Death row exonerations point to flaws in system

By Alison Bath
alisonbath1@gannett.com

Eight men have been found innocent of the crimes that put them on Louisiana's death row. All were exonerated before they were put to death and ultimately freed from prison.

Most often, those exonerations came after it was revealed that prosecutors withheld evidence that was favorable to the defendant, relied on the testimony of a jailhouse snitch or used faulty eyewitness identification to gain a conviction.

Those men aren't alone.

Nationwide, 139 people sentenced to death since 1973 subsequently have been found innocent and released from death row, according to data provided by the Washington D.C.-based Death Penalty Information Center.

With 23, Florida leads the nation in death row exonerations. Illinois, Texas and Oklahoma take second, third and fourth, respectively. And Louisiana holds fifth place with two other states for the most death row exonerations in the country.

The reasons for these wrongful convictions vary, but advocates say the exonerations are evidence the country's judicial system is fatally flawed when it comes to the death penalty.

"We don't know how many mistakes have been made," said Richard Dieter, Death Penalty Information Center executive director. "It points to a danger that we may have missed some. It raises a number of concerns that innocent people may have been executed."

But death penalty supporters say the exonerations are proof the legal system works. Higher court review and a lengthy appeal process help root out those who are innocent and ensure only the guilty are put to death. Additionally, there are some crimes that are so heinous and some criminals who are so depraved that the only answer is to put them to death, they say.

"It seems to be the character and propensity of this particular person are deserving of more than just locking him up," Orleans District Attorney Leon A. Cannizzaro, Jr. said

Numbers distorted?

While acknowledging some of the exonerated cited by Death Penalty Information Center likely are innocent, death penalty supporters insist the number of death row exonerations nationwide is distorted. They maintain the term innocence has been "redefined" to include individuals freed on a technicality or those not retried due to a lack of evidence. Actually innocent is different from legally innocent, they say.

"None of those exoneration categories establishes or even suggests actual innocence," death penalty supporter Dudley Sharp wrote in an article published at www.prodeathpenalty.com.

That notion is dismissed by opponents.

"Our system of justice from our founding is that the person is innocent until proven guilty," Dieter said.

"It's not a question of knowing absolutely what happened 20 years ago, but only that a person now has had their status of innocence restored. Certainly, those are not people who should be executed."

No single cause

Emily Maw, Project Innocence New Orleans director, said most exonerations don't have a single cause. Rather, a combination of factors paired with an overburdened and underfunded criminal justice system can lead to putting innocent people behind bars.

Among the causes of wrongful conviction:

Prosecutorial and police misconduct, such as withholding evidence or not revealing a witness was a paid informant.
Poor evidence handling and preservation, such as throwing away or careless processing.
Wrong witness identifications or using questionable witnesses to build a case, such as co-defendants who have a vested interest in pointing the finger at someone else.
Those problems, due in part to a "win at all costs" attitude among some statewide prosecutors, not only are resulting in wrongful convictions and increased jurisprudence costs but also are threatening citizens' safety, Maw said.

"It's not cost effective to incarcerate people who are innocent," said Maw, who was careful to point out that not all misconduct by prosecutors or people is willful. "If you incarcerate the wrong person, it's pretty likely that someone else is going to continue doing bad things."

In the case of the eight men exonerated, removed from Louisiana's death row and freed, most occurred after 1997. Some were freed because more sophisticated DNA testing was able to exclude them from the crime. Four of those exonerations — including the precedent-setting case of John Thompson — were the result of problem prosecutions out of the Orleans district attorney's office.

Cannizzaro candidly admits a former prosecutor was wrong when he withheld and destroyed crucial exonerating evidence in an effort to secure a conviction against Thompson for a carjacking in 1984 in New Orleans. The conviction kept Thompson from testifying on his own behalf and was used against him to obtain a death penalty verdict at a subsequent murder trial in 1985.

A judge later ruled that Thompson's rights were violated and ordered a new trial on the murder charge. A jury deliberated 35 minutes then found him not guilty in 2003. Thompson, who was able to testify and who maintained his innocence, was released from prison. He subsequently was awarded $15 million for his wrongful conviction. That verdict is being appealed by the Orleans district attorney.

"The Thompson case was a case that went terribly wrong, but it came out. It was exposed and we are paying a terrible price for that," said Cannizzaro, who was elected to office in 2008, more than two decades after Thompson was convicted. "Results like this cause people to lose confidence in this system."

But Cannizzaro and other district attorneys insist such examples are few — the majority of prosecutors don't break the rules to get a conviction. In the case of Thompson, a "rogue" junior district attorney acted outside the authority and scope of the office and without the knowledge of his supervisors, Cannizzaro said.

Prosecutors work hard to obtain legal and constitutional convictions. Cheating or unethical behavior is not tolerated and could result in a prosecutor being disbarred or prosecuted.

"The satisfaction you get is making sure the victim or the witness has their day in court," Cannizzaro said of a prosecutor's job. "It's not about winning at all costs. It's about doing what is fair and playing by the rules."

Locally, no Caddo, Bossier, Webster or DeSoto inmates have been exonerated from death row. However, the Louisiana Supreme Court ruled in November 2007 that prosecutors erred when they excluded a black man from a Caddo jury in the first-degree murder trial of Robert G. Coleman. As a result, his guilty verdict and death sentence were overturned. He faces a retrial in April for the killing of a retired Blanchard minister.

The death sentence meted out to a Caddo man accused of repeatedly raping a 5-year-old Shreveport girl was overturned in 2008 by the U.S. Supreme Court. That decision drew sharp criticism from Louisiana Gov. Bobby Jindal, who said the court overstepped its authority.

"One thing is clear: The five members of the court who issued the opinion do not share the same 'standards of decency' as the people of Louisiana," the governor said in a news release in 2008.

Other states react

Citing concerns about the reliability of convictions and gross flaws in Illinois' death penalty, Gov. George Ryan commuted the sentences of 167 death row inmates in 2003. Most received life in prison, but three were given 40 years with the possibility of parole. Ryan's actions came after 13 Illinois death row inmates were found to have been wrongfully convicted.

Likewise, New Jersey Gov. Jon Corzine commuted the sentences of eight death row inmates to life in prison in 2007 when he signed legislation abolishing the death penalty in that state. And in March, New Mexico Gov. Bill Richardson abolished the state's death penalty due to a lack of confidence in the justice system being the "final arbiter" when it came to meting out the death penalty for a crime.

Jindal, however, remains a strong supporter of the death penalty. "The most repugnant crimes deserve the harshest penalties, and nothing is more repugnant than the brutal rape of an 8-year-old child," he said in expressing outrage of the U.S. Supreme Court decision declaring Louisiana's death penalty for child rape law unconstitutional.

Even so, Maw said, simple reforms could reduce the possibility of wrongful convictions not only for those under a death sentence but also for others serving life in prison or other sentences. Statewide, a total of 25 people, including a Caddo man who served 22 years in prison for a rape he did not commit, have been found innocent.

Those reforms include:

Changing eyewitness identification procedures, such as photo lineups, to help reduce the incidence of false identifications while not reducing true identifications.
Requiring law enforcement to videotape or record an entire interrogation would ensure investigators were not leading a suspect to make a false confession.
Mandating police, prosecutors and criminal laboratories to retain evidence indefinitely would ensure that evidence would be there when new technology or testing that could prove innocence becomes available.
Louisiana's law allowing the death penalty for a variety of crimes is too broad, making it vulnerable to the discretion of prosecutors and judges who are all too aware of the political consequences of appearing soft on crime, death penalty expert Burk Foster said. Limiting the crimes and extenuating circumstances eligible for the death penalty possibly could decrease wrongful convictions and reduce the number of death row sentences overturned on appeal.

"States should only seek the death penalty in the most limited circumstances," said Foster, a former associate professor of criminal justice at the University of Louisiana at Lafayette who now teaches in Michigan. "It shouldn't be a panacea for any type of violent crime where someone gets killed."

Additional Facts
RELATED LINK
Project Innocence New Orleans http://www.ip-no.org/
Death row exonerations in the U.S. http://www.deathpenaltyinfo.org/innocence-and-death-penalty/
Death penalty supporter Dudley Sharp's argument questioning the validity of death row exonerations http://www.prodeathpenalty.com/innocence.htm
Standards the Death Penalty Information Center used in compiling its listing of death row exonerations http://www.deathpenaltyinfo.org/innocence-list-those-freed-death-row/