Looking Back: Exposing The Death Penalty, Part 2

Jeffrey Deskovic Speaking in Davis in 2019 at the Annual Vanguard Event

By Jeffrey Deskovic

“Looking back” will feature reprints of articles that Jeff previously wrote while a columnist at The Westchester Guardian, which encompass topics that are applicable here in CA as well as across the country and not simply applicable to NY.

In my effort to raise awareness about the problem of wrongful convictions, as well as seeking legislative changes to make the criminal justice system more accurate, I have always included abolishing the death penalty amongst the reforms I advocate. My reasoning is simple: any system of justice that results in wrongful convictions will, if it has a death penalty as a sentencing option, inevitably execute innocent people. This past March 17 New Mexico legislatively abolished the death penalty citing, amongst other issues, that very real possibility. In this three-part series I will review likely wrongful executions, near-misses, ongoing cases of potential wrongful execution, systemic deficiencies, along with one case example wherein innocent people were wrongly convicted and sentenced to death before being cleared. And then, I will look at modern-day recognition that the death penalty risks the execution of innocent people.

Ongoing Cases Of Potential Wrongful Execution

There are several ongoing cases in which manifestly innocent defendants are locked up, fighting to establish their innocence, and hence regain their freedom and avoid being executed: Larry Swearingen and Troy Davis, whose case has been previously written about in The Guardian.

Larry Swearingen was convicted of murder in 2000 and sentenced to death. The Innocence Project has summed up his case in the following way: Swearingen was convicted largely based upon a second leg of torn panty hose that prosecutors said matched the half used to strangle the victim. The hose mysteriously surfaced at Swearingen’s trailer after it had been thoroughly searched twice by deputies.

Although Swearingen had maintained his innocence from the start, he didn’t help his defense. Early on, from jail, he concocted a ridiculous confession letter in Spanish, supposedly from the real killer. Swearingen’s Spanish was unintelligible. During the trial in 2000, he was caught lying on the witness stand about other things. The jury quickly convicted him and sentenced him to death despite DNA testing showing that blood found under the victims fingernails and a pubic hair found in a vaginal swab did not match him.

But since then Swearingen and his appellate attorneys have discovered glaring inaccuracies in the forensic evidence presented to the jury. From the beginning, prosecutors had based their case on the theory that the victim had been killed and dumped in the forest on the same day she went missing, Dec. 8. That theory was supported by the testimony of a medical examiner who stated that the body could have been decomposing for a month. Her testimony was vital to Swearingen’s conviction because he was arrested and jailed for traffic warrants just three days after the victim disappeared.

The medical examiner has since changed her testimony in light of new examinations, saying it was not possible for the victim to have been killed and left in the forest any longer than two weeks before her body was discovered. This would mean Swearingen was incarcerated at the time the crime occurred. In addition, according to The Texas Monthly, five different physicians and scientists—forensic pathologists and entomologists—say there’s almost no way Swearingen could have done it. Dr. Glenn Larkin, a retired forensic pathologist in Charlotte, North Carolina, said, as reported by The Dallas Morning News: “As a forensic scientist since 1973, I always kept an objective stance when called to testify; however, there comes a point when as a human, and as a Christian, there is a mandate to speak in the interest of justice. This is a moral issue now; no rational and intellectually honest person can look at the evidence and conclude Larry Swearingen is guilty of this horrible crime.” Besides that, there are efforts to get even further scientific evidence which could further prove his innocence: further DNA testing. The Innocence Project is seeking to get additional DNA testing in his case on the panty hose, the victims clothing, and more blood scrapings.”

The Dallas Morning News reported that “despite the DNA not matching him, and the other evidence showing that he was in jail at the time that the crime happened, and despite trying to get even further DNA testing, Swearingen came within 1 day of execution before a federal appeals court granted him a last second stay of execution on Jan. 26, 2009, with one day to go before execution, so that his innocence issue may be looked at.”

Troy Davis

According to Wikipedia, Davis was convicted and sentenced to death in 1991 for the August 19, 1989 murder of off-duty Savannah police officer Mark MacPhail solely on the basis of now discredited eyewitness testimony. No physical evidence linked him to the murder, and the weapon used in the crime was never found. Throughout the trial and subsequent appeals, Davis steadfastly maintained his innocence, claiming he was wrongfully convicted of the murder, and has been wrongfully imprisoned for the past 20 years. Nine eyewitnesses recantations from all but two of the prosecution eyewitnesses, the testimony of another previously undiscovered eyewitness and others with information bearing on the crime—all strong evidence suggesting Davis was not the gunman and is, in fact, innocent of the crimes for which he was sentenced to death.

All the witnesses stated in their affidavits that their earlier statements implicating him had been coerced by strong arm police tactics. Davis argued that since seven of the nine eyewitnesses recanted their testimony and voluntarily filed sworn affidavits stating they lied in the original trial, he is entitled to a retrial based on his actual innocence claim. In addition, five
other witnesses have come forward to say that an alternative suspect confessed.

Innocence Project co-founder Barry Scheck had this to say about the case, in a letter published in The Huffington Post: “Seven of the nine key witnesses who testified against Davis now recant their trial testimony, claiming they were coerced to lie by Savannah police.”

The reliability of those witnesses was characterized by Amnesty International as “containing inconsistencies even at the time of the trial”. Scheck continues in his letter, “Despite the seriousness of these allegations and the sheer number of recantations, Georgia courts and state officials have not only been unwilling to stay his execution, but they have even refused to hold a hearing with live, sworn testimony to assess the credibility of the recanting witnesses. What most people don’t know is why Davis can’t get a full hearing on the new evidence and just how ridiculously far four judges of the Georgia Supreme Court have gone; there were three dissenters; to avoid reviewing post-conviction evidence of innocence. The recantation of a witness alone does not and should not automatically result in a conviction being vacated. Recantation evidence is treated with caution by courts because, after all, the witness is saying he or she once lied under oath, so how can one be so sure they are not just lying again?

Nonetheless, many wrongful convictions have been overturned because a recanting witness, testifying in person and under oath before a judge, is found to be credible and the reason for the recantation, often a claim that the original trial testimony was coerced is found to be persuasive. But in Georgia the recanting witnesses don’t get to testify because the state’s courts have created an extraordinary Catch-22 rule, the ‘purest fabrication’ doctrine, that arbitrarily denies evidentiary hearings even when extremely persuasive recantation affidavits have been submitted. The ‘purest fabrication’ doctrine means that post-conviction hearings don’t have to be held to evaluate the credibility of recanting witnesses unless the defendant can show, by extrinsic proof before the hearing is held, that the original testimony was absolutely false.”

Many prominent people and groups recognize the injustice involved in Davis’ case. Amnesty International has strongly condemned the refusal of U.S. courts to examine the innocence evidence, and has organized rallies and letter-writing campaigns to persuade the Georgia and Federal courts to grant Davis a new trial or an evidentiary hearing. Many prominent politicians and leaders, according to Wikipedia, including: former President Jimmy Carter, Pope Benedict XVI, Nobel Laureate Archbishop Desmond Tutu, former Presidential candidate Bob Barr, and former FBI Director and Judge William Sessions have expressed their shock at Georgia authorities’ plan to execute Davis without a proper, judicial examination of the innocence evidence, and have called upon the courts to grant Davis a new trial or evidentiary hearing.

Only a last-minute emergency stay, issued by the United States Supreme Court less than two hours before he was scheduled to be put to death, prevented his execution.

Modern Day Recognition

There is a general recognition that the death penalty risks executing innocent, but wrongfully convicted, defendants. As mentioned above, out of the 235 DNA proven wrongful convictions, 17 of them had been sentenced to death. According to the Death Penalty Information Center database, the total number of people who have been cleared from death row, whether by DNA or non-DNA means, is 130. The criteria that they used is that they must have been convicted and sentenced to death, and subsequently either their conviction was overturned and 1) they were acquitted at re-trial, or 2) all charges were dropped, or 3) they were given an absolute pardon by the governor based on new evidence of innocence.

In addition to the general systemic deficiencies having the ability to lead to a wrongful conviction and execution, there is also, within the death penalty system itself, a mechanism which makes a wrongful conviction and execution likely: the process of death qualifying a jury.

The article Pretend Justice: Defense Representation In Tennessee Death Penalty Cases states that death qualification of jurors is “a process that essentially erodes the defendant’s opportunity for a fair trial by an unbiased trier of fact. Required in death penalty cases, unlike other criminal cases, this process results in a jury whose members are notoriously prosecution prone, that is, jurors who are receptive to prosecutors and their witnesses, and biased against defendants, defense counsel, and their witnesses, not only on the issue of life or death, but also on the issue of guilt or innocence.”

The imposition of the death penalty adds the following obstacles to a wrongfully convicted defendant seeking to establish his or her innocence: 1) It puts a defendant, who typically has scant financial resources, in a time pressure situation to hurry up and uncover evidence of innocence; 2) It limits the amount of time in which innocence can be proven by circumstances outside of conscious efforts made either by the defendant or his attorney, such as eyewitness’s coming forward to say that they misidentified him; a real perpetrator confessing; and evidence of innocence coming forward as a result of governmental agencies and/or law enforcement investigating other cases.

One example of this phenomenon, Jeffrey Scott Hornoff was a police officer in Rhode Island who had been wrongfully convicted of murdering a woman that he had an affair with. The actual perpetrator, Todd Barry, as a result of his conscience bothering him, came forward and confessed to his guilt and Hornoff ’s innocence.

Another example involved that of chemist Fred Zain. According to The Los Angeles Times, it was discovered that Zain was in the habit of committing perjury, faking lab test results, and evidence tampering. As result of discovering Zain’s actions, in West Virginia one man was freed and three others received new trials. Sixty seven other cases are under review in West Virginia. Hundreds of cases that he worked on in Texas are also under review.

The author of the book “Capital Punishment: A Balanced Examination”, Evan Mandery, speaks about the increased impact of being wrongfully convicted in a capital case as opposed to a non-capital case: “The death penalty affects the plight of the innocent-convicted in three ways: 1) it shortens the amount of time during which a mistake can be discovered and corrected 2) in instances where mistakes are caught after execution, the mistakes cannot be corrected in any meaningful way and 3) in instances where mistakes are not corrected, the innocent are killed rather than spend the remainder of their lives on death row.” As long as a person is alive, the chance, as mentioned above, is that a miracle could occur and innocence could be proven. Once the person is executed, the defendant can no longer seek help to clear his name, and attorney’s only rarely continue to work on the case.

The Innocence Project has made the following public statements about the danger that the death penalty poses by creating the possibility of executing innocent people: “Our work has proven that innocent people are convicted of crimes they did not commit, and these exonerations illustrate the causes of wrongful convictions that must be remedied. These DNA exonerations are a window into the criminal justice system’s flaws: While DNA testing is an option in just a fraction of all criminal cases, the factors proven to cause wrongful convictions exist regardless of whether the case involves DNA.

Specific to the death penalty, our work has shown that innocent people are sentenced to die. Of the 223 people exonerated through post-conviction DNA testing, more than 25% were convicted of murder. Seventeen were sentenced to die; others were charged with capital murder but narrowly escaped the death penalty, and still others would likely have been charged with capital crimes if the death penalty had been in place at the time of their trials.

We have also worked on cases of people who were executed before DNA testing could be conducted to confirm guilt or prove innocence, and we are aware of several non-DNA cases where evidence of innocence surfaced after people were executed.”

In recognition of the danger that the death penalty poses to executing innocent people, the governors of Illinois, New Jersey, and New Mexico have all taken steps.

After pardoning 4 people who were on death row on the grounds of innocence, Gov. Ryan proceeded to commute the death sentences of all of the death row inmates. In explaining his decision, Gov. Ryan made repeated references to the possibility of executing innocent people. [Excerpt taken from the website Salon.com].

“Soon after taking office, I watched in surprise and amazement as the freed death row inmate Anthony Porter was released from jail. Anthony Porter was 48 hours away from being wheeled into the execution chamber where the state would kill him. It would be so antiseptic that most of us wouldn’t have even paused for a second, except that Anthony Porter was innocent. He was innocent for the double murder for which he had been condemned by the State of Illinois to die.

Over the next few months three more exonerated men were freed because their sentences hinged on a jailhouse informant or some new DNA technology proved beyond a shadow of a doubt that they were innocent. We then had the dubious dis- tinction of exonerating more men than we had executed. Thirteen men found innocent, 12 executed.

As I reported yesterday, there is not a doubt in my mind that the number of innocent men freed from our death row stands at 17, with the pardons of Aaron Patterson, Madison Hobley, Stanley Howard and Leroy Orange. That is an absolute embarrassment. Seventeen exonerated death row inmates is nothing short of a catastrophic failure. But the 13, now 17, men is just the beginning of our sad arithmetic in prosecuting murder cases. During the time we have had capital punishment in Illinois, there were at least 33 other people wrongly convicted on murder charges and exonerated. … Our capital system is haunted by the demon of error, error in determining guilt… To say it plainly one more time — the Illinois capital punishment system is broken. It has taken innocent men to a hair’s-breadth escape from their unjust execution.”

“Jeffrey Deskovic, Esq, MA, is an internationally recognized wrongful conviction expert and founder of The Jeffrey Deskovic Foundation for Justice, which has freed 9 wrongfully convicted people and helped pass 3 laws aimed at preventing wrongful conviction. Jeff is an advisory board member of It Could Happen To You, which has chapters in CA, NY, and PA. He serves on the Global Advisory Council for Restorative Justice International, and is a sometimes co-host and co-producer of the show, “360 Degrees of Success.” Jeff was exonerated after 16 years in prison-from age 17-32- before DNA exonerated him and identified the actual perpetrator. A short documentary about his life is entitled “Conviction“, and episode 1 of his story in Virtual Reality is called, “Once Upon A Time In Peekskill“. Jeff has a Masters Degree from the John Jay College of Criminal Justice, with his thesis written on wrongful conviction causes and reforms needed to address them, and a law degree from the Elisabeth Haub School of Law at Pace University.  Jeff is now a practicing attorney.

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