Since the Supreme Court restored the death penalty in 1976, more than 6,000 Americans have been sentenced to death.
As the tally grew during the past 15 years, anti-death-penalty forces were made impotent by the get-tough-on-crime movement that swept through America during the high-crime era of the Reagan administration. And when Democrat Bill Clinton was elected president, many opponents of capital punishment lost their political home. Clinton, after all, had overseen four executions during his tenure as Arkansas governor -- including that of Ricky Ray Rector, who had shot himself in the head after killing a cop and was so brain-damaged that at his last meal he asked whether he could save his pecan pie for a snack after his execution.
These days, candidates for national office brag about how many people they've executed and how quickly. Democrat Al Gore is on the record as supporting capital punishment, and Republican George W. Bush has presided over 121 executions as Texas governor.
Despite the absence of a major death penalty debate on the political stage, the tide of public opinion has begun to change. Though two-thirds of Americans are still in favor of capital punishment, support is at its lowest since 1981. A major factor in this change is the rising number of wrongly convicted prisoners or death-row inmates who have been set free after DNA fingerprinting technology produced evidence supporting their innocence. Since 1986, 67 prisoners have been released, including eight on death row.
The technology that led to many of these exonerations also inspired the work of the Innocence Project -- a network of attorneys and students that has taken up hundreds of cases in an effort to reverse unjust convictions. "Actual Innocence: Five Days to Execution, And Other Dispatches From The Wrongly Convicted," written by Innocence Project founders Barry Scheck and Peter Neufeld and Pulitzer Prize-winning journalist Jim Dwyer, documents the work of a group that has crusaded effectively to restore the American justice system.
In an interview at Salon's Washington bureau, Dwyer and Scheck (who served as O.J. Simpson's defense attorney) discussed the project's groundbreaking work.
Why did you start the Innocence Project?
Barry Scheck: Peter Neufeld and I used to be public defenders in the South Bronx. We were referred a case from our old public defenders office of someone who had been convicted of a crime, but everyone believed he was innocent. He was actually at a prayer meeting [at the time of the crime]. This was in 1988, before anybody had heard of DNA testing, but we had, and we tried to get a DNA test. There wasn't enough sample and we wound up being able to prove him innocent in other ways. But it led us into this whole area of DNA testing.
We realized that this is remarkable tool both to identify people who had really committed the crimes and exonerate people who had already been convicted ... you could go back and look at the evidence 10, 20, 30 years later. So we founded this clinical program at Cardozo Law School. Inmates would write to us and say, "I'm innocent," and we'd see if there was biological evidence that could be tested to prove them innocent. Unfortunately, in 75 percent of cases the evidence is lost or destroyed. Nonetheless, we have represented or assisted in representation of 38 individuals who have been exonerated with DNA tests, eight on death row. Overall, there have been 64 people exonerated in the United States and six in Canada.
Do you turn away a lot of cases?
Scheck: Literally thousands. We're a small entity with limited funds. What we're doing now is going to law schools and journalism schools across the country and trying to get people involved in what we are calling the Innocence Network. A lot of law schools have come to the fore now and are taking these cases on -- not just DNA cases, but also cases involving misconduct or wrongful convictions where there's no DNA evidence. We're interested in [finding] people who have been convicted, but are innocent. What our book does is go through all the causes of wrongful convictions -- mistaken identification, junk science, fraudulent forensic science, race problems, false confessions, jail-house snitches, bad lawyers -- and systematically suggest solutions that Democrats, Republicans, prosecutors and defense lawyers can all get behind.
According to your book, prosecutorial or police misconduct were factors in half of the wrongful convictions that have been overturned by the Innocence Project using DNA evidence. Why is that a widespread problem?
Jim Dwyer: Part of it is the culture and psychology of conviction, in which there's a great deal of empathy felt by prosecutors, police and, naturally, the public for someone who has been terribly hurt. Another part of it is politics, where there's posturing that goes on. In Illinois, in one terrible case, a prosecutor was turned out of office when he didn't solve a crime quickly enough. His successor then went on to arrest, indict and prosecute the wrong people for it. He sent them to death row, but they were ultimately proven innocent. I think a combination of politics and human nature is involved in [prosecutions of the innocent].
But I think it's wrong to discuss wrongful conviction as strictly a problem of malicious law enforcement. That would be a distortion of what we have found. Misconduct is an issue in a number of these cases, but the most important reform needed is to recognize that there has been a remarkable series of overturned cases in the last decade based on revelations that were never possible before in the history of this country. If we don't pay attention to what they mean, then none of us are doing our job. And that's the ultimate misconduct.
Scheck: We're not saying that there aren't instances of police framing people. Look at the Ramparts division in Los Angeles. But it is a mistake, as was suggested by Gov. George W. Bush, to say, "It's an Illinois problem." [In that state,] you have a Republican governor, a supporter of the death penalty, saying "I've had 13 people on death row who were sentenced to death and it turns out they were innocent." And 12 other people were executed.
The numbers are not appreciably better in other states. For every seven people we execute, one person is taken off death row on the grounds of newly discovered evidence of innocence. DNA only accelerates that process. But it is not an Illinois problem. Gov. Bush was saying it was just Illinois, yet in his own state [Texas], there's no statewide system of public defenders. Recently, the Texas Court of Criminal Appeals affirmed the conviction of a man whose lawyer was sleeping throughout the entire trial. The federal court had to take care of that. It's not, as the governor said, an example of the system working. Quite the contrary.
Texas does not have a post-conviction DNA bill that would entitle an inmate to get a DNA test to prove innocence. In Texas, there's a statute of limitations on your ability to go to court and present newly discovered evidence of innocence. In 33 states, you have six months or less. Illinois does have a statute that allows for post-conviction DNA tests; so does New York. There have been 14 post-conviction DNA exonerations in Illinois and seven in New York, the two highest totals in the country.
Sen. Patrick Leahy [D-Vt.] has introduced a bill called the Innocence Protection Act, which would require every state seeking to receive federal money for DNA databanks to pass a bill like those in Illinois and New York giving every inmate an opportunity to get a DNA [test] to prove innocence. The fact that they don't have it in Texas alone undermines Gov. Bush's assertion that he can have great confidence that an innocent person has never been put to death in Texas.
Are there some states where the cultures of law enforcement and the court system are more likely to result in wrongful convictions?
Dwyer: I would say Texas is one of those jurisdictions. Even before DNA testing came along, you had the case of Randall Adams, who was exonerated off death row. There was another case of a Houston man who was cleared from death row. But those men were not cleared by "the system." Adams was cleared because a filmmaker [Errol Morris of "The Thin Blue Line"] investigated his case. That wasn't done by defense lawyers, that wasn't done by prosecutors. Anybody who tells himself that the system works because we've released all these people from death row is hallucinating.
There's a young woman in Chicago, a 21-year-old journalism student, who was involved in the case of Anthony Porter, who was within 50 hours of execution. As a class project, she and her classmates went out and interviewed people and found the real killer. She says, and rightly, "We were a bunch of kids cutting classes. Don't tell me the system works because that isn't how it's supposed to work."
There's a lot of false comfort being taken by people from these exoneration statistics that they're not entitled to. What they're entitled to is a presumption that [police and prosecutors] don't act with malignant intent. In this book, we are not talking about things that are anti-prosecutor or anti-police. They are pro-prosecutor, pro-police and pro-innocent person. The reforms that we suggest are encompassed by a National Institute of Justice study. Any prosecutor who opposes them, in my view, is guilty of misconduct, because they are going to let the wrong people walk the streets.
Gov. George Ryan of Illinois has declared a moratorium on executions in that state. Do you think that's a solution that could work nationally?
Scheck: Politically, the death penalty is still a winner. But I think it's changing and the issue of innocence is really the breach. Many states have now had legislation introduced calling for a moratorium on the death penalty. What you're seeing is a recognition that regardless of your opinions on the morality of the death penalty, you have to come to terms with the fact that the machinery of death literally isn't working. With all these problems in the criminal justice system that have to be fixed, you can't have any great confidence that the death penalty will be administered correctly or fairly.
What role do public defenders play in wrongful convictions?
Scheck: Public defenders are some of the best lawyers in this country, even though as a whole, the system of court-appointed lawyers and public defenders is woefully underfunded and so many of them are not in a position to do a good or competent job. But there are many, many public defenders who are liberty's last champions.
Take the story of Glen Dale Woodall, a grave digger in West Virginia who was convicted of two abduction rapes. DNA evidence showed he was innocent. Then attention turned to the crime-lab director who had testified against him, named Fred Zane. Zane had been the crime-lab director in West Virginia for 10 years. It turned out, after an investigation of what had happened in Woodall's case, they found that in 133 cases, Zane had been "dry-labbing." He either didn't do the test or got inconclusive results and then said that they matched what the police wanted anyhow. He had since moved on to San Antonio where he was involved in phony DNA tests and misconduct in that jurisdiction.
Now you can ask the question, "How can someone get away with producing these kinds of results that are not even based on conclusive tests?" Part of the answer lies with the lawyers. What were they doing? Why didn't they ask for the underlying data. If you don't have a real adversary system, and the defense lawyers aren't doing their job and making the state prove its burden of guilt beyond a reasonable doubt, then everybody suffers. Innocent people get convicted, and the real perpetrators commit other crimes.
If the guilt of convicts on death row could be confirmed using this same DNA technology, would capital punishment then be acceptable and fair?
Dwyer: Of course guilt and innocence is only half the test in a death penalty case. There are two parts to a death penalty trial: One is guilt or innocence, and the second is the penalty phase. And the penalty phase involves these very careful and calibrated moral judgements. If there's so much error in the guilt or innocence phase, how can you be confident that these extremely delicate moral judgements are being made with all deference to what the law requires? Unfortunately, you can't use science to prove that a moral judgement is mistaken. But the same people who are making the factual errors on innocence or guilt are now attempting to make the judgements on morality.
But if you eliminated the moral judgement aspect, could there then be such a thing as a fair administration of the death penalty?
Dwyer: The Supreme Court has already said that you can't. That's the essence of the decisions that led to the restoration of the death penalty. You have to have a system that does weigh aggravators and mitigators. Their hope was that they could devise a fair system. Before that, even when there was less discretion, you had a system that was so clearly set against poor, minorities, people without power in society, that it shocked the conscience of the Supreme Court. And they said you can't do it. You've got to stop it. This is just a scandalous system of lynchings. So you can't eliminate it.
So are you saying that there is no way to construct a just system that includes the death penalty?
Dwyer: Harry Blackmon said that he tried for 20 years to tinker with the machinery of death and gave up on it.
Scheck: And so did Justice Powell, who said, after he got off the court, that it couldn't be administered fairly. That the evidence falls on the side of moratorium.
You just can't continue with a system where for every seven people who are executed, one innocent person is taken off death row. These are very bad numbers, and the American people feel that very strongly.