- The Washington Times - Tuesday, April 25, 2000

Can reasonable people dispute that the government should confine the death penalty to persons guilty of the crime charged? And can reasonable people deny that the climbing number of exonerations of death row inmates on the ground of actual innocence creates chilling worries on that score?

Those questions make both urgent and compelling enactment of the cool-headed bill (S. 2071) by Sen. Patrick Leahy, Vermont Democrat, to upgrade the reliability of verdicts in capital cases.

Manifold reasons justify the death penalty (which the U.S. Supreme Court has restricted to crimes of homicide): retribution against offenders whose killings are earmarked by shocking and barbaric wickedness, something akin to the Adolf Eichmann example; to control prison inmates already laboring under life sentences with no parole possibilities; to deter the murder of police or crime witnesses in the hope of escaping punishment of a lesser crime; and encouraging guilty pleas contingent on cooperation with prosecutors in murder conspiracy cases in exchange for a non-capital sentence.

Whether death sentences in general deter crime is hotly disputed. But if they do, their effects would not even begin to dent the crime problem.

A decent respect for life also demands scrupulous concern for the reliability of verdicts in capital punishment trials. Otherwise, the death penalty game is not worth the gamble of executing the innocent a shameful stain on any system of justice and life sentences (perhaps in solitary confinement) without parole should be the maximum.

The Leahy bill laudably aims to preserve the death penalty by slashing the prevailing and highly worrisome risk of executing the innocent through greater DNA testing and competent defense counsel.

Unzip your ears to these facts. Since the Supreme Court in 1976 affirmed the constitutionality of the death penalty for heinous and aggravated murders, 610 death sentences have been implemented. Concurrently, 85 death row prisoners have been released not for technical procedural flukes but because of exculpatory evidence establishing their innocence. In other words, for every seven executions approximately one capital sentence has been levied on an innocent defendant.

Moreover, the detections of these grim injustices has been more haphazard than systematic. The cases of Randall Dale Adams and Antony Porter are emblematic.

The former was released after attracting the attention of cinematic genius, Earl Morris. His gripping movie, "The Thin Blue Line," discredited the prosecution's case to a nationally awakened audience.

Mr. Porter had lived with the Sword of Damocles for 16 years, and in 1998 his hourglass fell to 48 hours. He was saved from wrongful execution by the plucky work of Northwestern University undergraduate journalism students, who proved Mr. Antony's innocence, a verdict that the State of Illinois conceded.

Quirks and citizen altruism, however, are woefully inadequate safeguards against executing the innocent. While nothing in life is absolutely certain but death and taxes, the Leahy bill would add two muscular measures to make the truth-finding process in capital cases as reliable as is reasonably feasible.

First, post-conviction DNA testing of biological material would be available to an inmate through court order upon a demonstration that the test could provide noncumulative exculpatory evidence; that the material is actually or constructively possessed by the government; and that no previous DNA test had been conducted or that new DNA techniques might reasonably yield more accurate and probative evidence. Jurisdictions also would be directed to preserve biological material gathered in the course of an investigation during the period of the criminal's incarceration for the purpose of possible DNA testing.

Of vastly greater importance to reliable death penalty verdicts, however, is securing competent defense counsel in lieu of incompetence or worse. The U.S. Supreme Court has repeatedly celebrated the indispensability of reasonably skilled lawyers to reliable verdicts. In the infamous Scottsboro, Ala., criminal justice farce, Powell vs. Alabama(1932), Justice George Sutherland, speaking for a unanimous court, lectured: "Left without the aid of counsel [the accused] may be put on trial without a proper charge, and convicted on incompetent evidence, or evidence irrelevant to the issue or otherwise inadmissible. He lacks both the skill and knowledge to prepare his defense, even though he have a perfect one. He requires the guiding hand of counsel at every step of the proceedings against him. Without it, though he be not guilty, he faces the danger of conviction because he does not know how to establish his innocence."

Capital cases generally feature indigent defendants. And their court-appointed lawyers are frequently deficient because of austere rates of reimbursement or plain laziness.

For instance, the lawyer appointed to represent Ronald Keith Williamson was uncurious about the fact that another had confessed to the crime. He neglected to raise the exculpatory confession at trial, Williamson was convicted, and was later proven innocent through DNA testing after a 1997 federal appeals court decision overturned the trial verdict because of inert or anemic lawyering.

The Leahy legislation would end this blight in death penalty prosecutions by instructing the director of the Administrative Office of the United States Courts to creating a scheme for credentialing attorneys and providing reasonable pay in capital prosecutions against indigent defendants.

Aren't executions too definitive to be left to chancy discoveries of innocence? If the government does not want to pay the price of turning square corners in capital cases, shouldn't the prosecution accept a lesser maximum punishment?

Bruce Fein is a lawyer and free-lance writer specializing in legal issues.

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