August 1 USA: Double-Edged Sword Following the discovery in Illinois that 13 convicted prisoners on death row were in fact innocent, Republican Governor George Ryan in January 2000 instituted the nation's first moratorium on state executions. Ryan announced, "Until I can be sure with moral certainty that no innocent man or woman is facing a lethal injection, no one will meet that fate."1 Current Illinois Governor Rod Blagojevich has continued Ryan's policy, and other states, including Colorado, Texas, Maryland and California, have followed Illinois in pursuing death penalty moratoria. These appeals to suspend executions are driven by the same logic Ryan employed: the system cannot countenance the death penalty at the risk of condemning innocent people. Until recently, most on the right have dismissed arguments that capital punishment is barbaric, inconsistently applied, disproportionately meted out to minorities and the poor, and an ineffective deterrent.2 But with the availability of new sientific tools like DNA evidence, conservative politicians are faced with the sobering reality that science can now irrefutably prove the innocence of many on death row.3 Since 1989, 159 inmates have been exonerated by post-conviction DNA evidence, more than triple the number of innocent people exonerated during the previous 15-year period -- an embarrassing statistic for longtime Republican death penalty supporters.4 But imposing a moratorium on the death penalty is not equivalent to eliminating it. In the long run, once the innocent have been cleared from death row and the "mistakes" are but a faint residue on the public memory, it's just as likely that DNA evidence will be used in defense of capital punishment. This is because DNA has just as much capacity to condemn the guilty as it has to exonerate the innocent. Robert Pambianco, Chief Policy Counsel for the Washington Legal Foundation, acknowledged this possibility: "If DNA evidence can be used to prove that the wrong man was convicted, then it can be used to remove any remaining doubt about a prisoner's guilt. Far from undermining confidence in capital punishment, DNA evidence will only help increase the certainty about the guilt of those sentenced to die."5 According to Virginia-based scientist Anthony Brooks, DNA evidence is now being used more frequently to confirm a person's guilt than it is to prove his innocence.6 At the Virginia State crime lab, Dr. Paul Ferrara says that his colleagues now yield almost 2 "cold hits" a day, which occurs when a suspect's profile is matched with DNA evidence from the crime scene.6 In the last year, Republican politicians have begun using these instances to question the utility of death sentence moratoria, employing the language of science to buttress the case for capital punishment. On July 21, Massachusetts Governor Mitt Romney announced plans to re-instate a "foolproof, no doubt" death penalty statute. Romney has already supported efforts to beef up State Police crime labs and broaden the application of DNA evidence in the courtroom.7 A similar defense of capital punishment is being mounted by Virginia Attorney General Jerry Kilgore, who argues that DNA evidence will provide "a better opportunity to determine if we have a serial killer, or if we have someone who has committed crimes over and over again." Whether we should take conservative politicians lie Romney and Kilgore -- who are possibly using the authority of science to buttress a priori moral beliefs -- at the their word, is a matter of debate.6 But no test is full-proof; condoms break, guns backfire, and sometimes DNA evidence is useless. Furthermore, evidence can be applied only in the relatively exceptional cases in which the police can obtain evidence suited to DNA analysis, such as blood, hair, or semen. DNA evidence can also be wildly misapplied. Witness the debacle unfolding in Houston, where forensic psychologists are under independent audit from the Texas Department of Public Safety for manufacturing fraudulent DNA evidence to convict as many 1,300 innocent people. The investigation has already led to the exoneration of one innocent man who had spent five years in prison, whom fraudulent DNA evidence had linked to the rape of a young woman.8 According to City Councilwoman Carol Alvarado, the Harris County, TX, crime lab contained scientists whose methods were sloppy and tainted by prejudice, whose surroundings resembled an adolescent's basement dwelling after an all-night rager: "These were not just leaks; these were holes. There were trash buckets and water buckets throughout the lab. They were having to move tables around, because some of the leaks were near and sometimes above where the analysis was occurring."9 Can we really trust DNA samples deluged by dirty water and examined by fools? As Max Weber warned, prejudice and stupidity sometimes masquerade as science. And much like the phrenology experiments that endeavored to prove the intellectual inferiority of African-Americans, there is the risk that the more blindly we trust DNA evidence, the more dangerous and disingenuous its application will become. Footnotes 1 - Illinois Governor Halts Executions. Moratorium News. 2- Governor George Ryan: An Address on the Death Penalty. The Pew Forum on Religion & Public Life. 3 - Travis County Commissioners Court Passes Moratorium Resolution. Texas Moratorium Network 4 - Facts about Wrongful Convictions. Mid-Atlantic Innocence Project. 5 - The Guilty Are Being Executed. Pro-Death Penalty.com. 6 - DNA and the Science of Truth. WBUR - Boston NPR. 7 - Massachusetts Governor's Proposed Death Penalty Law Meets Strong Opposition at Hearing. Death Penalty Information Center. 8 - UCI Professor Finds DNA Laboratory Errors That Sent Wrong Man to Prison. Scientific Testimony. 9 - Tex. Lawmakers Probe Lab Over Reports of Tainted DNA Evidence. Washington Post. (source: Freezerbox) LOUISIANA: Penalty phase retrial set in 1994 N.O. murder case More than a decade after a New Orleans woman was killed by a hit man sent by a police officer, a jury will again be asked to decide whether the ex-officer should be sentenced to death. The 1996 federal civil rights conviction of Len Davis still stands in the death of Kim Groves, who prosecutors said was targeted because of a brutality complaint she filed against the New Orleans officer. The question of whether Davis should be put to death -- as a jury originally recommended in 1996 -- will be put before another panel in federal court. Jury selection is scheduled to begin today. Groves' parents and children don't want the sentencing retrial, saying another death sentence would only extend proceedings that began with the murder on Oct. 13, 1994. Their letter may be mentioned only if prosecutors have members of the family testify about the crime itself, U.S. District Judge Ginger Berrigan has ruled. Davis, along with Paul Hardy, who was convicted of firing the fatal shots and who also was sentenced to death, have been waiting for nearly 6 years to find out whether they will have to return to court. Both appealed their convictions and the case was sent back for another sentencing hearing after one of the three counts they faced was nullified. In December 2002, Berrigan, who presided over the original trials and will handle the retrials on the sentences, ruled the indictment did not go far enough in specifying the aggravated circumstances used to give them death -- premeditation and specific intent to kill. Prosecutors did offer evidence dealing with those factors. Because of that, Berrigan said, it would be impossible to resentence the men to death. But in August 2004, the 5th Circuit said that omission from the indictment was a "harmless error," setting up Davis and Hardy for new dates with a jury. Although Davis' guilt will not be in question, prosecutors will have to present their entire case again. Hardy will be retried later in the same manner. At the time of Groves' killing, Davis was the target of an FBI sting operation that included a tap on his cell telephone. Federal agents had set up a fake cocaine warehouse and Davis was looking for other corrupt officers to guard the building. Eleven New Orleans police officers were eventually convicted in the drug sting, including Davis, who got an additional sentence of life in prison. Davis' call to Hardy ordering Groves' killing was recorded. So was his reaction to news from the police department that she had been shot: "Yeah, yeah, yeah. Rock, rock-a-bye!" (source: Associated Press) VIRGINIA: ATKINS DEATH SENTENCE WOULD VIOLATE SPIRIT AND INTENT OF SUPREME COURT DECISION: Executing The Mentally Retarded Is Cruel And Unusual Punishment Angela Ciccolo, NAACP Interim General Counsel, today called on Virginia to spare the life of Daryl Atkins, a mentally retarded man convicted of murder, because the U.S. Supreme Court has ruled that executing the mentally retarded is "cruel and unusual punishment." "It is important to uphold the spirit and the intent of the U.S. Supreme Court's decision and to join the rest of the civilized nations of the world in prohibiting the execution of mentally retarded defendants," said Ciccolo. "Atkins has an IQ of 59," she said. "He clearly doesn't belong on Virginia's death row. At the very least, the Commonwealth should consider incarceration rather than the death penalty given his diminished mental capacity." The national NAACP joins with the Hampton Branch NAACP in asking York County Commonwealth Attorney Eileen Addison to not pursue the death sentence. "If the Supreme Court decided that executing the mentally retarded was cruel and unusual punishment based on Atkin's IQ, why is it necessary for the prosecutor to push for death?" Hampton NAACP President Carmen Taylor asked. The NAACP has long opposed the death penalty because in many states there has been a disproportionate number of African Americans sentenced to death, particularly when the crime involves a white victim. The 27-year-old Atkins received a death sentence for the 1996 killing of 21-year-old Eric Nesbitt. An appeal of his conviction led the U.S. Supreme Court in 2002 to rule against the execution of the mentally retarded. In the wake of the Court ruling, death sentences of many mentally retarded offenders across the nation have been commuted to life in prison. Atkins now seeks life imprisonment based on his mental retardation. A trial on that question began Monday in Yorktown, Virginia. Atkins was convicted of capital murder after he and William Jones allegedly abducted Nesbitt and forced him to withdraw money from an ATM. Jones was allowed to plead guilty in exchange for a life sentence. Atkins pled not guilty. Although the Supreme Court decided in the Atkins case that the Eighth Amendment prohibits the imposition of the death penalty, the decision did not eliminate his death sentence. The high Court sent the case back to Virginia state courts to determine his mental status. Atkins' lawyers asked 8 mental health professionals to examine him and all concluded he is mentally retarded. The prosecution had three mental health professionals examine Atkins. They concluded that his IQ shows significant limitations in intellectual functioning, but does not denote mental retardation. Taylor said she is concerned that having the sentencing trial in Yorktown will mean the jury might not contain many African Americans. Nesbitt was white, and Taylor said that historically African Americans accused of murdering whites are given harsher sentences. Founded in 1909, the NAACP is the nation's oldest and largest civil rights organization. Its half-million adult and youth members throughout the United States and the world are the premier advocates for civil rights in their communities, conducting voter mobilization and monitoring equal opportunity in the public and private sectors. (source: NAACP Office of Communications) NORTH CAROLINA: Prosecutors say they still have enough to convict Penland again Death-row inmate Rex Dean Penland has won a new trial, but prosecutors still believe they have enough evidence to convict him again for the 1992 rape and killing of a Winston-Salem prostitute. Prosecutors point to a footprint that they say matches Penland's snakeskin boots and remnants of the brand of cigarettes that Penland smoked, which were left at the crime scene. Taken together, prosecutors claim, such evidence challenges Penland's claim that he was passed out drunk in the truck at the tie of the killing. Penland was sentenced to death by a Stokes County jury in 1994 for the kidnapping, rape and murder of Vernice Alford; the verdict and sentence were upheld two years later by the state Supreme Court. But a judge last week granted a new trial. New DNA testing of evidence presented at his original trial - blood found on a knife belonging to Penland and a vaginal swab taken from the victim's corpse - raised questions about Penland's guilt but did not conclusively prove his innocence, Superior Court Judge John O. Craig said in the ruling. Still, prosecutors appear to have believers. Craig stressed that he believes the state still has "an extremely strong case against Mr. Penland." In addition, Barry Jones of Germanton - a juror in the 1994 trial - said the new DNA test results have not changed his mind about Penland's guilt. "I look at all the other evidence they had. It was just a monumental amount of evidence," he said. "I don't have any doubts about our verdict." Defense lawyer Ken Rose, with the Center for Death Penalty Litigation in Durham, however, said they're hoping to prove his client's innocence. Rose said that the new test results are consistent with Penland's trial testimony. Penland, 45, of Germanton, has spent 11 years on death row. He was accused along with his nephews Larry and Gary Sapp in the killing. The Sapp brothers said they were with their uncle when he picked up Alford. The brothers testified that Penland drove Alford to a logging road in Stokes County, a mostly rural county north of Winston-Salem along the Virginia border, where he then raped her, instructed his nephews to tie her to a tree, and then stabbed her to death. Penland denied taking part in the rape and killing. He said the Sapp brothers lied to protect themselves from getting the death penalty. Prosecutors said a few pieces of evidence contradict his story, particularly his boots - evidence that they said was so important that they brought them back into court last week. Barry S. McNeill, a special deputy attorney general, noted that each 2-tone boot has a small circular metal plate on the outside of the heel. A casting of a footprint found at the crime scene, McNeill said, shows a circular design consistent with the metal plate on the boot. "This evidence would be a strong indication that Mr. Penland is guilty," McNeill told the judge. Penland's lawyers counter that the State Bureau of Investigation report says the castings were insufficient for comparison purposes. The defense says its unfair for the state lawyers to draw conclusions when their experts could not. (source: The News & Observer)
