Tuesday, May 27, 2008

Wrongful conviction - and a belated pardon for a wrongful execution

Two stories of wrongful conviction hit the news today.

In Chicago, a man convicted of rape fourteen years ago has been cleared by DNA evidence.

DNA tests have exonerated a South Side man who has served nearly 14 years in prison in the sexual assault of a 15-year-old girl who was attacked in the fall of 1994 as she walked to school, the inmate's lawyer said Tuesday.

Dean Cage, 41, was convicted by a jury and sentenced to 40 years in prison despite his assertions that he was innocent and was home at the time of the attack.

"I have my life back," Cage said in a telephone interview with the Tribune from the Illinois River Correctional Center in Downstate Canton. "It means the world to me. I never had a doubt. I am happy and blessed."

Attorney Peter Neufeld, co-founder of the New York-based Innocence Project, which investigates wrongful convictions, said he was informed by the Cook County state's attorney's office that Cage's conviction had been dismissed after DNA tests eliminated him as the attacker.

Cage was to be released as soon as Tuesday night.

The exoneration by DNA is the 29th such case in Illinois. The case is another example of an erroneous eyewitness identification leading to a wrongful conviction, said Alba Morales, an Innocence Project attorney who has been working on Cage's case for several years.

More than three-fourths of the wrongful convictions uncovered by DNA testing have involved faulty eyewitness testimony, she said. And, like Cage's case, many of those involved composite sketches of suspects.

And in Australia, a man executed for a similar crime 86 years ago has been exonerated.

An Australian governor gave a posthumous pardon Tuesday to a man hanged 86 years ago for the rape and murder of a young girl, after new research discredited the evidence used for his conviction.

Colin Campbell Ross, who was hanged in 1922 at the age of 28, was pardoned Tuesday by Victoria state Gov. David de Kretser.

Descendants of Ross and the 12-year-old victim, Alma Tirtschke, petitioned for the pardon.

Prosecutors alleged that Ross, who ran a wine saloon in Melbourne, gave Tirschke alcohol before raping and strangling her on New Year's Eve 1921. The only physical evidence connecting him to the crime were hairs on a blanket; prosecutors said the hairs were Tirtschke's.

While witnesses gave alibis for Ross, he was convicted and hanged four months later, protesting his innocence.

The pardon petition built on research by Kevin Morgan, who wrote a book about the case called "Gun Alley (Murder, Lies and the Failure of Justice)." Morgan arranged for forensic tests on the original hair samples and showed that the ones on Ross' blanket did not match Tirtschke's. He also gave new character evidence about the prosecution's main witness.

Victoria Attorney-General Rob Hulls said in a statement Tuesday that he referred the petition to the Supreme Court of Victoria and received an opinion "that there had been a miscarriage of justice in Mr. Ross' case."

These two cases, in a nutshell, explain why I'm opposed to the death penalty.

There have been literally dozens of people on death row in the USA who've been exonerated as a result of DNA evidence.

At least, if they've been given life imprisonment instead of the death penalty, such miscarriages of justice can be rectified. Even if they've lost many years of their lives behind bars, they can at least be declared innocent, and given some compensation.

For those who've been executed, it's too late. No apology and no amount of compensation can bring them back.

And for those who claim that it's never been proved that an innocent person has been executed in the USA . . . if you can look at all the exoneration statistics, and tell me bald-faced that you don't believe they imply that one or more innocent persons have, indeed, been executed in the past, then I respectfully submit that you're deluded.

The Innocence Project (which helped exonerate Mr. Cage) was established in response to an authoritative survey, according to its Wikipedia entry:

The Innocence Project was established in the wake of a landmark study by the United States Department of Justice and the United States Senate, in conjunction with The Thomas M. Cooley Law School. Among the study's estimates are a 5% failure rate in the U.S. justice system, which suggests as many as 100,000 falsely convicted prisoners at any given time in the U.S. prison population of over 2 million inmates on the federal, state, and local levels. Other reports place the estimate as high as 10% or approximately 200,000 inmates. 75% of wrongful convictions are caused by eyewitness misidentification.

It's a horrifying thing to think that we're accomplices to the judicial murder of innocent people: but I'm afraid we probably are. I don't argue that the death penalty may be a legitimate function of the powers of the State, and may be justified in terms of certain crimes: but if we can't be sure that we're executing only those truly deserving such a penalty, I respectfully submit that we simply don't have the moral right to impose it.

I'd rather see every murderer and rapist incarcerated for life, without probation or parole, than risk killing one innocent man or woman. At least, with such sentences, restitution is possible if they're later found to be wrongly convicted.

The sooner the death penalty is retired, the sooner this moral burden can be lifted from our shoulders.



Diamond Mair said...

Peter, all due respect - Charles Manson regularly appears before the parole board. Charles "Tex" Watson, one of Manson's actual weapons, plays games with his parole hearings. I just can NOT agree with you - especially with the science we have available today {ie, DNA} - I used to be opposed to the death penalty, until I held my daughter in my arms for the first time - at that moment, I realized I would inject the lethal cocktail in anyone who harmed her ......................

Semper Fi'

Pappy said...

Do you feel this way even about particularly heinous crimes when multiple eyewitnesses and DNA can prove the guilt beyond a shadow of a doubt?

Peter said...

Pappy, under those very specific circumstances, where there's no doubt whatsoever, no, I don't object. As I said, I have no problem with the position that the State has the right to use the death penalty as a punishment for crime. However, given that in many cases (perhaps the majority of them) such clear-cut evidence of guilt isn't available, the death penalty becomes problematic.

Even DNA evidence might not be sufficient. For example, if a prostitute is murdered, and DNA from three men is found on or in her body, they may all have been her customers before her death. Does the presence of one man's DNA under such circumstances (which proves that he was with her at some time shortly before her death) constitute proof positive that he killed her? Even eye-witness accounts may be defective, as we know.

In the absence of total certainty, I'd rather not have the death penalty at all.

HazMat said...

i believe the the death penalty should be used when the crime warrants it. i just lack faith in our justice system. justice and even equality have become dependent on income. failures of the system are not few and far between and we need to fix the system before we 'gamble' with someone's life.

Castr8r said...

I have said for many years that we have a system of laws that ATTEMPT to achieve justice. Furthermore; How can true justice be obtained when damn few can afford a lawyer?

Brad J (Kazrak) said...

I'll agree with Peter here.

Would I send Charles Manson, or Eric Rudolph, or Ted Kaczynski, or Richard Allen Davis to meet their maker by the express route? I don't have major problems there.

But those are the exception, the ones who have basically confessed to their crimes - they're proud of themselves for what they've done. (Davis, in particular, has a special circle of Hell reserved for him for his comments at the sentencing hearing.)

For a lot of these cases, the evidence is a lot thinner than it really should be. Eyewitnesses aren't anywhere near as accurate as people think. DNA is better, but not 100% foolproof. The court-appointed attorneys frequently (but not always) do their best, but their resources are limited. The odds are just too high that somebody will be convicted of a capital crime they didn't commit.

As for diamond mair - I've got three kids of my own. I can wholeheartedly agree on what I'd want to do to anyone who hurt them. But that's why we've got the courts - because it's far, far too likely that I'd be blinded by rage and lashing out at someone who may or may not have been involved. You or I are not going to be impartial where our children are concerned, and once we've decided who's guilty...well, it's awfully difficult for minor details like facts to get in the way at that point.

dudleysharp said...


You wrongly presume that innocents are more protected without the death penalty. The reality is that innocents are more at risk without the death penalty, below.

If the DNA was a conclusive factor in the Aussie case, then both cases would not have even gone to trial, today, based upon pre trial DNA testing. The Aussie case is so old, 86 years post execution, I can easily imagine another author drawing different conclusions. I see it all the time in the US.

The Death Penalty: More Protection for Innocents
Dudley Sharp, Justice Matters, contact info below

Often, the death penalty dialogue gravitates to the subject of innocents at risk of execution. Seldom is a more common problem reviewed. That is, how innocents are more at risk without the death penalty.
Living murderers, in prison, after release or escape or after our failures to incarcerate them, are much more likely to harm and murder, again, than are executed murderers.
This is a truism.
No knowledgeable and honest party questions that the death penalty has the most extensive due process protections in US criminal law.

Therefore, actual innocents are more likely to be sentenced to life imprisonment and more likely to die in prison serving under that sentence, that it is that an actual innocent will be executed.
That is. logically, conclusive.
16 recent studies, inclusive of their defenses,  find for death penalty deterrence.
A surprise? No.

Life is preferred over death. Death is feared more than life.
Some believe that all studies with contrary findings negate those 16 studies. They don't. Studies which don't find for deterrence don't say no one is deterred, but that they couldn't measure those deterred.
What prospect of a negative outcome doesn't deter some? There isn't one . . . although committed anti death penalty folk may say the death penalty is the only one.
However, the premier anti death penalty scholar accepts it as a given that the death penalty is a deterrent, but does not believe it to be a greater deterrent than a life sentence. Yet, the evidence is  compelling and un refuted  that death is feared more than life.

"This evidence greatly unsettles moral objections to the death penalty, because it suggests that a refusal to impose that penalty condemns numerous innocent people to death." (1)
" . . . a serious commitment to the sanctity of human life may well compel, rather than forbid, (capital) punishment." (1)

"Recent evidence suggests that capital punishment may have a significant deterrent effect, preventing as many as eighteen or more murders for each execution." (1)
Some death penalty opponents argue against death penalty deterrence, stating that it's a harsher penalty to be locked up without any possibility of getting out.
Reality paints a very different picture.
What percentage of capital murderers seek a plea bargain to a death sentence? Zero or close to it. They prefer long term imprisonment.
What percentage of convicted capital murderers argue for execution in the penalty phase of their capital trial? Zero or close to it. They prefer long term imprisonment.
What percentage of death row inmates waive their appeals and speed up the execution process? Nearly zero. They prefer long term imprisonment.
This is not, even remotely, in dispute.
Life is preferred over death. Death is feared more than life.
Furthermore, history tells us that "lifers" have many ways to get out: Pardon, commutation, escape, clerical error, change in the law, etc.

In choosing to end the death penalty, or in choosing not implement it, some have chosen to spare murderers at the cost of sacrificing more innocent lives.
Furthermore, possibly we have sentenced 20-25 actually innocent people to death since 1973, or 0.3% of those so sentenced. Those have all been released upon post conviction review. The anti death penalty claims, that the numbers are significantly higher, are a fraud, easily discoverable by fact checking.

6 inmates have been released from death row because of DNA evidence.  An additional 9 were released from prison, because of DNA exclusion, who had previously been sentenced to death.

The innocents deception of death penalty opponents has been getting exposure for many years. Even the behemoth of anti death penalty newspapers -- The New York Times -- has recognized that deception.

"To be sure, 30 or 40 categorically innocent people have been released from death row . . . ". ' (2) This when death penalty opponents were claiming the release of 119 "innocents" from death row. Death penalty opponents never required actual innocence in order for cases to be added to their "exonerated" or "innocents" list. They simply invented their own definitions for exonerated and innocent and deceptively shoe horned large numbers of inmates into those definitions - something easily discovered with fact checking.

There is no proof of an innocent executed in the US, at least since 1900.

If we accept that the best predictor of future performance is past performance, we can reasonable conclude that the DNA cases will be excluded prior to trial, and that for the next 8000 death sentences, that we will experience a 99.8% accuracy rate in actual guilt convictions. This improved accuracy rate does not include the many additional safeguards that have been added to the system, over and above DNA testing.

Of all the government programs in the world, that put innocents at risk, is there one with a safer record and with greater protections than the US death penalty?
Full report -  All Innocence Issues: The Death Penalty, upon request.

Full report - The Death Penalty as a Deterrent, upon request
(1) From the Executive Summary of
Is Capital Punishment Morally Required? The Relevance of Life-Life Tradeoffs, March 2005
Prof. Cass R. Sunstein,   Cass_Sunstein(AT)law.uchicago.edu
 Prof. Adrian Vermeule ,   avermeule(AT)law.harvard.edu
Full report           http://aei-brookings.org/admin/authorpdfs/page.php?id=1131
(2) "The Death of Innocents': A Reasonable Doubt",
New York Times Book Review, p 29, 1/23/05, Adam Liptak,
national legal correspondent for The NY Times

Dudley Sharp, Justice Matters
e-mail  sharpjfa@aol.com,  713-622-5491,
Houston, Texas
Mr. Sharp has appeared on ABC, BBC, CBS, CNN, C-SPAN, FOX, NBC, NPR, PBS , VOA and many other TV and radio networks, on such programs as Nightline, The News Hour with Jim Lehrer, The O'Reilly Factor, etc., has been quoted in newspapers throughout the world and is a published author.
A former opponent of capital punishment, he has written and granted interviews about, testified on and debated the subject of the death penalty, extensively and internationally.
Pro death penalty sites 


yesdeathpenalty.googlepages.com/home2 (Sweden)

Permission for distribution of this document, in whole or in part,  is approved with proper attribution.

dudleysharp said...

Peter writes: "Even DNA evidence might not be sufficient. For example, if a prostitute is murdered, and DNA from three men is found on or in her body, they may all have been her customers before her death. Does the presence of one man's DNA under such circumstances (which proves that he was with her at some time shortly before her death) constitute proof positive that he killed her?"

Bad example. the answer is, "Of course not" and none of them would go on trial based only upon that evidence.

Even if there was only one DNA donor, the actual rapist/murderer could have worn a condom.

It is the totality of the evidence which does or does not get a guilty or not guilty verdict.

In the absence of total certainty, I'd rather not have the death penalty at all.

dudleysharp said...

Obviously, that last line snuck in there, from your post, via my cut and paste.

Can you remove it?

Mikael said...

I think the death penalty should only be where there is no doubt at all about the guilt of the accused and the crime is henious enough.

For example, pedophiles who show up in multiple child pornography photographs.

Peter said...

Dudley, I'm afraid I can't edit out one line of your comment. You could delete the comment entirely, if you wish, then re-post it without that line.

Please understand I'm not opposed to the death penalty per se. I'm opposed to the errors inherent in the judicial process, which may mean that an innocent person has been or will be put to death. It's no good saying to me that there's no proof that this has happened in the US since 1900 - there's no proof that it hasn't happened, either. In the light of the many people on Death Row who've been exonerated on the basis of modern scientific investigation, I personally think it's highly likely that some innocent people have, indeed, been executed.

I won't oppose the death penalty, provided that - PROVIDED THAT - you can guarantee that any person sentenced to death is 100% certain of being guilty of the crime for which he is sentenced, and you can guarantee with 100% reliability and certainty that no innocent person will be condemned. If that standard can't be met, then I'd rather have all such persons sentenced to life imprisonment, without probation or parole. At least such a sentence offers the opportunity to release them if they're later found to be innocent.

As I said, the question is not whether the death penalty is justifiable or not. I believe it is. However, the taking of a human life is an extremely final step. I won't support it without guaranteed certainty that it's correct in every case.

phlegmfatale said...

For most of my life I have been in favor of the death penalty, but in more recent years, a sense of ambivalence about exacting this ultimate punishment has clouded my views, somewhat. I agree that in the case of absolute certainties and multipile witnesses, well, I'm fine with death penalty in a case like that. Others cases which may hinge entirely on vagaries make me more uncomfortable to consider, and I agree that in these gray zones, to err on the side of permanent imprisonment is the sane course.

If we look at the issue from the purely financial standpoint, the inmate would have to live many decades being provided meals/shelter/medical care by the public to equal the expense and drain on the judicial system that one death-penalty appeal costs.

The most sober consideration must be given to the punishments our justice system exacts, that we as a society dispense justice and not vengeance.

Simeron Steelhammer said...

This is the only arguement I can agree with against the death penalty.

That being said, I fear here we have to part ways. I fully support the death penalty as the deterent it is meant to be.

Its a sad fact that innocent people could, and quite possibly have, fallen victim to it. But, I fully accept this is the price to help remove the worst part of our society from the rest.


Because innocent people die all the time to insure this and allowing those that have committed such crimes to have the chance to continue on thier path, be it due to some loophole or change in the thought process or an escape, means other innocent people will suffer.

Life in prison without parole would be great if I still thought that 1) It would really happen and 2) Prisons were places that still could be concidered punishments for the most part.

The hard fact is that the death penalty brings a huge deterent to certain crimes despite what many want to argue. And at the very least, you'll permentantly deter one criminal most of the time.

I grant that its not perfect and when a mistake is made, there is no fixing it.

But that is the price I'm willing to pay even if it was me or mine for a safer society.

dudleysharp said...

Innocent people are more at risk if we don't use the death penalty

Anonymous said...

In 1976 I was dating a recently divorced woman. One night, her ex-husband stabbed her 32 times, killing her. He stabbed her on her front porch as she was going in her front door. When she started screaming, neighbors came out of their houses, saw him stabbing her, also saw him when he got in his car and drove away. The neighbors of course recognized him as he used to live there.

The police picked him up at his apartment about 30 minutes later, with her blood all over his car and clothing. The cops also found the bloody knife he used to kill her.

Now, there never was a surer case for capital punishment than this one. Also, during the divorce proceedings, the perp had threatened her *in court* that "you'll never live to get custody of the kid!" However, the prosecution let him plead guilty to 2nd degree murder (the prosecution said they weren't sure they could prove pre-medidation!, plus it saved the state the expense of a trial), and he was only sentenced to 7-1/2 years. To make matters worse, he was released from prison after only four years!

He got remarried, and his first wife (the one he killed) is still dead.

I would have gladly tied the noose to hang that son of a bitch, and would have loved to have been the one to execute him. I was planning on getting him when he was released from prison, but I deferred to the dead woman's parents who asked me to not do anything that would cause me to go to prison.

And that's another reason I'm against the "War on Drugs" as pot smokers get longer sentences than do murderers!

-- chicopanther

Peter said...

Chico, you have my deepest sympathy. His comments showed clear intention and pre-meditation. That should have been a Murder One charge straight out of the gate. It's the prosecution's failure that they didn't push it, and the judge's failure that he didn't insist on it.