Bad List: A suspect roll of Death Row 'innocents'.

A terrible injustice was done to Ray Krone. In 1992, he was sentenced to death for the murder of Kim Ancona, a Phoenix cocktail waitress. He spent three years on Death Row before his first conviction was overturned. On retrial, he was sentenced to life in prison. All the while, he maintained that he was innocent. Eventually, DNA analysis proved that he was telling the truth: Another man had committed the crime. In April of this year, Krone was freed.

In Washington, D.C., Sen. Russ Feingold marked the occasion. Krone, the Wisconsin Democrat said, was "the hundredth person to be released from Death Row in the modern death-penalty era" -- since, that is, the Supreme Court allowed the practice to resume in 1976. "How many innocent Americans today sit in their prison cells wrongly accused, counting down the days until there are no more?" Feingold asked. "There have now been 100 exonerations and 766 executions since the early 1970s. In other words, for every seven to eight Death Row inmates executed by the states or federal government, one has been found innocent and released from Death Row. . . . One risk, one error, one mistake, is one too many. But 100 mistakes, proven mistakes, qualifies as a crisis. And a crisis calls for action." Feingold wants a national moratorium on the death penalty. Failing that, he favors his colleague Patrick Leahy's Innocence Protection Act, which backers say would improve the administration of the death penalty.

Krone's case is certainly disturbing. But have there really been 100 such "proven mistakes," as Feingold put it, in the last quarter century? The senator, like the many others who make this claim, relies on the "Innocence List" compiled by the Death Penalty Information Center, a group that opposes capital punishment. According to its list, the total number of people who spent time on Death Row but were later exonerated is now up to 102.

But most of the cases on the list are very different from that of Ray Krone. Nobody is going to make a TV movie anytime soon about Jonathan Treadaway, another of DPIC's "Cases of Innocence." Treadaway was convicted in 1975 for sodomizing and murdering a six-year-old boy. His palm prints were found outside the victim's bedroom window, and he said that he could not explain their presence. Pubic hairs on the victim's body were similar to his.

But the Arizona supreme court reversed his conviction. The trial court had admitted evidence that Treadaway had committed sexual acts with a 13-year-old boy three years before the murder. The court held that to be irrelevant without "expert medical testimony" that this act demonstrated a continuing propensity to commit such acts. The court also ordered that at Treadaway's retrial, his statements about the palm prints not be admitted. Treadaway had made those statements voluntarily, but without being advised of his Miranda rights or waiving those rights. Finally, the court excluded some evidence that three months before the murder, Treadaway had been found naked in a young boy's bedroom trying to strangle the boy.

Treadaway didn't get off Death Row because it was proven that the cops had the wrong man. Technicalities spared him.

Jeremy Sheets, another of DPIC's "innocents," got off Death Row because the key witness against him couldn't testify. That was his best friend, Adam Barnett, who told the police that the two of them -- both white men -- had been angry about all the white women they knew who were dating black men. To get even, they kidnapped and raped a black high- school student. Barnett said that Sheets had then stabbed her to death. Barnett committed suicide in jail. Sheets was sentenced to death on the basis of Barnett's taped confession (and Sheets's own testimony, which the jury found unbelievable). The Nebraska supreme court reversed his conviction because Sheets's lawyer had not been able to cross-examine the dead Barnett. Sheets walked.

The lead police investigator in the case called the result a "travesty," but it was probably the right legal call. What it wasn't was an "exoneration" of Sheets.

John Henry Knapp confessed to the arson-murder of his children and then recanted the confession. He was tried three times. Twice juries hung 7- 5 for conviction; in between, he was found guilty and sentenced to death. Eventually the case was settled with a plea bargain. He's on the "Innocence List," too.

In twelve of the cases on DPIC's list, DNA evidence indicates that the men on Death Row should never have been put there. In another 20 or so, there is other evidence to the same effect. In around 32 cases, then, it has been proven that men on Death Row were innocent of the crime charged. (That's out of more than 7,000 people on Death Row in the modern era.)

No such thing has been proved in the other cases. In some of them, the details are sketchy. Some death sentences were reversed in unpublished opinions. Some cases had to be abandoned because evidence deteriorated with the passage of time. In other cases, people who had participated in murders were removed from Death Row because it was not known whether they had actually pulled the trigger or struck the fatal blow themselves. They were hardly "innocent." There are at least as many Treadaways as Krones on the list. All of them are treated by DPIC, equivalently, as "innocent" and "exonerated."

Richard Dieter, executive director of DPIC, says that former Death Row inmates deserve a presumption of innocence when the charges against them are dismissed. They are indeed entitled to a legal presumption of innocence (in general: John Henry Knapp isn't). But the list leads people to think that innocence has been proven when the most that can be said is that the legal system cannot establish guilt beyond a reasonable doubt. Most of the people who refer to the list clearly have no idea that many of the "innocents" on it are probably guilty.

There's another problem with the "Innocence List." It's meant to be a critique of the death penalty as it's applied today. But the list includes death sentences that were imposed before today's system emerged. Some on the list got off Death Row because the Supreme Court invalidated the death-penalty statute under which they had been sentenced.

The list is nonetheless widely cited as evidence that the risk of executing the innocent is high. Sen. Leahy wrote earlier this year that "nearly 100 innocent people have been released from Death Row since 1973." The New York Times, the ACLU, and George Will have relied on DPIC's list. It has even been cited, indirectly, at the Supreme Court: The Los Angeles Times did a story on Krone as the hundredth exonerated Death Row inmate, and Justice Stephen Breyer referred to the story in his opinion in a death-penalty case.

Another piece of misinformation is widespread in the death-penalty debate: the claim, from a study led by Columbia University professor James Liebman, that death-penalty cases have a "68 percent error rate." It turns out that the study counts it as an "error" any time a death sentence is reversed at any stage of appellate review -- even if the sentence is ultimately upheld. California was found to have an 87 percent "error rate," but half of it could be accounted for by the fact that for several years the chief justice of the state's supreme court was an opponent of the death penalty who kept issuing reversals. In most of the cases in the study, moreover, it was the death sentence that was (sometimes temporarily) overturned, not the murder convictions.

The "over 100" and "68 percent" figures are being used to persuade people that the death penalty is being badly administered and needs to be reformed, if not abolished. The leading reform on offer is Leahy's Innocence Protection Act. In yet another distortion, media coverage of Leahy's bill mostly concerns its provisions to make it easier for Death Row inmates to obtain DNA tests that might prove their innocence. But there isn't much controversy about DNA testing. Most states that have capital punishment have been increasing their use of it. "If Leahy's bill were only about DNA, it would have passed three years ago," says one Senate Republican aide.

The sticking point in the debate is that Leahy's bill would force states to reconfigure their systems for providing Death Row inmates with lawyers. Either states would have to comply with onerous federal mandates, or private organizations that represent such inmates would be given federal money. Opponents of the bill assume that the mandates were designed to be so onerous that states would go for Option Two: taxpayer funding of anti-death-penalty activists.

People facing execution ought to have competent counsel. But there's no crisis calling out for a federal takeover of the area. In most of the 32 cases in which the wrong man faced execution, it wasn't the result of defense lawyers' mistakes. It was the result of gross misconduct by prosecutors and police, or of overreliance on the testimony of jailhouse snitches. Funding 50 miniature versions of the Death Penalty Information Center won't solve those problems. It may, however, lead to some people's release from Death Row -- whether or not they're guilty - - so that they can be added to the list.