in a non-capital case becauseblacks and women are more likely tooppose the death penalty than the generalpopulation.

For example, in a Gallup Poll analysisfor the years 2001-2004, 23% of menopposed the death penalty, but 32% ofwomen opposed it, and fully 49% of blacksopposed it.18 Some of these minority andwomen jurors will be removed because thecourt finds they oppose the death penalty.Others whose views are less clear-cut willbe removed at the prosecutor’s discretion. Aprosecutor who only concentrated on thedeath penalty views of potential jurors andnot on their race or gender, could still end

up with a jury that did not look like a cross-section of America. A jury study inCalifornia found that while minoritiesaccounted for 18.5% of the people in thejury pools, they represented 26.3% of thoseexcluded through the death-qualifyingprocess. 19 An earlier study in NorthCarolina found 55% of potential black jurorsexcluded during the death-qualifyingprocess, but only 21% of the whites.20 Ofcourse, more liberals and Democrats wouldlikely be eliminated for the same reason, aswould those belonging to certain religiousgroups.

Juries Tilted Towards GuiltA death-qualified jury is more likely to

favor the prosecution’s point of view evenbeyond death sentencing. A series ofstudies over many years has shown thatjurors selected to serve in capital cases aremore prone to convict than other jurors.Research by Professor Craig Haney of theUniversity of California, Santa Cruz, andothers found that death qualification:

57%

36%

27%

0%

10%

20%

30%

40%

50%

60%

Blacks Hispanics WhitesFor Dallas County, TX

-Source: Dallas Morning News, Aug. 21, 2005

Prosecutors Strike Black Jurors at Higher Rates

BLIND JUSTICE, p. 5

1. Compromised therepresentative-ness of capital juriesbecause higher levels of death penaltyopposition among minorities andwomen meant they were more likely tobe excluded from participation,

2. Created juries that werecomposed of persons who were“prosecution-prone” in their generalcriminal justice beliefs and points ofview,

3. Resulted in juries consisting ofpersons who were “conviction-prone,”or more likely to convict than non-death-qualified juries on the basis of thesame facts and circumstances, and

4. Exposed all jurors to a process ofselection that further increased theirlikelihood of convicting capitaldefendants by, among other things,implicitly suggesting that the defendantwas guilty.21

A 2004 study by sociologist RobertYoung at the University of Texas found thatdeath penalty supporters were moreworried about freeing the guilty thanconvicting the innocent. He also found thatsuch supporters were about a third more

likely to have prejudiced views againstblacks.22 Such views mean that deathpenalty juries will be less accurate when itcomes to determining the guilt of thedefendant.

The U.S. Supreme Court considered thisissue in 1986 in Lockhart v. McCree, a case inwhich the defendant was given a lifesentence. His appeal focused not on hissentence but on the fact that the

prosecution’s seeking of the death penaltyenabled the prosecution to seat a jury thatwas more likely to find him guilty. Thedefendant offered studies that supportedhis contention. The Court assumed thevalidity of the studies, but nevertheless heldthat there was no intention to bias the jury,only to select a jury willing to follow thelaw of the penalty trial. The alternative ofusing separate juries for the guilt andsentencing phases of the trial was notjustified by the evidence offered, accordingto the Court.23

One of the criticisms of the studiesproffered in Lockhart was that they involvedmock juries, rather than jurors in actualdeath penalty cases. The Capital JuryProject, a research program funded by theNational Science Foundation, met that

23%

32%

49%

24%

0%

5%

10%

15%

20%

25%

30%

35%

40%

45%

50%

Men Women Blacks Whites

Gallup Poll Analysis 2001-2004

Percent of U.S. Groups Opposing the Death Penalty

BLIND JUSTICE, p. 6

objection by interviewing actual jurors. TheProject studied more than 1,200 people in 15states who had served on death penaltyjuries. They, too, found that these jurorswere more likely to find the defendantguilty than other jurors,24 raising importantquestions about the defendant’s SixthAmendment right to a jury of his peers.These recent, in-depth studies, coupled withthe rash of wrongful convictions in deathpenalty cases, might some day cause theCourt to revisit this issue.

Supreme Court Justice John PaulStevens recently commented on thisproblem in a speech before the AmericanBar Association. He noted that theemphasis on the death penalty in juryselection creates an atmosphere in whichguilt is presumed:

In case after case many days

are spent conducting voir direexaminations in whichprosecutors engage in prolongedquestioning to determinewhether the venire person hasmoral or religious scruples thatwould impair her ability toimpose the death penalty.Preoccupation with that issuecreates an atmosphere in whichjurors are likely to assume that theirprimary task is to determine thepenalty for a presumptively guiltydefendant. More significantly,because the prosecutor canchallenge jurors with qualmsabout the death penalty, theprocess creates a risk that a faircross-section of the community

will not be represented on thejury.25

The most obvious person to suffer fromthis skewed jury-selection process is thedefendant. Not only will his right to live bedetermined by a group that has beenpurged of those most likely to spare him,but even his guilt or innocence will bedecided by a jury more favorable to theprosecution than if he had been triedwithout being subject to a death sentence.

Beyond the defendant, the integrity ofthe jury system suffers as well. Close to 50%of the American population now believethat life without parole is the appropriatepunishment for all first-degree murders.26

That growing segment of the public are ripefor exclusion from jury service. A whiter,more male-dominated jury will stand in forthe jury of one’s peers. Such a system isunfair on its face and a slap in the face tothose who are excluded.

Excluding the MajorityA blatant example of how far the jury

selection process can be separated from itsconstitutional moorings occurred recentlyin Puerto Rico. The Commonwealth doesnot have a death penalty law, and, in fact,forbids it in its constitution. Nevertheless,Puerto Rico is subject to U.S. federal law,which does allow for capital prosecutions.As on the mainland, those who rejectimposing the death penalty are eliminatedfrom the prospective jury. As an indicationof the degree of opposition on the island tothe death penalty, death penalty trials haveresulted in protest demonstrations, and theGovernor publicly condemned this federalintrusion as contrary to the will of thepeople. 27

But such oppositional views would notbe represented among the jurors chosen forthe federal trials. Moreover, only peoplefluent in English are allowed to serve asjurors in federal trials. This requirementexcludes over two-thirds of the island’sresidents.28 Despite these factors making

JusticeJohn PaulStevens

BLIND JUSTICE, p. 7

the juries in federal capital trialsunrepresentative of the populace, PuertoRico was listed as one of the top fivejurisdictions in the country in terms of U.S.Attorney recommendations for seeking thedeath penalty in a Justice Departmentstudy.29

Similar problems arose when the federalgovernment sought the death penalty inWashington, D.C., a predominantly

minority-based jurisdiction that voted 2-to-1against the death penalty in a 1992referendum. In the federal capital trial ofTommy Edelin, more than 350 potentialjurors were excused, including about 175who said they were so opposed to the deathpenalty they could not impose a deathsentence.30 Edelin was eventually sentencedto life, but whether the jury represented thepeople of Washington, D.C. is questionable.

BLIND JUSTICE, p. 8

II. WHAT JURORS ARE NOT TOLD:WITHHELD EVIDENCE AND FAILURES TO INVESTIGATE

The fact that the jury chosen in a capitalcase will be more likely to find thedefendant guilty than a typical jury ispermitted under current Supreme Courtdecisions. But death penalty trials continueto be plagued by practices that the Courthas found clearly unconstitutional. Two-thirds of the death penalty trials reviewedby appellate courts between 1973 and 1995contained serious violations of law.31 In 121cases through 2005, the conviction itself wasthrown out, the inmate was exonerated ofall charges, and freed from death row.32 Allof those defendants lost precious years oftheir lives, some were permanently disabledby the experience, and many cameperilously close to execution. The costs ofthese mistakes are incalculable.

Even when the defendant was not foundinnocent, the jurors in these cases couldrightly conclude that their time was wasted.Each of the jurors spent weeks or monthsengaged in trial, perhaps sequestered fromfamily and work, and through no fault oftheir own their effort was discarded.

The Pressures of Death PenaltyCases

One of the root causes of mistakes incapital cases is the high-stakes, competitivenature of death penalty prosecutions.33

Death penalty cases involve grisly crimes.

Reputations of police chiefs andprosecutors are on the line to make arrests,secure convictions and harsh sentences, andto reassure the public that order has beenrestored. A case that is presented in shadesof grey, admitting the existence ofalternative suspects or theories, or allowinguncertainty regarding the evidencepresented is feared as a potential recipe foracquittal. Prosecutors rarely pursue acapital case against someone they know tobe innocent deliberately. But they mayemphatically portray a defendant as clearlyguilty and deserving of death, when thefacts indicate otherwise.

Jurors cannot be expected to arrive at anaccurate verdict if vital evidence is withheldfrom their view. There is an inherenttension in death penalty prosecutions.Lawyers are trained to be advocates in anadversarial process. As such, they want towin. That can affect who gets picked for thejury, what the jury hears, and what they donot hear. These pressures to win are indirect competition with the obligation thestate has to seek the truth and to providedefendants with all the information theyneed to defend themselves. As one formerfederal prosecutor remarked:

We must reform a systemthat provides less information toa person accused of a crime thana party would get if sued for a$200 bad debt in civil court. Andwe must reform the notion that acriminal prosecution is some sortof sport that is all about winninga conviction, rather than doingjustice.34

The temptation to hold back can begreat. Few murderers are caught in the actby the police. Convictions have to be wonagainst defendants through the presentationof circumstantial evidence and by witnesseswho may be less than certain about what

BLIND JUSTICE, p. 9

they saw or heard. Many cases aregrey—not black and white.

In a case where only the SupremeCourt’s intervention stopped the executionof an innocent man, the prosecution wasasked before trial to hand over any evidencethat might have lessened the likelihood ofthe defendant’s (Curtis Kyles) guilt orsupported a sentence less than death. Thestate responded that it had no suchevidence. In fact, it possessed thefollowing: contradictory eyewitnessstatements; information about changes andcredibility gaps in an informant’sstatements; the fact that the informantpossessed the victim’s car; he identifiedhimself with four different names in talkingto the police, told the police where to lookfor evidence incriminating Kyles—placesthat he, the informant, had access to aheadof time; and the fact that the informant

himself had been implicated in similarcrimes in the same area, including amurder.35

Surely a juror would want to know thatinformation when evaluating the credibilityof the state’s case. But none of it was madeavailable to the defense or to the jury.Fortunately, this evidence was discoveredafter the trial. Kyles’ conviction wasoverturned by the Supreme Court, andeventually the prosecution dropped allcharges. But as Justice Scalia indicated inhis dissent, it would be foolish for thepublic to believe that the Supreme Court ischecking up on every prosecution to ensureagainst such wrongful convictions andcompliance with the rules of basic fairness.36

In another capital case involving aninnocent defendant, prosecutors in NorthCarolina withheld statements from

Death Row Inmates Exonerated 2000-2005After Official Misconduct

Defendant State Exoneration GroundsDerrick Jamison Ohio 2005 Withheld eyewitness statementsErnest Ray Willis Texas 2004 Faulty scientific evidenceDan Bright Louisiana 2004 Suppressed impeachment evidenceLaurence Adams Massachusetts 2004 Unreliable witnessGordon Steidl Illinois 2004 Faulty police workAlan Gell N. Carolina 2004 Withheld statementsNicholas Yarris Pennsylvania 2003 Jailhouse informantJoseph Amrine Missouri 2003 Lying witnessTimothy Howardand Gary James

Ohio 2003 Withheld evidence

John Thompson Louisiana 2003 Withheld evidenceAaron Peterson Illinois 2003 Tortured confessionMadison Hobley Illinois 2003 Tortured confessionLeroy Orange Illinois 2003 Tortured confessionStanley Howard Illinois 2003 Tortured confessionRay Krone Arizona 2002 Faulty scientific evidenceJuan Melendez Florida 2002 Withheld evidenceCharles Fain Idaho 2001 Faulty scientific evidenceJeremy Sheets Nebraska 2001 Jailhouse informantJoaquin Martinez Flordia 2001 Improper police evidenceGary Drinkard Alabama 2001 Improper state evidencePeter Limone Massachusetts 2001 Lying witnessOscar Lee Morris California 2000 Withheld statements

BLIND JUSTICE, p. 10

witnesses who saw the victim alive after thetime the defendant supposedly committedthe murder. They also did not revealstatements from the two key eyewitnesseswho had implicated the defendant, AlanGell, in which they said they had to “makeup a story.” The trial court had specificallyordered the prosecutors to turn over suchevidence. Fortunately, the statements werefound by the new defense attorneys onappeal. Gell’s conviction was thrown outand he was acquitted at a re-trial. The stateattorney general called Gell’s original trial a“travesty.”37 The original prosecutors,despite being responsible for the near deathof an innocent man, received the lightestpossible punishment from the State Bar andcontinue to practice law.38

One might hope that such egregiousbehavior in the most critical cases in ourcriminal justice system would be extremelyrare, but this report lists 23 cases just since2000 where official misconduct led toconvictions and death sentences forinnocent men. (See Appendix for a longerdescription of cases since 2003.) And it isprobable that there are other such cases,given the difficulty in discovering withheldevidence.

Jurors’ ReactionsKathleen Hawk Norman, who served as

a juror on one of these cases, was sofrustrated with the deception that shedecided she could no longer support thedeath penalty:

Going into the trial, I wasn’tsure where I stood on the deathpenalty. Today, knowing what Iknow about wrongfulconvictions and the kinds ofproblems that result in puttinginnocent people’s lives on theline, I would no longer vote for adeath sentence. . . . I don’t thinkmany jurors feel comfortableplaying Russian Roulette withpeople’s lives. Jurors arerecognizing that life in prison isperhaps the only responsibleway to vote.39

Norman filed an amicus brief on behalfof Dan Bright in Louisiana, whom she hadhelped to send to death row, and hasformed an organization called Jurors forJustice.

Other jurors have also tried to undo thewrong they felt responsible for afterlearning of new evidence. Eight of the 12jurors from the trial of Abu-AliAbdur’Rahman in Tennessee filed affidavitsexpressing their frustration and saying theywould not have sentenced the defendant todeath had they known of exculpatingevidence not revealed at trial.40 In Indiana,all 12 jurors from the trial of DarnellWilliams signed affidavits supporting anorder of DNA testing from the stateSupreme Court.41 Their request was denied,but Williams was granted clemency by thegovernor. Still others are simply voting forlife sentences, contributing to the 50% dropin death sentences in the last 5 years.

Some experts believe that the problemof jurors not receiving the facts necessaryfor their informed decision-making is aninherent flaw in the death penalty andnecessitates its exclusion as a punishment.John Dunne served as a New York statesenator for 23 years and then as an assistantattorney general in the U.S. Department ofJustice. He voted 12 times for death penaltylegislation in New York. But eventually hechanged his mind about capitalpunishment, in part because he believed thefallibility of the principal actors in deathpenalty cases guaranteed that there would bemistakes:

Alan Gell – Exonerated from death rowin North Carolina


[T]he last decade taught methat you cannot tinker with thedeath penalty. . . . It is unfair toask jurors to choose withcertainty between life and death,given the stress, pressure, mediaclamor and confusionsurrounding their weightydecision. We cannot expect ourpolice to pursue all reasonablelines of inquiry once a suspect isID'd. And prosecutors are unableto oversee the police in everycase. Judges are neither alwaysfree of bias nor intellectuallycapable in every case. These arethe issues that must beaddressed.42

Other Information theJury is Not Told-Prosecutorial DiscretionJurors are asked to decide only one case-

not to compare the defendant at trial withother defendants who may have committedsimilar or worse crimes but against whomthe death penalty was not sought. Jurorsare not told about the enormous discretionthat prosecutors have to seek the deathpenalty, and about how arbitraryfactors such as geography, raceand a prosecutor’s willingness toplea bargain are much greaterfactors in determining who willbe sentenced to death than thejudgment of jurors. They aretypically misled with the often-used closing argument, “if everthere was a crime that meritedthe death penalty, this is it.”

When the death penalty wasoverturned in 1972, it wasbecause of the risk that jurorswithout any guidance wouldimpose the death penalty in anarbitrary and capricious manner.The theoretical solution to thisdilemma was the creation of acomplex framework thatseparated capital trials into twojury trials, requiring the jury tofind specific factors that

distinguished the most heinous crimes andcriminals.43 Although the new structurewas challenged as one in which the risk ofarbitrariness was simply transferred fromthe jury to the prosecutor, the Court foundthat prosecutorial discretion has a longhistory in our system and that it would bewrong to assume that this power would beabused. This has meant that theprosecutor’s decision to seek the deathpenalty is essentially unreviewable, despitestrong evidence that this discretion has beenused unfairly.

Geographical DisparitiesEven when exercised with the best of

intentions, the prosecutor’s discretion canlead to an unequal application of the deathpenalty on both a state and national basis.Some prosecutors never seek the deathpenalty, while others, like Lynne Abrahamof Philadelphia have pursued it in almostevery eligible case.44

About a third of Texas’ death row comesfrom Houston, which represents less than10% of the state population. Twenty-fivepercent of Ohio’s death sentences comefrom the Cincinnati area, even though onlyabout 9% of the state’s murders occurred

Decline in Death Sentences

0

50

100

150

200

250

300

350

1981 1984 1987 1990 1993 1996 1999 2002


there.45 Such disparities are commonthroughout the country and run throughthe federal death penalty as well.

Many prosecutors do not seek the deathpenalty simply because their county cannotafford the high costs of such a prosecution.These variances occur throughout thecriminal justice system, but when thedecision is between life and death, theresulting arbitrariness is jarring.

Racial DisparitiesThe darker side of prosecutorial

discretion is that it can lead to racialdisparities in the death penalty. As JusticeWilliam Douglas said in Furman v. Georgia,arbitrariness is “pregnant withdiscrimination.”46 In the absence of carefulguidance, subconscious racial preferencescan affect the way the death penalty isadministered. This is generally not a case ofselecting a minority defendant solelybecause of his race. Rather, what hasplagued the death penalty at least for thepast 30 years is that it favors white-victimcases. A defendant who kills a whiteperson is much more likely to receive thedeath penalty than a defendant who kills ablack person.

Prosecutors are often in contact with thevictim’s family prior to trial; they may needmembers of the family to provide “victimimpact” testimony at trial. Cases that getthe attention of the media are more likely toresult in the spectacle of a death penaltyprosecution. Chief prosecutors in deathpenalty jurisdictions are almost all white (anational study published in the Cornell LawReview found that 97.5% of suchprosecutors were white47); they are alsosubject to elections. All these factors maycontribute to the fact that about 80% ofdeath penalty cases involve white victims,even though whites are victims in onlyabout 49% of the murders committed.48

Somewhere along the line from arrest toindictment, through trial and sentencing,the death penalty system is selecting morewhite-victim cases, and leaving more blackvictim cases for lesser prosecutions.

Research indicates that racial disparitiesare widest in those cases in which there isthe most discretion.49 Shocking crimes withmultiple victims will likely result in thedeath penalty regardless of the race of thevictims. At the other end of the spectrum,barroom fights will rarely result in thedeath penalty. But in the vast middleground of cases, where the prosecutor haswide discretion to seek either the deathpenalty or a life sentence, the result is mostoften the selection of white-victim cases.

Race and discretion distort theframework of the death penalty system.The jury and the public are led to believethat the death penalty punishes the “worstof the worst” offenders. But the systemdoes not work that way. Instead, factorslike race, costs and geography play themajor roles. Juries only get to pick fromamong the cases they are offered.

Plea BargainingPlea bargains are prevalent throughout

the criminal justice system, but they play aspecial role in capital cases. In Ohio, anAssociated Press study covering 21 yearsfound that nearly half of the capital casesended in a plea bargain.50 In New Yorkover eight years (1995-2003), prosecutorsdesignated 50 cases for capital prosecution.Twenty-three resulted in plea bargains tolesser sentences.51 In the federal system,between 1995 and 2000, the AttorneyGeneral authorized seeking the deathpenalty in 159 cases. With some cases stillpending at the time of the report, 51 ofthose cases ended in plea agreements.52

Plea bargaining can depend on manyfactors, some proper, some arbitrary: countybudgets, the workload of the prosecutor’soffice, media attention, the prominence ofthe victims, the proximity of the nextelection, are just some of the considerations.But even assuming bargains are only struckfor legitimate reasons, the process certainlydoes not leave only the worst cases facingthe death penalty. Consider the followingrecent cases:


Gary Ridgway in the state ofWashington pleaded guilty to killing48 women and was given a lifesentence.

Stephen “The Rifleman” Flemmiconfessed in federal court to 10 mobkillings, including the murder of ayoung girl, and was given a lifesentence.

Charles Cullen, a nurse in NewJersey, received a plea bargain forkilling at least 17 patients.

Eric Rudolph pleaded guilty to fourbombings, including one at theOlympics in Atlanta and another ata doctor’s office in Alabama, inwhich two people died and otherswere injured, and was given a lifesentence in federal court.

On the other hand, David Hockerwas executed in Alabama in 2004.He suffered from bi-polar disorderand was often suicidal. He killed hisemployer. His trial lasted one day.He refused to let his attorney put onany mitigating evidence, and hewaived all of his appeals. Whetherhe received a fair trial or whether hewas deserving of the death penaltywas never reviewed by the AlabamaSupreme Court, much less subjectedto a full review of constitutionalissues.

Perhaps to the jury that recommended adeath sentence for David Hocker, this wasthe worst crime they had ever heard about.But they were never asked to compare hiscase with many other murders in Alabamathat were more heinous. Whatever themerits of the plea bargaining system, it doesnot involve the careful and rational exerciseof the conscience of the community to selectwho should live and who should die.

Failures of the Defense toPresent the Whole StoryNo part of the legal process is immune

from the criticism that the death penalty has

distorted the criminal justice system andput jurors in untenable positions. Lawyersfor capital defendants are a key componentof the justice system. They are charged withprotecting the lives of their clients. But lazydefense lawyers, substance-abusinglawyers, absent lawyers, and inept lawyershoping to launch a new career bear a directresponsibility for disservice not only to theirclients but to the justice system as well.Jurors in capital cases too often do not hearthe “whole truth” because defense lawyersdid not investigate it and present it at trial.

The responsibility for challenging thecredibility of vague eyewitnesses orjailhouse informants, the exposing of “junkscience” and the presentation of allmitigating evidence that might affect thejury’s ultimate decision, falls primarily onthe defense. The Supreme Court has evenallowed the admission of highly speculativetestimony by “experts” at death penaltytrials that has been shown to be more oftenwrong than right because it assumesvigorous defense attorneys will expose thetruth to the jury.53 But there is often a hugegap between the assumed ideal and lawyersin practice.

Sleeping Lawyer Still AllowedDespite the shock expressed about

sleeping lawyers in recent years, theproblem persists. Just recently the TexasCourt of Criminal Appeals upheld theconviction and death sentence of GeorgeMcFarland, even while acknowledging thathis chief lawyer slept through significant

George McFarland


parts of the trial.54 The Court reasoned thatthere was no constitutional violationbecause McFarland had a second, thoughfar less-seasoned, attorney who stayedawake. But two lawyers in capital cases isthe standard of practice almost everywherein the country, and the second attorney is anintegral part of the team, not a substitute forhis sleeping partner.

If half of the surgical team slept duringan operation, or indeed, if half of the judgeson an appellate court slept during anargument, no one would say that anadequate job was done by the half that wasawake. Jurors in capital casesoverwhelmingly give stronger marks to thepreparation and presentation of theprosecution than to the defense.55 Thestate’s acquiescence to incompetentrepresentation can only exacerbate thatperception.

Failure to InvestigateIn some cases, the lawyer’s failure

occurs before the trial ever begins. In 2003,the U.S. Supreme Court overturned thedeath sentence of Kevin Wiggins inMaryland because:

[The court-appointedattorneys] abandoned theirinvestigation of petitioner’sbackground after havingacquired only rudimentaryknowledge of his history from anarrow set of sources.. . .

The mitigating evidencecounsel failed to discover andpresent in this case is powerful. .. . Wiggins experienced severeprivation and abuse in the firstsix years of his life while in thecustody of his alcoholic, absenteemother. He suffered physicaltorment, sexual molestation, andrepeated rape during hissubsequent years in foster care.The time Wiggins spenthomeless, along with hisdiminished mental capacities,

further augment his mitigationcase.. . .

Wiggins’ sentencing juryheard only one significantmitigating factor—that Wigginshad no prior convictions. Hadthe jury been able to placepetitioner’s excruciating lifehistory on the mitigating side ofthe scale, there is a reasonableprobability that at least one jurorwould have struck a differentbalance.56

Clearly, the chief injustice was done toKevin Wiggins and that was the Court’smain concern. But the original jury in thistrial was also poorly served. They had tomake an excruciatingly difficult decisionabout his fate without knowing the mostcrucial elements of his life. If Wiggins wasexecuted, it would have been theirresponsibility.

Reaction of JurorsMany jurors have raised just such

concerns to courts after learning newinformation about the defendant revealedonly after the trial. Joseph Amrine spent 17years on Missouri’s death row after a juryreturned a death sentence with noreasonable doubts about his guilt. But newevidence discovered by his appeal lawyerspointed to his innocence. After seeing thenew information, one juror remarked:

My uneasiness about theverdict in the Amrine case has todo with the fact that the defenseattorney [ ] gave us very little towork with. . . . I got theimpression that when he waspresenting the defense case, hewas meeting his witnesses forthe very first time.. . .

I was surprised to see thatPoe’s (one of the state’switnesses) description of thecrime is completely differentfrom Ferguson’s. . . . This


discrepancy gives me substantialdoubts about whether Poe andFerguson were telling the truth.In addition, I was not reallyaware that Terry Russell(another state witness) wasinitially a suspect in Barber’sslaying. Had I known, I wouldhave had no difficulty believingthat Russell implicated JoeAmrine in order to avoid beingprosecuted for Barber’s murder.If the defense lawyer had effectivelychallenged the testimony of the threeinmates, I think Joe Amrine wouldhave been acquitted. The jury nevereven discussed the possibility thatAmrine was innocent, or thatTerry Russell might have beenthe real killer.57

Disbarred LawyersThe issue of ineffectiveness of counsel is

an extensive one that has been dealt withthoroughly in other publications58 and it isnot necessary to recount it here. It isprobably the most frequent claim on appealand one of the primary reasons that somany cases have to be tried a second time.Primarily, it is a problem of resources andstandards. States have not providedeffective lawyers for capital cases becausethey have been unwilling to supply theresources that such representationdemands. Instead, in state after state thesystem has drawn many of its death penaltyattorneys from among the very smallpercentage of lawyers who had beendisbarred in the past or would be in thefuture. Consider the following studies ofrepresentation in capital cases:

In Washington State, one-fifth of the84 people who have faced executionin the past 20 years wererepresented by lawyers who hadbeen, or were later, disbarred,suspended or arrested. Overall, thestate’s disbarment rate for attorneysis less than 1%.59

In North Carolina, at least 16 deathrow inmates, including 3 who were

executed, were represented bylawyers who have been disbarred ordisciplined for unethical or criminalconduct.60

In Texas, about one in four deathrow inmates was defended by alawyer who has been reprimanded,placed on probation, suspended orbanned from practicing law by theState Bar.61 Jose Medellin, a Mexicancitizen, was represented by a lawyerwhose license was in suspensionduring the trial.62

Jurors have every right to expect thatthe defense lawyers have made the best casepossible for sparing their client’s life,especially since a single juror’s reservationscould mean the difference between life anddeath . Yet in scores of cases the defensehas put on no evidence for the jury even toconsider.63

Jurors’ Views of Prosecutionand Defense

By significant majorities, most jurorswho have served in capital cases believethat the prosecution made a betterpresentation than the defense. As indicatedearlier, that can partly be due to the fact thata death-qualified jury is more prone tobelieve the prosecution. But it can also be

Joseph Amrine – Exonerated fromdeath row in Missouri


Death Penalty Jurors' Views of Prosecution and Defense

0.0% 10.0% 20.0% 30.0% 40.0% 50.0% 60.0% 70.0%

1

2

3

4

% of Respondents Giving Advantage to Each Side

Defense Prosecution

Preparing the Case for Trial

Communicating with the Jury

Commitment to Winning

Fighting at the Guilt Phase

due to the simple fact that an unqualifieddefense attorney was no match for theskilled and experienced prosecution. TheCapital Jury Project asked almost 700 capitaljurors who had done the better job in thetrial that they served on. The results werefive to one in favor of the prosecution:

Over one-half of the jurors(62.2%) believed that theprosecution had the advantagein preparing the case for trial, incommunicating with the jury(62.3%) in commitment towinning the case (51.0%), and infighting at the guilt phase of thetrial (61.6%). Moreover, mostjurors who gave the advantageto the prosecution, said that theprosecution’s advantage was

“great” rather than “moderate”or “slight.”. . . One out of tenjurors, or fewer, said the defensehad the advantage in any ofthese respects.64

These stark figures are a far cry from thelevel playing field presumed to exist by theSupreme Court and depended on by thepublic to uncover the truth through anadversarial process. They also dispel themisperception that some people have thatcapital defendants have high-priced, highlyskilled lawyers who enable them to beat thecharges. Most capital defendants get farless, and go to trial heavily out-gunned bythe prosecution.


III. WHAT JURORS ARE ALLOWED TO HEAR

When prosecutors withhold criticalinformation or when defense attorneys failto investigate their case, jurors hear onlypart of the truth. But another source ofmisinformation comes from what they arepresented as completely reliable evidence.One such source of information is theevidence offered by forensic experts fromthe state’s crime lab. Testimony aboutfingerprints, bullet markings, hair and fiberidentification, and especially DNAevidence, carry an air of certainty, enablingjurors to dispel their doubts aboutconvictions or death sentences. But suchready reliance on the state’s evidence isclearly misplaced.

The Gift and Curse of DNAOne of the most important discoveries

in recent times has been the understandingof how DNA determines the characteristicsof every living thing. Recently, DNAtesting has had an enormous impact on thecriminal justice system, resulting in bothconvictions in previously unsolved crimesand exonerations of people languishing inprison and on death row. For the public,DNA has become the “gold standard” offorensic evidence, spawning TV shows andCongressional legislation to promote itsuse.65

DNA evidence has been invaluable inexposing the fallibility of other forensicevidence that jurors often relied on aspossessing scientific certainty. Ray Kronewas sentenced to death in Arizona becausean expert said his teeth matched bite markson the victim. Ron Williamson went todeath row in Oklahoma because his hairwas said to match hairs found at the crimescene. Similar hair evidence also resulted ina death sentence for Charles Fain in Idaho.Blood tests helped send Robert Miller todeath row in Oklahoma. All of these menwere eventually exonerated with the help ofDNA evidence that fortunately still existedin their case.66 Still others who wereconvicted on the basis of faulty eyewitnesstestimony were freed because of DNAtesting.

However, blind faith in DNA evidencewould be a mistake. The science of DNAtesting is only as reliable as the care of thepolice who collect the evidence, theexpertise of the lab technicians who test it,and the reliability of the experts who testifyabout the results. If the evidence iscontaminated or misinterpreted, theinformation the jury receives is doublydamaging. They have been given falseinformation, and it comes clothed in themantle of scientific certainty.

For death penalty cases, the worstscenario imaginable would be that thejurisdiction responsible for the mostexecutions in the entire country has theworst crime lab. But that is arguably thecase in Houston, Texas. The police crimelab there has been so fraught with problemsthat the data it has sent to the nationaldatabanks has been rejected. Multiplegrand juries have been investigating themisconduct and the Texas Rangers have

An employee’s photograph ofconditions at the Houston Police

Department Crime Lab.


been brought in to help sort through 280boxes of re-discovered evidence at the lab.Rainwater leaked into the lab areas. Expertslied about their credentials in courtroomtestimony. According to nationalstandards, none of the analysts who workedat the Houston Police DNA lab werequalified by education to do their jobs.67

Some were hired after stints at the local zoo,with no experience in human DNA testing.

Two men have already been releasedfrom prison after errors were discovered intheir Houston cases. The mayor and thepolice chief have called for a halt to allexecutions in cases from the county. Chiefof Police Harold Hurtt said, “I think itwould be very prudent for us . . . to delayfurther executions until we’ve had anopportunity to reexamine evidence thatplayed a particular role in the conviction ofan individual that was sentenced todeath.”68 Such entreaties have been ignored.Last year the Houston area again led thecountry in executions.69

Although errors by crime labs arelegally attributable to the prosecution,individual prosecutors may be asblindsided by the incompetence ofsupposed “experts” as the jury. JoeOwmby, a prosecutor in Houston,expressed his dismay: “I could seesomebody coming back and saying, ‘Thetest we told you is conclusive is nowinconclusive.’ I could see that happening.What I did not envision, what I did notspeculate could conceivably happen, is thatthey would say, ‘We could tell [now] it’s nothim.’ I did not see how that couldhappen.”70

For death penaltycases, the worst scenarioimaginable would bethat the jurisdictionresponsible for the mostexecutions in the entirecountry has the worstcrime lab.

Broader Problems inForensic LabsThe problems with errors in forensic

evidence are not limited to one local crimelab, or to DNA testing. In 2003, the FortWorth, Texas police crime lab stoppedconducting serology tests because ofquestions raised about contaminatedevidence.71 Serious problems have beenreported in labs in Florida (DNA lab workeradmitted to falsifying DNA data), Arizona(technicians made errors analyzing DNAevidence in 9 criminal cases under review),Maryland (480 criminal cases underreview), West Virginia (Fred Zain testifiedin dozens of cases about forensic tests henever conducted; he then moved to Texasand continued his misconduct until he wasfired), Illinois (accusations of false forensicevidence led to 4 exonerations), Oklahoma(police chemist Joyce Gilchrist was fired forincompetence; a death row inmate wasexonerated after allegations of Gilchrist’sfalse testimony; 23 defendants weresentenced to death in cases that she workedon, and 11 have already been executed).72


“The 1-in-100 estimatewas without anyscientific basis. Themultiplying ofprobabilities was totallyfallacious.”

Sometimes these errors are caught whenthe results from one lab are reviewed byanother lab. Recently, a defendant whospent 15 years in prison for rape wasreleased in Montana after the FBI checkedthe work of the scientist who had been headof the state’s crime lab. Arnold Melnikoffhad testified that the chances that either setof hairs found at the crime scene were notthe defendant’s were 1 in 100, and becausepubic hairs look different from head hairs,there was a “multiplying effect” making it“1 chance in 10,000.”73 The FBI performedDNA testing on the hairs and neither werefrom the defendant. Walter Rowe, aprofessor of forensic science at GeorgeWashington University, commented on theoriginal testimony: “The 1-in-100 estimatewas without any scientific basis. Themultiplying of probabilities was totallyfallacious.”74

The FBI itself is not without error in thisarea. A 2004 report from the NationalResearch Council found that the FBI’sexaminers in their court testimonysometimes overstated the reliability of theBureau’s method for comparing bullets andplayed down the likelihood of falsematches.75 Senator Charles Grassley ofIowa stated that the study, “raises seriousquestions about testimony given over thelast 40 years. The FBI reached farther thanthe science supported.”76

Jailhouse InformantsPerhaps the next best thing to scientific

evidence “proving” a defendant’s guilt ishis own confession. Jurors bear atremendous burden in deciding guilt and

innocence, especially when a death sentencemay follow. To have the defendant confessto the crime can clear their conscience anderase their doubts. But such confessions arenot made by the defendant at trial. Instead,they are often alleged to have been made bythe defendant while sitting in a jail cell to acellmate. Prisoners who give information tothe prosecution about a fellow prisonerusually want something in return, even ifthat reward is only implied. Thesearrangements have been the seed of manywrongful convictions.

A study at NorthwesternUniversity found thatbetween 1972 and 2002, 97death row inmates wereexonerated nationwide. In16 of those cases, the menhad been wrongfullyconvicted partially orwholly on the testimony ofjailhouse informants.77

Sometimes the prosecution willwithhold information about the deal thatwas made with the informant. In WalterMcMillian’s trial for murder in Alabama,the state did not reveal the financial rewardand preferential treatment that jailhouseinformant Bill Hooks received for testifyingagainst McMillian. Nor did Ralph Meyers,a convicted murderer, disclose that he hadbeen pressured by the police to implicateMcMillian. Fortunately, Meyers could notlive with his lies and recanted, and theincentives that Hooks received wereexposed on a 60 Minutes broadcast. WalterMcMillian was eventually freed, but it tookone of the best lawyers in the country andnational media exposure to undo the jury’sreliance on such flimsy testimony.78

In other instances, the prosecutionregularly uses the same informant, knowingthat he has lied repeatedly, but nevertheless


offering him as truthful to a jury that isunfamiliar with this practice. Tommy Dyehad a 15-year criminal record with a dozenconvictions and a dozen aliases. He hadlied to judges and to grand juries. When heoffered to testify about his cellmate, StephenManning, prosecutors knew his credibilitymight be doubted and provided him with atape recorder to back up the conversations.Dye testified that Manning twice confessedto a murder, even though the murderconfessions were somehow not on the taperecording. The prosecution was successfulin securing a conviction and death sentenceagainst Manning.

In return for testifying, Dye had hiscriminal sentence cut in half and he and hisgirlfriend were placed in the federalWitness Protection Program. Manning’sconviction was overturned for otherimproprieties. An investigative report bythe Chicago Tribune exposed the dangers ofusing jailhouse informants and particularlyattacked the credibility of Tommy Dye. Thestate elected to dismiss all charges againstManning, though prosecutors continued touse Dye as an informant.79

Perhaps the most notorious jailhouseinformant was Leslie Vernon White. Hetestified against a dozen California inmates,and in one 36-day period gave evidence inthree homicide cases and one burglary, “allarising from what he claimed were fleeting

jailhouse encounters during which inmates[purportedly] revealed critical detailsabout their crimes to him.”80 He later puton a courthouse demonstration for the LosAngeles police of how he falsely implicatedinnocent defendants. He was only giventhe name of a suspect and a telephone. Hemanaged to learn intimate details about thecrime from various law enforcementofficers whom he called. He then made upa confession allegedly from the suspect andarranged to have the court bailiff bring thesuspect to the court’s holding tank so itcould be asserted that the two of themshared the same room.81

However, jurors know little of suchskills by informants. A Chicago Tribuneinvestigation found that 46 inmates inIllinois were sent to death row since 1977

in cases where prosecutors used jailhouseinformants, and in about half of those casesthe informant played a major role in theconviction.82

Victim Impact Evidence

[T]he admissibility of victimimpact evidence that sheds absolutelyno light on either the issue of guilt orinnocence, or the moral culpability ofthe defendant, serves no purpose otherthan to encourage jurors to decide infavor of death rather than life on thebasis of their emotions rather thantheir reason.

-Justice John Paul Stevens, 200583

The death penalty decision-makingprocess is further obscured by theintroduction of powerful victim impactevidence. In almost every state, as thejurors are beginning to grapple with thedifficult life-and-death question beforethem, the prosecution presents a series ofwitnesses who are relatives of the deceasedvictim. They describe the immense loss thathas occurred in their own lives as a result ofthe defendant’s murdering their loved one.For jurors torn between sparing thedefendant’s life and expressing outrage at

The gm

Walter McMillian (left) freed in Alabama withAttorney Bryan Stevenson (EJI photo).


the crime that has been committed, victimimpact evidence can tip the balance towardthe state.

The voice of victims is an important onein our criminal justice system. Many statesrequire the prosecution to keep the victim’sfamily informed as their case progresses.Frequently, the will of the family withrespect to seeking the death penalty plays amajor role in whether the case will proceedas a capital case. But at sentencing, theemotional impact of their testimony can beoverwhelming to the jury.84

In theory, criminal prosecutions involvethe State versus the Defendant, since crimeinvolves more than an individual victim, itis a violation of the community’s norms. If,however, death penalty cases pit thedefendant against the victim, that choice isan easy one for most jurors. A victimversus defendant model is a reminder ofour long-discarded vigilante justice. Inmost criminal cases, the victims’ sentencingpreferences are not presented to a jury.Sentencing proceedings are before a judge,

who is guided by minimum and maximumpunishments.

Death sentencing proceedings, on theother hand, almost always take place beforea jury. That group of jurors is probablyhearing for the first time in their livesgraphic details about the crime, thesuffering of the victim, and how long it tookfor death to occur. In such an atmosphere,the well-articulated pleas of familymembers, especially those members withwhom the jurors feel most in common, canoverwhelm the careful weighing ofaggravating and mitigating factors that issupposed to take place. In contrast, anobscure victim with no one to present theemotional impact of his loss, will likely beconsidered differently. Given the SupremeCourt’s approval of the use of victim impactevidence for limited purposes85 and therecent shift in society generally towardvictims’ rights, it is unlikely that this kind oftestimony is going to be eliminated.Nevertheless, some states have takenmeasures at least to instruct the jury aboutkeeping such evidence in perspective.86


IV. JURORS’ UNDERSTANDING OF THE SENTENCING PROCESS

To identify before the fact those characteristics of criminal homicides and theirperpetrators which call for the death penalty, and to express these characteristics inlanguage which can be fairly understood and applied by the sentencing authority,appear to be tasks which are beyond present human ability.

-McGautha v. California, 197187

Even if jurors were given all theappropriate information by the prosecutionand the defense, they would have a difficulttime determining who should live and diebecause it is an inherently inscrutableprocess. Jurors are typically told to considerall the aggravating evidence (i.e., thosethings the prosecution believes make thiscrime worse than an “ordinary” murder)and all the mitigating evidence (i.e., thosethings that the defense, assuming it hasdone a thorough investigation, believeslessen the severity of the offense). Based onthat consideration, jurors are to decidewhether the defendant lives or dies. Thisunique role for juries is based on theconcept that jurors represent the“conscience of the community” in makinglife and death decisions. However, it is verydifficult for ordinary citizens to understandthe abstruse legal framework that the courtshave constructed around the death penalty.

Craig Haney, a prominent psychologistin California, found that even well-educatedpeople misunderstood the instructions tothe jury. His research indicated that:

California’s entire penaltyinstruction is very poorlyunderstood by upper-levelcollege students, that theseproblems are not clarified inactual cases through attorneyarguments, and that jurors whohad served in actual capital caseswere plagued by fundamentalmisconceptions about what theinstructions meant.88

Interviews with those who served ondeath penalty juries by the Capital JuryProject found that:

Approximately 50% of jurorsinterviewed decided what thepenalty should be before thesentencing phase of the trial. This isbefore they have heard mitigatingevidence from the defense orreceived instructions from the judgeabout how to make the punishmentdecision.

The study found that 45% of jurorsfailed to understand that they wereallowed to consider any mitigatingevidence during the sentencingphase of the trial. In addition, two-thirds of jurors failed to realize thatunanimity was not required forfindings of mitigation. The lawallows that even if only one jurorfinds a factor to be mitigating thatfinding is relevant for the wholejury.

44% of jurors said that they believedthe death penalty was required if thedefendant's conduct was heinous,vile or depraved. The SupremeCourt has ruled that the deathpenalty cannot be required solely onthe grounds that specificaggravating circumstances havebeen established.

Most jurors grossly underestimatedthe amount of time a defendantwould serve in prison if notsentenced to death, and the soonerjurors believed (wrongly) adefendant would return to society ifnot given the death penalty, themore likely they were to vote fordeath. 89


Even in states that have life-without-parole in prison as the alternative to thedeath penalty, jurors believed that theinmates would serve only 20 years, or less,before release. In Alabama, a life-without-parole state, the jurors’ estimate of themedian time inmates would serve was 15years; in California, the estimate was 20years; and in Pennsylvania, the estimatewas only 12 years.90 In reality, life-withoutparole means just what it says. InCalifornia, for example, not a single inmatesentenced to life without parole has beenreleased since the sentence was establishedin 1978.91

With respect to the sentencing process,jurors are typically told to weigh theaggravating and mitigating circumstancespresented in the case, but they are not givenany scale to perform this task. Assumingthey understand the meaning of mitigation,and assuming the defense attorney hasinvestigated the client’s background forsympathetic facts, the jury is still faced witha decision that is unlike any other in thecriminal justice system. The formula forweighing these factors is not a simplecounting of how many factors of each typeare proven. (For example, 3 aggravators and2 mitigators do not necessarily equal adeath sentence).

Jurors are told toweigh the aggravatingand mitigatingcircumstances, but theyare not given any scaleto perform this task.

A juror could certainly be excused forthinking that this is the law. But, in fact, theconstitution requires a differentdetermination. At least some aggravators

(but not all) must be proven beyond areasonable doubt to the unanimoussatisfaction of the jury. The finding ofmitigating factors, on the other hand, neednot be found unanimously and need not beproven beyond a reasonable doubt.Somehow these apples and oranges must beweighed and a proper sentence determined.Not surprisingly, this process producesunpredictable and arbitrary results. Asmuch as anything, geography and the raceof the victim are the best predictors of deathsentences, not the severity of the crime orthe record of the criminal.92

Lingering DoubtTo make matters more confusing, the

most powerful mitigating factor for jurorswho vote for a life sentence is one that mostcourts tell them not to consider: lingeringdoubt about the defendant’s guilt. TheCapital Jury Project found that 63% of jurorswho said it was a factor in their casebelieved it was very important in makingtheir punishment decision, greater than theimportance of other factors like mentalretardation, youth, or childhood abusepresent in the case.93

Despite the importance of lingeringdoubt, however, defendants have noconstitutional right to ask the jurors toconsider this factor when making theirsentencing decision.94 Like many of theCourt’s decisions restricting defendants’rights in death penalty cases, this rulingcame before the advent of widespread DNAtesting and the spate of innocence cases thathave resulted. The Illinois legislaturerecently considered breaking new groundwith a death penalty reform that wouldforbid a death sentence unless the jury hadno doubt about the defendant’s guilt.95 Giventhat much of the evidence that might lead toacquittal is hidden, it is debatable whetherthis provision would eliminate deathsentences against innocent defendants.Nevertheless, the bill would at least allowjurors to consider this factor, which isalready high on their list of concerns.

The Supreme Court has beenunresponsive to the issue of jury confusion


in death cases. Its assumption, as expressedin a recent case, is that “a jury is presumedto follow [the judge’s] instructions” and “tounderstand a judge’s answer to itsquestion.”96 This 5-4 decision upholding adeath sentence was handed down despitethe fact that the jury requested clarificationfrom the trial judge about whether theywere required to sentence the defendant todeath (they weren’t). The judge refused toenlighten them. They rendered their deathverdict in tears.97 The defendant wasexecuted.

Another example of how jurors’confusion about their responsibility (as wellas the intimidating effect of race) can havedevastating results occurred prior to theexecution of William Henry Hance inGeorgia. Hance, a mentally impaired blackman was sentenced to death despite the factthat one of the jurors said she did not votefor death. The only black person on the jurystated that she had voted for a life sentencebecause of Hance's mental condition, buther vote was ignored. In the courtroom, shewas intimidated against speaking out, butshe later revealed her vote and the strongracial overtones in the jury room. Anotherjuror signed an affidavit confirming theblack juror's story, but Mr. Hance wasexecuted anyhow in 1994.98

Emotional Impact on Jurors

I couldn’t understand how peoplesat in the same trial and didn’t feelthe same way. . . .It really broke myheart.

-Susan Schriever, a juror from thetrial of Lee Boyd Malvo (Virginia)99

Perhaps because death penaltysentencing involves excruciatingly difficultdecisions coupled with frustratinginstructions, capital trials often leave jurorswith emotional scars and resentment. Forexample, one of the jurors in the sniper trial

of Lee Boyd Malvo in Virginia saw therelationships among jurors quickly breakdown during deliberations, and concludedthat “I’m not sure I ever want to see themagain.”100

Other jurors are personallyoverwhelmed by the experience. JackieMarhalik, a juror at the trial in which D.C.-area sniper, John Muhammad, wassentenced to death, said: “During the sixweeks of the trial, I became very angry atthe prosecution, because in trying torecreate the horror, they bombarded us withthe most gruesome and painfulphotographs. The prosecutors were carefulto point out where the brain matter hadsplattered on the ground. . . . I still wake upwith nightmares.”101

Alex Kotlowitz followed some of thejurors in the case of Jeremy Gross in Indianafor a New York Times Magazine article. Aswith all such jurors, these people agreedthey could impose a death sentence in anappropriate case. But even though therewas little doubt of the defendant’s guilt, allvoted for life. When they reached theirdecision everybody in the room startedcrying. They had to wait an hour beforecalling the bailiff to regain theircomposure.102 Many of the jurors told theauthor that when they returned homefamily members and co-workers chastisedthem for not voting for death. One jurorsank into deep depression and missed twomonths of work.103

In a national study of jurors entitled“Through the Eyes of the Juror: A Manualfor Addressing Juror Stress,” about a thirdof jurors experienced stress after their trial.But death penalty cases produced the moststress. “I think the majority of people comeout of it disturbed,” said Beth Bonora,founder of the National Jury Project.104

Some courts are now having the jurors inhigh profile cases debriefed by a healthprofessional after trial.105


V. THE SCOPE OF OFFICIAL MISCONDUCT

According to a Chicago Tribune investigation, 381 defendantsin homicide cases have had their convictions thrown out becauseprosecutors either withheld critical evidence or presented evidencethey knew to be false. Sixty-seven of the defendants had beensentenced to death.

Official misconduct in criminal cases is abroad problem that manifests itself in manyways. Jurors have no way of questioningduring trial whether they are being given allthe facts and whether witnesses are beingtruthful. Once the trial is over, jurors’ viewscount for little, even if new informationcomes to light. One of the facts jurors maynot know is the extent of misconduct intrials.

The Center for Public Integrityconducted a study of official misconduct in2003 and reported the practice to bewidespread. The Center studied 11,450cases in which appellate courts reviewedallegations of prosecutorial misconduct andfound 2,017 cases since 1970 in which courtscited this behavior as a factor whenreversing sentences or dismissing charges.This does not count thousands of othercases in which the courts foundprosecutorial actions inappropriate, butheld it did not merit a reversal because theerror was deemed harmless.106 Thirty-twoof the defendants in cases wheremisconduct was found were laterexonerated.

A national study of prosecutorial abuserestricted to homicide cases was conductedby the Chicago Tribune, revealing thefollowing findings:

Since 1963 when the U.S. SupremeCourt ruled that prosecutors musthand over relevant exculpatoryevidence to the defense, 381defendants in homicide cases havehad their convictions thrown outbecause prosecutors either withheldsuch evidence or presented evidencethey knew to be false. Sixty-seven ofthe defendants had been sentenced todeath.

None of the prosecutors involved inthese cases was convicted of a crimenor barred from practicing law.Many subsequently became judgesor district attorneys.107

Innocence and OfficialMisconductOfficial misconduct in death penalty

cases presents a particularly serious issue.Since 2000, thirty-seven people have beenfreed from death row after their convictionsand death sentences were dismissed eitherby the prosecution, through an acquittal at are-trial, or by an absolute pardon based oninnocence from the governor. In 23 (62%) ofthese cases, state misconduct played asignificant role in the faulty original trials.These innocent defendants represent only asmall portion of the 121 defendants whohave been freed since 1973, many withsimilar evidence of prosecutorialmisconduct.108 A description of the 15 casesof defendants released since 2003 followingfindings of official misconduct appears inthe Appendix.

The Supreme Court’s growing concernwith prosecutorial behavior in deathpenalty cases was underscored when theyhalted an execution in Texas just minutesbefore it was to take place in 2003. Despitethe fact that Delma Banks’ claim that vitalevidence had been withheld by theprosecution was rejected by Texas courtsand by the U.S. Court of Appeals for theFifth Circuit, the Supreme Court agreed tohear his case and decided (7-2) that he wasentitled to a new sentencing hearing.109


“A rule thus declaring‘prosecutor may hide,defendant must seek,’ isnot tenable in a systemconstitutionally boundto accord defendants dueprocess.”

-Justice Ruth Ginsburg

In response to Texas’ assertion that itwas Banks’ responsibility to find the hiddenevidence, Justice Ruth Ginsburg, writing forthe majority, stated: “A rule thus declaring‘prosecutor may hide, defendant mustseek,’ is not tenable in a system

constitutionally bound to accord defendantsdue process.”110 Banks, a black man whowas convicted by an all-white jury in 1980,is also appealing his underlying conviction.

In many similar cases, prosecutors’decisions to withhold evidence will neverbe challenged because the exculpatorymaterial never comes to light. By definition,this evidence was not turned over to thedefense. That will remain true after the trialand into the future unless it isindependently, and often fortuitously,discovered. And no one takes responsibilityfor this miscarriage of justice: theprosecutor’s withholding of evidence istermed a “judgment call,” the defense (andthe judge and the jury) will never hearabout the evidence. Perhaps a new trialwould have been granted, but no one willever know. Jurors should know about theextent of this misconduct if they are toaccurately render their decisions.


CONCLUSIONS

The death penalty in America has beenrightly criticized for many problems: racialdisparities, wrongful convictions andexecutions, and enormous costs, to name afew. But it also deeply affects the jurorswho serve on capital cases. Rather thanrepresenting a cross-section of society,jurors are chosen because of theirwillingness to impose a death sentence.Statistically, such juries will contain fewerminorities, fewer women, fewerrepresentatives of certain religious beliefs,and more jurors who are trusting of thestate’s evidence and prone to conviction.This cuts against the grain of ourfundamental principles that those withminority views are no less citizens.

Those who do serve on capital jurieswill find themselves part of a confusinghigh-stakes battle in which justice is not

always well-served. Evidence is withheld,the truth twisted, and emotionsmanipulated all in the name of winning adeath sentence. Far too often, mistakesoutside of the jury’s control will berevealed, negating much of theirpainstaking work. Occasionally, the personupon whom the jury was asked topronounce a sentence of death is laterexonerated, leaving the jurors withenormous frustration and anger.

Our system of citizen juries and ourcriminal justice system generally havewithstood the test of time and are often amodel for other countries. But the deathpenalty has infected this system—its errorsare too frequent, its inequities too blatant,its stakes too high, and its complexities tooincomprehensible—to fit well within thistradition.


Appendix

Exonerated Death Row Inmates 2003-2005with Findings of Official Misconduct

Although multiple reasons are often cited by courts in dismissingcharges, the most recent exonerations from 2003 to 2005 illustrate the risks posedby overzealous prosecution in capital cases. For a description of exonerationsprior to 2003, see the Death Penalty Information Center’s Web site,http://www.deathpenaltyinfo.org, at “Innocence.”

In 2005, Ohio dismissed all charges against Derrick Jamison. Theprosecution had withheld critical eyewitness statements and other evidence fromthe defense, resulting in the overturning of Jamison's conviction in 2002. One ofthe withheld statements involved an eyewitness to the robbery. Withheld policerecords showed that the eyewitness had identified two suspects, neither of whichwas Jamison. All charges were dropped and Derrick Jamison was freed.

Ernest Ray Willis was sentenced to death in Texas for the 1986 deaths oftwo women who died in a house fire that was ruled arson. Seventeen years later,Pecos County District Attorney revisited the case after a federal judgeoverturned Willis' conviction. He hired an arson specialist to review the originalevidence, and the specialist concluded that there was no evidence of arson. Theprosecutor said that Willis "simply did not do the crime. ... I'm sorry this manwas on death row for so long and that there were so many lost years."

In 2004, the Louisiana Supreme Court reversed Dan Bright’s conviction,holding that the state suppressed material evidence regarding the criminalhistory of the prosecution’s key witness. The court noted that there was nophysical evidence against Bright, and that the discredited witness’s testimonywas the only evidence that served to convict him. All charges were dismissedand Bright was freed.

Laurence Adams left a Massachusetts prison 30 years after his convictionfor the 1972 robbery and murder of a transit worker in Boston. Adams’conviction was overturned in 2004 because police had withheld importantevidence. Adams had been convicted at age 19 on the testimony of twowitnesses, both of whom had unrelated charges against them dropped after theirtestimony. The key witness testified that Adams had admitted to the offense in adiscussion in a private home, but it turned out that the witness was actuallyincarcerated at the time that he alleged the conversation took place. Adams’sentence had been reduced to life; otherwise he might have been executedearlier. Instead, he was freed.

Gordon Steidl was freed from an Illinois prison in 2004, 17 years after hewas wrongly convicted and sentenced to die for two 1986 murders. An IllinoisState Police investigation in 2000 found that local police had severely botchedtheir investigation, resulting in the wrongful conviction of Steidl and his co-defendant.


Alan Gell was arrested for a 1995 robbery and murder. The state’s twokey witnesses were Gell's ex-girlfriend and her best friend, both teenagers. Thegirls, who were at the victim’s house and pled guilty to involvement in themurder, testified that they saw Gell shoot Jenkins on April 3, 1995. However,prosecutors withheld an audiotape of one of the girls saying she had to "make upa story" about the murder. Gell was acquitted at a re-trial and the prosecutorsfrom the case were disciplined by the state bar.

Nicholas Yarris was in jail in Pennsylvania on a minor charge in 1981. Afellow inmate made a deal with the D.A. and began exchanging false informationabout Yarris’ involvement in a murder for conjugal visits and a reducedsentence. During the trial in 1982, the prosecution did not hand over 20 pages ofdocuments that included other physical evidence and conflicting witnessaccounts. On appeal, a federal judge approved a motion by prosecutors to haveevidence from the case tested in a lab in Alabama that was later revealed to havehad no experience in DNA testing. This lab found no conclusive results toexclude Yarris or include anyone else. The DNA evidence was finally re-testedindependently in 2000 by arrangement with the Pennsylvania Federal DefenderOffice, and the results of 3 tests excluded Yarris. He was then freed.

Joseph Amrine was sentenced to death in 1986 in Missouri for themurder of a fellow prisoner. Amrine maintained his innocence, andinvestigators never uncovered any physical evidence linking him to the crime.He was convicted on the testimony of fellow inmates, three of whom laterrecanted their testimony, admitting that they lied in exchange for protection.Despite the state’s argument that new evidence of innocence should have nobearing on the case, the Missouri Supreme Court found "clear and convincingevidence of actual innocence that undermines confidence" in Amrine'sconviction. The local prosecutor then announced that he would not seek a newtrial and Amrine was released.

Timothy Howard and Gary James were arrested in 1976 for an Ohiobank robbery in which one of the bank guards was murdered. Both menmaintained their innocence throughout trial. With funding from CenturionMinistries in New Jersey, Howard and James were subsequently able to uncovernew evidence not made available to their defense attorneys at the time of trial,including conflicting witness statements and fingerprints. Charges weredismissed and they were freed in 2003.

John Thompson was sentenced to death in 1985 following his convictionfor a New Orleans murder. In 1999, just five weeks before his scheduledexecution, Thompson's attorney discovered crucial blood analysis from a priorconviction of Thompson. The blood evidence, which had been improperlywithheld by the state, cleared Thompson of a robbery conviction. It was thatconviction that had kept Thompson from testifying on his own behalf at hismurder trial. If he had testified, the prosecution would likely have cross-examined him about the robbery conviction. He was granted a new trial andacquitted in 2003.

Before leaving office in 2003, Illinois Governor George Ryan granted fourpardons based on innocence. The men pardoned, Aaron Patterson, MadisonHobley, Leroy Orange and Stanley Howard, were part of the "Death Row 10," agroup of Illinois death row prisoners who claimed that they were the victims ofpolice torture. The four pardoned men maintained that their confessions weregiven only after they were beaten, had guns pointed at them, were subjected to


electric shock, or were nearly suffocated with typewriter covers placed over theirheads. In 2002, a special prosecutor was named to conduct a broad inquiry intothe allegations from more than 60 suspects who, like the Death Row 10, claimedthat they were tortured by former Chicago Police Commander Jon Burge or hisdetectives at the Burnside Area Violent Crimes headquarters in Chicago duringthe 1980s. Jon Burge was fired by the Chicago Police Board in 1993 for his role inthe torture of another prisoner. Governor Ryan examined the cases of all theIllinois death row inmates and selected these four for pardons based on theircoerced confessions and other information.111

In many of the of the above cases, a judgment call was made by theprosecutor that the evidence that was not handed over to the defense was eithernot “exculpatory” (i.e., it would not have lessened the likelihood of a guiltyverdict or death sentence) or that the evidence was not “material” (i.e., thepresence of this new evidence would not have undermined confidence in theoutcome).112 Both of these criteria leave a lot of room for subjective judgment. Inthe relevant cases above, a court determined that evidence should have beenturned over to the defense and that the prosecution, either intentionally ormistakenly, made the wrong decision.


ENDNOTES 1 . See, e.g., Penry v. Lynaugh, 492 U.S. 302, 330-31 (1989) (noting the importance of juries in determiningwhether a national consensus has been reached in a case about executing people with mental retardation).2 . See generally, B. Fleury-Steiner, “Jurors’ Stories of Death: How America’s Death Penalty Invests inInequality,” (Univ. of Michigan Press, 2004).3 . Associate Justice John Paul Stevens, Speech before the American Bar Association’s Thurgood MarshallAwards Dinner, Chicago, August 6, 2005, available athttp://www.supremecourtus.gov/publicinfo/speeches/sp_08-06-05.html.4 . See Ring v. Arizona, 536 U.S. 584, 608 n.6 (2002) (listing the states that entrust to juries thedetermination of death sentences).5 . These challenges to individual jurors are available to both sides in a capital case. From a juror’sperspective, however, bias for being black or white, exhibited by the prosecution or the defense, areequally disturbing. And there is no guarantee that these two wrongs will balance out to make a “right.”6 . See Batson v. Kentucky, 476 U.S. 79 (1986) and subsequent cases.7 . See DATV Productions, Jury Selection With Jack McMahon, transcript at 69-71 (1987) (on file with DPIC).8 . S. Duffy, “District Attorney’s Video at Heart of New Trial in Philadelphia Murder Case,” LegalIntelligencer, Dec. 21, 2001.9 . Editorial, “How Large a Fig Leaf?,” Washington Post, Oct. 27, 2002, at B6.10 . Miller-El v. Cockrell, 537 U.S. 322 (2003). The lower court had denied Miller-El the opportunity toappeal the challenge he had raised to the jury selection process. The Supreme Court (8-1) said the appealshould have been heard. It was heard but this time denied on its merits. The Supreme Court took thecase again, Miller-El v. Dretke, and reversed his conviction. See Miller-El v. Dretke, 2005 WL 1383365(U.S.).11 . See Washington Post editorial, note 9 above.12 . Miller-El v. Cockrell, 537 U.S. at 347.13 . See Washington Post editorial, note 9 above.14 . S. McGonigle, et al., “A Process of Juror Elimination,” Dallas Morning News, August 21, 2005. Thecases studied were not death penalty cases.15 . D. Murphy, “Case Stirs Fight on Jews, Juries and Execution,” N.Y. Times, Mar. 16, 2005, at A1.16 . C. Hensleigh, “Quatman Tells His Version of California Death Row Retrial Case,” Whitefish Pilot,April 7, 2005.17 . Id.18 . Gallup Poll Press Release, “Who Supports the Death Penalty?,” Nov. 16, 2004 (on file with DPIC).19 . D. Lindorff, Salon Magazine, Jan. 2, 2001.20 . Id.21 . C. Haney & D. Logan, “Broken Promise: The Supreme Court’s Response to Social Science Research onCapital Punishment,” 50 Journal of Social Issues 75, 91 (1994).


22 . R. Morin, “Bias in the Jury Box,” Washington Post, March 21, 2004, at B5.23 . See Lockhart v. McCree, 476 U.S. 162 (1986).24 . See W. Bowers & W. Foglia, "Still Singularly Agonizing: Law's Failure to Purge Arbitrariness fromCapital Sentencing," 39 Criminal Law Bulletin 51, 65 (2003)).25 . Associate Justice John Paul Stevens, Speech before the American Bar Association’s Thurgood MarshallAwards Dinner, Chicago, August 6, 2005, available athttp://www.supremecourtus.gov/publicinfo/speeches/sp_08-06-05.html (emphasis added).26 . See, e.g., CBS Poll, April 17, 2005 (Roper Center at Univ. of Conn., May 17, 2005) (public equally spliton support for life-without-parole or death penalty as punishment for murder).27 . See J. Dahlburg, “Anger in Puerto Rico Over Death Penalty Case,” Los Angeles Times, June 9, 2005.28 . See A. Liptak, “Facing a Jury of (Some of) One’s Peers,” N.Y. Times, July 20, 2003.29 . See “The Federal Death Penalty System: A Statistical Survey (1988-2000), U.S. Dept. of Justice (Sept. 12,2000).30 . B. Miller, “D.C. Case Has Court Struggling for a Jury,” Washington Post, April 29, 2001, at C1.31 . J. Liebman et al., “A Broken System: Error Rates in Capital Cases, 1973-1995,” (2000).32 . See R. Dieter, “Innocence and the Crisis in the American Death Penalty,” Death Penalty InformationCenter (September 2004), with updates on DPIC’s Web site, http://www.deathpenaltyinfo.org.33 . See, e.g., S. Gross, The Risks of Death: Why Erroneous Convictions are Common in Capital Cases, 44 BuffaloL. Rev. 469 (1996).34 . John P. Flannery, Op-ed, Richmond Times-Dispatch, August 20, 2005.35 . See Kyles v. Whitley, 514 U.S. 419, 428-29 (1995).36 . Id. at 458 (Scalia, J., dissenting).37 . See J. Neff & M. Eisley, “N.C.’s Top Prosecutor Calls for Opening Files,” News & Observer, March 2,2004.38 . See Associated Press, “NC Prosecutors Reprimanded For Death Case,” Sept. 24, 2004.39 . Press release, Death Penalty Information Center, Sept. 14, 2004 (on file with DPIC).40 . See M. Secours, “Is Tennessee Doomed to Repeat the Shame of Wrongful Execution?” The Tennessean,February 10, 2002.41 . See K. Reckdahl, “Jurors Dismissed,”(Louisiana) Gambit Weekly, December 16, 2003.42 . J. Dunne, “Put Death to a Vote?,” N.Y. Daily News, April 11, 2005 (arguing for an end to capitalpunishment in New York).43 . See Gregg v. Georgia, 428 U.S. 153 (1976).44 . See T. Rosenberg, “The Deadliest D.A.,” N.Y. Times Magazine, July 16, 1995, at 21 (noting the widediscretion among prosecutors in seeking the death penalty).45 See R. Willing, “Geography of the Death Penalty,” USA Today, Dec. 20, 1999.46 . Furman v. Georgia 408 U.S. 238, 257 (1972) (Douglas, J., concurring).


47 . J. Pokorak, “Probing the Capital Prosecutor’s Perspective: Race of the Discretionary Actors,” 83Cornell Law Review 1811 (1998).48 . For race of victims in death penalty cases, see NAACP Legal Defense Fund’s “Death Row USA,” July1, 2005. For race of victims of murders in the U.S., see U.S. Dept. of Justice, Bureau of Justice StatisticsCriminal Victimization, 2003, (September 2004) (49% of the murder victims were white, 49% were black).49 . See, e.g., D. Baldus, et al., “Racial Discrimination and the Death Penalty in the Post-Furman Era: AnEmpirical and Legal Overview, with Recent Findings from Philadelphia,” 83 Cornell Law Review 1638,1716 (1998).50 . A. Welsh-Huggins, “Death Penalty Unequal,” Cincinnati Enquirer, May 7, 2005 (Associated Press 3-part series).51 . “Capital Punishment in New York State 1995-2003,” a report by the Capital Defender Office (August2003).52 . “The Federal Death Penalty System: A Statistical Survey (1988-2000), U.S. Dept. of Justice (Sept. 12,2000).53 . See Barefoot v. Estelle, 463 U.S. 880 (1983) (allowing psychiatrists to testify about an inmate’s “futuredangerousness” even though such predictions are usually wrong).54 . See J. Elliott, “New Trial Is Denied Man Whose Lawyer Slept in Court,” Houston Chronicle, May 19,2005.55 . See W. Bowers, “The Capital Jury Project: Rationale, Design, and Preview of Early Findings,” 70Indiana Law Journal 1043, 1100 (1995).56 . Wiggins v. Smith, 539 U.S. 510 (2003) (citations omitted).57 . Affidavit of Larry Hildebrand in Amrine v. Luebbers, Exhibit to Petitioner’s brief for a writ of habeascorpus in the Missouri Supreme Court, Oct. 15, 2001 (on file with DPIC) (emphasis added).58 . See, e.g., S. Bright, “Counsel for the Poor: The Death Sentence Not for the Worst Crime but for theWorst Lawyer,” 103 Yale Law Journal 1835 (1994); see generally 31 Hofstra Law Review 903-1211 (2003)(articles on guidelines for the appointment and performance of defense counsel in capital cases).59 . See L. Olsen, Seattle Post-Intelligencer, Aug. 6-8, 2001 (3-part series on quality of representation).60 . See L. Chandler, “Lawyers, Indadequate Defense Cited in a Third of Death Case Reversals,” CharlotteObserver, Sept. 11, 2000, at p.1A.61 . See D. Malone & S. McGonigle, “Defense Called Lacking for Death row Indigents,” Dallas MorningNews, Sept. 10, 2000.62 . See L. Greenhouse, “Supreme Court to Hear Case of Mexican on Death Row,” N.Y. Times, Dec. 11,2004 (defense lawyer’s license suspended at time of trial for ethics violations).63 . See, e.g., R. Dieter, “With Justice for Few: The Growing Crisis in Death Penalty Representation,” (DPIC1995), available at http://www.deathpenaltyinfo.org/article.php?scid=45&did=544.64 . W. Bowers, “The Capital Jury Project: Rationale, Design, and Preview of Early Findings,” 70 IndianaLaw Journal 1043, 1100 (1995). Defense attorneys fared somewhat better in “fighting hard at thepunishment stage of the trial,” but even there the prosecution scored higher in the jurors’ minds.65 . See H. Dewar, “Senate Approves Bill on Victims’ Rights,” Washington Post, Oct. 10, 2004 (notingHouse’s earlier passage of similar bill including expansion of access to DNA testing).


66 . See R. Dieter, “Innocence and the Crisis in the American Death Penalty,” (DPIC report 2004), availableat http://www.deathpenaltyinfo.org.67 . L. Olsen, “DNA Lab Analysts Unqualified,” Houston Chronicle, Sept. 8, 2003.68 . S Moreno, “Police Lab’s Troubles Grow,” Washington Post, Oct. 2, 2004, at A3.69 . Eight of the executions in 2004 were of defendants from Harris (Houston) County (see Texas Dept. ofCriminal Justice), not only more than any other county, but more than any other state except Texas.70 . “Crime Lab Scandal Leaves Prosecutor Feeling Betrayed,” Houston Chronicle, Mar. 15, 2003.71 . D. Boyd, “Doubts Increase About Crime Lab,” Fort Worth Star-Telegram, Aug. 26, 2003.72 . T. Maier, “Inside the DNA Labs,” Insight Magazine, Washington Times, June 10-23, 2003, at 18-22.73 . A Liptak, “2 States to Review Lab Work of Expert Who Erred on ID,” N.Y. Times, Dec. 19, 2002.74 . Id.75 . E. Lichtblau, “Report Questions the Reliability of an FBI Ballistics Test,” N.Y. Times, Feb. 11, 2004, atA17.76 . Id.77 . “Informants Come Under Question,” Newsday, Dec. 9, 2003.78 . See Statement of Walter McMillian to U.S. House Subcommittee on Civil and Constitutional Rights,July 23, 1993 (on file with DPIC); see also P. Applebome, “Black Man Freed After Years on Death Row inAlabama,” N.Y. Times, Mar. 3, 1993, at p.A1.79 . See S. Mills & K. Armstrong, “The Inside Informant,” Chicago Tribune, Nov. 16, 1999, at p.1.80 . B. Scheck, et al., “Actual Innocence” (Doubleday 2000), at p.128.81 . Id. at 128-29.82 . See Mills, note 79 above.83 . Associate Justice John Paul Stevens, Speech before the American Bar Association’s Thurgood MarshallAwards Dinner, Chicago, August 6, 2005, available athttp://www.supremecourtus.gov/publicinfo/speeches/sp_08-06-05.html.84 . See, e.g., W. Logan, “Through the Past Darkly: A Survey of the Uses and Abuses of Victim ImpactEvidence in Capital Trials,” 41 Arizona Law Review 143 (1999). There has been little empirical analysis ofthe impact of such evidence in capital trials. One study in South Carolina using 63 cases found nocorrelation between the introduction of victim impact evidence and an increase in death sentencing,though the authors suggested that other variables might have affected the outcome. T. Eisenberg, et al.,“Victim Characteristics and Victim Impact Evidence in South Carolina Capital Cases,” 88 Cornell LawReview 306, 340 (2003).85 . See Payne v. Tennessee, 501 U.S. 808 (1991).86 . See J. Blume, “Ten Years of Payne: Victim Impact Evidence in Capital Cases,” 88 Cornell Law Review257, 275 (2003).87 . McGautha v. California, 402 U.S. 183, 204 (1971).


88 . C. Haney, “Mitigation and the Study of Lives: On the Roots of Violent Criminality and the Nature ofCapital Justice,” in “America’s Experiment with Capital Punishment,” (Second Edit., edited by J. Acker, etal. 2003), at 476.89 . See W. Bowers & W. Foglia, "Still Singularly Agonizing: Law's Failure to Purge Arbitrariness fromCapital Sentencing," 39 Criminal Law Bulletin 51, 56, 71, 73, 82 (2003).90 . W. Bowers & B. Steiner, “Death by Default: An Empirical Demonstration of False and Forced Choicesin Capital Sentencing,” 77 Texas Law Review 605, 647 (1999), at Table 1.91 . See P. Blumberg, “Life, Without Parole,” San Francisco Daily Journal, Dec. 11, 2000, at p.7.92 . See, e.g., D. Baldus, et al., “Racial Discrimination and the Death Penalty in the post-Furman Era: AnEmpirical and Legal Overview, with Recent Findings from Philadelphia,” 83 Cornell Law Review 1638(1998).93 . W. Bowers et al., “Foreclosed Impartiality in Capital Sentencing: Jurors’ Predispositions, Guilt-TrialExperience, and Premature Decision Making,” 83 Cornell Law Review 1476, 1534 (1998).94 . See Franklin v. Lynaugh, 487 U.S. 164 (1988). The Supreme Court will hear Oregon v. Guzek, No. 04-928 in December 2005 and consider whether a defendant may present evidence related to his possibleinnocence at the sentencing phase of his capital trial.95 . See Editorial, “Leaving No Doubt,” Chicago Tribune, Mar. 16, 2005, at p.22.96 Weeks v. Angelone, 528 U.S. 225, 234 (2000).97 . Id. at 248 (Stevens, J., dissenting). See also A. Berlow, “A Jury of Your Peers? Only if You’re Clueless,”Washington Post, Aug. 12, 2002, at B01.98 . See “Georgia Rejects Clemency for a Killer Who Says He's Retarded,” N.Y. Times, Mar. 31, 1994, atA19.99 . T. Jackman, “Death Penalty Deliberations Tore Malvo Jury Apart,” Washington Post, June 19, 2004, atB5.100 . Id. (juror James Wolfcale)101 . J. Marhalik, “The Trial After the Trial,” N.Y. Times Magazine, Dec. 21, 2003 (juror in the trial of JohnMuhammad in Virginia).102 . A. Kotlowitz, “In the Face of Death,” N.Y. Times Magazine, July 6, 2003, at 32, 50.103 Id. at 50.104 A. Trafford & J. White, “For Jurors, Stress of Capital Case Can Linger,” Washington Post, Nov. 21,2003, at A1.105 . Id.106 . S. Weinberg, “Breaking the Rules: Who Suffers When a Prosecutor is Cited for Misconduct,” Centerfor Public Integrity, June 26, 2003 (on file with DPIC).107 . K. Armstrong & M. Possley, “The Verdict: Dishonor,” Chicago Tribune, Jan. 8, 1999 (first in five-partseries).108 . See R. Dieter, “Innocence and the Crisis in the American Death Penalty,” (DPIC report, September2004) (updates on DPIC’s Web site: http://www.deathpenaltyinfo.org).


109 . See L. Greenhouse, “Prosecutorial Misconduct Leads Justices to Overturn Death Sentence in Texas,”N.Y. Times, Feb. 25, 2004, at p.A13.110 . Id.111 . See S. Mills & M. Possley, “Ryan to Pardon 4 on Death Row,” Chicago Tribune, January 10, 2003.112 . See Brady v. Maryland, 373 U.S. 83 (1963).

Documents

BLIND JUSTICE - Death Penalty Information Center Report · Blind Justice, the most recent report to be released by the Death Penalty Information Center (DPIC), is the first to focus