Date: Sun, 22 Nov 1998 23:16:34 +0000
From: Brian Crowther
To: ABOLISH@MAELSTROM.STJOHNS.EDU
Subject: Wrongful Imprisonment & DP conference Chicago
Fellow Abolitionists
Still somewhat jet-lagged, a personal impression of a truly
momentous occasion:
National Conference on Wrongful Convictions & the Death Penalty
Chicago, 13-15 November 1998
'My colleagues turn aside defendant's constitutional challenge
with the observation that the American criminal justice system
is one of the best in the world. The sentiment has a pleasant
and reassuring tone, but it overlooks an important fact. The
supposedly "inferior" justice systems of other nations are
abandoning capital punishment at an unprecedented rate ... With
the exception of Japan, the United States is now the only well-
established democracy that has not abolished the death penalty
expressly or in practice ... Western Europe is free of capital
punishment ... as are most countries in our hemisphere.
I do not know enough about international law to judge whether
thenations who have abolished capital punishment are, in fact,
less protective of human rights than the courts in the United
States. I do know, however, that the abolitionist nations have
at least insured that no one will pay the ultimate price for
their fallibility. That is decidedly not the case in those
United States jurisdictions retaining the death penalty ...
Despite the courts' efforts to fashion a death penalty scheme
that is just, fair, and reliable, the system is not working.
Innocent people are being sentenced to death. Examples of
innocent people who were arrested, tried and convicted of
capital offences are numerous and well documented ...
Some would suggest that the freedom now enjoyed by these ... men
demonstrates that our criminal justice system is working
effectively with adequate safeguards. If there had been only one
or two wrongful death penalty cases, I might be persuaded to
accept that view. When there have been so many mistakes in such
a short span of time, however, the only conclusion I can draw is
that the system does not work as the Constitution requires it
to.
If these men dodged the executioner, it was only because of luck
and the dedication of the attorneys, reporters, family members
and volunteers who labored to win their release. They survived
despite the criminal justice system, not because of it. The
truth is that left to the devices of the court system, they
would probably all have ended up dead at the hands of the state
for crimes they did not commit. One must wonder how many others
have not been so fortunate.'
Illinois Supreme Court Justice Moses Harrison,
Dissenting in People v. Bull (10 November, 1998)
Before attending the first-ever National Conference on Wrongful
Convictions and the Death Penalty which took place at the
Northwestern School of Law, Chicago, Illinois on 13-15 November,
1998, my partner and I travelled to death row in Arizona and
Texas - our fourth and third visits to these benighted places
respectively. Our friend incarcerated in Eyman is in his
sixteenth year, and a fellow inmate/offender/prisoner on the row
is in his 84th year - the oldest person in the USA waiting to be
put to death. The authorities are hoping that he succumbs to
death by natural causes, as it would not look good were they to
have to kill an octogenarian, but seemingly he remains in good
health. As far as Texas is concerned - the pre-eminent killing
state, with 37 (half the national total) last year, and 17 to
date this year - we vowed never to return after the execution of
our friend Dave Herman last year, the day after his suicide
attempt was thwarted. Horrifically, his wounds were stitched,
then he was bandaged and locked up overnight to be killed as
scheduled on 2 April. But we did go back to Ellis Unit to visit
someone else, and inevitably memories flooded back. Then, after
death row in two states, we travelled to Chicago for the
conference.
In his opening remarks, Professor Laurence Marshall quipped that
if Americans knew that 1 in 20 sausages contained cockroaches,
they would stop eating them. Yet there is toleration of a
situation whereby an estimated 1 in 7 people sent to death row
is innocent, he went on to say. Later, Stephen Kent, a PR
consultant from Garrison, NY, told us that the USA has the
highest incarceration rate of any industrialized country -
including the former USSR. After quoting the American myth, that
"innocent people are not convicted of crimes they have not
committed", he continued by stating that 50% of homicides in the
USA remained unsolved, and that an estimated 10% of the death
row population - currently 3500 - was innocent. Since the
reinstatement of the death penalty in the world's sole remaining
superpower in 1976, 74 death row prisoners have been exonerated
and freed, and it is important to point out that it was outside
pressure that brought these terrible miscarriages of justice to
light, not the criminal justice system. Brief synopses were
provided of the individuals once sentenced to death and now
released, and they do not provide easy reading. For instance, in
Florida James Richardson was convicted in 1968 of murdering
seven of his children by poisoning them with a pesticide. Some
21 years later the charges against him were dropped and he was
released after the then-Dade County District Attorney Janet
Reno, appointed a special prosecutor to examine the case,
concluded that a grave injustice had been done to Mr Richardson.
Dubbed "a lawyer's conference" beforehand by one American friend
(it was in part, yet it was not wholly, for all that there were
many attorneys present in the 1000 or more people attending) the
focus was significantly on the impact of the criminal justice
process on lawyers and others in regard to the important topic
of 'Professional Distance'. As stated above, my partner and I
lost a beloved friend in Texas last year, and the scars refuse
to heal, the recollected anguish remains searingly painful. For
the attorney, 'law school never prepared you for this!' when
dealing with 'this nobody who is really somebody' - that is a
client on death row facing execution. The statement that
'client's families are victims too ... we have to find people
who will find a place in their hearts for this human being [and]
in the process we become vulnerable' is as valid for involved
non-lawyers opposed to capital punishment as it is for sensitive
public defenders, it seems to me. In the context of state-
sanctioned killings, 'you do hope ... that's all you have', and
at the very end ' ... you begin to do for your client as a
person what you could not do for your client as a lawyer'.
Richard Dieter, Executive Director, Death Penalty Information
Center told his audience that the situation whereby there were
less than 50 people on death row in Kentucky, not one of them
for murdering a black person, had resulted in the passing of the
Racial Justice Act in that state - an attempt to redress the
overwhelming racial imbalance that manifests itself throughout
the criminal justice system in the USA. He was followed by Mike
Farrell, better known as the actor playing 'B J' in the hugely
popular TV soap M*A*S*H for 8 years, who just happens also to be
President of Death Penalty Focus of California. 'We must not
forget the moral imperative [that] killing is wrong' he
conjured, before berating '... a vacuous media that beats the
drum for the death penalty. His comment was echoed by mitigation
specialist Marie Deans from Virginia, who quoted a journalist in
Texas after Governor Bush granted executive clemency for the
first time - to a man who claimed to have committed some 600
hundred murders. 'If anyone deserves to die for a crime he
didn't do, it's Lucas', this wretched representative of
Farrell's 'vacuous media' wrote!
'These cases give further support to the principal theses of
this book: our criminal justice system is by no means
infallible, and the death penalty is too risky for such a system
to employ.
But now the United States Supreme Court has made it more
difficult than ever to prevent fatal miscarriages of justice. In
Herrera v. Collins, decided in January 1993, the Court ruled by
a vote of six to three that neither federal nor Texas courts
were required to hear evidence purporting to prove that Lionel
Herrera was innocent. Under Texas law, post-conviction evidence
must be filed within thirty days of the end of the trial, but
the evidence Herrera's attorneys believe would have acquitted
him was not available to him until eight years later. Chief
Justice William Rehnquist, writing for the Court, declared: "We
cannot say that Texas's refusal to entertain petitioner's newly
discovered evidence eight years after his conviction
transgresses a principle of fundamental fairness." Instead, the
Court urged Herrera to file for executive clemency and cited
this book in support of the proposition that "over the past
century clemency has been exercised frequently in capital cases
in which (a defendant's) demonstrations of 'actual innocence'
has been made." The Court failed to mention the twenty-three
cases we record in which no clemency was granted and a defendant
we believe to have been innocent was executed.
Since late 1991, four score death row prisoners have been
executed in this country, some six hundred have been sentenced
to death, and uncounted thousands have been convicted of murder
and sentenced to prison. We can, alas, be certain that many of
these convictions will eventually be exposed as great
miscarriages of justice. Associate Justice Harry A. Blackmun,
arguing for the unconstitutionality of the death penalty while
dissenting in Collins V Collins (decided in Februrry 1994 )
reminded his colleagues on the Supreme Court, and the nation,
of "the inevitability of factual, legal and moral error" in
life-or-death decisions. The result, he said, is "a system we
know must wrongly kill some defendants." How many such errors
must we commit before we say "Enough?"
Michael Radelet, Hugo Adam Bedau & Constance Putnam,
In Spite of Innocence (1992)
Arguably the most excoriating of the 34 scheduled sessions was
that which dealt with the execution of children and the mentally
retarded. We were told of the question put to his mother by a 9
year-old whilst they waited for a juvenile hearing: 'Where do
they keep the electric chair?' A speaker touched upon ' ... the
demonisation of young males - especially young males of colour'
in the USA, and after the execution of one juvenile offender in
Virginia and two in Texas this year, a speaker forcefully
advocated the presence of international observers for juvenile
cases. 'The USA is literally now the only country in the world
that executes juveniles', Professor Victor Streib told us, going
on to deplore findings of guilt as boys followed by execution as
men. He informed us that whilst there were currently 74
juveniles on death row, over 90% of juveniles sentenced to death
were not executed. In regard to people on death row suffering
from mental impairment, Georgia became the first state to pass
legislation preventing the execution of mentally ill or retarded
individuals after Jerome Bowden was put to death by that state
in 1986. Earlier this year Nebraska became the 12th such state,
with the Federal government having similar safeguards. Florida
professor Christopher Slobogin informed us that more than 10% of
those on death row are mentally ill - a deeply disturbing
revelation, especially in conjunction with the earlier statement
by Stephen Kent that a tenth of this same population is
innocent!
Significantly, a leading expert on the death penalty in the USA,
Professor Michael Radelet, said that we should analyse the
description of the conference carefully. Whilst it was
manifestly wrong to imprison and sentence to death those who
were innocent, he asserted, it was also surely wrong to sentence
to death juvenile offenders, individuals suffering from mental
illness or retardation, men and women inadequately represented
legally, or not represented at all, black people, or people from
ethnic minority groups disproportionately, and the poor
overwhelmingly. The immense power of the state was pitted more
often than not against marginalised and puny defendants.
In the final plenary session a speaker urged the staging of a
similar conference a year or two in the future, with more
wrongfully-imprisoned ex-prisoners participating. This same
speaker advocated the appointment of an Inspector-General of
Wrongful Imprisonment, a kind of Ombudsman, given the propensity
of the government of the USA never to concede that the criminal
justice system is fallible. My scribbled notes at this juncture
record such observations as: 'The death penalty is an
unacceptable anachronism that must be terminated'; 'Every human
being is a person'; 'Capital punishment is the greatest possible
act of state injustice'; 'The drift into easy homicide; 'The
state has no right to kill ... it is the positive duty of the
state not to kill'; 'The full ugliness of the death penalty'.
Professor Marshall proposed a series of changes - systematic
(individual state variations); procedural (that is, establishing
built-in safeguards); evidentiary (for instance, permitting
post- conviction DNA testing - 'the DNA statute is a winner',
Professor Barry Scheck said) and programmatic. The faces both of
the condemned and of the innocent are important and necessary to
remind us of the intrinsic humanity of those consigned to death
row and to possible execution, we were told.
'This Report ends where it started. An innocent person was
convicted of a heinous crime he did not commit. Science helped
convict him. Science exonerated him.
We will never know if Guy Paul Morin would ever have been
exonerated had DNA results not been available. One can expect
that there are other innocent persons swept up in the criminal
process, for whom DNA results are unavailable.
The case of Guy Paul Morin is not an aberration. By that, I do
not mean that I can quantify the number of similar cases ... or
that I can pass upon the frequency with which innocent people
are convicted ... We do not know. What I mean is that the causes
of [wrongful convictions] are rooted in systemic problems, as
well as the failings of individuals. It is no coincidence that
the same systemic problems are those identified in wrongful
convictions in other jurisdictions worldwide. It is these
systemic issues that must be addressed in the future. As to
individual failings, it is to be hoped that they can be
prevented by the revelation of what happened in [specific cases]
and by education as to the causes of wrongful convictions.
* * * * *
The challenge for all participants in the administration of
justice ... will be to draw upon this experience and learn from
it.
A particular challenge presents itself to the Government ...
Some of the recommendations presented in this Report rely, for
their efficacy, on the availability of resources ... The ability
of the adversarial system to prevent miscarriages of justice
relies on the existence of fully competent, fully resourced
adversaries. In this context, miscarriages of justice include
both the conviction of the innocent and the failure to apprehend
and successfully prosecute the guilty ...
... If this Report results in one less innocent person being
charged, or prosecuted or convicted, it will have been worth the
effort.'
Report of the Royal Commission on Proceedings Involving
Guy Paul Morin (1998) (Canada)
The third and closing plenary session provided the large
audience with some disturbing facts. Professor Scheck told us
that whilst some states provided a paltry $5000 per annum as
compensation for wrongly imprisoned individuals, other states
gave nothing, merely opening the prison doors to let the
innocent loose on the streets. Elisabeth Semel - Director, ABA
[American Bar Association] Death Penalty Representation Project
- told us what many of us already knew, that ' ... dozens and
dozens on death row are un-represented [whilst] many more have
lawyers in name only'. Chicago attorney Flint Taylor told us
that police corruption and misconduct is epidemic at this time,
citing 56 cases of police torture during a short period an
Chicago, and stating that there were currently 10 men on death
row in Illinois who had confessions tortured out of them. Ronald
Tabak reminded us that 70% of the ABA had recently voted for a
moratorium on the death penalty, and went on to urge a UN vote
for a moratorium on executions worldwide. Before concluding with
the ringing words, 'Education, education, education' as being
his personal recommendation, insofar as the continuing struggle
to abolish the death penalty was concerned, he referred to the
presence on death row of more than 70 foreign nationals, two of
whom may be executed on 10 December - the very day on which the
50th anniversary of the Universal Declaration of Human rights is
celebrated worldwide. Between 4 and 10 December the 500th
execution since the reinstatement of capital punishment in the
USA is likely - a sombre prospect indeed!
The closing remarks were by Stephen Bright, Director, Southern
Center for Human Rights in Atlanta. 'We have to try to shake
people out of their indifference to injustice' he said, and his
words take me ineluctably to that part of the three-day
conference that was its proper heart, its true central focus -
the dramatic appearance on stage one by one of 29 ' ... men and
women who but for a twist of fate would have marched instead
towards a gas chamber, an electric chair or a gurney to be
injected with poison.' [Chicago Tribune] Each of them intoned
details of state and period of incarceration, followed by the
mantra-like statement that they would be dead today, had the
state had its way. Afterwards, my partner and I spoke to Paddy
Hill, wrongly imprisoned in the UK for more than 16 years, and a
speaker at the first plenary session. He asked us if we had
noted anything unusual about the former death row inmates when
they came on to the stage, and went on to observe that many of
them shuffled across in front of us, as if still ankle-chained,
to pick up a sunflower from a pile lying on a table and place it
in a large glass vase before signing his/her name on a large
board beneath the words:
'We gather together as proof positive of Justice Blackmun's
admonition that "the death penalty remains fraught with
arbitrariness, discrimination, caprice and mistake." We are
alive today despite the criminal justice system's intense
efforts to kill us for crimes we did not commit. It is our
fervent hope that society is capable of learning from its
mistakes.'
Initially the men and women assembled on the stage were
strangely subdued, but when the audience cheered furiously they
were transformed, coming alive, hugging each other, and
animatedly waving their fists in the air. It was a never-to-be-
forgotten, profoundly emotional moment.
It is almost 30 years now since I first became active in the
concerns of Amnesty International, and I was a strong
abolitionist for many years previously. Whilst I am aware the
fact that there are members of Amnesty here in the UK - and even
more in Amnesty USA - who do not regard the death penalty as
being the greatest of all human rights abuses, the ultimate
cruel, inhuman and degrading punishment, for my part I am
intensely proud to hold to the above-stated view. After eleven
separate visits to fellow human beings on death row in Alabama,
Arizona, Florida and Texas, and after witnessing the appearance
of more than one third of the wrongfully imprisoned men and
women released from death row in the USA since 1976, this
Amnesty member can state with confidence that his commitment to
the abolitionist struggle is stronger than ever. Whilst in no
way condoning the heinous crimes committed by many of the
incarcerated individuals on death row, and harbouring deep
compassion for all the innocent victims of such crimes, without
any hesitation whatsoever this activist would unreservedly
consign the barbaric practice of judicial killing to the
wastebasket of history. No truly civilized society should
countenance its use.
................................................................
Postscript
There were three plenary sessions, one on each day of the
conference:
1. Wrongful Convictions & the Death Penalty: World Perspectives
on American (In)Justice;
2. 74 Reasons to Care: The Faces & Hard Realities of Wrongful
Convictions & the Death Penalty; and
3. Looking Ahead: Promoting an Agenda of Meaningful Change
As well as the opening and closing remarks, 34 sessions were
listed, between 4 and 6 running concurrently, from which
delegates could choose, with more than 150 speakers, many of
them eminent and most of the eloquent. Additional sessions were
organised at which freed death row prisoners recounted their
individual experiences. The scheduled session headings illumine
the impressive range of topics:
Keeping Open Avenues of Post-Conviction Relief in the State
Courts; Telling Wrongful Conviction Stories in the Media; The
Sheppard Case: Righting the Wrong 45 Years Later; Investigating
Capital Cases: Death is Different; Jury Instructions: Residual
Doubt & Other Issues; Professional Distance? The Impact of the
Process on Lawyers & Others; The Innocence Network: Planning &
Establishing A Network of Law Schools With Innocence Curricula;
Organizing and Mobilizing Faith Communities; Starting From The
Beginning: Investigating Claims of Wrongful Conviction;
Educating The Jury Through Law Enforcement Expertise;The
Struggle Against the Death Penalty: What Issues Are Involved?;
Training & Funding The Capital Defense; Access to Inmates:
Opening Avenues to the Media and the Public; Regulation &
Memorialization of Confessions; Monitoring Official Misconduct:
Creating A System For Collecting Data on Allegations of Police &
Prosecutorial Misconduct; Ensuring Meaningful Federal Habeas
Corpus; Flawed Forensics: From Misinterpretation to Misconduct;
The Illinois Moratorium Movement: A Case Study; A Primer on
Investigations for Non-Investigators; Grassroots Mobilization
Training; Executive Clemency; Jailhouse Snitches; Working with
the Released: Understanding the Effects of Incarceration;
Understanding DNA; Unearthing Wrongful Convictions: The
Investigator's Story; Building the Fight Inside & Outside the
Courtroom; The Decision to Seek Death: Prosecutorial Discretion,
Race & Local Passion; Another Kind of Innocence: The Execution
of Children and the Mentally Retarded; Post-Conviction Forensic
Testing; Organizing to Stop the Death Penalty: Ideas for
Building the Movement; The Journalist as Investigator in
Wrongful Conviction Cases; Compensation For the Wrongly
Convicted; Working with Inmates: Understanding the Effects of
Incarceration; The Road To Abolition: A Brainstorming Session.
Audio-cassettes were produced for all the sessions, and were
available after the conference at a cost of $15 each. The venue
was Northwestern University Legal Clinic, 357 East Chicago
Avenue,, CHICAGO, Illinois 60611 (Tel: (312) 503-1559; Fax:
(312) 943-7896; email: Jeanine Bell ) Also the
conference was video-recorded - price unknown. I presume the
audio- and video-cassettes remain available.
................................................................
Brian Crowther
USA Death Penalty coordinator, Amnesty International UK
--
Brian Crowther
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