In a rape case, if DNA testing establishes that the man convicted of perpetrating a rape could not have been the attacker, we can say with confidence and certainty that we made a mistake and sent an innocent man to prison. But what is the equivalent for a death penalty case that involves no DNA? If a man is convicted on the basis of testimony from a single witness, and that witness is later found to be a pathological liar, can we say that an innocent person is on death row? What if a man is convicted on the basis of testimony from a single witness who later recants and says that she was mistaken?
Because most death penalty cases do not involve DNA, they are neither black nor white; they are gray with ambiguity. And yet, despite the fact that DNA is not an issue in most death penalty cases, you would have to be the most ingenuous person ever to have lived to believe that no innocent person has ever been executed in America. (And I am not talking just about lynchings; I am talking about executions that have taken place Since the death penalty was reinstated.) To believe that no innocent person has ever been executed, you would have to trust either that the death penalty system is free of mistakes or that we catch all of the mis-takes in the nick of time. The first belief has long since been revealed as a fantasy; some death penalty cases do involve DNA, and so we can be as close to certain as is humanly possible in some cases that innocent men have been sentenced to death.
A conservative estimate of criminal trials in general is that the wrong person is convicted between 3 and 5 percent of the time.' Some scholars believe that the error rate in death penalty cases may be even higher.' But even if it is the same as the error rate generally, we can predict that somewhere between 100 and 250 people on death row should not be there. Moreover, even if we had no evidence, the belief that we catch every mistake would be unwarranted for the simple reason that it is incompatible with what we know about human nature and institutions. Mail gets delivered to the wrong houses. Computers crash. Space shuttles explode and disintegrate. Police, prosecutors, judges, and jurors err.
As I have already suggested, and as I expressly argue later, focusing on the execution of innocent people is a distraction in the contemporary death penalty debate. Nevertheless, some people continue to believe in capital punishment but also think that the death penalty must be abandoned if innocent people are executed. If that represents your viewpoint, then you should seriously rethink your commitment to the death penalty, because innocent have been executed and will continue to be executed in the future. We are imperfect human beings; it is in our nature to err.
This chapter and the next focus principally on three typical death penalty cases. All three turned on a combination of unreliable circumstantial evidence and unreliable eyewitness testimony. Two involved witnesses who recanted, and two involved witnesses who were not heard from. DNA played a role in none of them.
Although DNA had nothing to do with the convictions I discuss in this and the following chapters, cases involving DNA can teach us an important lesson about the evidence that did figure in the convictions. Since 1989, approximately 150 people have been exonerated on the basis of DNA evidence.' Nearly all of these cases involved convictions for rape or sexual assault. What it means to say that these men have been "exonerated" is that DNA proved that they did not commit the crime for which they were convicted and sentenced to prison. It does not mean simply that we can no longer have confidence in the evidence supporting the conviction; it does not mean simply that the guilty verdict must be set aside for legal reasons. It means we can be certain that we made a mistake; we can be certain we sent an innocent man to prison. And this substantial body of cases where we know we made a mistake permits us to analyze how it is possible to make such grave errors. What went wrong in these cases?
These cases have several common features. Astonishingly, in approximately 25 percent of them, the innocent man confessed to the crime.' Contemplate that statistic for just a moment: In one out of four cases where we know we got it wrong and convicted an innocent man, that man confessed. One might think that no one would confess to a crime he did not commit, but the DNA cases prove that this phenomenon occurs consistently. Far from being foolproof evidence of guilt, confessions are common even in cases where the suspect is unquestionably innocent. Erroneous confessions occur for a variety of reasons: Police overwhelm the will of the suspect with lengthy and abusive interrogations, they threaten or coerce the suspects, or they lie and tell the suspects they will be better off if they confess. For someone who has not faced a persistent interrogator, understanding how some people —many people—confess to crimes they did not commit is unfathomable. But facts are facts; it happens regularly.
Even more unreliable than confessions is the testimony of eyewitnesses. For essentially the same reason, we have a difficult time understanding how eyewitnesses can be so often wrong yet so certain at the same time. Because we trust our eyes, we are confident that if we saw something or someone, we could identify the person. Because of our confidence in our own ability, we tend to trust others when they tell us what they believe they witnessed. And yet we know with scientific certainty that eyewitness identifications are spectacularly unsound. In more than two-thirds of the DNA exonerations, the state introduced eyewitness identification against the defendant. In other words, in 70 percent of the cases where the DNA permits us to know that we sent an innocent person to prison, eyewitnesses pointed to the defendant at the trial and swore that they were certain that he was the wrongdoer.
When we approach death penalty cases, therefore, we should remember the lessons that the DNA cases teach us: Even in the face of a confession, we should not be quick to assume that the death row inmate is guilty, and that when a death penalty case rests on an eyewitness identification, it rests on one of the least reliable forms of evidence that are ever introduced in a criminal trial.
➤ Excerpted from Executed on a Technicality, Lethal Injustice on America's Death Row, David R. Dow, Beacon Press, 2005. David R. Dow is the Cullen Professor at the University of Houston Law Center and the Rorschach Visiting Professor of History at Rice University. At the UH Law Center, Dow runs a death penalty clinic in which law students assist in the representation of inmates facing execution. Over the past twenty years, Dow and his team have represented more than one hundred death row inmates at every stage of their state and federal appeals. He is also the founder and director of Texas’s oldest innocence project, the Texas Innocence Network, an organization that uses UH law students to investigate claims of actual innocence brought by Texas prisoners. (NB: Commercial link provided for information purpose only.)
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