Despite Safeguards, Wrongful Prosecutions and Racial Discrepancies Haunt Judicial System

On the other hand, the death penalty cases also expose the most biases in the system.  For instance, the difference between whites and blacks receiving death sentences is far greater than the white versus black discrepancy in the overall criminal justice system.

For those of you who believe the problem with the death penalty system is that it takes too long to execute people, these studies should at least give you pause.

Racial disparity studies in death penalty cases are not new.  In the 1980s, the Baldus Study came out with an exhaustive study of more than two thousand murder cases in Georgia.  That study found that defendants charged with killing white victims were 11 times more likely to end up with the death penalty than those defendants charged with killing black victims.  The gap in Georgia was huge.   In 70 percent of cases with a white victim and black defendant, prosecutors sought the death penalty.  The inverse was only true about 19 percent of the time.

Nearly 25 years later, the system has not changed much.  In 1987, the Supreme Court ruled in McCleskey v. Kemp that racial bias in sentencing, even that which could be shown through credible statistical evidence, could not be challenged unless they could show clear evidence of conscious discriminatory behavior. However, leading the way to attempt to change things is the state of North Carolina.

Now, in North Carolina, a law was passed that will allow those facing the death penalty to present evidence of racial bias, including statistics in the court.  “A recent comprehensive study on race and the death penalty in North Carolina found that the odds of getting a death sentence increase three-and-a-half times if the victim is white rather than a person of color,” reads a website explaining the act, and  citing a 2001 UNC-Chapel Hill study.

A recent study has found that African-American defendants are more likely to be wrongfully convicted of crimes punishable by death. In North Carolina, six of the seven exonerated death row inmates were people of color.  There are a variety of explanations for these racial disparities, ranging from deliberate racial stereotyping ranging, to the perceptions of jurors and law enforcement that African-Americans are more “prone to violence,” to unconscious racism.

One study, for example, found that witnesses are far more likely to misidentify perpetrators of different races  than their own race, even if they hold no conscious racial prejudices.

There are other problems as well.  For instance, in North Carolina, a government audit showed that a crime lab had tampered with evidence and issued false reports in over 230 criminal convictions, including capital cases.

Seth Edwards, president of the North Carolina Conference of District Attorneys, said that he supported a moratorium on the execution of any death row inmates whose cases include evidence from the State Bureau of Investigation. “[W]e need to make sure the issues are resolved in the SBI crime lab,” Edwards said. “I just feel like the public right now is skeptical.” 

The Greensboro, North Carolina, “News and Record” had an editorial on Wednesday talking about the last executed person in North Carolina, who was put to death in August of 2006.

“It’s possible Flippen forever will remain the last person executed in North Carolina. The state should make sure of that,” they write.  “Capital punishment is on its last legs here. The only question is whether a handful of condemned prisoners will follow Flippen before the end, or whether the practice officially will be brought to a halt.”

“Juries and even prosecutors, by and large, prefer sentences of life without parole,” they continue.  “That’s not a soft-on-crime penalty. Locking someone up for the rest of his natural life — often 50 years or more — not only protects the public, it allows for errors to be discovered and corrected. Execution does not.”

Moreover, they write, “Many mistakes have been exposed lately. Not only have innocent men been released from prison when new evidence has surfaced, but recent reports reveal that shoddy and dishonest work was turned out for years by the State Bureau of Investigation’s crime lab. In some cases, false evidence led to wrongful convictions — and possibly executions. On Monday, the president of the N.C. Conference of District Attorneys conceded that executions in affected cases should stop, pending further reviews of evidence.”

North Carolina is not the only state that is questioning Capital Punishment in light of these problems.

While North Carolina is moving toward putting the death penalty on hold, California officials are attempting to resume executions after a more than four-year hiatus.  On Tuesday a Marin County judge put up another roadblock, issuing a ruling that bars prison officials from moving forward with new executions.

“The California Department of Corrections and Rehabilitation adopted new lethal injection procedures this summer, hoping to resolve state court orders that found the previous rules had been put in place in violation of state regulations, as well as a San Jose federal judge’s concerns that the prior lethal injection method risked cruel and unusual executions,” reported the San Jose Mercury news.  “But the new regulations now face new legal challenges.”

“Lawyers for death row inmates filed a lawsuit in Marin County Superior Court, saying they still don’t comply with California rules for enacting new regulations. And U.S. District Judge Jeremy Fogel is now evaluating whether he is free to consider if the new lethal injection procedures, and San Quentin’s new death chamber, address concerns that inmates may suffer inhumane deaths from the state’s three-drug cocktail of lethal drugs,” the article continued.

The now infamous Texas death penalty case should give us pause as to how many innocent people we have executed, and how many more we may eventually execute or imprison.

Cameron Todd Willingham was executed for the arson murders of his children, despite evidence that there was no arson and thus no crime.  Governor Perry of Texas actually had the evidence before him that Mr. Willingham may have been innocent, but allowed him to be put to death anyway.

The Houston Chronicle in July published an article reporting on the Texas Forensic Science Commission’s report.  “In a report prepared last year for the commission, fire expert Craig Beyler said the original investigation was so seriously flawed that the finding of arson can’t be supported. He said the investigation didn’t adhere to the fire investigation standards in place at the time, or to current standards.”

The article continues, “The commission then appointed a four-person panel to review Willingham’s case. John Bradley, who is chairman of both the panel and the commission, said the panel’s review concluded arson experts in the case did not commit misconduct or negligence.”

Furthermore, “Bradley and panel member Sarah Kerrigan, a forensic toxicologist and director of a crime lab at Sam Houston State University, acknowledged the science the fire investigators used in the Willingham case was flawed. But they said that didn’t translate into professional negligence, because investigators were relying on the techniques and information available at the time.”

Finally, “New fire investigation standards were not adopted until 1992, the same year Willingham was convicted, but it was several years after that before they were adopted nationally, said Bradley, who is also the Williamson County district attorney.”

The Ohio Governor this week avoided making such a mistake, commuting the death sentence of convicted killer Kevin Keith from death to life in prison without parole, at the same time vowing to examine more to determine the possibility that the individual is innocent.

Governor Ted Strickland wrote a release explaining his decision in a manner that demonstrated an unusual amount of forethought and thoughtfulness in his decision-making.

“Kevin Keith was convicted, by a jury, of callously murdering three people, including a four-year-old child, and shooting three others, including two young children.  Since the time of his arrest more than 16 years ago, Mr. Keith has maintained his innocence, insisting that someone else committed the murders,” Governor Strickland said in his statement.

“Mr. Keith’s conviction has been repeatedly reviewed and upheld by Ohio and federal courts at the trial and appellate level.  The Ohio Parole Board recommended against clemency in this case.  There is evidence which links him to the crimes that, while circumstantial, is not otherwise well-explained.  It is my view, after a thorough review of the information and evidence available to me at this time, that it is far more likely that Mr. Keith committed these murders than it is likely that he did not,” he continued.

“Yet, despite the evidence supporting his guilt and the substantial legal review of Mr. Keith’s conviction, many legitimate questions have been raised regarding the evidence in support of the conviction and the investigation which led to it,” the governor wrote.  “In particular, Mr. Keith’s conviction relied upon the linking of certain eyewitness testimony with certain forensic evidence, about which important questions have been raised.  I also find the absence of a full investigation of other credible suspects troubling.”

“Clearly, the careful exercise of a governor’s executive clemency authority is appropriate in a case like this one, given the real and unanswered questions surrounding the murders for which Mr. Keith was convicted.  Mr. Keith still has appellate legal proceedings pending which, in theory, could ultimately result in his conviction being overturned altogether.  But the pending legal proceedings may never result in a full reexamination of his case, including an investigation of alternate suspects, by law enforcement authorities and/or the courts.  That would be unfortunate–this case is clearly one in which a full, fair analysis of all of the unanswered questions should be considered by a court.  Under these circumstances, I cannot allow Mr. Keith to be executed.  I have decided, at this time, to commute Mr. Keith’s sentence to life in prison without the possibility of parole.  Should further evidence justify my doing so, I am prepared to review this matter again for possible further action,” the Governor concluded.

What I find interesting here is that the governor maintains that the he is more likely guilty than not.  That is an interesting point because, theoretically, the only way someone should be imprisoned, let alone executed, is  if there is not any sort of reasonable doubt. Did the prosecution meet the appropriate burden-of-proof standard for the conviction?

The issues raised by the Governor, in this case, are issues I have often noted in my observations of Yolo County court cases.  While none of these cases are death penalty cases, it is vexing to me the ease with which the jury convicts individuals based on sketchy recollections of witnesses, many of whom have biased and self-interested reasons to attempt to incarcerate individuals.

The fact that the overall system is so flawed should give us all pause when we note that an individual was convictied by a jury.  All of these individuals who are later exonerated are convicted by juries.  Some are convicted based on rather flawed and untested scientific evidence.

About five years ago, CNN had a special on faulty forensic science, highlighting that many of the findings that forensic scientists have maintained as fact were never scientifically challenged.  One good example is bullet-lead analysis, which had been admitted in criminal trials without significant challenge for nearly half a century.

These studies were allowed into court, despite the absence of any kind of scientific or legal oversight, scientific reliability or testing of the theory, hypotheses, assumptions and practices.

Bullet-lead analysis is only one example.  The use of experts in court testifying to largely untested and unproven matters is a further problem.  One example in Yolo County has been the use of gang experts, the individuals who are police officers and who testify about training and expertise they have about gangs.  However, reading some academic research on the topic of gangs, it is discovered than many of law enforcement’s beliefs about gangs and gang activities is either flawed or skewed, in part because they only encounter a small subsection of the overall gang population.  And yet juries make decisions of guilt and innocence based on untested “expert” analysis.

The Innocence Project has used scientific DNA evidence to overturn numerous wrongful convictions.  According to Wikipedia (which must be used skeptically as a source of facts), as of August 2010, there have been 258 people who were previously convicted of serious crimes that have been exonerated by DNA testing.  They claim about half involved sexual assault and 25 percent involved murder.

There are several things worth noting, since DNA availability is probably helpful in a small percentage of cases that contain biological evidence that can be used to retest previous convictions.  The key question is what these exonerations show us about the criminal justice system.  Why were these innocent people convicted, beyond a reasonable doubt, by a jury?

Here are six causes that were found most prevalent.  First, eyewitness misidentification.  This should not surprise anyone.  Eyewitness evidence is extremely unreliable.  If you do not believe me, have a group of ten people sitting in a circle, have an individual come in, tap someone on the shoulder, and exit.  Then have the group describe that individual.

Second, unvalidated or improper forensic science.  We previous mentioned the bullet-lead analysis, but there were a whole host of discredited techniques, illustrated in the CNN special, that apparently no one in the courts wanted to force to be scientifically verified.

Third, false confessions or admissions.  There are a lot of reasons for that, as well, including defendants with mental disorders and defendants subjected to varying levels of coercion.  “In about 25% of DNA exoneration cases, innocent defendants made incriminating statements, delivered outright confessions or pled guilty,” writes the Innocence project.  “These cases show that confessions are not always prompted by internal knowledge or actual guilt, but are sometimes motivated by external influences.” 

In addition to people with mental disorders, “Mentally capable adults also give false confessions due to a variety of factors like the length of interrogation, exhaustion or a belief that they can be released after confessing and prove their innocence later.”

Fourth, they listed government misconduct.  “Some wrongful convictions are caused by honest mistakes. In some cases, however, officials take steps to ensure that a defendant is convicted, despite weak evidence or even clear proof of innocence,” they write. “The cases of wrongful convictions uncovered by DNA testing are replete with evidence of fraud or misconduct by prosecutors or police departments.”

Fifth, informants or snitches.  This is one of the biggest questions we had in the Rudy Ornelas conviction.  The prosecutor got Claudio Macobet to testify against Mr. Ornelas, but Mr. Macobet was at the same time a suspect himself, and therefore had a reason not to tell the truth.

Finally is the problem of bad lawyering.  We have the famous example of defense attorneys who fell asleep in the courtroom in Texas and that was not reason enough to overturn a conviction.  We have also discussed the differential in resources that the DA’s office has versus the public defender’s office in Yolo County.  The bad thing is that Yolo County’s indigent defendants get better representation than many.

The real problem is that, while they have been able to use DNA to overturn 258 convictions, we know full well that non-DNA cases suffer from the same problems. 

When you consider that perhaps ten percent of people are in prison who were innocent and you also consider that most cases never go to trial, you recognize that in a large percentage of cases, a jury finds innocent people guilty. 

That does not mean that the jury gets it wrong, as they can often only weigh in on what they are shown.  But for those who argue somehow that a guilty finding by a jury is the end of the story, think about all of the people that were, in fact, not guilty but were convicted.

Yolo County has its own unique set of challenges and we must continue to examine and monitor what is happening in this county.

—David M. Greenwald reporting