Mistakes in Death Sentencing

1. Mistakes in Death Sentencing DPIC Website: DPIC webpage - Innocence Old Report - July 1997 But still useful .... Lawyers’ perspective

2. Mistakes in Death Sentencing DPIC points to a number of issues: The great pressure on police/prosecutors to "solve" the most notorious murders in a community - often terrible cases Lack of eyewitness testimony (the “gold standard” for lawyers and trials – but actually very unreliable – based on huge amount of research!!)

3. Mistakes in Death Sentencing Heightened publicity "Death qualified" juries Limited resources of defense attorney (understatement!!)

4. Mistakes in Death Sentencing Appeals don’t help: Presumption of guilt following conviction Appeals focus on procedures, not substantive Limits on introduction of new evidence

5. Mistakes in Death Sentencing Kirk Bloodsworth video 15 minutes Illinois Video 15 minutes

6. Mistakes in Death Sentencing MISTAKES Three kinds of doubtful cases - not all involve actually innocent defendants:

7. Mistakes in Death Sentencing 1. Legal-technical “errors” -- probably guilty -- but problems with fair trial issues (e.g., Texas brother/sister case)

8. Mistakes in Death Sentencing 2. Weak evidence + sham trial -- some evidence of guilt, but sham trial don’t know whether they really did it or not (e.g., “sleeping lawyer” cases in Texas Ray Krone case in Arizona))

9. Mistakes in Death Sentencing 3. “Wrong person” mistakes -- innocent people convicted 100+ prisoners released post-Furman, mostly because of DNA and other physical evidence. (Some based on reinvestigation – cases overturned on appeal and re-investigation exposes weak evidence of guilt and little/no chance of conviction in a real trial)

10. Mistakes in Death Sentencing How many mistakes (innocent people)? My estimate (based on Arizona study/data): at least 10% of all death sentences 300+ innocent people now on death row Most will never be discovered!!

11. Mistakes in Death Sentencing ??? ??? DNA Confessions Co-defendant Etc. Circumstantial Eyewitness Physical Evidence

12. Mistakes in Death Sentencing How and Why do they happen? Three factors: 1. Some “evidence” 2. “Belief” 3. Weak defense

13. Mistakes in Death Sentencing 1. Some evidence (usually little or no reliable physical evidence in mistake cases)

14. Mistakes in Death Sentencing Crime-centered vs. Suspect-centered police investigation (police “belief” a major factor) e.g., OJ Simpson, Scott Peterson (Note: why suspect centered vs evidence centered?)

15. Mistakes in Death Sentencing Role of prosecutor -- convert police “probable cause” to “beyond a reasonable doubt” Sham trials make this easy!

16. Mistakes in Death Sentencing Circumstantial evidence Witness identifications (notoriously unreliable) False confessions (and “facts only the killer could know”) Co-defendant and “snitch” confessions (bargaining)

17. Mistakes in Death Sentencing 2. Prosecutor “belief” (also police, survivors, juries, public, victims families, etc.) Irrational “beliefs” have become a major cultural phenomenon in America – why educators focus so much on “critical thinking” skills

18. Mistakes in Death Sentencing "Getting committed” to a defendant -- "bad guys" and getting "justice" for the victims family.

19. Mistakes in Death Sentencing Manipulating evidence -- do anything to keep the "bad guy" from getting off.

20. Mistakes in Death Sentencing “Costs” of backing away once committed let down the victims family usually have already “bent the rules” loss of status and prestige etc.

21. Mistakes in Death Sentencing “The ratchet” -- blind belief + the awful consequences of doubt.

22. Mistakes in Death Sentencing 3. Weak defense not consistent no lawyer who “knows the case” inexperience, low pay, etc. no resources for investigation

23. Mistakes in Death Sentencing Inadequate discovery process (allows prosecutors to manipulate evidence) Note: the “Waiver” and discovery

24. Mistakes in Death Sentencing No independent investigation --- no answer from the defense makes even weak evidence seem convincing to juries Only hear one side of case, one version of the “evidence”

25. Mistakes in Death Sentencing Weak defense at trial short trials no independent defense evidence no mitigating evidence at sentencing Sham trials!!

26. Mistakes in Death Sentencing Lack of appeals groundwork problems must be in trial record for appeals process to work the Waiver

27. Mistakes in Death Sentencing Note: juries often notice problems but think that appeals process will correct mistakes

28. Mistakes in Death Sentencing In a system with completely inadequate defense, prosecutors are the key problem. The process would be somewhat better if prosecutors held to ideal of “justice” instead of focus on conviction rates. Election of prosecutors undermines this - Warps & politicizes prosecutors position

29. Mistakes in Death Sentencing Personal characteristics of prosecutors justice/fair trial vs. “getting bad guys” Power -- unlimited power undermines the adversary nature of system ("unequal playing field")

30. Mistakes in Death Sentencing Politics -- of particular cases of prosecutors public posture of the DP itself Peer pressure -- elite of prosecutors, can’t acknowledge mistakes.

31. Mistakes in Death Sentencing Career “politics” -- elite of prosecutors - fast track for higher office (judge, governor, attorney general, etc.)

32. Mistakes in Death Sentencing The appeals process does almost nothing (usually an obstacle!!) to correct mistakes & commutes are politically unworkable.

33. Mistakes in Death Sentencing Bottom Line: mistakes are systemic, and virtually inevitable.

34. Mistakes in Death Sentencing Note: this is main dilemma related to speeding up the appeals process -- virtually guarantees execution of innocent people