Expert: Dudley Sharp - 11/5/2006

Question

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The text above is a follow-up to ...

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First off let me say that I am a firm supporter of the death penalty but I have been concerned about some of the flimsy evidence being used in cases where the death penalty is sought and being granted. As an example, the Scott Peterson case. Now don't get me wrong, I really do believe that he is guilty but I am uncomfortable with the jury sentencing him to death with the evidence presented in the case. I feel that he was convicted simply because he is an unfaithful liar. The strongest evidence they had against him was Amber Fry's testimony. Did she testify that she saw him do it? No. Did she testify that he told her that he did it and how? No. She could only testify that he was unfaithful and a liar. The rest of the evidence against him was flimsy and circumstantial to say the least. No one even knows how Lacey Peterson died. I would have been more comfortable with life in prison with no parole. It bothers me that juries are sentencing people to death  without evidence beyond a doubt. It leaves way too much leeway for innocent people to land on death row. What can we do to prevent people from being executed on weak evidence?
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Your concern is two fold. First, that the due process protections may not be enough and, secondly, that the risk to innocents is too great because the due process is not sufficient.

Both are reviewed, below. Sincerely, dudley sharp

Innocence Issues

Death Penalty opponents have proclaimed that 123 inmates have been "released from death row with evidence of their innocence", in the US, since the modern death penalty era began, post Furman v Georgia (1972).

That number is a fraud.

Those opponents have intentionally included both the factually innocent (the "I truly had nothing to do with the murder" cases) and the legally innocent (the "I got off because of legal errors" cases), thereby fraudulently raising the "innocent" numbers.

Death penalty opponents claim that 24 such innocence cases are in Florida. The Florida Commission on Capital Cases found that 4 of those 24 MIGHT be innocent -- an 83% error rate in death penalty opponents claims. If that error rate is consistent, nationally, that would indicate that 21 of the alleged 125 innocents MIGHT be actually innocent -- a 0.3% actual guilt error rate for the over 7500 sentenced to death since 1973. 

It is often claimed that 23 innocents have been executed in the US since 1900.  Nonsense.  Even the authors of that "23 innocents executed" study proclaimed "We agree with our critics, we never proved those (23) executed to be innocent; we never claimed that we had."  While no one would claim that an innocent has never been executed, there is no proof of an innocent executed in the US, at least since 1900.

No one disputes that innocents are found guilty, within all countries.  However, when scrutinizing death penalty opponents claims, we find that when reviewing the accuracy of verdicts and the post conviction thoroughness of discovering those actually innocent incarcerated, that the US death penalty process may be the most accurate criminal justice sanction in the world.  Under real world scenario, not executing murderers will always put many more innocents at risk, than will ever be put at risk of execution.

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This review, below, is a few years old, but is still representative.

E. DEATH PENALTY PROCEDURES

 There are at least 28 procedures necessary in reaching a death sentence.  They are:  (1) The crime must be one listed as a capital crime in the penal code; (2) a suspect must be identified and arrested; (3) Beginning with the Bill of Rights, the Miranda warnings and the exclusionary rules, U.S. criminal defendants and those convicted have, by far, the most extensive protections ever devised and implemented; (4) in Harris County (Houston), Texas a panel of district attorneys determines if the case merits the death penalty as prescribed by the Penal Code (See 12-19); (5) a grand jury must indict the suspect for capital murder; (6) the suspect is presumed innocent; (7) the prosecution must prove to the judge that the evidence, upon which the prosecution will rely, is admissible; (8) the defendant is assigned two attorneys. County funds are provided to defense counsel for investigation and trial; (9) it takes 3-12 weeks to select a jury; (10) trial is conducted; (11) the burden of proof is on the state;  (12) all 12 jury members must find for guilt, beyond a reasonable doubt.  In most cases, the jury knows nothing of the defendant's previous criminal acts, at this stage. If found guilty, then, the punishment phase of the trial begins; (13) the prosecution presents additional damning evidence against the murderer, i.e., other crimes, victims, victims’ or survivors’ testimony, police reports, etc; (14) In order to find for death, the issues to be resolved by the jury are {a}(14) did the defendant not only act willfully in causing the death, but act deliberately, as well, {b}(15) does the evidence show, beyond a reasonable doubt, that there is a likelihood that the defendant will be dangerous in the future, {c}(16) if there was provocation on the part of the victim, were the defendant's actions unreasonable in response to the provocations and {d}(17) is there something about the defendant that diminishes moral responsibility or in some way mitigates against the imposition of death for the defendant in this case, whereby, (18) the defense presents all mitigating circumstance, which may lesson the probability of the jury imposing death , i.e., family problems, substance abuse, age, no prior criminal record, mental disability, parental abuse, poverty, etc. Witnesses, such as family, friends, co-workers, etc.,  are presented to speak and offer the positive qualities of the defendant; (19) the jury must take into consideration those mitigating circumstances (Penry decision) and, if only 1 juror believes that the perpetrator deserves leniency because of any mitigating circumstances, then the jury cannot impose the death penalty; and (20) when the death sentence is imposed, the perpetrator receives an automatic appeal. (21& 22) the death row inmate is provided an attorney, or attorneys, to handle the direct appeal, at county expense, through both the state and federal courts; (23 & 24) the state pays attorneys for the inmate's habeas corpus appeals, at both the state and federal level; (25 & 26) death row inmates may be granted a hearing, in both state and federal court, to present post conviction claims of innocence.  The burden of proof for these claims of innocence mirrors that used by the Federal courts; and (27 & 28) Convictions and sentences are subject to pardon or sentence reduction through the executive branch of government, at both the state level (Governor) and federal level (President).
 
These 28 procedures represent the broad categories of defendant and inmate protections. Within these 28 procedures, there are hundreds, if not thousands, of additional procedures and protections.
 
In some jurisdictions, the defense must prove mitigating circumstances by a preponderance of the evidence and the prosecution must prove aggravating circumstances beyond a reasonable doubt. This is a huge advantage for the defendant and a major disadvantage for the prosecution.
 
To punish with death, each one of the 12 jurors must agree with the prosecution in each of five specific areas ( 12, 14, (a)14, (b)15, (c)16, and (d)17 (with 18 & 19). A death sentence requires that the prosecution must prevail in 60 out of those 60 considerations, or 100%. To avoid death, the defendant must prevail in only 1 out of those 60 considerations, or 1.67%. If convicted and sentenced to death, the inmate may then begin an appeals process that could extend through 23 years, 60 appeals and over 200 individual judicial and executive reviews of the inmates claims. The average time on death row for those executed from 1977-1995 was 9 years. For the 56 executed in 1995, the average time on death row was 11 years, 2 months - a new record of longevity, surpassing the old record of 10 years, 2 months, set in 1994. 60 death row inmates have been on death row for over 18 years. (Capital


Yes, these procedures all look very good ON PAPER. That doesn't mean that today's juries are following the exact letter of procedure. I was wondering what things we could start doing to make sure that juries are not sentencing people to death on weak evidence. Especially in these high profile, media frenzied cases where not only the judges but the juries as well feel pressured to come back with the popular verdict and sentence regardless of how weak the evidence may be. And in these high profile cases, such as The Scott Peterson case and the Susan Smith case to name 2, there is very strong public opinion long before anyone is even arrested let alone given a trial and it is impossible to find a jury of 12 people that know nothing of the case or the defendant. Should we come up with special procedures for these cases as it is impossible to have all the elements that standard procedures need in order to be effective, not only in fairness but also in the protective nature they were intended? Shouldn’t we do something before juries in these kinds of cases become nothing more than judicial lynch mobs?
I mentioned the Susan Smith case not as an example of weak evidence but as an example of a high profile case where public opinion and public emotion were very strong.

P.S What are the statistics of people released from death row by proving their innocence with DNA tests that were not available at the time of their trial?


Answer
The evidence seems pretty solid that these high profile cases are handled with care by all involved.

Cases such as Jeffrey Dahmer, Ted Bundy, Timothy McVeigh,John Wayne Gacy, along with many additional high profile serial murderers were properly handled, pre trial, trial and appeal.

Almost no one doubts that Susan Smith had a very fair trial, even with all of the amazing publicity associated with it. The appellate courts, so far, agree.

You appear to be speaking to a problem that doesn't exist, except, possibly, in a very small number of cases, none of which you have given examples of.

Regarding Scott Peterson. All of the issues that you bring up are also appellate issues. The circumstantial case was extremely strong in that case and the combination, type  and amount of circumstantial evidence was extremely compelling.

However, I, like you,maybe, felt that Peterson would be acquitted. But, most importantly, I was not on the jury and did not hear all of the evidence. Based upon what I heard, I thought there was enough evidence to convict, I just didn't think it would end that way.

I like the system in England, which, essentialy puts a thorough gag order, for all, in every aspect of cases, including pre trial and trial. That is not the law here and I doubt that it ever could be or will be.

5 inmates were released from death row because of DNA testing. An additional 9 inmates, who were once on death row, were released from prison, not death row. Those 9 had previous been released from death row because of other appellate issues not involving DNA.