Executioner's swan song?

Public support is weakening, but the death penalty will be slow to die.

By Michael Kroll

Illinois Gov. George Ryan’s decision to suspend the death penalty — while affirming his belief in capital punishment — represents America’s own schizophrenia. We believe in the death penalty but shrink from it as applied.

But Ryan’s action also represents a public shift. While he is the first governor to take such a stand since the death penalty’s resumption in 1977, cities as disparate as New Haven, Conn., and Mount Rainier, Md., among others, are on record as favoring a moratorium.

The New Hampshire primary also suggests a shift in public mood. In 1992, Bill Clinton felt compelled to leave New Hampshire long enough to be seen presiding over the execution of a severely brain-damaged and retarded prisoner. This year, Republican Gov. George W. Bush — who boasts of presiding over more executions than any governor in history — was overwhelmingly trounced in his primary bid in the same state.

There are other signs that our love for the death penalty is on the wane. Last year, the number of death sentences meted out was the fewest in six years. The number of commutations also rose to a six-year high in that period.

There are many reasons for the shift but first among them — and the immediate cause of Ryan’s announcement — is the rash of innocent people recently released from death row, often after many years. In Illinois, more people (13) have been freed than executed (12) since 1977. Anthony Porter spent 15 years on death row, and was only two days away from being executed when a group of committed college students convinced authorities they had proof of his innocence.

New Hampshire legislators heard Paris Carriger testify about the 21 years he spent on Arizona’s death row before being exonerated. On the day of Gov. Ryan’s announcement, a judge released Dwayne McKinney from a California prison where he spent 19 years for a murder he did not commit — as the prosecutor himself admitted. In all, 84 people have been freed from death row since capital punishment was restored.

Further undermining the public’s faith in the fairness of the process is the use of jailhouse informants to obtain a conviction in exchange for significant favors like a reduced sentence.

Other events and facts may be moving the public to see the death penalty as the ultimate abuse of human rights:

At the end of 1998, Pope John Paul unequivocally called for the end of capital punishment

Worldwide, the U.S is ever more isolated — even Russia has abolished the death penalty and we stand alongside Iran, Nigeria, Pakistan, Saudi Arabia and Yemen as the only countries in the world executing juvenile offenders

Corrupt police and prosecutors have undermined trust in the criminal justice system — in Los Angeles, for example, investigators have found about 100 convicted “criminals” (so far) who were framed by cops who planted evidence and intimidated witnesses

Meanwhile, the Supreme Court has set process over justice by ruling that even actual innocence is not necessarily grounds for relief and an overreaching federal government has imposed a federal death penalty even in states that have rejected it, like Vermont and Hawaii.

Signs of change are clearly reflected in the popular media. Sister Helen Prejean’s popular book “Dead Man Walking,” and the film based on it, clearly touched an emotional nerve. This year, “The Green Mile” and “The Hurricane” cannot fail to have a profound impact.

Virtually every major show on television has dramatized the issue of capital punishment in the last season or two — almost always in a way that provokes deep second thoughts about the death penalty.

All this has some effect on public opinion — a February Gallup poll finds support of the death penalty at 70 percent, the lowest level in 13 years. Nearly one-fourth of entering college freshman agreed the death penalty should be abolished, a noticeable increase over the preceding year.

Support for the death penalty declines dramatically — below 50 percent in California with the country’s largest death row — when people are asked about life without parole as an alternative. Polls in Ohio, New Jersey, Illinois, New York and Kentucky produce similar responses. Change will not occur overnight. The legal process is slow to respond — last year, for example, this country carried out the most executions (199) in nearly 50 years.

But Gov. Ryan’s decision is not the beginning of a process, it is the continuation of one that will certainly culminate in the end of capital punishment in this country. Politicians, ever fearful of endangering their electoral chances, are the last to change. That Ryan has crossed that barrier is the true significance of his courageous act.

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Just because California's next "dead man walking" might be innocent doesn't mean that his life will be saved.

By Michael Kroll

“I think they got the wrong guy,” a guard whispers nervously to me as I pass through the security checks to visit San Quentin’s death row.

He is referring to the scheduled execution of Thomas Thompson two weeks from now. The only thing that can prevent it is an official grant of clemency by Gov. Pete Wilson.

Thompson, a Vietnam-era veteran without a single prior felony conviction, has been on death row since 1981 for the rape and murder of Ginger Fleischli. He has steadfastly proclaimed his innocence.

Doubts about Thompson’s guilt are heard not only in whispers from distressed guards but from other surprising voices as well. Seven former prosecutors filed a “friend of the court” petition seeking to overturn Thompson’s death sentence on grounds of prosecutorial misconduct — and Thompson’s innocence. One of the prosecutors is the author of the law under which Thompson was condemned to death.

At Thompson’s trial, prosecutors kept from his attorney evidence that the “special circumstance” necessary for him to be sentenced to death — rape — had not in fact occurred. A federal district judge ruled that Thompson’s attorney was inadequate and reversed the death sentence. But the federal appeals court dismissed the errors in the trial court as “harmless” and reinstated the death sentence.

Fleischli was stabbed five times in the head with a single-edged knife. David Leitch, Thompson’s co-defendant — and his roommate for three weeks — was Fleischli’s boyfriend until shortly before the murder. He owned a single-edged knife. And, unlike Thompson, he had a long record of violence against women, including three prior assaults with a knife. Less than two weeks before she was killed, Fleischli had called the police and reported that Leitch had threatened to kill her.

Leitch agreed to testify against Thompson. He received a prison term of 15 years to life. The California Supreme Court — the final state court of appeal — refused to overturn Thompson’s sentence. Despite the doubts raised by the seven former prosecutors and others, it is unlikely that any other court will step in and halt the gassing of Tommy Thompson, set for just past midnight on Aug. 5.

Disturbing as it is that California might be putting to death an innocent man, it comes as no surprise to anyone familiar with death penalty law.

Four years ago, the U.S. Supreme Court ruled that states do not violate the Constitution by executing an innocent person — as long as the judicial process that led to the erroneous conclusion was itself constitutional. The justices also pointed to an extrajudicial safety valve — executive clemency. Writing for the court, Chief Justice William Rehnquist said, “Clemency is deeply rooted in our Anglo-American tradition of law and is the historic remedy for preventing miscarriages of justice where judicial process has been exhausted.”

That didn’t help in the actual Texas case under review. Even as the court ruled that the Lone Star State could legally kill Leonel Herrera in 1993, the state quickly injected him with poison — despite new evidence pointing to his possible innocence. And it may not help Tommy Thompson. Since the death penalty was reinstated in 1975, no California governor has granted clemency. Nationwide, clemency was granted twice in 1992, once in 1993, once in 1994, not at all in 1995, three times in 1996 and not at all so far this year. Wilson has presided over the executions of four men, although Thompson is the first to raise a claim of actual innocence.

According to a report released last week by the Death Penalty Information Center, at least 69 people have been released from death row since 1973, including those granted clemency, “after evidence of their innocence emerged.” This record of official error is one reason the American Bar Association called for a nationwide moratorium on executions last February.

The urgency of Thompson’s situation, however, is best expressed not through studies or statistics, but in the words of the guard who watches me pass through the San Quentin metal detector. Looking over his shoulder to make sure he’s not overheard, he says quietly, “The system screwed up here.”