Innocents on death row? Justice Blackmun is convinced that innocent people are likely to be executed. Where is the evidence?

IN ANNOUNCING earlier this year that he would "no longer tinker with the machinery of death" by voting to sustain capital punishment, Justice Harry Blackmun relied not only upon an understanding of the Constitution informed more by his own curious conscience than by the text or history of that document but also upon his belief that "innocent persons have been executed ... and will continue to be executed under our death-penalty scheme."

In making this assertion, Justice Blackmun cited a study published several years ago in the Stanford Law Review by two longtime opponents of capital punishment, Hugo Bedau and Michael Radelet. The authors purported to identify "350 cases in which defendants convicted of capital or potentially capital crimes in this century, and in many cases sentenced to death, have later been found to be innocent." This finding was widely heralded in national press releases issued by the American Civil Liberties Union.

Lest such a pseudo-fact gain permanent currency in the capital-punishment debate, Paul Cassell and I, both with the Department of Justice at the time, undertook to study these same cases. Since our findings, also published in the Stanford Law Review, were unaccountably overlooked by Justice Blackmun, I feel compelled to summarize them in order to place the ongoing debate in its proper historical context.

The danger of executing an innocent person, as well as the uniquely irremediable nature of such a mistake, can hardly be denied by even the most committed proponent of the death penalty. The overwhelming majority of Americans who support the death penalty do not imagine that society is able to administer it with "Godlike perspicacity," in Walter Berns's phrase. Rather, they support it because, through a combination of deterrence, incapacitation, and the imposition of just punishment, the death penalty serves to protect a vastly greater number of innocent lives than are likely to be lost through its erroneous application. Some may further believe that a society would be guilty of a suicidal failure of nerve if it were to forgo the use of an appropriate and deserved punishment simply because it is not humanly possible to eliminate the risk of mistake entirely.

Indeed, the Bedau-Radelet study is remarkable not (as Justice Blackmun seems to believe) for demonstrating that mistakes involving the death penalty are common, but rather for demonstrating how uncommon they are. Indeed, to make the finer point, this study--the most thorough and painstaking analysis ever on the subject--fails to prove that a single such mistake has occurred in the United States during this century.

Where Is the Evidence?

ONE cannot state categorically that mistakes never have been made, but the burden properly belongs with those who have endorsed the proposition that innocent persons have been executed with some degree of regularity in this country. Such a burden lies with Justice Blackmun and his allies because in every capital case a unanimous jury of 12 citizens concluded beyond a reasonable doubt that an individual had committed a capital crime, usually first-degree murder. Further, in every one of these cases a trial judge and an assortment of appellate judges concluded both that the trial was fair and that the 12 jurors had acted reasonably in their determination. While such procedures do not give iron-clad assurances that innocent people have not been convicted, they place the burden of proof squarely upon the opposition.

Given that the Bedau-Radelet study has been relied upon by a Supreme Court Justice to demonstrate something relevant to the matter of wrongful executions, it does not seem picky to inquire whether or not wrongful executions are anywhere in evidence. The figure of "350" cases (since increased to 416), which was highlighted by the ACLU in its press releases, does not refer to 350 Americans wrongfully executed. In the majority of these cases, the death penalty either was not available or was not the sentence given. The number includes cases of people who were charged with capital crimes but convicted of lesser offenses, such as second-degree murder or manslaughter; people who were convicted of capital crimes but sentenced to imprisonment rather than death; and people who were convicted of capital crimes but who had their convictions overturned on appeal. Only 200 of the allegedly wrongful convictions in the Bedau-Radelet study involve first-degree murders in which capital punishment was an option, and in only 139 of these 200 cases were the defendants actually sentenced to death. In only 23 of these 139 cases were the death sentences actually carried out.

So, if there were wrongful executions, it is with regard to these 23 cases, not with regard to those cases in which, as Bedau and Radelet put it, "relatively adventitious factors" occurred to prevent the execution of allegedly innocent people. But appellate review, the exercise of judicial discretion in sentencing, and legislative decisions not to prescribe capital sanctions for crimes falling short of first-degree murder are not "relatively adventitious factors." Focusing on trial-court dispositions alone completely ignores the procedural protections against erroneous convictions that are built into the system. "Relatively adventitious' factors have, in fact, interceded in 94 per cent of all those cases in which Bedau and Radelet concluded that innocent people were convicted of capital offenses.

Thus, only 23 of the cited cases are relevant to Justice Blackmun's concerns. What is the standard by which the authors assure us that miscarriages of justice occurred in these cases? Their standard is whether "a majority of neutral observers, given the evidence at [the authors'] disposal, would judge the defendant in question to be innocent." But as they acknowledge, "in none of these cases ... can we point to the implication of another person or to the confession of the true killer, much less to any official action admitting the execution of an innocent person."

Instead, Bedau and Radelet appear to have scoured defendants' briefs, collected newspaper rumors, transcribed the "unshaken convictions" of defense attorneys, and identified lapses in prosecutorial conduct or trial procedure. On the basis of such evidence, the authors assert their own conclusions that people sentenced to death "have later been found to be innocent" or "proved to be innocent."

Guilty after All?

EXAMINATION of individual cases cited by the authors will only confirm the reasonableness of the jury's verdict to at least some "neutral observers." Consider, for example, the case of James Adams, one of the 23, who was convicted of first-degree murder and executed in 1984. His case is significant in that it is the only alleged example of an erroneous execution since capital-punishment procedures were radically revamped by the Supreme Court in 1976. Here is the authors' description of the evidence:

Witnesses located Adams's car at the time of the crime at the home of the victim, a white rancher. Some of the victim's jewelry was found in the car trunk. Adams maintained his innocence, claiming that he had loaned the car to his girlfriend. A witness identified Adams as driving the car away from the victim's home shortly after the crime. This witness, however, was driving a large truck in the direction opposite to Adams and probably could not have had a good look at the driver. It was later discovered that this witness was angry with Adams for allegedly dating his wife. A second witness heard a voice inside the victim's home at the time and saw someone fleeing. He stated this voice was a woman's; the day after the crime he stated that the fleeing person was positively not Adams. More importantly, a hair sample found clutched in the victim's hand, which in all likelihood had come from the assailant, did not match Adams's hair.

Despite being presented with this evidence "a month before Adams's execution," Florida Governor (now Senator) Robert Graham "refused to grant even a short stay so that these questions could be resolved."

This analysis of the Adams trial record, which Justice Blackmun has relied upon in his opposition to the death penalty, seriously distorts and misrepresents the evidence. A more thorough analysis of the testimony reveals the following:

1. The witness driving the truck was able to identify Adams as the driver of the car because the car was weaving so badly that the witness had to pull over to the far side of the road and stop. Indeed, the car came very close to hitting him. The witness identified Adams from a line-up the day after the incident.

2. With respect to Adams's dating the witness's wife, such a theory was raised by the defense counsel in his opening argument. However, no evidence to that effect was ever presented at trial. Indeed, Adams never even raised the issue in his post-trial motions, although it would have been relevant to the witness's credibility.

3. In recalling having heard a woman's" voice in the house, the second witness was referring to the voice not of the killer but of the person being killed. Furthermore, his general description of the person fleeing the house matched Adams. This witness said only that he could not identify Adams with certainty as the fleeing person, not that it was "positively not Adams."

4. The allegedly exculpatory hair sample was made known to Adams's counsel well before trial. He chose not even to offer it either at trial or on appeal. Most likely, the hair had come from sweepings of the floor of the ambulance carrying the victim to the hospital or from one of several people who attempted to treat the victim's wounds at the death scene, not from the killer's head.

5. Adams's alibi defense was that he was not in the area of the crime on the day of the crime. He was contradicted on this by three other witnesses who placed him or his car at the scene shortly before the crime. In addition, Adams's own alibi witness contradicted him on his whereabouts at the time of the crime.

6. Several hours after the murder, Adams took his car to a body shop and asked to have it painted a different color.

7. When arrested by police later that day driving a friend's car, Adams had in his possession a twenty-dollar bill stained with blood of the victim's type. When asked about the blood, Adams said that it had come from a cut on his finger. Adams's blood type did not match that on the bill.

8. When arrested, Adams had in his possession his own bloodied clothing; the blood matched the victim's. He was also found in the possession of jewelry and eyeglasses from the victim's house.

9. In addition, evidence was presented concerning Adams's demeanor following the murder, the circumstance of his having $200 in his possession shortly after having borrowed $35 from two friends, the likelihood that this amount of money in the particular denominations had been in the victim's possession that day, and a series of conflicting statements made by Adams to the police.

All in all, evaluation of the Adams evidence would be likely to persuade few "neutral observers" that the jury had acted unreasonably in determining that Adams was guilty of homicide. Bedau and Radelet give little weight to the considered judgments of juries and judges who have decided and reviewed cases, but it is unclear why the judgments of these particular "neutral observers" are accorded so little deference.

The authors are able to maintain that Adams was a victim of a "miscarriage of justice" only by relying upon a highly skewed picture of the evidence. Moreover, this treatment of the Adams case is not an aberration. Rather, it is systematic throughout their analysis of these instances of allegedly wrongful execution. The Adams case is far from the weakest of those argued by Bedau and Radelet.

Next Case

IN THE case of Everett Applegate, executed for murdering his wife with rat poison in 1938, the authors claim that he was innocent because "virtually no evidence against him existed beyond [a co-defendant's] unsupported word." Even if that were true, which it is not, it would not compel the conclusion that Applegate was innocent. Additional evidence, however, was supplied at trial relating to Applegate's motives for killing his wife (his desire to marry another woman and his wife's intention to disclose to authorities information about his continuing sexual relations with a minor), his purchase of rat poison at a drugstore the night of the murder, his admission that he had given his wife that evening considerable amounts of eggnog which happened to be poisoned, and his refusal to consent to an autopsy on his wife.

In the case of Sie Dawson, convicted of murdering a 2-year-old child in 1964, Bedau and Radelet base their characterization of his execution as erroneous upon the fact that "years later, newspaper stories revived doubts that had surrounded the conviction from the beginning." However, Dawson had provided a written confession to the police only after learning that an eyewitness was alive; he had repeated the confession 12 days later; the confession was corroborated in its details by independent evidence from other witnesses; and an eyewitness to the crime--the 4-year-old brother of the victim, who had been left for dead--told his father and police that Dawson was the one who had killed his brother.

In the case of Stephen Grzechowiak and Max Rybarczyk, executed in 1930 for killing a man during a robbery, Bedau and Radelet choose to ignore the confessions of two of the three people involved in the murder (including Rybarezyk's, made at the behest of his mother), the oral confessions of the third individual before several witnesses, and Rybarczyk's simultaneous written confession to another slaying which was corroborated in its details. Further, none of the three argued that he had ever been subject to inappropriate police interrogation.

In the case of Charles Louis Tucker, executed in 1906 for stabbing a young woman to death during a robbery, Bedau and Radelet disparage the evidence as "circumstantial only." There is nothing inherently inadequate about "circumstantial" evidence. In this case, such evidence included a blood-stained knife that matched both the wounds on the victim's body and tears in her corset, Tucker's aborted efforts to destroy the knife, a slip of paper bearing Tucker's handwriting found near the body, a bank note in Tucker's possession identical to one removed from the victim's purse, and a pin removed from the victim's body and found in Tucker's coat pocket.

Several of the cases suggest an analysis motivated more strongly by ideology than by a commitment to following the evidence wherever it might lead. In the case of the legendary union organizer Joe Hill, executed in 1915 for shooting a shopkeeper, Bedau and Radelet cite a work of fiction--an "act of imagination," in their words--to support their conclusion that Hill was not guilty. This, despite eyewitness testimony that linked Hill to the crime, evidence that he sought medical attention for a fresh bullet wound the evening of the murder, evidence that the bullet was of the same type as that fired by the victim at his assailant, evidence that Hill asked his doctor not to reveal his wound, and an admission by Hill that he had discarded a gun shortly after leaving the doctor.

The inclusion of Sacco and Vanzetti among the erroneously executed has been answered by Francis Russell, among many others, at far greater length than can be done here.

Not Infallible, but ...

AGAIN, it cannot be disputed that error is possible in the process of imposing any criminal sanctions, including the death penalty. But, where juries and judges have unanimously concluded and repeatedly re-concluded that there is no reasonable doubt of a person's guilt, those who would question these determinations carry the burden of proof.

After "sustained and systematic" research, Bedau and Radelet have pointed to 23 out of more than 7,000 executions during the twentieth century in the United States which they believe to have been erroneous. Presumably, these would be among the most compelling cases for the authors' proposition. Yet in each of the cases where there is a record to review, there are eyewitnesses, confessions, physical evidence, and circumstantial evidence in support of the defendant's guilt. The authors' claims that the defendants were later "found" or "proven" to be innocent are utterly unpersuasive.

Concededly, it can be a difficult task to raise reasonable doubts about guilt in long-forgotten cases, let alone to prove innocence. However, it is Bedau and Radelet who argue that existing law should be changed because of an identifiable harm; accordingly, they bear the burden of producing credible evidence that the harm exists. It is hard to imagine their evidence satisfying such a burden, except for Justice Blackmun.

None of this is to deny the legitimacy of arguments against the death penalty predicated upon moral opposition. Yet these arguments are not at the core of what either Bedau and Radelet or Justice Blackmun argues. Bedau has written elsewhere that it is "false sentimentality to argue that the death penalty ought to be abolished because of the abstract possibility that an innocent person might be executed when the record fails to disclose that such cases occur." Justice Blackmun, too, does not argue in terms of the inevitability of error but rather on the grounds that the present system is incapable of delivering "reliable sentences of death."

While the most inveterate opponents of capital punishment are not influenced by whether or not it is administered in a "reliable" fashion, Bedau and Radelet sought to develop a broader base of opposition to the death penalty. Justice Blackmun, who in the past did not join his former colleagues William Brennan and Thurgood Marshall in moral opposition to capital punishment under all circumstances, reflects this intended audience. Those who look at the Bedau-Radelet study with an open mind, however, will see that it speaks eloquently about the extraordinary rarity of error in capital punishment.