Wrongful Death Sentences: Rethinking Justice in Capital Cases 9781588269201

Citation preview

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Wrongful Death Sentences

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Wrongful Death Sentences Rethinking Justice in Capital Cases Cathleen Burnett

b o u l d e r l o n d o n

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Published in the United States of America in 2010 by Lynne Rienner Publishers, Inc. 1800 30th Street, Boulder, Colorado 80301 www.rienner.com and in the United Kingdom by Lynne Rienner Publishers, Inc. 3 Henrietta Street, Covent Garden, London WC2E 8LU © 2010 by Lynne Rienner Publishers, Inc. All rights reserved Library of Congress Cataloging-in-Publication Data Burnett, Cathleen. Wrongful death sentences : rethinking justice in capital cases / Cathleen Burnett. p. cm. Includes bibliographical references and index. ISBN 978-1-58826-716-0 (hardcover : alk. paper) 1. Capital punishment—United States. 2. Judicial error—United States. I. Title. KF9227.C2B87 2010 345.73'0773—dc22 2010000223 British Cataloguing in Publication Data A Cataloguing in Publication record for this book is available from the British Library. Printed and bound in the United States of America The paper used in this publication meets the requirements of the American National Standard for Permanence of Paper for Printed Library Materials Z39.48-1992. 5 4 3 2 1

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Contents

List of Tables Preface 1

vii ix

The Construction of Innocence: Introduction of a New Framework

1

2

Actual Innocence

21

3

False Confessions and False Guilty Pleas

51

4

The Accomplice

77

5

Self-Defense

99

6

State of Mind

127

7

The Spectrum of Innocence: Focusing on Behavior

153

References Index About the Book

167 181 188

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Tables

2.1 Time Limitations for New Trials

26

2.2 Characteristics of Federal Actual Innocence Standards

29

3.1 Recommendations for Normative Behaviors for Police and Prosecutors

73

4.1 States with Accomplice Connection to Death Penalty Statutes

82

4.2 Recommendations for Reliability in Making the Prosecution’s Case

93

6.1 Insanity Standards for Affirmative Defense in Death Penalty States

133

6.2 Missouri Capital Cases with Psychological Claims

142

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Preface The presumption of innocence is not just a legal concept. In commonplace terms, it rests on that generosity of spirit which assumes the best, not the worst, in the stranger. —President Kingman Brewster, Yale University (in Kabaservic 2004, p. 458)

In teaching criminal justice, I find it impossible not to communicate that our legal system is full of contradictions and inequities. I have found this becoming particularly clear in my work with the death penalty. Missouri, the state where I live and work, is ranked fifth in executions in the United States since reinstatement of the death penalty. Through connections with the sixty-seven men condemned and executed in Missouri since 1989, I have come to learn that the cases are rarely as simple as they are portrayed in the media. There the focus is primarily on the spectacle of the crime and on execution as a means of retribution and vindication for the victims. When reading the clemency petitions of each of the condemned men, however, a more challenging story emerges. In all cases that ended in execution, I have found that the condemned have received inadequate trial defense. The cases of the three persons who received exoneration from their death sentences in Missouri were no different from most of the others, except for chance circumstances such as someone having doggedly pursued the case. Even so, none of the exonerations came easily. Convincing background information from each death penalty case has led me to the conclusion that many more errors have been made in determining who gets a death sentence than are officially acknowledged. As a result, I have felt the need to explore the language used in talking about innocence, reassessing the distinctions made between guilt and ix

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innocence. From this study I have been able to create a new framework for conceptualizing the idea of innocence. This framework provides the anatomy of this book, shared as a way of changing the manner in which we think about innocence and guilt in capital litigation—with implication for the broader criminal justice system. To demonstrate the usefulness of this framework, I have incorporated data about former death row inmates Joe Amrine, Bruce Kilgore, Roy Roberts, Lloyd Schlup, Ralph Feltrop, and Samuel McDonald, among others. People have every right to be worried about the implications of the growing number of exonerees, because wrongful death sentence cases expose problems that go directly to the root of our criminal justice system. As of February 2010, there were 139 individuals in the United States who had been exonerated of responsibility for the crime that put them on death row (Death Penalty Information Center 2010). These persons have been returned to the legal status of innocent by the legal system, despite having been subjected to the most serious and irrevocable penalty. It is appropriate to ask what happened in these situations and to propose how problems found in the death penalty system could be fixed in order to prevent such miscarriages of justice. This book is concerned with more than these actually innocent former death row exonerees. In it I begin by rethinking the concept of innocence and thereafter suggest a new framework that identifies varied conceptions of innocence, demonstrating their significance for reforming the structures in the capital justice system that have led to known and unknown wrongful death sentences. Current events keep changing the environment within which this book is situated. Since I began this project, two states have repealed the death penalty (New Jersey and New Mexico), and New York has not reinstated its death penalty after a court declared the statute unconstitutional. During each term, the Supreme Court confronts new issues that develop across the nation. Increasing national media attention and abolition efforts have brought death penalty issues onto the public agenda in ways that have not dented the consciousness of the public before. These trends suggest that the death penalty is on the wane; nevertheless, the urgency of the repeal cause remains as the nation continues to execute. *** This work would not have been possible had not my generous colleagues at the University of Missouri–Kansas City graciously agreed to

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cover my teaching responsibilities so that I could have a research leave. I am thankful for their kindness. I must point out the awesome dedication to the rule of law and the common good shown by the attorneys who did the extraordinary work of preparing postconviction appeals and clemency petitions—despite lack of support from the public or from the state—most especially, Gardiner B. Davis, Leonard J. Frankel, Michael E. Gross, Jerilyn Lipe, Bruce Livingston, Antonio Manansala, Sean O’Brien, Burton Shostak, Richard H. Sindel, Mark Thornhill, and John Tucci. Writing is not easy. It is important to get the details right and to communicate clearly. I am so appreciative of my friends Paul and Neil, as well as the editors at Lynne Rienner and the anonymous reviewers, who gave significantly of their time to make insightful comments, suggestions, and criticisms, making my manuscript much better than it was before their involvement. Of course, any errors are certainly my own responsibility. And to my dear friends Paul, Martha, and Sally, who encouraged me throughout this writing process, keeping my fingers to the keyboard and my use of time accountable, I am indebted for your support. Thank you. —Cathleen Burnett

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1 The Construction of Innocence: Introduction of a New Framework The concept of “actual,” as distinct from “legal,” innocence does not translate easily into the context of an alleged error at the sentencing phase of a trial on capital offense. —Smith v. Murray, 477 U.S. 527 at 537 (1986)

As of February 2010, there were 139 individuals in the United States who since 1973 had been released from death row and returned to the legal status of innocent by the legal system (Death Penalty Information Center 2010). These persons represent serious errors made in exacting upon them the most serious and irrevocable penalty. The magnitude of potential miscarriages of justice unfortunately is greater than usually recognized because, as will be developed, innocence is a much broader concept than usually understood. As the numbers of exonerated individuals continue to grow, it becomes increasingly difficult to ignore the systematic problems that are exposed throughout death penalty litigation. These personal witnesses to the reality of wrongful death sentences inspire a rethinking of justice in capital cases. It is the thesis of this book that it is necessary to modify the concept of innocence, to broaden the class of cases included within the rubric of innocence, and to account for the subjectivity of determining innocence in the death penalty context. The purpose of this book is to explore the juxtaposition of three aspects of innocence that until now have not been compared with each other. The new framework presented will require readers to change their view of what has been the accepted wisdom about the concept of inno1

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cence. The three concepts that will be used to modify and represent certain types of innocence are actual, factual, and legal. Actual innocence describes the most common understanding of innocence, indicating that the accused defendant did not perform the act, that is, kill the victim, and was not present. Factual innocence refers to those situations in which the defendant was an accomplice but not the actual killer. The term legal innocence refers specifically to those situations in which there are justifiable reasons or excuses for committing the killing: for example, the killer acted in self-defense or lacked the mental capacity to understand the act, or the killing was an accident. Although the dictionary defines the word innocence as “the absence of guilt,” in the legal world where degrees of guilt exist, it might make sense then to consider that degrees of innocence also exist.1 In fact, the terms factual and legal innocence are familiar to the legal profession, but the use that will be made of them in this book will be decidedly different. Instead of degrees of innocence, the focus is on categories of innocence. In the framework to be outlined, no facet of innocence is lesser than any other because such facets refer distinctly to categories of crime, not degrees of crime. Should anyone be tempted to think of these facets as first-degree (actual), second-degree (factual), and third-degree (legal) innocence, it will soon be clear that such ordering is not appropriate in the context of the death penalty. When the defendant claims any type of innocence, the desired outcome is the same legal status: not guilty of the capital crime and therefore not eligible for the death penalty sentence.

Organization of the Book In addition to those actually innocent of the death penalty, people are on death row who might not be there if innocence were defined in the more expansive manner that is being developed through the following research questions: 1. Can the concept of innocence be legitimately expanded to expose substantially more errors in death penalty cases than are currently recognized? 2. How do certain legal doctrines and practices function in death penalty cases to otherwise suppress the determination of innocence? 3. If innocence is being systematically shortchanged, what changes in the system would be compelling to reform the death penalty system so as to reduce wrongful death sentences?

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These questions will be addressed in the pages to come through a method of inquiry that draws from legal theories and evidentiary standards used to determine guilt in death penalty cases. I have focused my research on wrongful death sentences by examining organizational sources and identifying policies, statutes, and court decisions that combine to give structure to capital litigation and that create unintentional risks for miscarriages of justice. These sources will demonstrate that innocence in capital murder cases is variously constructed and will illustrate the fluidity of the concept of innocence that evolves into what might be called a spectrum. Each chapter introduces a new facet of the innocence framework and presents a case example to illustrate the pertinent issues. After the introduction to the proposed innocence framework in this chapter, Chapter 2 explores the most familiar situation of actual innocence, in which the condemned prisoner was not at the scene of the crime and had nothing to do with it. The greater part of the chapter shows that there are many systematic barriers to recognizing those who are actually innocent and then concludes by offering some suggestions for restoring balance in the administration of justice. Chapter 3 continues the discussion of actual innocence by investigating the special problems of false confessions and of plea bargaining— both of which utilize basic tools and commonly accepted investigative procedures that ironically frustrate the recognition of an actually innocent person and contribute to the development of increasing risks for miscarriages of justice. How this happens is discussed in light of case law and jury decisionmaking to unpack the complexity of negotiating guilt or innocence of the capital crime. The chapter concludes by offering some recommendations to reduce miscarriages of justice. Chapter 4 explores the circumstance of factual innocence, in which the prisoner was in some way involved with the actual killer and is considered an accomplice—although not the actual killer. The question before the jury in these cases is how to weigh the facts of the case to determine the degree of guilt. Here prisoners make the claim of being not guilty (and therefore factually innocent) of first-degree capital murder because of their lesser involvement in the crime. Drawing from what is learned in Chapter 3, that the organizational system generally rewards those who plead guilty and punishes more severely those who insist on their factual innocence, significant issues of proportionality are revealed that pertain to the interrelations of the roles of the accomplice and the codefendant. These disproportionalities are examined in light of the felony murder situation, where it will be shown that the elements of the crime are insufficient and proof beyond a reasonable doubt is limited.

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Chapters 5 and 6 present material that deals explicitly with the intentionality element of capital murder and explains that legal innocence applies to persons who have killed but as a matter of social policy do not deserve the ultimate penalty. These defendants make an affirmative defense that puts the burden on them to prove their explanations to the juries. Chapter 5 discusses the situation in which the defendant admits to killing the victim but offers a self-defense justification to negate the deliberateness and intentionality (elements of first-degree murder) of the action. This is the chapter in which the obstacles of ineffective assistance of counsel and jury biases are introduced even though they are relevant in all types of criminal cases. Presented in Chapter 5, this material emphasizes the special tenuousness of the self-defense claim, which is especially vulnerable to these factors. Chapter 6 examines the situation in which the defendant admits to killing the victim but offers the excuse that his or her state of mind negates the deliberateness and intentionality (elements of first-degree murder) of the action. Through these two chapters, confusion between the mens rea (guilty mind) element of the crime and the affirmative defense of legal insanity is dispelled and thereby demonstrates that these wrongful death sentences are in themselves arbitrary, subjective, and easy to generate by simply changing the rules. Finally, Chapter 7 concludes by exploring the consequences of adopting this broader understanding of the spectrum of innocence for the administration of justice. The public’s assumption is that what is involved in handling death penalty cases is simply a binary issue of guilt or actual innocence: either the person did the crime or did not— yes or no. Further, the public assumes that the process of ascertaining this actual innocence is assured by the legal process involved, complete with an appeal process that promises to catch and correct any mistakes that might be made. The careful exploration of the whole process disclosed in these pages concludes that not only are the trial and appeal processes deeply flawed but also the whole idea of actual innocence on which this jurisprudence rests masks the complexity of the very idea of innocence. Through the understanding gained in this endeavor, that the concept of innocence functions as a spectrum, it is my hope that the significant lack of fundamental fairness and equality in the rules currently in place for handling death penalty litigation is unequivocally documented. Without such exposure, the public and the courts will remain unsympathetic to the numerous claims of factual or legal innocence coming from the prisons. It is my hope that more of these complaints will be taken seriously as those with the power to

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make a difference respond to reduce the inequities and contradictions that pervade the criminal justice system.

The Traditional Language of Innocence Commonly understood, the terms factual (as in innocence) or actual have been used interchangeably in practice and in legal literature. To be factually innocent has meant the person was actually innocent of doing the criminal deed, and factually guilty has meant the person did the crime.2 The term legal innocence has referred to a determination after trial wherein the defendant was adjudged not responsible for the crime, despite being factually guilty of it. In the 1968 classic, The Limits of the Criminal Sanction, Herbert Packer recognized this possibility, that because the defendant has opportunities to claim various defenses it could occur that the defendant is both factually guilty and legally innocent, that is, found to be not guilty for some good reason despite committing the crime. This would likely happen, according to Packer, when “various rules designed to protect the defendant and to safeguard the integrity of the process are given effect” (Packer 1968, p. 166). Because of this possibility, whenever there is an acquittal, questions always remain about the basis for the decision. Is the defendant actually innocent or simply escaping punishment? Although most of the “rules” that Packer mentioned are courtroom matters (such as jurisdiction, venue, statute of limitations, double jeopardy) that apply to all defendants and should not undermine the prosecution’s case, other rules of evidence have developed over the years to ensure the fairness of the courtroom competition that could frustrate the prosecution.3 These rules reflect a compromise between two problems: how to get to the truth and what is the truth about guilt and innocence. That said, the misgivings about the category of legal innocence illustrate the “battle” between two models of criminal control and due process that Packer (1968) famously portrayed as ideal types and whose undercurrents impact the extent of concern for miscarriages of justice.4

The Models The crime control model views the prevention of crime as the best means for protecting the public order and maintaining social freedom. This approach encourages efficiency in screening suspects and in deter-

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mining guilt and punishment in order to achieve its goals for public safety. Given this orientation, it is understandable that the police adopt a presumption of guilt toward their suspects and focus on obtaining guilty pleas to move the investigatory process along quickly. Get tough lawand-order programs that give police more freedom to detain and search suspects and to make arrests are all consistent with the values of this model. In fact, Packer described the crime control model as an administrative model that takes on the characteristics of an assembly line conveyor belt. Regular, routine, and speedy handling of antisocial people is what will convince people that crime does not pay. Because its major concern is to suppress criminal conduct, proponents of this model are less concerned with how this happens than with the results, clearly trusting the police for their expertise in investigations and fact-finding. The crime control model, which emphasizes locking up “the bad guys,” is most disturbed about those who are wrongfully acquitted. The due process model, on the other hand, views the best means for maintaining social freedom as keeping the power of the government in check, because from this perspective it is the abuse of governmental authority that is a greater threat to individual freedom than is street crime. This approach gives priority to preserving the presumption of innocence and the rules for legal fairness guaranteed in the Constitution. Through formal, neutral, and adversarial methods, the due process model attempts to ensure reliability in fact-finding, a process that emphasizes that the means justify the ends.5 Sometimes referred to as an obstacle course, this model’s concern for quality control is metaphorically described by Packer as a factory with reduced output. It follows from this description that the due process model is most concerned with those who are wrongfully convicted, believing them to be victims of a fallible and heavy-handed system. These two models highlight the two types of errors that constitute miscarriages of justice. Brian Forst (2004) describes them as errors of impunity (applying to those who are wrongfully acquitted) and errors of due process (applying to those who are wrongfully convicted). The relative costs of these errors are not known, although some researchers offer estimates of their prevalence. To make the point that too many guilty persons are walking the streets, the crime control advocates look at the disparity between arrests and convictions as proof that the system is unable to protect its citizens from criminals. When just 41 percent of felony arrests lead to felony convictions (Walker 2006, p. 51), those advocating the crime control perspective draw the conclusion that more than 50 percent of felony arrests are “slipping” through the system, no

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doubt because of technicalities and loopholes. Of course, these critics— reflecting the crime control orientation—assume that those who are arrested are guilty and deserve to be punished, and since so many are not receiving felony convictions, the conclusion must be that the system is unable to handle a significant amount of the criminal behavior plaguing society. Taking this concern one step further, Ronald Allen and Larry Laudan (2008) focus on the likely continued criminal activity of the wrongfully acquitted and suggest that increased victimization rates are a greater cost to society than are wrongful convictions. Consistent with this perspective is the lament that only a symbolic few are given the death penalty, 111 in 2008 (Bureau of Justice Statistics 2009, Table 5), despite the more than 10,000 homicides that occur in a year. Those concerned for the wrongfully convicted interpret the statistics from the opposite side, seeing punitiveness rather than leniency reflected in the statistics and observing that of those arrested, 90 percent are punished (Walker 2006, p. 50). Likewise, those opposed to the death penalty think that any wrongful death sentence is one too many, but given the system in place, researchers estimate that wrongful death sentences occur in 2.3 to 5 percent of the capital cases (Radelet 2008, p. 203). As Brian Forst points out, these numbers are only speculative, since if the truth in cases were absolutely known, there would not be a need for the legal system to try to determine guilt or innocence (Forst 2004). Theoretically, the legal system is intended to prevent the punishment of the innocent while punishing the guilty (Dripps 2003, p. 102), with emphasis on preventing wrongful punishment. As can be imagined, these are difficult decisions to make, and it is anticipated that some risk of wrongfully convicting the innocent exists. What, then, is an acceptable risk of error? Donald Dripps (2003, p. 102) maintains that “only the abolition of punishment could preclude unjustified punishment with certainty. The degree of the risk that is justified cannot be specified with arithmetic precision, although Blackstone put the acceptable ratio of false acquittals to false convictions at ten to one.” Recognizing the potential for two types of miscarriages of justice, our legal system is designed to tolerate releasing as many as ten guilty persons in exchange for the assurance that only one (or no) innocent person is convicted in error. Others have suggested ratios for this risk of wrongful acquittals to convictions that range from one to one up to 5,000 to one (Volokh 1997). Whatever ratio is invoked, the fact of having such a ratio reflects the legal system’s priority given to preventing wrongful convictions. The adversarial process of determining guilt or innocence reinforces this value by creating various procedures and

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protections to limit the occurrence of wrongful convictions, one of which is the principle of the presumption of innocence.

The Presumption of Innocence The presumption of innocence is a fundamental element of our adversarial system of justice. In Coffin (1895), the Court considered whether a presumption of innocence instruction should be given upon request in addition to a jury instruction addressing the government’s burden to prove guilt beyond a reasonable doubt. The Court unanimously decided that a separate presumption of innocence instruction should be given. Writing for the Court, Justice White demonstrated the necessity of a separate instruction by tracing the lineage of the presumption of innocence from the Bible, to Sparta, to Roman law, to England, and finally to the colonies that became the United States. (Kohlmann 1996, p. 406)

Reinforcing this significance, the Supreme Court observed in Estelle v. William (1976) that the “presumption of innocence, although not articulated in the Constitution, is a basic component of a fair trial under our system of criminal justice.” Two years later, in Taylor v. Kentucky (1978), the Court identified the due process clause as the specific constitutional basis for the presumption of innocence (Newman 1993, p. 980). Thus, under law the accused holds a legal status that is supposed to be no different than those called for jury duty. Herbert Packer (1968, p. 161) explained that presumption of innocence means that until there has been an adjudication of guilt by an authority legally competent to make such an adjudication, the suspect is to be treated, for reasons that have nothing whatever to do with the probable outcome of the case, as if his guilt is an open question. The presumption of innocence is a direction to officials about how they are to proceed, not a prediction of outcome.

This presumption is critical to all defendants and reinforces the adversarial principle that the burden is on the prosecution to prove guilt beyond a reasonable doubt. Although the presumption of innocence is a key component in the fundamental fairness of our adversarial system of justice, in practice the trial process is ironically inclined to turn this presumption inside out: the defendant is presumed “guilty until proved

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innocent” (Huff, Rattner, and Sagarin 2000). In fact, this presumption of guilt is well recognized by court observers who are aware that police norms presume the guilt of their arrestees (Crank and Caldero 2000; Stevenson 2006, p. 345) and that jurors are inclined to believe that because the defendants are in court they are most likely to be guilty (Friedman 2000). This response is a self-fulfilling prophecy that predicts that persons often see what they expect to see. Jurors interpret the defendants’ body language and facial expressions as indicators of guilt. When the defendants look sad, unemotional, or remorseless, they are presumed to be guilty. The standard courtroom protocol of bringing the defendant into court wearing visible shackles during the sentencing phase of a capital trial has been prohibited (in Deck v. Missouri 2005) because such apparel biases jurors’ judgments against the defendant, suggesting to them that the authorities consider the defendant to be dangerous. Court rules can also promote an inference of guilt toward the defendant when, for example, the evidentiary rules permit special protection for certain witnesses (such as children) from encountering the defendant in the courtroom (Kohlmann 1996, p. 393). The presumption of guilt is a very difficult hurdle to overcome in capital cases. The process of jury selection, known as voir dire, chooses jurors who are willing to consider imposing the death penalty. These jurors are known as “death qualified” because those who do not approve of the death penalty are usually excluded from service. Research on these chosen jurors demonstrates that they are more likely to convict (Bowers, Sandys, and Steiner 1998) than those not “death qualified.” It is also well established that capital juries are willing to convict on less information and to settle on the death penalty as the appropriate punishment even before the penalty phase deliberation (Bowers and Steiner 1998, p. 325). Evidence is clear that there are occasions in which juries compromise on the decision rather than give an outright acquittal because they believe that the defendant must be guilty of something or that the crime is so terrible that someone must pay for it (Turow 2003, p. 36). In such situations, concern for the victim(s) tends to outweigh concern for the defendant(s) (Bowers, Sandys, and Steiner 1998, p. 1529). Given these trends, the determination of who is innocent appears to depend as much on the particular decisionmakers as on the particular details of the crime. The task of preserving the presumption of innocence is made more difficult as the criminal court itself avoids the term innocent by accepting a not guilty plea from the accused rather than a plea of innocence. Although guilty pleas are the most common outcome in charged criminal cases, not guilty pleas that go to trial are also very likely to result in

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conviction (Bohm and Haley 2005, p. 291). Such high conviction rates are made possible by the opportunity juries have to find defendants guilty of lesser included offenses. A defendant who is not guilty of firstdegree murder still may be judged guilty of second-degree murder because the elements in the proof of guilt of those lesser crimes are embedded in the greater offense. So even though the accused may not be guilty of the original charge, he or she may not be completely innocent either. On the other hand, a person may be acquitted of the charged offense either because the jury believes the defendant did not commit the crime or the jury is not convinced beyond a reasonable doubt that the person is guilty of the crime charged. Such a result does not mean necessarily that the person is actually innocent but perhaps only that the prosecutor did not prove the case to the jury beyond a reasonable doubt. Hence the jury finds the defendant not guilty rather than innocent. The result is that without an official statement such as a certificate of innocence, the public is left to believe that the defendant might be guilty of something, even if it is not capital murder. Although the presumption of innocence is a difficult principle to preserve in practice and pleading innocent is replaced with not guilty language, another complexity with the recognition of the range of possibilities identified with innocence is the specific term itself. The connotation of the word innocence evokes the image of a blameless individual, such as a newborn baby. But the human condition is such that anyone who has lived any length of time is guilty of something. It is our human nature to mess up, to make mistakes, to hurt others. Therefore, absolute innocence is humanly impossible. So whether one’s actions rise to the level of being a legal issue may have more to do with criminal definitions and getting caught than anything else. For example, the President’s Crime Commission in 1967 cited a survey showing “that in a sample of 1,700 persons of all social levels, 91 percent admitted committing acts for which they might have been imprisoned, but were never caught” (cited in Morris 1976, p. 39, n62). Thus the legal status of innocence (not guilty) is different than the behavioral status of innocence (untainted, pure). The presumption of innocence, therefore, is critical to all defendants and reinforces the adversarial principle that the burden is on the prosecution to prove guilt beyond a reasonable doubt. It demands an openness by all the participants in a trial, an openness to the possibility that the defendant is not guilty of the crime charged. Beyond actual innocence, however, there are other types of innocence that are legitimate and also demanding of consideration. As such, just as one who is actually inno-

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cent can be found to be wrongfully convicted, it is possible that these other types of innocence can experience wrongful death sentences.

The New Framework In 1972, the United States Supreme Court overturned Georgia’s death penalty statute, and that of virtually every other state, in a landmark case entitled Furman v. Georgia. From that time on, states have reinstated the death penalty with changes to address the Court’s ruling and subsequent rulings. One of the primary changes in the post-Furman era has been to design death penalty trials that occur in two stages: the first stage is to determine guilt of the capital crime; then, if the defendant is found guilty of the capital crime, the second stage of the trial is to determine what punishment is appropriate. This book will focus on some of the most important systemic flaws that are relevant to the development of the concepts of innocence, examining how they contribute to the structures that create and maintain wrongful death sentences and pointing directly to those who “should not be guilty of capital murder.” Rather than using the term innocence to reflect a legal status (as in, you are innocent until proven guilty), this book will present a classification of innocence that is based on behaviors (degree of participation and state of mind) that correspond to the basic elements of crime and in so doing will demonstrate that innocence is a concept more appropriately described as a spectrum. Susan Rozelle (2007, p. 48) concluded that to be guilty of a crime, “an actor must satisfy three elements: actus reus, mens rea, and a lack of defense.” In order to establish guilt the prosecutor must prove beyond a reasonable doubt that (1) the act does harm, (2) the action by the defendant was intentional that caused the harm, and (3) there are no other affirmative defenses that are relevant. Following these elements, the framework of the spectrum uses the following innocence terms in these distinctly behavioral ways: actual innocence will describe the most common understanding of innocence, indicating that the accused defendant did not perform the act, that is, kill the victim, and was not present. Factual innocence will refer to those situations in which the defendant was an accomplice but not the actual killer. The accomplice may or may not be found guilty of the crime, but his or her factual situation is different than it is for those who are the actual killers. Chapter 4 will explain this circumstance further. As mentioned above, this behavioral distinction is lost if the two terms (actual and factual) are used synonymously. Likewise, the legal profession typically refers

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to legal innocence as an official acquittal without specifying any of the conditions that brought about the result. Here the term legal innocence refers specifically to those situations in which there are justifiable reasons or excuses for committing the killing, for example, the killer acted in self-defense (see Chapter 5) or lacked the mental capacity to understand the act (see Chapter 6), or the killing was an accident.6 Because death as a punishment is unique, that is, it is irreversible and ultimate, the criminal justice system is expected to be most vigilant over its processes so as to properly identify those who are actually, factually, and legally innocent.7 The primary task here will be to analyze the concepts of innocence anew in criminal law generally and in death penalty cases in particular and, by doing so, to appreciate the existence of substantially more types of wrongful death sentences. The import of wrongful death sentences in the context of this new framework happens most clearly in the postconviction appeals where investigation by new attorneys is more thorough and usually discovers new evidence. More often than not trial defense attorneys have bungled the case, missed defenses, or not effectively investigated the case. As a result, innocence claims often are developed only after the trial, when the burden of proof has shifted onto the prisoner, thus making it extremely difficult to be reconsidered (see Chapter 2). Michael Radelet pointed to some of these prisoners: “there are a number of death row inmates . . . who in fact, given fewer flaws in the criminal justice system, should not be guilty of capital murder” (2008, p. 207). Actual Innocence

The estimated 139 individuals who have been released from death row, a list provided by the Death Penalty Information Center (DPIC) in 2010, is considered the most conservative compilation of persons who have been cleared of responsibility for the capital crime of which they were convicted.8 Identified as exonerees, the narrow criteria used to determine who is eligible to be included on this list allow for only two circumstances: (1) the prisoner’s original conviction was overturned and either he or she was acquitted at a retrial or all charges were dropped, or (2) the prisoner was given an absolute pardon by the governor based on new evidence of innocence.9 Notice that the first criterion defining a prisoner as wrongfully convicted has two parts. Not only must the original conviction be overturned by a court, but it is also necessary that the defendant be acquitted at the retrial, meaning that persons who are convicted of a lesser offense

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do not qualify for the official label of “exoneree” (Dieter 2004, p. 47). So just having the conviction overturned (or reversed) is not enough to be considered exonerated because the criminal litigation continues. But when the prosecutor drops all charges instead of going to trial, that decision means that in the state’s judgment going to trial will result in acquittal. Then the exoneree label attaches only if the prisoner would be released from prison for that crime.10 There are many other capital cases in which death sentences are overturned, but on retrial the defendants are convicted of some lesser degree of murder that would foreclose the imposition of the death penalty. James Liebman and his team of researchers (Liebman et al. 2000a, p. 1852) found that overall, at least 68 of the original 100 [cases] were thrown out because of serious flaws, compared to only 32 (or less) that were found to have passed muster—after an average of 9–10 years had passed. And for each such 68 individuals whose death sentences were overturned for serious error, 82% (N = 56) were found on retrial not to have deserved the death penalty, including 7% (N = 5) who were cleared of the capital offense.

Taking the conservative approach, DPIC does not include any of these individuals (except for the five who were cleared) in the category of the actually innocent. Even so, their situations point to and merit attention to the reality of wrongful death sentences. The second type of exoneration occurs when a governor pardons a death row prisoner based on new evidence of innocence. This is a relatively rare situation, occurring in only seven of the 139 exonerees.11 This rarity of pardons in capital cases is most likely because there are powerful political considerations that inhibit governors from acting even where strong evidence of actual innocence exists (Burnett 2002b). It is noteworthy, for example, that four of these pardons were issued by Illinois governor George Ryan just as he was leaving office in 2003. These 139 cases of those returned to innocence are widely recognized as examples of actual innocence and serve as the beginning point for this discussion about the spectrum of innocence, to be developed in Chapter 2. However, their status as exonerees is not without controversy, especially those for whom the prosecutor decides to drop the charges (N = 80). Those eighty are the types of cases that prosecutors draw on to cast doubt upon the prisoners’ claims of innocence. Instead of formally recognizing their innocence, prosecutors can say that they do not prosecute because

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they “do not have enough evidence to pursue the case further” (see the case of Joe Amrine below), which sometimes supports their continued belief in the prisoner’s guilt. Many of these individuals are in a legal limbo, worried that the prosecutor might revive the charge against them and again take them back to court. Joe Amrine—An Example of the Ambiguity of Exoneration

Questions about the definition of innocence become significant when it is discovered that 139 persons have been wrongfully convicted and sentenced to death. Do these persons represent serious breaks in the legal system charged with protecting the innocent from wrongful conviction, or do they reflect minor mistakes that fall within the range of acceptable risks in society’s efforts to protect against violence and chaos? As will be seen in Chapter 2, there is some debate as to whether these persons appropriately should be identified as exonerated, the argument made that because the prosecutors decide to drop the charges they are technically innocent, but may not be actually innocent. The prosecutor’s resistance to admitting error is illustrated here in the case of Joe Amrine. Amrine was released from the Missouri Department of Corrections on July 28, 2003, after serving seventeen years on death row for a murder he consistently claimed he did not commit. His release came after the Missouri Supreme Court took the unusual step of hearing a second habeas corpus petition after all of his standard appeals had been exhausted. Amrine’s attorneys contended that there was no evidence to connect him with the crime and that there were at least two witnesses (who always had been available but were never called at trial) who would testify that Amrine was not the killer. The court’s majority found that Amrine’s new evidence met the clear and convincing evidence standard such that their confidence in the outcome of the first trial was sufficiently undermined. They concluded it would be a miscarriage of justice to execute an innocent person. In a four-to-three decision, the court ordered him released within thirty days unless the prosecutor wanted to retry the case (Amrine v. Roper 2003). Abolitionists around the state declared Amrine to be exonerated, innocent of the murder charge, but the prosecutor would not admit that the wrong person had been convicted. Instead, he gave the public excuse for finally releasing Joe Amrine that the DNA sample had degraded after seventeen years of storage to the point where it could not be clearly matched to DNA and was therefore “inconclusive.” In fact, testing of the sample established that the

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blood did not belong to the victim. Without a DNA connection, it was not possible to prove that Amrine was guilty of the homicide. Even though there was a more likely suspect, the prosecutor acknowledged that he was not going to prosecute anyone else for the crime, leaving the impression that Amrine remained the person responsible for the crime. To say otherwise would be an admission to the public that the system had made a mistake. Predictably, the prosecutor never apologized to Amrine. Because the public did not know that the blood did not match that of the victim (which was known to the prosecutor), they were left with unresolved doubts about Amrine’s innocence, leaving an official cloud that will always remain over his head. Was he actually innocent or possibly guilty? Not being able to prove guilt is quite different from saying that he is not guilty. Clearly, then, in the Joe Amrine case, the concept of innocence is a social, political, and legal construct with several layers of nuance. Beyond the 139 exonerees, and still in the context of actual innocence, the Death Penalty Information Center (2010) registered fourteen persons (although admitting that this is not a comprehensive listing) now released from prison who once were on death row as probably innocent of capital murder but technically guilty of some degree of murder.12 Five others were considered possibly innocent because they had their death sentences commuted because of recognizing doubts about their guilt. Such variations in the concept of actual innocence open the door to other potential miscarriages of justice.13 Factual Innocence

Official record keeping by the Death Penalty Information Center confirmed that only nine persons nationally have been executed who were not directly responsible for the murder.14 In all but two of those circumstances, the actual killer got punishment that was the same as or equal to that of the accomplice. This statistic is admittedly unreliable, however, since it only reported information for five out of the thirty-five death penalty states. Even more suspect, however, is the reliance on an official description of the crime to identify the accomplice. Given the upcoming discussion in Chapter 3 of the unfettered use of prosecutorial discretion, it could very possibly be that the real killer arranged a deal with the prosecutor, who then prosecuted the “accomplice” as the actual killer. This situation would be unknown to official record keeping. Nationally, the percentage of homicides involving multiple offenders rose from 11.5 percent in 1976 to 20.3 percent in 2005 (Bureau of Justice Statistics 2007).

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Legal Innocence

As will be seen, this type of innocence (in which the accused did kill but offers a justification or an excuse that should acquit him or her from conviction) is extremely difficult to establish, especially if the person has already been convicted. The Death Penalty Information Center recorded only two individuals who were exonerated through ballistics testing that confirmed their self-defense claims (Death Penalty Information Center 2010). There were no persons listed who had been exonerated owing to insanity. There are two explanations for these low numbers. Either the system is doing a good job of detecting these cases and few to no wrongful death sentences are obtained. Or the system does a terrible job in detecting these cases, with the result that these wrongful death sentences are unsuccessful when appealed. After examining the legal requirements for two of these situations—self-defense and insanity—a discussion follows in Chapters 5 and 6 concerning how these rules and policies function to generate wrongful death sentences. Wrongful death sentence cases are rightfully worrisome because they go to the root of our criminal justice system, based as it is on the ideology that it is better for a guilty person to go free than that an innocent person be wrongly convicted.15 In order to limit the risk of wrongful convictions, the justice system has historically required a high standard of proof in the courtroom to establish that an accused is guilty of a crime. The standard used to judge evidence in a criminal case (beyond a reasonable doubt) is higher than in civil court, where only a preponderance of the evidence is needed to find liability. In addition, the defendant is supposed to enter the courtroom protected by the presumption of innocence and by a myriad of evidentiary rules to safeguard against any abuse of power by the prosecutor, who is given the heavy burden of proving the defendant guilty.

The Spectrum of Innocence: Expanding the Magnitude of the Problem Besides those actually innocent of the death penalty, people are on death row who should not be there if innocence is defined in the more expansive manner that is being developed in this book. These distinctions in legal terminology do not translate easily to a public whose legal knowledge is generally mediated through media coverage of gruesome crimes and sensational trials. It is not in the heat of the trial that public opinion

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can be educated about legal technicalities, however. This book is an effort to shed light on the legal doctrines and theories that are often mysterious to the public because it is these legalities that create justice for all. It is hoped that such awareness opens a discussion beyond the professionals. To begin easing into this material, the first discussion focuses attention on the most commonly accepted claims of innocence, those claims of actual innocence.

Notes 1. The term innocent comes from a Latin root that means “not to injure or harm” (Heifetz and Linsky 2003, p. 18). 2. Herbert Packer used the term factually guilty in this way also (see Packer 1968, p. 210). In his 1968 classic, The Limits of the Criminal Sanction, Packer used the term factual innocence in two ways. First, factual has commonly been recognized to be the same as actually innocent, and second, factual referred to the accused’s legal status before conviction. In this second sense, Packer drew a distinction between factual innocence and legal innocence, using the terms to refer to legal status, not to behavior. In this second meaning, his observation was that until trial the defendant is considered factually innocent, but after trial the individual would be labeled either legally innocent or guilty. As such, to be factually innocent is not a prediction of outcome but instead is a guide to the authorities about how to treat the defendants up to and during trial, that is, as if they were actually innocent (Packer 1968, p. 167). Thus, all defendants should be treated as factually innocent in the pretrial and trial stages as a matter of procedure and legal status. Confusion is inescapable whenever it occurs that someone could be factually guilty (as in behavior) and factually innocent (as in pretrial legal status) at the same time. 3. Indeed, research does not support the notion that legal technicalities or loopholes subvert the crime control process. In 1968, a report by the President’s Commission on Law Enforcement and Administration of Justice became the classical referent to describe the flow of cases through the criminal justice system. Using national data for 1965, the Commission presented the information beginning with crimes committed and moving to punishment, portraying the reduction of persons in the system as a symbolic funnel. Charles Silberman’s recalculation of the Crime Commission’s funnel began instead with arrests and showed that of the 177,000 adult felony complaints, 160,000 (90 percent) were punished, and 17,000 (10 percent) were found not guilty (cited in Walker 2006, p. 50). Thus Silberman’s conclusion that the criminal justice system punishes most adults arrested for serious crimes contradicts the original interpretation of the crime funnel as being lenient and full of loopholes. 4. See Erik Luna (1999), Stuart Macdonald (2008), and Keith Findley (2008) for critiques of Packer’s models. 5. A third model has recently been proposed by Keith Findley (2008), which he calls the reliability model. Based on best practices, it focuses on

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improving eyewitness identification evidence since it is present in 79 percent of the first 200 deoxyribonucleic acid (DNA) exonerations from 1989 through May 2007 (Garrett 2008a). This third model invites police to improve their practices and courts to revise admissibility standards to reflect scientific knowledge about human perception and memory. Findley suggests that this approach does not sacrifice public safety but rather improves interrogation methods, neutralizes false jailhouse informant testimony, and improves defense counsel so that a win-win situation develops, resulting in more reliable convictions and punishments. 6. This book highlights cases from Missouri to explain the different types of innocence. In Missouri, 60 (83 percent) out of the 72 clemency cases presented to the governor from 1989 to 2005 claim some sort of innocence. There are 19 claims of actual innocence, 8 claims of factual innocence, and 33 claims of legal innocence. 7. These three innocence categories are based in the behavior of the defendant. There are, however, always cases in which the adversarial system did not work effectively, hence leading to various charges that the state or court did not follow procedural safeguards as it obtained a conviction. Persons making these charges claim to be procedurally innocent of the crime. This is not an inconsequential group as James Liebman et al. (2000a) found that from 1973 to 1995 68 of 100 cases were reversed because of serious constitutional errors and 82 percent of those 68 were found on retrial not to deserve the death penalty. Supreme Court decisions can change the legal environment and have consequences for specific cases. For example, in Ring v. Arizona (2002), the Court ruled that juries, not judges, must make the death sentence decision. As a result, capital cases in five states were affected. Typically these procedural situations involve individual errors and are not discussed in terms of systemic issues that pervade litigation. If procedural problems exist in a case, the question still remains what, if any, type of innocence they claim. 8. Several data sets are available besides the DPIC (2010) list. “In 1992, Bedau, Constance Putnam and I expanded our inventory of erroneous convictions to nearly 420 homicide and rape cases. In 2000, Barry Scheck, Peter Neufeld, and Jim Dwyer added information on nearly 100 cases involving the exoneration of an innocent defendant by DNA evidence. Five years later, Professor Samuel Gross and his colleagues documented 340 felony exonerations in the fifteen-year period between 1989 and 2003. By October 2008, DNA had vindicated 233 inmates in the United States. . . . Currently, I am involved in a project that documents over 1,200 erroneous convictions in American history” (Radelet 2008, pp. 202–203). Westervelt and Cook (2008, p. 33) state that “the true number of exonerees is no doubt larger, but no system keeps an accurate count.” 9. “Exonerate means to clear, as of an accusation, and seems to come from the Latin ‘ex’ and ‘onus’ meaning to unburden” (Rodricks 2009). 10. Eight of the 139 exonerees were not released because of serving sentences for other crimes (Larry Fisher, Christopher McCrimmon, Shareef Cousin, Eric Clemmons, Lemuel Prion, Nicholas Yarris, Derrick Jamison, and Michael Blair).

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11. The cases in which a pardon was issued were Wilbert Lee, Freddie Pitts, Aaron Patterson, Madison Hobley, Leroy Orange, Stanley Howard, and Earl Washington. 12. Four of the fourteen accepted a plea to escape the death penalty. Radelet and Bedau include these noncapital murderers in their conceptualization of innocence of capital murder (1998, pp. 226–228). 13. When some error or mistake happens and someone is judged to be guilty instead of innocent, not only does a wrongful conviction occur, but a miscarriage of justice also occurs. A wrongful conviction is just one type of miscarriage of justice, however. Others point out that a wrongful acquittal is also a miscarriage of justice. Again, there is no good way to know the prevalence of wrongful convictions or wrongful acquittals. Sam Gross and Barbara O’Brien estimated that at least 2.3 percent of those sentenced to death since 1973 have been exonerated (2008, p. 927). “After examining DNA exonerations in death penalty cases for murder-rapes between 1982 and 1989, Michael Risinger estimated that at least 3.3% of the capital-rape defendants were innocent and that the actual error rate may be closer to 5%” (Radelet 2008, p. 203). 14. An additional nine persons have been executed who ordered or contracted with another person to kill the victim (Death Penalty Information Center 2010). 15. See In re Winship, 397 U.S. 358, 372 (1970) where Justice Harlan concurs, stating the “fundamental value determination of our society that it is far worse to convict an innocent man than to let a guilty man go free.”

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2 Actual Innocence Perilously close to simple murder. —Blackmun’s dissent in Herrera v. Collins, 506 U.S. 309, 446

This chapter begins to explore the spectrum of innocence by first exploring the situation of innocence that is the most easily understood: when people were not at the scene of the crime and had nothing to do with the crime. They are the actually innocent. In this chapter I will demonstrate that the concept of actual innocence is legally and socially constructed by drawing on evidence from the nature of the debate surrounding those cases commonly classified as actually innocent and then by examining the legal obstacles of the time limitations for admitting new evidence and the standards for actual innocence used in the federal courts. Both dimensions illustrate that what seems to be a simple category is in fact quite fluid. Most researchers of wrongful convictions focus on this group of actually innocent because the criteria for inclusion in this group are authoritative, clear, and relatively noncontroversial.1 It becomes clear that the standards of what constitutes actual innocence have changed within the death penalty paradigm and that the definition of actual innocence is not so clear and not without controversy. In 1972, the Supreme Court decided Furman v. Georgia, which held that death penalty statutes were unconstitutional because of the way they had been implemented, that is, arbitrarily, infrequently, and disproportionately against minorities. The death penalty per se was not ruled cruel and unusual punishment. Furman gave the states the opportunity to rewrite their statutes if they wanted to reinstate the death penalty. Many states did so, and it is commonly accepted that the Gregg v. Georgia (1976) decision marks the reinstitution of the modern death 21

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penalty by granting approval to states’ revisions that provided for changes that were supposed to remove arbitrariness and disproportionality. The approved statutes provided for guidance of jury discretion through consideration of mitigating and aggravating factors; bifurcation of trials so that first guilt would be decided and then sentence, in hopes that sentencing would be specific to the individual; automatic appellate review of convictions and sentences; and proportionality review. These reforms were approved without any information that they would accomplish their goals of creating a constitutional death penalty process. But before many executions had begun, the vanguard work by scholars Hugo Bedau and Michael Radelet focused attention on the problem of innocence (1987). They posited that more than 350 persons had been wrongfully convicted of death-eligible offenses since the beginning of the century, including twenty-three persons wrongly executed. Shortly thereafter Stephen Markman and Paul Cassell (1988) challenged Bedau and Radelet by disputing their methodology and rejecting their conclusions. Although both sides of the debate agreed that those labeled actually innocent were persons who did not do the crime, they differed on the evaluation of the evidence to prove the case. As social scientists, Bedau and Radelet presented evidence that raised questions about the accuracy of the convictions, suggesting that the system was responsible for an unacceptable number of miscarriages of justice. Markman and Cassell, both from the perspective of the Office of the Attorney General, examined nine of the 350 cases listed by Bedau and Radelet and found support for those convictions, thereby implying doubt that all 350 should be designated wrongfully convicted. With the founding of the DPIC in 1990, an institutional list of persons released from death row on grounds of innocence was published. As of February 2010 DPIC recognized 138 men and one woman who have been released from death rows since 1973 with the legal status of innocent (see Chapter 1). Unfortunately, the evidence to support a finding of innocence generally comes to light only after the trial, conviction, and sentence have taken place, which means that it is new evidence not heard by the trial jury. Having been convicted, prisoners have significant hurdles to challenging the accuracy of the jury’s verdict, which will be explained throughout this book. DPIC (Dieter 2004, p. iii) estimated that a wrongfully convicted prisoner spends an average of 9.8 years to gain release from death row, with examples of several taking more than thirty years (Death Penalty Information Center 2010). Researchers continue to develop other lists of wrongful convictions. Michael Radelet, Hugo Bedau, and Constance Putnam (1992) found 416 homicide and

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rape cases involving 496 defendants who were considered wrongfully convicted; Barry Scheck, Peter Neufeld, and Jim Dwyer (2000) documented nearly 100 DNA exonerations; Sam Gross et al. (2005) uncovered 340 felony exonerations (145 due to DNA evidence); Steven Drizin and Richard Leo (2004) discovered 125 proven false confessions; and the Innocence Project (2010) listed 250 DNA exonerations as of February 2010. Each of these research teams used actual innocence as the subject of their inquiries and provided a landscape for understanding what is known about wrongful convictions. Almost all of the exonerations have been in either rape or murder cases where DNA testing and thorough reinvestigations uncover errors in convictions. The other major category of wrongful convictions cases concerns drug or gun possession cases that were discovered as police perjury was revealed (Gross and O’Brien 2008). It is obvious that these cases come to the attention of researchers and court personnel in part through luck (Radelet 2008) and that estimates of the prevalence of wrongful convictions are likely low. Radelet’s estimate that 2.3 percent of those sentenced to death are exonerated represents a low figure. Relying on DNA evidence, Michael Risinger estimated that at least 3.3 percent of the capital-rape defendants were innocent and probably the number was closer to 5 percent (2007, p. 761). As more and more wrongful convictions become known through reinvestigations and through the use of new DNA testing techniques, the estimates of wrongful death sentences as being between 1 and 5 percent of defendants may prove to be low. Samuel Gross and others recognize that many wrongful convictions are never exonerated, thus undercounting the true prevalence and anticipating a larger problem than currently perceived (Radelet 2008). Despite the fact that the DPIC definition of actual innocence is considered a conservative designation by wrongful conviction scholars, there is nonetheless some controversy challenging their rendering. Recently, a critique of DPIC’s accounting has been mounted by Joshua Marquis, a district attorney in Oregon.2 In disputing the DPIC numbers, he claimed that only about thirty persons were authentically innocent and that the others on DPIC’s list were released only because they “wiggled through some procedural cracks in the justice system” (2005, p. 508).3 One wonders whether the debate about who is actually innocent is only a matter of perspective. Marquis (Holdridge 2008) described a court’s statement that there was a “total lack of credible evidence” connecting the suspect to the crime to mean that the prosecutor only failed to make the case that would satisfy the jury; others might interpret those same words from the court to be the strongest statement of actual innocence. In one sense, both

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are correct as the legal statuses in both views are the same. And yet, the impression and conclusions are diametrically opposed. As noted in Chapter 1, it is not the practice of courts to pronounce individuals to be innocent. Only occasionally will a governor make such an official declaration. Just seven of the 139 death row exonerees received an official pardon, which may have more to do with the politics of the death penalty than with the merits of their cases (Burnett 2002b). These diverse positions point to the importance of understanding the criterion used to judge someone to be actually innocent. As in the Amrine case presented in Chapter 1, it is clear that the concept of innocence is both a sociopolitical and legal construct. There are objective indicators and subjective-qualitative aspects to identifying a person as actually innocent. Some look at the evidence in the most favorable light to the prosecutor, that is, through a presumption of guilt, whereas others look at the same evidence in the most favorable light to the petitioner, that is, with the presumption of innocence. What is noncontroversial, however, is the difficulty of bringing forward evidence to establish the legal status of actual innocence. Chapter 1 made it clear that the purpose for the presumption of innocence is to protect against the wrongful conviction of an innocent person. Once convicted, the prisoner loses his presumption of innocence, however, and is presumed guilty and, unlike at trial, must prove his actual innocence in order to win his freedom. Since mistakes can and do happen, it follows that a fair review process needs to be available to detect mistakes, to make corrections, and to protect against miscarriages of justice. The first hurdle the prisoner must overcome is to obtain a hearing on the merits of the actual innocence claim. The reversal in the burden of proof that occurs with conviction is further compounded by both time limitations and legal standards (evidentiary obstacles) that restrict access to appeals and access to a substantive rehearing. Thus, gaining access to a meaningful review process is very much in doubt when it comes to matters relating to an actual innocence claim.

State and Federal Time Limitations and Grounds for Retrial A prisoner who claims to be actually innocent has several grounds for requesting a hearing. Given that almost all death sentence convictions are affirmed on direct appeal, the prisoner then must continue to appeal under threat of execution. Usually her or his attorneys change during the

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course of the various postconviction appeals. With new attorneys, reinvestigations should be done to uncover any potential grounds for appeal. New evidence (generally considered to be evidence that the jury did not hear4) is often discovered as the case advances. Unfortunately, new evidence is not necessarily a statutorily approved ground for requesting reconsideration of the conviction or sentence. When permitted, many states grant relatively short time periods after trial when the prisoner may enter new evidence for reconsideration of the conviction.5 In many cases the time limits apply only to death row convictions, which have the effect of disadvantaging death penalty cases relative to all other criminal cases. Currently, state motions for a new trial are a direct remedy that is theoretically available in every state.6 The focus in the following discussion will be on the thirty-five states that have the death penalty (since the rules in the fifteen states that do not have the death penalty do not impinge on the ability of the others to do justice). Table 2.1 shows the categories of state time limitations for filing for a new trial based on newly discovered evidence in the thirty-five death penalty states. Although seventeen death penalty states have very short time frames, as many as twelve states could have no deadlines (when states that can waive or extend the deadlines are included with those with no limits).7 In the thirty states that do have time limitations for making an appeal for a new trial, these deadlines typically begin counting from some definite point such as imposition of sentence or after the US Supreme Court denies certioriari.8 Nonetheless, with the improvement of DNA testing, “almost all states enacted statutes to permit relief for newly discovered DNA or other scientific evidence of innocence” (Garrett 2008b, p. 1702), many of which impose limitations to make such an appeal. In federal criminal cases, the time period for filing a new trial motion based on newly discovered evidence is now three years (Federal Rules of Criminal Procedure 2009, 45; Medwed 2005, p. 667, n78). These different time periods clearly point to the arbitrariness of these restrictions. It is interesting that some jurisdictions create exceptions that provide for judicial discretion in order to moderate the strictness of the time limitations on a case-by-case basis.9 These time limitations pertain to requests to reconsider the evidence for guilt or, in other words, to make the case for actual innocence. The federal courts have become increasingly frustrated (as has Congress) by how long it takes for a case to reach execution. Before Furman v. Georgia (1972), “many death row inmates did not take advantage of the appellate process” (Bohm 2007, p. 73), hence the length of time between conviction and execution was measured in months. 10

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Table 2.1 Time Limitations for New Trials (by state)

Less than 1 Year

1–3 Years

No Limits

Alabama Arizona Arkansas Florida Georgiaa Idahoa Illinois Indiana Mississippi Missouri Ohiob Oregonb South Dakota Tennessee Texas Utah Virginia

Connecticut Delaware Kansas Kentuckyb Louisiana Montanab Nebraska Nevada New Hampshire Oklahoma Pennsylvaniab Washington Wyoming

California Colorado Maryland North Carolina South Carolina

Notes: a. Limitations can be extended; b. limitations can be waived.

Beyond requesting a new trial, petitions for habeas corpus review have been another means for reconsideration of a prisoner’s conviction. Even if the prisoner does appeal her or his death sentence, appeals are not guaranteed a hearing. In 1948 Congress enacted 28 U.S.C. 2244 of the habeas corpus statute, titled “Finality of Determination,” which stated that “federal judges need not address second or subsequent petitions unless (1) the petition alleges a new ground for relief, and (2) the applicant convinces the judge that he did not deliberately withhold the claim or otherwise abuse the writ” (Stacy 1996, p. 908). Despite this effort to reduce appeals, the commitment of postconviction attorneys to their clients’ appeals has lengthened the appeals process into years. In 1976, when Gregg v. Georgia reinstated the death penalty, the average time between conviction and execution was estimated to be about 4.25 years. Now the average time is estimated at 11.6 years (Bureau of Justice Statistics 2009, Table 11). The system’s response to this delay in reaching finality of sentence has been to further revise the federal rules regarding habeas corpus petitions in capital cases, strictly limiting the submission of petitions based on new evidence to within one year from the conclusion of state appeals (in the Antiterrorism and Effective Death Penalty Act [AEDPA] passed by

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Congress in 1996). This is a dramatic restriction on what jurists have called the great writ, “a bulwark against convictions that violate fundamental fairness” (Engle v. Isaac 1982), especially since “before the enactment of the AEDPA, no statute of limitations had ever been applied to federal habeas corpus proceedings” (Zheng 2002, p. 2127). Unfortunately, this rule change generated confusion as to when to start counting toward the year of limitation deadline, and that created additional litigation for the courts to resolve. The Eighth Federal Circuit applied this time limitation retroactively (the only federal circuit to do so), having the desired impact of speeding up executions in Missouri as prisoners lost their right to raise substantive issues due to procedural defaults (that is, missed deadlines).11 As a result of these arbitrary time restrictions, some prisoners may not have had the opportunity to present newly discovered evidence for a court’s evaluation, evidence that might have removed them from death row. Beyond the procedural time limitations on both the state and federal levels, a claim of innocence is not an issue that is raised on direct appeal. That first automatic review, the direct appeal, is intended to test whether the trial was fair. An innocence claim is more likely to be made in the postconviction review stages. In order to understand what is or is not being decided, it is important to appreciate the subjectivity of the legal standards that guide the appellate courts in recognizing claims of actual innocence.

Legal Standards for Claims of Actual Innocence Over the years, the courts have changed the legal standards that are employed to evaluate the admissibility of new evidence offered on appeal. Because the burden has been on the prisoner to show significance in order to undo what a jury has already done, these standards are indeed hurdles that must be met and overcome in order to have one’s habeas corpus petition considered. Although considerations of “the ends of justice” were the grounds for granting a second hearing on an appeal in Sanders v. U.S. (1963), it was not until 1986 that the first appellate cases dealing with the issue of actual innocence were decided. Three opinions published on the same day set the standards for later death penalty cases.12 As the legal standards for actual innocence have developed, the Murray v. Carrier case has been the primary case of the three to shape the discussion. Table 2.2 presents an analysis of six cases, beginning with Murray v. Carrier, that are important to an understand-

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ing of federal actual innocence standards. These six cases are discussed in the following sections. Murray v. Carrier. In Murray v. Carrier (1986), Clifford Carrier was convicted of rape and abduction but claimed he was innocent of the crime. He wanted access to statements made by the victim, which was denied, and when his attorney filed his petition for appeal he inadvertently failed to include that claim. Subsequent appellate courts denied his appeals, saying the issue was procedurally defaulted. Known as the Carrier standard, Justice Sandra Day O’Connor—writing for the Supreme Court majority— stated that a federal habeas court may grant the writ even in the absence of a showing of cause (that is, having an acceptable reason or explanation) for the procedural default where the petitioner shows that “a constitutional violation has probably resulted in the conviction of one who is actually innocent” (477 U.S. at 496). Thus, according to the Court, the innocence claim would be considered only if there were a constitutional violation that caused the fatal error. Carrier does not address what happens if there is newly discovered evidence but pertains only to evidence that could have been available at the time of trial. That same day the Supreme Court decided two death penalty cases: Kuhlmann v. Wilson (1986), which stated that a petitioner wishing to overcome a procedural bar by claiming that a miscarriage of justice has occurred in his case must make a “colorable showing of factual innocence” (477 U.S. at 454), and Smith v. Murray (1986), which ruled that when the accuracy of the sentencing determination is at issue, the Court requires both a demonstration of “cause” for the procedural default and a substantial showing that the constitutional violation “undermined the accuracy of the guilt or sentencing determination” (477 U.S. at 539) in order to consider the procedurally defaulted claims (Margolis 1994, p. 572). Sawyer v. Whitley. Six years later, in Sawyer v. Whitley (1992), the

Supreme Court changed the Carrier standard when it examined the miscarriage of justice exception as it related to the dismissal of a procedurally barred claim.13 In a death penalty trial, a Louisiana jury convicted Robert Wayne Sawyer and sentenced him to death for a murder in which the victim was beaten, scalded with boiling water, and set on fire. Sawyer contended that his death sentence was a miscarriage of justice, claiming that he was “actually innocent” of the death penalty because certain mitigating evidence had not been heard by the jury. Sawyer challenged only the imposition of the death penalty. Justice William Rehnquist—writing for the Court majority (505 U.S. at 348)—held that

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Table 2.2 Characteristics of Federal Actual Innocence Standards

Timing

Sawyer v. Whitley (1992)

Successive habeas; procedural default

Herrera v. Collins (1993) Schlup v. Delo (1995)

Successive habeas

AEDPA 28 USCS 2244(b) (1996)

Successive habeas

House v. Bell (2006)

First habeas defaulted claims

Successive habeas

Constitutional error probably resulted in the conviction of one who is actually innocent of crime; evidence must establish actual innocence (or a colorable showing of factual innocence [Kuhlmann v. Wilson,a same day as Carrierb]) Clear and convincing evidence that, but for a constitutional error at his sentencing hearing, no reasonable juror would have found the petitioner eligible for the death penalty Truly persuasive demonstration of actual innocence Constitutional violation probably resulted in conviction of one who is actually innocent; it is more likely than not that no reasonable juror would have convicted petitioner in light of new evidence (or found petitioner guilty beyond a reasonable doubt) Shall be dismissed unless the applicant shows that . . . the facts underlying the claim, if proven and viewed in light of the evidence as a whole, would be sufficient to establish by clear and convincing evidence that but for constitutional error, no reasonable fact finder would have found the applicant guilty of the underlying offense It is more likely than not that no reasonable juror viewing the record as a whole would lack reasonable doubt

Constitutional error; withheld exculpatory evidence

Constitutional error; withheld mitigating evidence Free-standing claim; newly discovered evidence Constitutional error; gateway claim

Constitutional error; gateway claim

Gateway claim; constitutional claims defaulted

Notes: a. Also found that the petitioner would be required to establish, by a “fair probability,” that “the trier of the facts would have entertained a reasonable doubt of his guilt” (477 US at 454, 455, n 17); b. to establish the requisite probability, the petitioner must show that it is more likely than not that no reasonable juror would have convicted him in the light of the new evidence (in Schlup v. Delo at 327).

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Sufficiency of Evidence Showing or Proof

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in a death penalty appeal the petitioner must “show by clear and convincing evidence that, but for a constitutional error, no reasonable juror [emphasis added] would have found the petitioner eligible for the death penalty under applicable state law.” Eligibility was the important distinction. Although Sawyer was complaining about the jury’s discretionary decision between death and life imprisonment after having decided guilt (phase two of the trial), curiously the Court focused on the reliability of the guilt determination (phase one of the trial). That is, the Court only considered conviction to be problematic under the miscarriage of justice exception, not sentencing. Perhaps the justices were anticipating an inundation of appeals and were concerned that the principle of finality would be frustrated by broadening the inquiry (although Justice John Paul Stevens thought the Court’s concerns were unfounded [505 U.S. at 375]) and therefore limited their own gaze. Whatever the reason, the Rehnquist majority concluded that it was not relevant to the miscarriage of justice exception that the mitigating evidence was not presented to the jury. By focusing only on eligibility for the death penalty, the Court privileged the aggravating factors, which are used to establish that the defendant is eligible for a death sentence, without recognizing the important role of mitigating evidence the jurors should consider in reaching their punishment recommendation. As such, their decision made it easier for the prosecutor to secure death penalty outcomes when the defense attorney does not do a thorough mitigation investigation. Although there are two decisions the capital jury must make (guilt and punishment), clearly, the Court was not willing to extend the concept of innocence to include the sentencing phase.14 In a concurring opinion, Justice Harry Blackmun did not support the majority’s rationale, stating that in this case the Court “adopts an unduly cramped view of ‘actual innocence.’” He rejected the Court’s view that the only “fundamental miscarriage of justice is one where the petitioner can make out a claim of “actual innocence” (505 U.S. at 351). Justice Stevens, also concurring in the result, wrote to reject the Court’s standard in reaching their decision. He argued that the 1986 language articulated in Carrier (“probably resulted in the conviction of one who is actually innocent” and “more likely than not created a fundamental miscarriage of justice”) was well-settled law and should remain controlling (505 U.S. at 362). He pointed out that this Court’s ruling “creates a perverse double standard.” While a defendant raising defaulted claims in a noncapital case must show that constitutional error “probably resulted” in a miscarriage of justice, a

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capital defendant must present “clear and convincing evidence” that no reasonable juror would find him eligible for the death penalty. It is heartlessly perverse to impose a more stringent standard of proof to avoid a miscarriage of justice in a capital case than in a noncapital case. (505 U.S. at 366)

Despite these offsetting views, the law of the land remained this very strict standard of requiring clear and convincing evidence such that no reasonable juror would convict. This determination is made by the appellate courts before an actual hearing is held to test new evidence. Remember that at trial only one juror need have reasonable doubt about guilt in order to have an acquittal. But according to the Sawyer decision, in order to overturn a conviction in a case where actual innocence is claimed (and there are constitutional issues that have been procedurally defaulted), it remains the subjective evaluation of the appellate court judges whether or not the new evidence would produce a unanimous acquittal by twelve reasonable jurors. Herrera v. Collins. The following year, different facts created a different rule of law and the legal standards for actual innocence further narrowed. The Supreme Court decided Herrera v. Collins (1993), in which Leonel Torres Herrera brought forward new evidence not heard by the trial jury that some other person killed the victim. His “free-standing” (or bare) claim of actual innocence (meaning that he had no other constitutional complaints) came ten years after his original conviction. He was basically asserting that his execution would be unconstitutional simply because he was innocent. Chief Justice Rehnquist wrote the majority opinion rejecting Herrera’s petition: “A claim of actual innocence is not itself a constitutional claim, but instead is a gateway through which a habeas corpus petitioner must pass to have his otherwise barred constitutional claim considered on the merits . . . it is inapplicable to free-standing claims of actual innocence” (506 U.S. at 404). Justice Rehnquist stated that “this rule is grounded in the principle that federal habeas courts sit to ensure that individuals are not imprisoned in violation of the Constitution—not to correct errors of fact” (506 U.S. at 400). He recalled the Court’s statement in Townsend v. Sain (1963) that “the existence merely of newly discovered evidence relevant to the guilt of a state prisoner is not a ground for relief on federal habeas corpus.” In Herrera’s case, the claim was that he was actually innocent of the capital crime, not as in Sawyer, where the claim was that the punishment was in error. This claim of actual innocence of guilt shaped the Herrera standard by chang-

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ing the language from “clear and convincing” and “eligibility” to “no reasonable juror would find proof of guilt beyond a reasonable doubt.” The Supreme Court did leave open a window for the most egregious of claims, however: those petitioners who presented a “truly persuasive demonstration of actual innocence” might prevail in their petition for a rehearing based on the evidence (372 U.S. at 417). Unfortunately for Herrera, he did not meet this extremely high standard according to the Court majority. Justice Blackmun dissented in the Herrera decision, writing that “the question is not whether a second trial would be more reliable than the first but whether, in light of new evidence, the result of the first trial is sufficiently reliable for the State to carry out a death sentence” (506 U.S. at 434). Blackmun stated that there should be an exception to the concept of finality when a prisoner can make a “colorable claim of actual innocence.” “In other words, even a prisoner who appears to have had a constitutionally perfect trial ‘retains a powerful and legitimate interest in obtaining his release from custody if he is innocent of the charge for which he was incarcerated’” (506 U.S. at 438–439). Blackmun went on to observe that what the Court has actually done is make it impossible for any petitioners to succeed in their habeas appeals: Having adopted an “actual-innocence” requirement for review of abusive, successive, or defaulted claims, however, the majority would now take the position that “a claim of actual innocence” is not itself a constitutional claim, but instead a gateway through which a habeas petitioner must pass to have his otherwise barred constitutional claim considered on the merits. In other words, having held that a prisoner who is incarcerated in violation of the Constitution must show he is actually innocent to obtain relief, the majority would now hold that a prisoner who is actually innocent must show a constitutional violation to obtain relief. The only principle that would appear to reconcile these two positions is the principle that habeas relief should be denied whenever possible. (506 U.S. at 439)

The majority did not dispute Blackmun’s observation. Instead, with the denial of Herrera’s actual innocence claim, Justice Rehnquist maintained that even though the judicial review of free-standing claims of actual innocence may be all but impossible to meet, the petitioner nonetheless still had the clemency (executive review) process available as a fail-safe against any miscarriage of justice that might nonetheless exist. Justice O’Connor wrote in a separate concurring opinion, in part reiterating that “our society has a high degree of confidence in its criminal trials, in no

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small part because the Constitution offers unparalleled protections against convicting the innocent” (372 U.S. at 420), referring to such principles as the right to confront witnesses, the right to compulsory process, the right to effective assistance of counsel, the requirement that the prosecution prove guilt beyond a reasonable doubt, the right to jury trial, the expectation that the prosecution disclose exculpatory evidence, and the right to a fair trial in a fair tribunal. Of course, the existence of wrongful convictions attests to the fallibility of these protections and warrants a closer examination of the realities defendants encounter at trial. How is it that these protections are apparently incapable of protecting against wrongful convictions, particularly in death penalty cases? The Court appeared unaware of the political, economic, and racial factors that infect the criminal justice system and consequently expected that actual innocence claims would be very rare. By requiring such a high standard of proof, they assured the very rarity they expected. Following the Herrera decision, Nicholas Berg’s research confirmed Justice Blackmun’s observation of the near impossibility of meeting the high standard of Herrera for review (truly persuasive demonstration of actual innocence). “Since Herrera was decided, petitioners have presented at least 173 bare-innocence claims squarely before federal courts . . . or 16 cases per year” (Berg 2005, pp. 131–133). Berg found that “no federal court has explicitly provided direct relief on a capital defendant’s claim of bare innocence” (2005, p. 135). He also found that “the bias against affidavits [as new evidence of proof of actual innocence] (saying their credibility has not been tested when the reason for that is the truncated habeas proceeding) is terrible since erroneous eyewitness identification is the largest contributing factor to false convictions” (2005, p. 143). Indeed, Berg’s research suggests that courts will only grant relief to petitioners who present exculpatory DNA evidence, evidence that jurists take to have a scientific infallibility (2005, pp. 141–143). That too is an extremely limiting expectation, since most cases do not have DNA evidence. For the many death row prisoners, only 13 percent (N = 17) of the exonerees listed by DPIC have been cleared through DNA evidence (Death Penalty Information Center 2010). The dire impact of Herrera for petitioners with a freestanding claim of actual innocence is displayed by the Court’s extraordinary intervention in Delo v. Blair, 999 F.2d 1219 (1993). Walter Blair was one of the few appellants who succeeded with his Herrera claim at the federal circuit level and won a one-month reprieve of his imminent execution in order to permit the court to study the merits of his actual innocence claim. Circuit Judge Gerald Heaney wrote separately to

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specifically state that Blair’s “claim is considerably more persuasive than the claim made by Herrera” (999 F.2d at 2221). Yet within one day of the court’s opinion, the US Supreme Court overruled the lower federal court of appeals, immediately vacating the stay of execution, explaining that “it is an abuse of discretion for a federal court to interfere with the orderly process of a State’s criminal justice system in a case raising claims that are for all relevant purposes indistinguishable from those we recently rejected in Herrera” (Berg 2005, pp. 137–138). One could argue that in actuality it was the US Supreme Court that was interfering with the orderly process of review established by its Herrera decision by not giving proper deference to the lower court’s judgment. The Supreme Court sent the message that the prospects for petitioners with a free-standing claim of actual innocence will not likely have the opportunity to test and evaluate the strength of their new evidence, much less have it considered as part of the whole case review. The opportunity for review may appear in the law books as an option, but it is a false hope for virtually all, a legal fiction as it were. But what about other types of claims of actual innocence? Will they be required to meet this high standard? Schlup v. Delo. Lloyd Schlup was convicted of holding fellow prisoner

Arthur Dade while another inmate threw hot bleach in his face and a third person fatally stabbed him on February 3, 1984. In 1995, the Supreme Court again considered the legal standard for bringing a successive appeal based on actual innocence. Schlup argued that the Herrera standard did not apply because his actual innocence claim was a gateway to consider other constitutional issues—in this case ineffectiveness of counsel and withholding of evidence that denied him the full protection of law. Justice Stevens wrote for the majority in Schlup v. Delo: The Supreme Court’s rule that the cause and prejudice requirement has an “actual innocence” exception rests in part on the fact that habeas corpus petitions advancing a substantial claim of innocence are extremely rare; . . . [thus] explicitly tying the miscarriage of justice exception to innocence accommodates both the systemic interests in finality, comity, and conservation of resources, and the overriding individual interest in doing justice in the extraordinary case. (Stevens, 513 U.S. at 322) To establish the requisite probability, the petitioner must show that it is more likely than not that no reasonable juror would have convicted him in the light of the new evidence. . . . The showing of “more likely than not” imposes a lower burden of proof than the “clear and convincing” standard required under Sawyer. (Stevens, 513 U.S. at 327)

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Schlup had new evidence of his actual innocence that he used to make his case that his original trial was tainted. The new evidence was potential proof that something might have gone seriously wrong in his trial that needed judicial correction. Since the Court wanted to protect against unconstitutional trials, it chose the lower standard of review for recognizing the actual innocence claim so as to protect the integrity of the criminal justice system (Stacy 1996, pp. 920–922). This basis for balancing the systemic needs with the individual needs opened up the possibility that more actual innocence claims might be accepted for habeas review. Andrew Schapiro and Timothy Lambert (2005) examined the treatment of 214 cases raising Schlup “gateway” issues in the First through Eighth Federal Circuits since 1995 and discovered that in twenty of those cases (9.3 percent of the total) the courts found that the petitioners had presented sufficiently powerful claims of actual innocence to warrant consideration of their otherwise procedurally barred constitutional claims (Schapiro and Lambert 2005, pp. 10–11). The researchers concluded that the Schlup “gateway” functions “appropriately” because some (the expected rare) cases are finding relief. But without evaluation of the merits of all the petitioners’ cases, it is not possible to know whether the courts actually use the standard appropriately or whether many more are deserving of relief. Before further research on the impact of the Schlup standard was done, however, an intervening factor developed to significantly undercut the Schlup standard: the passage of the AEDPA by Congress in 1996. The Antiterrorism and Effective Death Penalty Act. Several years earlier (in 1988), Chief Justice Rehnquist had created the Powell Committee to explore “the necessity and desirability of legislation directed toward avoiding delay and the lack of finality in capital cases in which the prisoner had or had been offered counsel” (Ogletree 1998, p. 639). No legislation had actually been passed, however, until the government responded to the bombing of the Federal Building in Oklahoma City in 1995 by drastically (and speedily) reducing access to habeas corpus. The clear intention of the AEDPA legislation was to limit access to appeals by creating procedural limitations to habeas corpus and thereby reach finality (that is, execution) sooner in death penalty cases. The AEDPA of 1996 requires “clear and convincing evidence” for granting of successive habeas petitions. This law effectively preserved in statute form the strict standard of Sawyer v. Whitley and functionally limited, and possibly reversed, Schlup (Clessuras 1996).

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The AEDPA severely limited the availability of habeas corpus review by, among other things, amending 28 U.S.C. § 2244b to provide that: A claim presented in a second or successive habeas corpus application under § 2254 that was presented in a prior application shall be dismissed unless the applicant shows that . . . the facts underlying the claim, if proven and viewed in light of the evidence as a whole, would be sufficient to establish by clear and convincing evidence that but for constitutional error, no reasonable fact-finder would have found the applicant guilty of the underlying offense.

This is a very high burden to meet in order to persuade a court to grant review. There are two additional provisions that further narrow the circumstances under which a successive habeas claim can even be made. Provision 1 requires that the standard apply to second or successive petitions involving no retroactively applicable new law. Provision 2 requires this standard as a threshold for obtaining an evidentiary hearing on claims the petitioner failed to develop in state court. In other words, if an issue had been considered already by the state court, it would not be considered again in the federal court. The absolute deference to state court decisionmaking in this statute is potentially quite significant, given that so many state death penalty cases had been reversed at the federal level before AEDPA (see Liebman et al. 2000a, who found that two-thirds of all death penalty cases are reversed). The Supreme Court concurs with this deference to state court rulings, even to defaulted claims: “Out of respect for the finality of state-court judgments federal habeas courts, as a general rule, are closed to claims that state courts consider defaulted” (House v. Bell, 126 S. Ct. 2064). Furthermore, the AEDPA mandates that “a petitioner show both cause for failing to discover the factual basis for the claim earlier and actual innocence, not either one or the other” (Sussman 2001, p. 353). Because these limitations are so narrow, they have the effect of eliminating consideration of new evidence of actual innocence, even as a gateway to constitutional issues (Williams 2002; O’Bryant 2006). If the concern for reaching finality of sentence, that is, execution, was a primary purpose for the AEDPA reforms, researchers find that AEDPA has had mixed results, only partially fulfilling the expectations regarding finality.15 In a comprehensive empirical study of habeas corpus cases filed by state prisoners under the AEDPA, it was found that capital cases received fewer evidentiary hearings than before AEDPA, but each capital filing appeared to take at least twice as long to finish as prior to AEDPA (King, Cheesman, and Ostrom 2007, p. 60). This find-

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ing is consistent with the latest information that the length of time between sentencing and execution has grown to almost twelve years (Bureau of Justice Statistics 2009, Table 11). The King, Cheesman, and Ostrom study also suggested that fewer death row inmates were receiving relief in federal district court after AEDPA. Before AEDPA the rate of relief was found to be in the range of 38 percent (Gelman, Liebman, and West 2004; Liebman et al. 2000a), whereas after AEDPA the reversal rate appeared to be 12 to 13 percent (King, Cheesman, and Ostrom 2007, p. 61), a significant decrease. Could it be that trial and state courts have improved their litigation processes so dramatically since the passage of AEDPA? A more unfortunate and more likely explanation is that fewer grants of habeas writs means that prisoners with legitimate claims are not being detected in the normal review processes. Indeed, the King study demonstrated that in “none of the 33 cases receiving relief did the federal court grant relief based on a claim of factual innocence itself” (King, Cheesman, and Ostrom 2007, p. 89). The reduction in granting relief suggests a narrowing definition that effectively eliminates recognition of actual innocence and wrongful convictions. This apparent tolerance for potential miscarriages of justice continued for ten years without change in the legal standard for recognizing actual innocence claims until 2006, when House v. Bell presented a clarification in the application of standards. House v. Bell. In 2006, the Supreme Court returned to the Schlup standard

in House v. Bell, in which a first federal habeas petition sought consideration of defaulted claims based on a showing of actual innocence. Paul House was convicted of murdering a woman in 1985 in rural Tennessee. The new evidence House discovered included significant DNA evidence, and he succeeded in convincing five members of the Supreme Court that when looking at his new evidence as a whole, it was probable that no juror would lack reasonable doubt. Although he tried both arguments, only the gateway argument won support of the majority, not his freestanding claim of innocence.16 Even though the three dissenters (Justices John Roberts, Antonin Scalia, and Clarence Thomas) in this case all agreed that the Schlup standard should apply to House, they were convinced contrary to the majority, that on viewing the evidence (new and old) as a whole, it was not probable “that no reasonable juror would vote to convict him.” Their sense of jurors’ reactions to the new evidence led them to reject House’s opportunity to actually test it before another jury panel. Fortunately for Paul House, the Supreme Court did not need a unanimous decision (as required of jurors by the Schlup standard) in

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order for House to prevail with his petition to have his procedurally defaulted constitutional claims considered.17

Shifting Standards Actual innocence is not a simple concept after all. The legal standards for accepting claims of actual innocence have shifted from Carrier to Sawyer to Herrera to Schlup to AEDPA and back to Schlup with distinctions made between first appeals and successive appeals, free-standing and gateway claims, procedural and substantive claims of actual innocence. What appears to be clear is that the definition of actual innocence is not absolute, is not objective, but is rather a moving target constructed for different legal situations to reinforce the societal interests of “finality, comity (deference to state courts) and conservation of scarce judicial resources” (Justice Stevens for the majority in Schlup, 513 U.S. at 324). Evidence required to prove actual innocence is treated differently depending on whether the appeal is made on a first or second or later review, thus basing the life of the prisoner on the procedural status of his or her claim, rather than on the substantive merits of the claim. In fact, rather than having super due process because death is different, the capital prisoner is less protected by due process from mistakes precisely when the risks of wrongful convictions are greatest (see Gross 1998). The conclusion is that time limitations and appellate reviews are significant structural barriers to recognizing legitimate claims of actual innocence. It seems reasonable to conclude that the long-standing principle of preferring to release even one guilty person over convicting an innocent person is no longer operative in death penalty cases.

Do These Variations in Standards Make a Difference? Brandon Garrett’s research (2008a) demonstrates the difficulty the actually innocent have in obtaining relief through the courts. Garrett examined 200 persons who were fortunate to have DNA evidence to ultimately exonerate them and found that none of those cases had succeeded in the courts with their claims of innocence prior to presenting DNA evidence. This same lack of success in the courts is evident in other states. A 2002 Virginia study of capital punishment observed that 39 percent of the clemency petitions filed since 1977 presented claims of innocence (Acker 2008, p. 51). In Missouri, nineteen cases (26 percent) of all the

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death penalty clemency petitions since 1977 presented claims of actual innocence. 18 Of these nineteen cases, seventeen mention in their clemency appeals to the governor that they have new evidence not heard by the trial jury (Burnett 2009). Although the absolute truth of these clemency claims has not been tested, nonetheless neither 39 percent nor 26 percent is the rarity of occurrence that has been presumed (see Herrera v. Collins discussed above). Success with claims of actual innocence in habeas appeals does not seem to depend on whether the prisoners present bare innocence claims or innocence claims as a gateway to make constitutional arguments. Only two prisoners in Missouri succeeded in winning an expedited hearing and stay of execution based on their new evidence claim of actual innocence, only to have a higher court take away that opportunity. In Walter Blair’s case (Delo v. Blair, 1993), the US Supreme Court intervened to vacate the stay, and in Emmitt Foster’s case (1995) the en banc Eighth Federal Circuit Court of Appeals reversed the three-judge panel’s decision without comment, apparently learning from the Supreme Court’s lesson in the earlier Blair review. In the end, neither courts nor clemency considerations intervened to spare any prisoners (except for Lloyd Schlup, whose story continues in Chapter 3), despite some with very strong evidence of doubt about actual guilt. Roy Roberts: The Legal System’s Resistance to Actual Innocence Claims

One case that illustrates many of the challenges faced by petitioners in establishing actual innocence is that of Roy Roberts, who had to deal with both AEDPA and Herrera after his appeal became a free-standing claim of actual innocence.19 Here, the clemency petition tells his story, leaving the conclusion to the reader. Roy Roberts was convicted and sentenced to death for his alleged participation in the stabbing death of Thomas Jackson, a prison guard, during a July 3, 1983, riot in the Missouri state prison. Roberts was never accused of stabbing Jackson. He was accused and convicted based on testimony that identified Roberts as the person who restrained Jackson during the riot while other inmates stabbed and murdered Jackson. The murder occurred in the midst of the confusion caused by more than thirty rioting inmates. Roy Roberts always maintained his innocence. He claimed that his trial was flawed by many of the factors found in other wrongful conviction cases: witness perjury, unreliable eyewitness testimony, ineffective counsel, and prosecutor misconduct.

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Witness perjury. Roberts contended that in order to curry favor for an early

parole, inmate Joseph Vogelpohl gave false testimony, whereas Roberts had eight inmates to testify that he was not involved with the killing. Inconsistent eyewitness testimony. The initial statements of all the pros-

ecution’s eyewitnesses against Roberts failed to describe or mention Roberts as being near officer Jackson, much less holding Jackson while he was stabbed. The failure of the eyewitnesses to identify Roberts initially raised grave doubts about their later testimony against him. Roberts, a big 300-pound man, should have been impossible to miss while allegedly restraining Jackson in a headlock and crushing him against a wall and door frame as Jackson was repeatedly stabbed. The clemency petition describes the evolution of these eyewitness testimonies. One of the correctional officers explained that the prosecutor showed him a photo of Roberts before the officer went to the line-up, and he still did not identify Roberts until trial. Ineffective counsel. Despite the glaring omission of any identification of Roberts by each of the eyewitnesses against him in their initial statements, Roberts’s trial counsel failed to cross-examine all but one of those eyewitnesses on that omission at trial. The negligence of appointed counsel thus precluded the jury from learning that the eyewitness identifications of Roberts, the only evidence against him, were thoroughly suspect. Prosecutor misconduct. The prosecutor not only showed Roberts’s photo

to one eyewitness in the codefendants’ trial but also could have misled the jury in their responsibility. Missouri Supreme Court Judge Charles Blackmar said that the prosecutor’s statement to the jury in Roy Roberts’s case that the jury’s function is “‘recommending to the judge to consider a sentence of death’ is highly misleading as a description of Missouri practice. Under the climate presently prevailing, a circuit judge would risk his career if he were to set aside a death verdict rendered by a jury” (709 S.W.2d at 872). It is ironic that Robert Driscoll, the codefendant, won a retrial because of this same prosecutor’s excessive statements to the jury. That retrial was based on Caldwell v. Mississippi (1985) in which a death penalty case was reversed because the prosecutor diminished the jury’s sense of responsibility. The state tried Roy Roberts under the theory of accomplice liability even though he always denied that he had any role in the killing (709 S. W.2d 857, 867 [1986]). Roberts’s trial and first appeal to the Missouri

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Supreme Court had already taken place when Murray v. Carrier was decided in June 1986. His first appeal focused on trial errors: (1) insufficient evidence, (2) error in the jury instructions, (3) failure to allow rebuttal testimony, (4) the death qualification of the jury, (5) the death sentence, and (6) the prosecutor’s conduct. On all issues the Missouri Supreme Court upheld his conviction, finding “no reversible error and necessarily no ‘manifest injustice’ under the plain error standard” (709 S.W.2d at 864). In 1989 Roy Roberts had a public defender who submitted his next appeal contesting the denial of his motion for postconviction relief, contending that his trial lawyer was ineffective. Again the Missouri Supreme Court affirmed the judgment of the lower court by denying the issues Roberts raised. The bulk of this petition focused on his complaints regarding his trial attorney: (1) for failing to object to prejudicial statements made by the prosecutor about the capital sentencing process, (2) for failing to request a second-degree felony murder instruction, (3) for opening the issue of whether Roberts had a prior homicide conviction, (4) for failing to attempt to impeach the state’s witness, inmate Joseph Vogelpohl, (5) for failing to attempt to impeach four corrections officers, (6) for failing to object to hypnotically refreshed testimony, (7) for failing to object to misleading statements of the law of accomplice liability, and (8) for failing to object to the submission of an overbroad aggravating circumstance in the penalty phase. He also complained that Missouri’s mitigating circumstances instruction was unconstitutional in that it required unanimity in the finding of any given mitigating circumstance (775 S.W.2d 92, 93). Despite the correctness of this last issue, the court stated that such objections should be raised only on direct appeal, not in a motion for postconviction relief. This would have been impossible for Roy Roberts, however, since the precedent for this ground, Mills v. Maryland, was decided in 1988, well after Roberts’s direct appeal. All other issues were rejected by the Missouri Supreme Court, and no specific Murray v. Carrier claims were raised. The next published opinion in the Roy Roberts case was in 1998, wherein he requested permission to file his third amended habeas petition.20 By that time the Supreme Court had decided Sawyer, Schlup, and Herrera, and the AEDPA was in effect. In affirming the district court’s denial of Roberts’s petition for a writ of habeas corpus, the circuit judge wrote that even if the prosecutor’s remarks were improper, they did not violate due process. “We cannot say that there is a reasonable probability that the jury would have found Roberts innocent of capital murder.” This

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language sounds like the Schlup standard, which would be appropriate if this had been a first habeas petition and if there had been constitutional errors in the trial. In this latest petition, however, Roberts was repeating all of his earlier arguments, both trial flaws and attorney ineffectiveness. The federal court panel ruled that they saw “no miscarriage of justice in Roberts’s case” (137 F.3d 1062 [1998]). At the time, Missouri gave the convicted only ninety days after trial to discover and introduce new evidence. Otherwise the state did not permit a motion for a new trial based on newly discovered evidence unless it was DNA evidence. In this case, no physical evidence tied Roberts to the bloody scene of Jackson’s death, where Roberts allegedly restrained Jackson in a headlock while he was stabbed in the eye, heart, and abdomen. Though the guards were on the lookout for bloody clothes, and indeed confiscated such clothes from Robert Driscoll, Roberts’s clothes were scrutinized after the riot but not confiscated because they were not bloody. Since there was no blood on Roberts’s clothing, there was no DNA to retest and no chance to bring in new evidence. Missouri provides no remedy if new evidence is discovered at a later date unless it can be considered under the miscarriage of justice exception to defaulted claims. Just months before his execution date, Roy Roberts took a polygraph (lie detector) test to prove his innocence, administered by a well-respected, retired Kansas City police officer/ polygrapher. Despite being under the stress of a warrant for execution, Roberts passed the polygraph. His test results showed “no deception” in his answers denying involvement in the murder, including specific denials that he was holding the victim during the stabbings. Unfortunately for Roberts, polygraph tests do not have the same authority or credibility as do DNA tests. At the very end, Roy Roberts finally made an appeal based on his actual innocence, requesting permission to file a successive habeas petition. Following the applicable AEDPA law, the court required that (1) to the extent that Roberts’s application reasserted constitutional violations already raised in his first habeas proceeding, he was prevented from their reconsideration in a second habeas action (170 F.3d 815), and (2) for any new claims he would have to show he could not have previously discovered the factual basis for the new claims through the exercise of due diligence and that the facts underlying the claims would be enough to establish by clear and convincing evidence that, but for the constitutional error, no reasonable fact finder would have found him guilty of capital murder. Instead of addressing the requirements of AEDPA (which he could not satisfy), Roberts simply contended that he should

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not be executed consistent with the Eighth and Fourteenth Amendments because he was an innocent man who was erroneously convicted. He argued that the absolute bar to the reconsideration of constitutional violations already raised was an unconstitutional suspension of the writ of habeas corpus. Roberts was fundamentally challenging the AEDPA. It is not surprising that the three-judge panel of the Eighth Circuit Court of Appeals agreed that they would not overturn another panel’s earlier decision, and they denied his petition for a second habeas appeal. In what is now the typical clemency response, the governor did not intervene to halt the execution and grant clemency. Roy Roberts was executed on March 10, 1999, having had no substantive review of his actual innocence claims. It is ironic that his codefendant (Robert Driscoll), who confessed to being the actual killer, was originally found guilty of first-degree murder and sentenced to fifteen years in prison. Obtaining a new trial, in part because of the prosecutor’s misleading statements to the jury about their responsibilities, Driscoll was found guilty of voluntary manslaughter in his retrial and was released in 2004 for time served, five years after Roy Roberts was executed. In spite of what the average person might conclude was a persuasive case of actual innocence, Roy Roberts never satisfied the courts that his conviction and death sentence deserved a new look in light of his actual innocence claim. Utilizing the technical legal exclusions of the AEDPA, the courts did not look beyond those procedural requirements to consider the merits of Roberts’s claims by evaluating all the evidence as a whole. Had the Schlup lens been applied, Roberts might have succeeded in obtaining a rehearing. But the compulsion for finality apparently weighed more heavily than demands for accuracy.21

Conclusions and Recommendations Most persons would agree that an injustice is done if an actually innocent person is convicted and executed. In practice, this deceptively simple category of actual innocence is not at all clear. Justice Stevens observed (dissenting in Schlup 513 U.S. at 325) that the courts and legislatures seem to have abandoned the “the maxim of the law . . . that it is better that ninety-nine . . . offenders should escape, than that one innocent man should be condemned.” Further, the widely held belief that the appeal process guarantees that the actually innocent will not be wrongly executed depends on the notion that reasonable people will agree on the facts. Yet when new information

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is discovered, it is more likely than not that no one will consider this evidence because of the lateness of its discovery. In addition, the Supreme Court and Congress have limited prisoners’ ability to present newly discovered information through the judicial process. On the one hand, varying time limitations restrict having a hearing on the merits of the evidence; on the other hand, they render the burden of proof extraordinarily high if it is to meet the miscarriage of justice exception. Very few actual innocence claims succeed in having substantive consideration by any judge or jury. The facts may be there, but the doors are closed to consider the merits of this newly discovered information. Only a few prisoners ever make it through the hurdles that are mounted against them in order to have a hearing in which the new evidence is actually tested. Although one can appreciate the desire to reach finality in capital cases, the price for that finality is a significant risk of burying actual mistakes. An interesting phenomenon is beginning to emerge in state courts. There are courts reading into the Herrera opinion an authority to enable state courts to grant habeas relief in free-standing claims of innocence more broadly than in the federal courts. This was the key in Joe Amrine’s case (see Chapter 1), when the Missouri Supreme Court quoted Herrera that “even if a federal court were found not to have jurisdiction to review a state conviction and sentence in the absence of a federal constitutional issue, this would not deprive a state court from reviewing the conviction and sentence if its own state habeas law so permitted” (102 S.W.3d 541 at 546–547) and then granted Amrine relief. Other states have also recognized the power of state courts to grant habeas relief based on free-standing claims of actual innocence: California, Connecticut, Texas, Illinois, and Washington (Stith 2004, pp. 433–438). Such an interpretation becomes a means for resisting the federal limitations on successive reviews. In Amrine’s case it meant the reversal of his wrongful conviction and death sentence. This chapter has investigated whether the concept of actual innocence functions in a manner that is authoritative, clear, and relatively noncontroversial. It has been shown that the legal rules for determining actual innocence are quite arbitrary and have the result of excluding almost every claim of actual innocence. In Herrera, the Supreme Court is clear: “A claim of actual innocence is not itself a constitutional claim” (506 U.S. 404). If this rule does not change, then it is lawful for the Supreme Court to close the door on appeals. The Supreme Court can logically take the position that although a person may be innocent, yet according to the rules the Court creates and consequently chooses to follow, new information to establish actual innocence may be discovered too late in the process to be considered. Justice Blackmun warns that the

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“execution of a person who can show that he is innocent comes perilously close to simple murder” (dissenting opinion in Herrera, 506 U.S. at 446). Unless the evidence fits the narrow requirements or exceeds the high standards established to limit appeals, it is questionable whether there is a judicial lens that can recognize any cases of actual innocence. Cynical observers say that the application of legal doctrine dealing with actual innocence is a hoax (Margolis 1994, p. 625). In light of all that has been discussed above, it was extremely surprising that in 2009, in a six-to-two ruling, the US Supreme Court issued an order in Troy Davis’s case requiring the district court to “receive testimony and make findings of fact as to whether evidence that could not have been obtained at the time of trial clearly establishes petitioner’s innocence” (130 S.Ct. 1[2009]). The unsigned order gave no reasoning with which to determine what prompted the majority to do what has not been done in more than fifty years (see Justice Scalia’s dissent).22 Justice Stevens wrote in a concurring opinion, however, that “the substantial risk of putting an innocent man to death clearly provides an adequate justification for holding an evidentiary hearing” rather than denying the appeal on narrow legal grounds. It may be that a majority of the Supreme Court justices are now willing to state that the Eighth Amendment bars the execution of the innocent. The rules for approving an appellate review are fraught with subjectivity and change over time, with the result that what is considered actual innocence also changes over time. Although society relies on formal criteria to define those who successfully claim actual innocence (see the DPIC list of 139 death row exonerees [Death Penalty Information Center 2010]), in reality, the concept is a complicated sociolegal notion. One suspects that the lens through which the courts focus on actual innocence is a lens of administrative convenience shaded by possible political interests. The resistance to actual innocence in the courthouse is not matched, however, by the growing public awareness of actual innocence. In addition to the 139 death row exonerees, there are more than 500 other exonerated offenders (Life After Exoneration Program 2009)—many cleared through DNA testing, which is now considered convincing evidence for all audiences. As the public learns repeatedly of exonerations in every state, the so-called innocence revolution (Marshall 2004) dominates the death penalty debate and slowly impacts public opinion, thus contributing to a decline in jurors’ willingness to impose death sentences (Baumgartner, DeBoef, and Boydstun 2008). This public frame of mind, however, has not changed the course of the appellate courts, where access to innocence has been structurally limited through court decisions and through congressional action, despite some dissenting voices in postconviction appeals.23

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Recognizing the fallibility and subjectivity of the process of determining who should live and who should die, several changes in the system would return balance to the scales of justice that presently are weighted against the actually innocent. Timing

The building of a case of actual innocence is tedious and demands a long-term commitment by dedicated advocates. Indeed, “thousands” of prisoners have lost the opportunity to file habeas claims because of missing the statute of limitations deadlines (Segal 2008, p. 248). Since there are no time limitations placed on bringing first-degree or capital murder prosecutions, fairness prescribes that there not be a time limit for presenting new evidence of innocence after conviction. It is fundamentally unfair to permit capital crimes to have an unlimited statute of limitations while putting unrealistic time limits on bringing forward new information. These rules are arbitrarily set by courts and legislators and could reasonably be changed. Therefore, new evidence of actual innocence should be considered whenever it is presented, thus dealing with the merits and substance of claims without having to dodge procedural technicalities (see Hoffman 2000). Deference to Lower Courts

Research by James Liebman et al. (2000a and 2000b) demonstrates how important federal review of death penalty cases has been to preventing miscarriages of justice. More than 40 percent of the cases reaching the federal habeas review prior to AEDPA have been reversed for serious constitutional flaws occurring in lower court actions. Now that deference to trial and state courts is mandated by the AEDPA (28 U.S.C. 2254[e][1]) it is highly likely that those serious mistakes will go unattended, especially since there has been no correlated effort to improve the skill level or resource support for the defense at the state or local levels. Therefore, as a matter of justice where the sentence is irrevocable, deference should not be extended to lower courts when the context is a death penalty appeal in federal habeas courts. Standards

Robert Stacy proposed that rather than reading the Schlup opinion literally, a reading that would substitute “jury” for “juror,” and thereby con-

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sider the behavior of the jury as a whole (Stacy 1996, pp. 927–928), would be more consistent with the majority’s intent in reestablishing the lower evidentiary standard of “more likely than not.” To insist on the high level of certainty that not one juror be willing to convict the petitioner when the new evidence is taken as a whole effectively blocks all review. It seems inconsistent with the principle of protecting against punishing the innocent to have such a high barrier to recognizing a wrongful conviction, particularly in death penalty cases. Since fact finders deliberate in a group to reach decisions regarding guilt, it seems more appropriate to use a standard that considers the probability of a jury’s corporate decision. The 139 death row exonerees succeeded in their claims, despite the many hurdles they faced. A cursory review of their stories (see Death Penalty Information Center 2010) points to prosecutorial misconduct as a major source of the wrongful death sentences. Therefore, before moving the focus to another facet of the spectrum of innocence, the next chapter takes a closer look at a related phenomenon that directly creates problems for the system in recognizing the actually innocent: those persons who make false confessions and those actually innocent who plead guilty to avoid a death sentence. How these two problems come about represents powerful support for the view that the system itself frustrates the reliability of the criminal justice system, an issue that is especially problematic in capital cases and one that crime control advocates are reluctant to address.

Notes 1. See the singular debate about the DPIC exonerees by Joshua Marquis (2005). 2. It is unfortunate that Marquis is the spokesperson for this skepticism of actual innocence because his view is based not on careful research but on his own perspective from Oregon. This perspective is apt to be a narrow one, as the state of Oregon has ample resources for indigent defense services (Uphoff 2006, p. 840; Spangenberg 2005), has had just two executions since 1976, and has had no exonerees. Marquis stated that in Oregon “it is common for attorneys to be paid hundreds of thousands of dollars by the state for their representation of indigent capital clients” (2005, p. 507). But not all states are so generous. Indeed, we know that some states have caps on fees and expenses that are quite miserly. See also Stephen Bright (1994, 2003). 3. Marquis’s critique was unfortunately based on a flawed analysis of Judge Jed Rakoff’s opinion in U.S. v. Quinones (313 F3d 49 [2nd Cir. 2002]) wherein Judge Rakoff concluded that at least 32 and as many as 40 of the 58

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death row prisoners freed from 1991 through 2002 were actually innocent. What Marquis failed to recognize was that Judge Rakoff’s analysis did not consider or include the 44 death row prisoners freed before 1991, nor the more than 25 death row prisoners freed after 2002 (Holdridge 2008). 4. There is even debate about what is considered “new” (Case 2008). Some courts consider evidence to be new only if the evidence could not have been known at the time of trial. Others argue that it is new evidence if the jury did not hear it. In Amrine, the state argued that it is not new evidence because the recantations were known and presented during petitioner’s postconviction proceedings in 1989 (Amrine v. Roper 2005, p. 11 [respondents statement, brief, and argument]). “Missouri law, too, defines ‘new’ evidence as evidence which ‘has come to the knowledge of the defendant since the trial.’ State v. Williams, 652 S.W.2d 102, 114 (1983)” (Amrine v. Roper 2005, pp. 7–8 [petitioner’s reply brief]). Schlup refers to evidence that has “become available only after the trial. Schlup v. Delo, 513 U.S. at 328” (Amrine v. Roper 2005, p. 7 [petitioner’s reply brief]). The new evidence also needs to be strong, not just something made up or that would not change the outcome, that is, that no juror would decide. 5. Requesting a new trial on the ground of new evidence is not available in thirteen of the death penalty states (Wilkes 2006). 6. There may be other collateral, postconviction remedies that might entertain the ground of new evidence in its consideration, such as writs of habeas corpus. 7. The list of state codes and time limits follows. Alabama Code § 15-175(a)(2009)(30 days); Arizona R. Crim. P. 24.2(a)(2008)(60 days); Arkansas R. Crim. P. Rule 36(b) (2009) (30 days); California Pen Code § 1181 (2009) (no limit); Colorado. Crim. P. 33 (2009) (no limit); Connecticut Gen. Stat. § 52-582 (2008) (no limits); Delaware Super. Ct. Crim. R. 33 (2009) (two years); Florida R. Crim. P. 3.590(b) (2009) (10 days); O.C.Georgia A. § 5-5-40(a) (2009) (30 days); Idaho Code § 19-2407 (2008) (10 days); 725 ILCS 5/116-1(b) (2009) (30 days); Indiana R. Crim. P. 16(B) (2009) (30 days); Kansas S.A. § 22-3501(1) (2008) (two years); Kentucky RCr Rule 10.06(1) (2009) (one year); Lousiana C.Cr.P. Art. 853 (2009 (one year); Maryland Rule 4-331(c) (2009) (no limits); Mississippi URCCC Rule 10.05(6) (2009) (10 days); Missouri Sup. Ct. R. 29.11(b) (2007) (15–25 days); Montana Code Anno., § 46-21-102(2) (2007) (one year); R.R.S. Nebraska § 29-103(4) (2009) (three years); Nevada Rev. Stat. Ann. § 176.515(3) (2009) (two years); New Hampshire RSA 526:4 (2009) (three years); North Carolina Gen. Stat. § 15A-1415 (2009) (no limits); Ohio Crim. R. 33(B) (2009) (120 days); 22 Oklahoma St. § 953 (2009) (one year); Oregon CP 64F(1) (2008) (10 days); 42 Pennsylvania C.S. § 9545(b)(1) (2008) (one year); Rule 29, South Carolina RCrimP(b) (2008) (no limits); South Dakota Codified Laws § 23A-29-1 (2009) (10 days); Tennessee R. Crim. P. RULE 33(b) (2009) (30 days); Texas R. App. P. Rule 21.4(a) (2009) (30 days); Utah R. Crim. P. Rule 24(c) (2009) (10 days); Virginia Sup. Ct. R. 3A:15(b) (2009) (21 days); Washington CrR 7.8(b) (2009) (one year); Wyoming R.Cr.P rule 33(c) (2008) (two years). 8. Other certain points that can be statutorily mentioned are after filing of reply brief on direct appeal, after final order, after direct appeal ruling, after appointment of postconviction counsel, after transcript filed with state supreme court, or within one year of discovering new evidence.

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9. Some states have carved out exceptions to general statutory time limits when new trial motions involve newly discovered evidence. If the alleged new evidence could not have been discovered prior to the end of the limitations period, several jurisdictions have similarly held that the trial court has the latitude to consider the motion (Medwed 2005, p. 677). 10. During the 1960s, one-fourth of the prisoners executed had no appeals at all, and two-thirds of their cases were never reviewed by a federal court (Bohm 2003, p. 34). 11. Missouri cases in which appeals were procedurally denied owing to retroactive application of the AEDPA were Milton Griffin-El, Roy Ramsey, Ralph Davis, Jesse Wise, Bruce Kilgore, David Leisure, Mose Young, Michael Roberts, Stephen Johns, and Paul Kreutzer. 12. These opinions were in Kuhlmann v. Wilson (1986), Murray v. Carrier (1986), and Smith v. Murray 1986). 13. What is the miscarriage of justice exception? In Wainwright v. Sykes 433 U.S. 72 (1976), the majority suggested that the role of the writ of habeas corpus was to prevent a miscarriage of justice (at 107). Then Justice O’Connor explored the concept in 1982 in two cases: Engle v. Isaac (1982) and U.S v. Frady (456 U.S. 152). “A trio of 1986 cases, Kuhlmann v. Wilson, Murray v. Carrier, and Smith v. Murray (477 U.S. 527) finished the work begun in Engle and Frady and firmly established the possibility of a ‘miscarriage of justice’ as a second distinct exception to dismissal of a procedurally barred claim” (Stacy 1996, p. 913). Smith v. Murray emphasized that the miscarriage of justice exception addressed actual as opposed to legal innocence. In Kuhlmann, the exception must be available no matter when the exculpatory evidence comes to light (477 U.S. at 452). 14. This aspect of Sawyer v. Whitley was overturned in Wiggins v. Smith (2003), where the Court ruled that the performance of Wiggins’s attorneys violated his Sixth Amendment right to counsel because they did not conduct a reasonable investigation and did not include the preparation of a social history report, as was standard practice in Maryland. 15. Some would argue that the AEDPA was the wrong solution to the problem of finality, believing that rather than successive appeals generated by prisoners, it was the exhaustion doctrine that was primarily responsible for delays in death penalty cases (Zheng 2002, p. 2132). The exhaustion doctrine refers to the requirement that a federal court dismiss an appeal that presents claims that have not yet been litigated in state courts (see Rose v. Lundy, 455 U.S. 509, 1982). 16. Samuel Alito did not participate in House v. Bell. 17. The prosecutor dropped all charges against Paul House on May 12, 2009, and he was released. 18. The nineteen cases were Gerald Smith, Winford Stokes, Maurice Byrd, Walter Blair, Frank Guinan, Lloyd Schlup, Emmitt Foster, Larry Griffin, Doyle Williams, Glen Sweet, Donald Reese, Kelvin Malone, Roy Roberts, Roy Ramsey, Jesse Wise, Tomas Ervin, Bert Hunter, Stephen Johns, and Mose Young. 19. The clemency petition in Roy Roberts’s case was written by Bruce Livingston and Leonard Frankel. See also Roberts v. Missouri, 709 S.W.2d 857 (1986); Roberts v. Missouri, 775 S.W.2d 92 (1989); Roberts v. Bowersox, 137 F.3d 1062 (1998); and Roberts v. Bowersox, 170 F.3d 815 (1999).

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20. This petition was still considered his first request for a writ of habeas corpus. 21. A unique factor that seemed to foreordain the denial of clemency for Roberts was that just the month before, Governor Mel Carnahan had commuted the death sentence of Darrell Mease because the pope made a personal plea for mercy. The governor did so saying he was only showing honor to the pope, not because of any merit to Mease’s petition. Because of the public’s vocal negative response, it was very unlikely that the governor would commute any death sentence again. In fact, he did not. 22. The petition for a writ of habeas corpus offered multiple reasons for granting the writ: (1) Davis could not obtain relief from any other court; (2) exceptional circumstances of this case and recantations were also exceptional in that they were bystanders, not family members with a self-interest in saving Davis’s life; (3) the case was totally different from Herrera’s petition; (4) the lower courts denied hearing new evidence, therefore Davis had never had a full and fair hearing; (5) the court of appeals had erred in barring the second petition; and (6) Davis had been diligent in presenting evidence. 23. For example, in a recent dissenting opinion, federal judge William Fletcher of the United States Court of Appeals for the Ninth Circuit “argued that the police and prosecutors had withheld and tampered with evidence in the case for decades and even accused the district court of having sabotaged the case” (Schwartz 2009).

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3 False Confessions and False Guilty Pleas Because we pretend that the system places protection of the innocent at its apogee, we cannot acknowledge that punishing people for going to trial has a perverse impact on both the innocents who are convicted after trial and those who plead guilty to avoid the penalty. —Givelber 2000, p. 1399

Chapter 2 explored the problems faced by the legal system in recognizing conventional cases of actual innocence. The focus there was on how difficult it is for the discovery of new evidence of actual innocence to change the outcome of the original trial, demonstrating that those who are wrongfully convicted and sentenced to death but who are actually innocent are legally blocked by procedural barriers from being acknowledged. Within this category of actual innocence, however, there is a special category of prisoners who are wrongly convicted owing to their own false confession or guilty plea. In this chapter, these two situations are explored in light of the justice principle of ensuring that the guilty are punished and that the innocent are not: those who make false confession (claiming they are guilty when in fact they are actually innocent) and those who plead guilty in a bargain with the prosecutor. Further, within the latter group, two types of wrongful convictions that can result from the fear of receiving a death sentence are considered: those who are actually innocent but make a plea so as to escape the terror of a potential death sentence and those who are guilty but extract a deal to escape the death penalty by pointing to someone else. In each of these circumstances, structural uncertainties influence who gets a death sentence and, in particular, influence who may be wrongfully convicted. In 51

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each of these circumstances, problematic (but legal) normative behaviors result in wrong outcomes. The first group to be reviewed consists of persons who falsely confess to crime.

False Confessions It is counterintuitive that there is such a phenomenon as false confession. Why would anyone confess to a serious crime when they did not do it? It turns out that there is a growing literature about this topic, and some of it will be discussed here. Two books published in 2009 bring significant public attention to this problem. True Stories of False Confessions, edited by Rob Warden and Steven Drizin, recounts what happened in forty-nine confirmed cases, and The Wrong Guys, by Tom Wells and Richard Leo, tells the story of the Norfolk Four, members of the navy who confessed to a rape and murder that they did not do. These narratives offer disturbing detail about the means and mechanisms that generate false confessions. It is difficult, unfortunately, to discover false confessions because even though the system is very willing to convict persons, it is at the same time very reluctant to reinvestigate when claims of innocence are made after the convictions. A few dedicated researchers have taken on the task of identifying in more systematic ways the patterns of false confessions in the context of wrongful convictions. Most notably, Hugo Bedau and Michael Radelet (1987) recognized 49 cases from their study of 350 wrongful convictions; Barry Scheck, Peter Neufeld, and Jim Dwyer (2000) revealed 15 false confessions among their study of 62 wrongfully convicted persons; and Steven Drizin and Richard Leo (2004) reported on 125 proven false confessions. Recent advances in DNA testing have been particularly effective in confirming wrongful convictions. According to the Innocence Project (2010), 25 percent of the more than 200 wrongful convictions overturned by DNA evidence in the United States have involved some form of a false confession. It is unfortunate that not all cases have DNA evidence that so conveniently can rule out (or confirm) suspects. Despite the significance of DNA investigation for exonerating sex offenders, modern DNA testing is not a magic bullet for exonerating death row prisoners. The DPIC list of 139 death row exonerees identified just seventeen prisoners (12 percent) cleared through DNA testing, with the rest cleared through oldfashioned investigation and some degree of luck (Radelet 2008). Only nine (6 percent) of the 139 exonerees made false confessions to capital

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murder charges.1 The only thing these nine have in common is that the police played a key role in obtaining their false confessions. None of these statements were made spontaneously or voluntarily. These growing discoveries of false confessions (see also Leo et al. 2006) and the publicity that accompanies each new release present convincing evidence that the constitutional protections for the accused may not be effective in safeguarding the justice principle of punishing only the guilty. By examining the normal processes of obtaining confessions, it is clear that, rather than blaming the prisoner, it is the system that deserves blame for these wrongful death sentences. Confessions are usually secured through the interrogation process conducted by the police authorities. In the normal course of doing their job of protecting the community from “bad guys,” police normally bring an attitude of suspicion and a presumption of guilt to encounters with suspects. The task of the investigators is to build the case to convict the guilty. It is well known that the best way to resolve a case is to have the suspect confess to the crime because then the case is considered strong and unassailable; a confession is a virtual conviction. As a result, the police can become quite energetic in their efforts to elicit a confession, using tactics that might make anyone say what is desired, not just the guilty. Early in the establishment of this nation, concern about the potential for government abuse motivated the founders to include a Bill of Rights to protect individuals from the possibility of government’s taking advantage of its considerable authority. Especially pertinent to this discussion of false confession is the Fifth Amendment, which includes, among other things, a defense against self-incrimination: “nor shall [any person] be compelled in any criminal case to be a witness against himself” (emphasis added). These were just words with little meaningful enforcement behind them until they were applied to the states in the Miranda v. Arizona (1966) decision, wherein the Supreme Court supported the right against self-incrimination by requiring warnings to be given to suspects in police custody before questioning could begin. The rationale for these warnings is to ensure that confessions are only voluntarily and intelligently made, thus assuring that no one is “compelled.” By now, the warnings are well known: 1. You have the right to remain silent; 2. Anything you say may be used against you in a court of law; 3. You have the right to an attorney; and 4. If you cannot afford an attorney, you will be provided with one.

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Once given the warnings, persons in custody could waive their rights voluntarily and then make their statement. The Miranda warnings were intended to protect against coerced self-incrimination under the theory that any confessions obtained through torture or coercion would be unreliable and untrue. Many observers from the crime control perspective worried that this new requirement imposed on police behavior would reduce the number of convictions, assuming that when arrestees were advised of their right to attorney representation they would not speak to police but instead would wait for legal counsel to arrive. The jailhouse truism, “Don’t talk and you’ll walk,” captured the conservatives’ concern, which was that the guilty would escape their deserved punishment only because of these Miranda warnings. This fear, however, has not been substantiated by researchers (Wald 1967). Keith Findley noted that “the rise in due process rights has not translated into defendants extensively exercising those rights” (Findley 2008, p. 144). Conviction rates have not changed significantly (Schulhofer 1996), and four out of five suspects actually waive their rights and submit to questioning (Leo 1996a). When arrestees find out that the police have some evidence against them, they are likely to recognize that cooperation will indeed help their situation. In addition to the suspects’ inclination toward waiving their rights, the courts have undercut the force of Miranda and limited its deterrent effect on coercive police practices by “allowing statements taken in violation of a valid recitation or waiver of Miranda rights to be used in numerous circumstances” (Rosen 2006). For example, the Supreme Court ruled in Arizona v. Fulminante (1991) that a conviction based on a coerced confession was not to be automatically reversed. Such a decision sends a signal to police that they can continue their usual tactics with little incentive to respect the spirit of Miranda.2 In fact, many police are trained to intentionally ignore the Miranda rule altogether (Gohara 2006, p. 800). Consequently, compliance with Miranda has come to reflect only the letter of the law rather than the spirit of the law (Louthan 1979, p. 102). Should the arrestee need to be persuaded to cooperate, the police have many advantages in the interrogation interaction that can facilitate communications. Although physical force is no longer an approved method to elicit a confession, the police have a full assortment of lawful interrogation practices that are quite manipulative (Roberg, Novak, and Cordner 2009, pp. 290–291). For example, police are permitted to trick the suspect (Gohara 2006, p. 794) or bluff and deceive the suspect (Conti 1999, pp. 27–29), including not telling the suspect why he or she

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is being questioned or even that the person asking the questions is a police officer (Roberg, Novak, and Cordner 2009, p. 290). Police are permitted to lie about incriminating evidence (Uphoff 2006, p. 793, n364) and to state that there is an eyewitness or DNA evidence that ties the suspect to the crime when there is not (Roberg, Novak, and Cordner 2009, p. 290). Fabricating evidence, a technique designed to undermine the suspect’s confidence (Dobb 2002, p. 8), is upheld by the courts (Gohara 2006, p. 802). In the adversarial competition, where winning and losing defines the contest, there is usually little equality between the parties; the advantage clearly lies with the government (in this case, with the police). Good investigative technique features a variety of police strategies to convince the suspects that they are not adversaries but instead are looking out for their interests and that waiving their rights is a way to help themselves (Dobb 2002, p. 8). The reality of the situation is, however, that the police are looking to win the “contest” by accumulating support for charging the suspect, which may or may not coincide with the truth. Richard Leo (1996b) described this persuasive power of the police as using psychological methods that operate as a confidence game, “setting up” the suspect to make an incriminating statement without the suspect’s recognizing the jeopardy that will result. For example, if convinced that he or she is certain to be convicted, then making a confession, albeit a false one, could be a rational choice when the intention is to reduce the amount of the punishment that is certain to follow a conviction. In the custodial interrogation, the police attempt to convince the suspect that the benefits of confession are high while the costs are low (Rosen 2006), even if making some type of promise that later can be denied or modified (Roberg, Novak, and Cordner 2009, p. 291). It is interesting that the police are convinced that their psychological techniques are not likely to convince an innocent person to make a false confession (Leo 1996b, p. 282; Zalman and Smith 2007, p. 927), even though they recognize that guilty persons are more likely to confess as a result of such treatment. One wonders whether the power of the police to misinform suspects, designed to extract confessions, might also trick the police themselves, causing them to be unable to distinguish between true and false confessions. As police miss the connection between their performance and obtaining incriminating statements, so does the public. Recently Richard Leo and Brittany Liu conducted research that demonstrates that “average citizens may not understand the potential link between psychologically coercive interrogation and false confessions” (2009, p. 397). They conclude that it would be very important for the

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defense to present expert witness testimony to assist jurors in determining the reliability of confession evidence. Adding to the advantages controlled by the police is the secret nature of these custodial interrogations. Few jurisdictions require videotaping the interrogation sessions, so should a confession result, the jury or judge must depend on the police to set the context for evaluating the statement and its voluntariness. Traditionally when it has been the officer’s word against the defendant’s word in explaining how a confession was obtained, the defendant—who, in reality, does not enter the court with a presumption of innocence—always loses (Westling 2001, p. 541). Research projects have explored the impact of various police practices, not surprisingly finding that these psychological processes are particularly effective with vulnerable suspects: the young, the mentally challenged, those who are fatigued or stressed, and those who have been using drugs or alcohol are particularly likely to make a confession (Kassin 1997, p. 227). It makes sense that the naive (those who typically do not have the experience with the system to know how interrogations work and who are not likely to expect deception) are also susceptible to psychologically coercive interrogation techniques (Gohara 2006, p. 824). Researchers additionally find that the longer the person is held in questioning, the more likely it is that a confession will result (Westling 2001, p. 537). Perhaps it is in all honesty that police are skeptical that their tactics would result in false confessions (Gohara 2006), believing only that they are simply shaking loose a guilty person from withholding their truth. The psychological manipulations the police regularly use are not neutral strategies, however. They can create new evidence (even new memories—see Loftus 1979), rather than simply following the evidence to uncover the true offender. Such techniques run counter to the principle of truth-finding, substitute efficiency for reliability, and show a paramount interest in closing the case through conviction. Beyond these lawful practices to close the case, there are of course the usual unlawful police practices of physical abuse and torture that might be used behind closed doors. Of the nine known false confessions from the DPIC list of exonerees, all were cases in which the police were accused of physically coercive tactics to elicit the false confession. Given the potential for abusive interrogations in criminal investigations, there is even more risk for abuse when the crime is homicide. “Police-induced false confessions are disproportionately likely to arise in capital cases” (White 2003, p. 988); because homicide cases receive a disproportionate amount of media attention, the public pressures to solve

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the case are likewise heightened. The media, of course, have a financial stake in focusing on the crime and on the victims whose horror stories are readily available and attractive to consumers, making it good business for the news organization. With this intense and emotional media coverage of homicides, police are at risk for taking shortcuts with their investigation so as to satisfy the public. One shortcut that can lead to unreliable arrests is to focus on one suspect to the exclusion of others. Popularly known as “tunnel vision,” this narrowing of the suspect pool leads police to fortify the case against their target by interpreting anything to fit the theory of the case, even using the suspect’s denials to make him or her look guilty. Dianne Martin (2002) has done much work on the tunnel vision phenomenon, demonstrating that “the drive to confirm a preconceived belief in guilt adversely impacts on witness interviews, eyewitness procedures, interrogation of suspects and the management of informers in ways that have been identified in virtually all known cases of wrongful conviction” (2002, p. 848). When the ends justify the means for these crime control agents, tunnel vision can also cause the police to resort to psychological tricks in interrogations, which increases the potential for obtaining confessions that are in fact unreliable false confessions (Huff, Rattner, and Sagarin 2000). Many times persons identified as suspects in capital cases are individuals who are quite vulnerable to interrogations, such as those under the influence of drugs or alcohol or those with mental retardation. Although tunnel vision makes an “efficient” investigation possible, and arrests reassure the public of their safety and confirm the ability of the police to bring in the “bad guys,” nonetheless, bringing quick closure to the investigation process may mean that the police do not have the right person. Prosecutors too are susceptible to similar psychological biases, known as “confirmation bias” and “belief perseverance” (Terzano, McGee, and Holt 2009, p. 14). These processes are problematic in investigations because they condense the incoming information to fit already formed theories of the crime or suspects already identified. In the long run, real safety, real justice is compromised by these methods because the real perpetrator remains in the community while the wrong person experiences the punishment of prosecution and possibly incarceration or death. False confessions are a problem for the administration of justice because they become persuasive evidence of guilt. Most juries do not suspect that a confession is flawed unless the trial attorney is effective at pretrial investigation and cross-examination of witnesses. When defense attorneys enter the case after a confession has been elicited, much more investigation is required to overcome the damage to the defense case

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because persons who make false confessions when they are actually innocent are more likely than not victims of an elusive police process, easily hidden and not easily challenged.3 What is needed, particularly in capital cases, is the commonly available technology to videotape the interrogation process, ensuring that it is free both from hard or soft coercion and from psychological manipulation that could interfere with finding the truth. False confessions, then, are fostered by the system and mask the truth of guilt or innocence, commonly resulting in a guilty plea (Leo and Ofshe 1998, p. 478). And yet, despite mounting instances of wrongful convictions, there is no groundswell of political will to make interrogations transparent, suggesting that the public concern for wrongful convictions must be quite minimal.

Plea Bargaining An additional problem that interferes with recognizing innocent individuals who are wrongfully convicted involves those who plea bargain. These individuals may, in reality, be in the most precarious position of all of those previously discussed. A discussion of such cases is particularly relevant to capital cases because, in many instances, avoiding the death penalty is the reason that innocent people do plead guilty. Persons charged with the death penalty are in a quandary because they risk death by going to trial, but not going to trial leaves them with the certainty of a lesser sentence. If the person is actually innocent, neither option is satisfactory. There are two sorts of confusion that plea bargains generate. The first is that of those who are actually innocent but who have pleaded guilty for various reasons. The second is a situation when the guilty person makes a deal to avoid the death penalty by testifying against another who may indeed be innocent. My examination of these two circumstances of plea bargaining will shed light on the difficulties with the law’s ability to account for types of innocence. In the guilty plea process there is no presumption of innocence. Rather, justice is negotiated between the parties with evidence being laid out and offers made for the outcome. No jury is likely involved in the sentencing decision of the one who is pleading guilty, as that defendant is likely doing so to take the death sentence out of consideration. As a counterpoint to a conviction obtained at a trial wherein the presumption of innocence is operative, the guilty plea conviction is about the defense’s efforts to minimize the impact of the sentence, whereas the prosecution is able to confirm the presumption of guilt.

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To begin this examination, the general process of plea bargaining is described so as to understand its power in creating guilt. The criminal justice system depends on plea bargaining to keep everything running smoothly. Ninety-five percent of defendants plead guilty in order to avoid a trial, and this cooperation is essential to the regularity and smoothness of disposing of cases in the criminal justice system (Walker 2006, p. 171). Given the value of plea bargaining in most jurisdictions, those defendants who choose not to plea bargain are seen to be creating potential problems, in the form of higher costs, for the larger organization. It is not surprising therefore that the courtroom system implicitly punishes those who insist on going to trial, despite the fact that the Sixth Amendment guarantees that “in all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial.” Court watchers suspect that sentences received after a trial conviction are greater than those received by similarly situated offenders who plead guilty before a trial. Although many have been engaged in examining this question, and the literature is somewhat mixed, most find the existence of additional penalties to those who go to trial and lose. Jeffery Ulmer and Mindy Bradley’s research (2006), for example, focuses on those serious violent offenders convicted either by pleading guilty or by jury trial. Although their data are not able to account for the strength of evidence or the attractiveness of prosecutors’ plea offers, they find that “conviction by trial, especially jury trial, carries a meaningful additional sentencing penalty for the serious violent offenses examined” (Ulmer and Bradley 2006, p. 650). Nancy King et al. (2005) similarly found that the average sentence after jury trial is more severe than the average sentence after guilty plea. So when police assure suspects during their interrogation that to plead guilty would help their situation, this statement is generally true. In most situations, the accused can minimize the sentence if he or she pleads guilty. This well-known practice of rewarding guilty pleas presumes guilt, however, with uneven testing for accuracy. There are several possible explanations for this disparity in sentencing, all of which may be active. Certainly a trial penalty might be an institutional means for discouraging trials that, although an individual’s right, slow down the organization’s ability to process cases efficiently. Another obvious explanation for the trial penalty, however, may be simply that in a trial bad facts may come out about the defendant that would not ordinarily be known. Third, those defendants who plead guilty are already taking responsibility for their actions and are well on the way to rehabilitation and therefore do not need as long a sentence to bring them around. Whatever the rationale for the trial penalty, it is real. “Virtually

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all defendants are told that if they go to trial and lose they will likely receive a harsher sentence. . . . The prosecutor’s ability to threaten additional charges with even more enhanced penalties only intensifies the pressure on a defendant to plead guilty” (Uphoff 2006, p. 798). Such coercive power is especially strong when the defendant is aware that his defense attorney has spent little time preparing the defendant’s case (Uphoff 2006, p. 802). Because it has been said that “death is different” (in Woodson v. North Carolina 1976, and then in Gardner v. Florida 1977, among other opinions), it is relevant to inquire whether there is a trial penalty for capital cases also. Particularly when life is at stake, the risks of going to trial add pressures on those accused who are innocent to reduce their risks by pleading guilty. Only two states (Arkansas and Louisiana) prohibit the defendant from pleading guilty when facing the death penalty because they want to prevent the accused from committing “judicial suicide” (Fisher 2001, p. 181). Defendants in other jurisdictions should be advised not to plead guilty to a capital charge unless the death penalty sentence is truly “off the table.” Otherwise, police “tricks” that result in a confession give the trial court a straightforward opportunity to impose a death sentence that cannot be challenged. It is unfortunate that there are no direct or easily accessed national data for capital offenders and sentencing that could help evaluate whether the risks are better for capital offenders who go to trial than for other nonviolent offenders. It is possible to look at some related statistics that are available, however, and draw the inference that indeed capital offenders going to trial fare no better than other violent offenders. Although not separating the death-eligible accused murderers from all others, the Bureau of Justice Statistics (2004, Table 4.5) reports that 4 percent of all murderers convicted by jury received the death penalty, whereas only 1 percent of those convicted by guilty plea and those convicted by bench trial received the death penalty, appearing to support a trial penalty for those who go to trial. The Baldus et al. (2002) study of Nebraska death sentencing restricts its comparison to capital defendants, reporting that only 12 percent of capital defendants who pleaded guilty received a death sentence (2 of 17), compared to 37 percent of those who went to trial (27 of 72). A Missouri study covering the years 1997 through 2001 found that when charged with a capital crime, those who went to jury trial got the death penalty 49 percent of the time but that bench trials resulted in death penalty just 25 percent of the time (one out of four) (Barnes, Sloss, and Thaman 2009, p. 320 n67). This information gives us hints that the trial penalty exists for capital cases, but before

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firm conclusions can be drawn, additional information is needed about acquittals or life without parole recommendations. Consistent with the apparent disadvantages of going to trial for capital murder, experienced attorneys in capital litigation agree that most defendants could avoid the death sentence by accepting a plea bargain (White 2005, p. 38). One such attorney, Millard Farmer, “estimates that 75 percent of those executed since 1976 could have avoided the death sentence by accepting a plea offer” (White 2005, p. 38). Indeed, the American Bar Association (ABA) (2003a) urges that “attorneys representing a capital defendant have an obligation [emphasis added] to seek negotiated pleas in capital cases” and at every phase of the case (American Bar Association 2003a, Guideline 10.9.1). This is not an unreasonable expectation as plea bargains have been available in a majority of capital cases (Fabian 2003, p. 118; Stetler 2003, p. 1157). However, such a role for the defense attorney might conflict with building trust and rapport with his or her client and thereby interfere with the attorney-client relationship necessary for effective representation. So not only does the defendant have pressure from police and prosecutors to enter a plea of guilty, pressure should also come from the defendant’s own attorney to make a deal. And just as police are skilled at persuasion, there are multiple psychological strategies available to the defense attorney in gaining the defendant’s acquiescence to a plea bargain, some of which involve bringing in family members to assist in the persuasion (White 2005). Just because a plea bargain is the desired outcome, however, a plea bargain should never be a shortcut for the defense team. The ABA standards stress that “before entering into plea discussions, counsel should have thoroughly examined the quality of the prosecution’s case and investigated possible first-phase defenses and mitigation,” as discussed in the Commentary to Guideline 10.7 (American Bar Association 2003a, p. 95). In other words, according to the professional standards, the effective defense team should first develop comprehensive evidence to support acquittal or sentence mitigation that would strengthen the negotiation position of the defense visà-vis the prosecution and also provide the basis to vigorously counsel the client into accepting a negotiated plea for a lesser sentence. Thus, defense investigation is essential to the defendant’s decisionmaking regarding a possible plea bargain and whether the waiver of rights that accompanies a plea is intelligently (Patton v. United States 1930) and voluntarily (Bram v. United States 1897) made. Trial attorneys have unfortunately not generally done sufficient investigation before trial to know whether or not the plea agreement is appropriate for their client

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(see Chapter 5 for more on the problems with defense attorneys in capital cases). Actually Innocent, Pleading Guilty

As with other plea agreements, the issue of voluntariness is a key component in the constitutionality of the plea bargain in a death eligible case (see Boykin v. Alabama 1969). The same Fifth Amendment context that guides police interrogations also applies to making plea bargains: “nor shall [any person] be compelled in any criminal case to be a witness against himself” (emphasis added). In addition, waiving one’s Sixth Amendment right to a jury trial (which reads in part, “in all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed”) in order to plead guilty should only be done when the defendant is aware of the consequences of such action. The courts have gone back and forth about whether a guilty plea can be voluntary when the death penalty is confronted (Solgan 2000). In 1968, the Supreme Court considered whether a plea of guilty made in order to escape the death penalty is unconstitutional (United States v. Jackson 1968). Writing for the majority, Justice Potter Stewart stated that the particular statutory requirement in the Federal Kidnapping Act, that only the jury impose the death penalty, facilitated plea bargaining and thereby adversely affected the voluntary nature of guilty pleas by capital defendants (390 U.S. at 583): “for the evil in the federal statute is not that it necessarily coerces guilty pleas and jury waivers but simply that it needlessly encourages them” (emphasis in the original). At the same time the majority did not hold that this arrangement was inherently unconstitutional, however: “the fact that the Federal Kidnapping Act tends to discourage defendants from insisting upon their innocence and demanding trial by jury hardly implies that every defendant who enters a guilty plea to a charge under the Act does so involuntarily” (390 U.S. at 583). This position was tested two years later, in a case that also came from the Federal Kidnapping Act (Brady v. United States 1970), where Justice Byron White stated for the majority that “a guilty plea is not invalid merely because entered to avoid the possibility of a death penalty” (397 U.S. at 755). He opined that the standard for involuntariness of guilty pleas in death penalty cases was either (1) actual or threatened physical harm or mental coercion overbearing the will of the defendant or (2) a situation in which the defendant is “so gripped by fear of the death penalty or hope of leniency that he did not or could

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not, with the help of counsel, rationally weigh the advantages of going to trial against the advantages of pleading guilty” (397 U.S. at 750). Justice White did not explain what sort of evidence might be used to determine whether rational thinking has been destroyed because of a fear of the death penalty. Then, again in 1970, the Supreme Court condoned the idea of even an innocent person pleading guilty (North Carolina v. Alford 1970), recognizing that a defendant may have weighed the evidence against him and found that his best interest is to enter a plea agreement. The Supreme Court presumed that the accused’s decision is based on a rational decisionmaking process that does not involve unfair inducements. But if the prosecutor’s offer is better than would be expected through the normal operation of the legal system, it would certainly have a coercive impact on the accused. The Court does not seem to appreciate the coercive aspects of the well-known sentencing penalty (discussed above) for going to trial and losing. In this case, despite significant evidence of guilt when Alford pleaded guilty to a second-degree murder charge, he refused to admit his guilt. According to Justice William Brennan, who wrote in dissent (400 U.S. at 40), “such a denial of guilt is a relevant factor in determining whether the plea was voluntarily and intelligently made.” Despite the requirements that when defendants plead guilty they are doing so voluntarily and knowingly, there is a variety of reasons why innocent people might nonetheless plead guilty that are more extralegal (and emotional) rather than based on a calculation of the strength of the evidence in the case. For example, some defendants might believe their guilt is inevitable if they go to trial because they do not trust the system (Leipold 2005, p. 1153). Or if the defendant happens to have an attorney who is putting on pressure to make a plea or who enlists family members to put pressure on the defendant to make a plea, then without a vigorous defender the defendant might feel that saving his life depends on taking a deal from the prosecutor. Another reason for pleading guilty when innocent might be to protect family members from the stressful trial experience. These and other possible reasons create for the capital defendant a pretrial context in which prosecutors use the death penalty as a threatening tool to convince a defendant to plead guilty, defense counsels encourage their clients to plead guilty, and courts do not view these pressures as constitutional violations. It is not surprising that “even the innocent sometimes pleads guilty because the probability of conviction is great, fearing that if found guilty, he will face a heavier sentence than what he would have received had he entered a plea”

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(Hessick and Saujani 2002, pp. 198–201). To summarize, because the trial penalty is real, it could very well happen that a person’s will to live can cause him or her to sacrifice his or her freedom and enter into a plea agreement with prosecutors no matter how certain or remote the possibility of receiving the death penalty may be (Solgan 2000, p. 735). It can be seen from the DPIC list of exonerees that nine innocent individuals pleaded guilty, and still they received the death penalty. How many more make that same choice who are not known? When defendants plead to a lesser charge, they become hidden behind the prison walls, with the system stacked against overturning their convictions (as seen in Chapter 2). The case of Lloyd Schlup, whose precedent-setting Supreme Court case in 1995 should have resulted in exoneration (see Chapter 2), instead resulted in a deal to plead guilty to second-degree murder and thereby receive a life sentence. After the consideration of one other plea bargaining problem for death penalty questions of guilt and innocence, his case will be highlighted to illustrate these thorny issues. Guilty Pleading Guilty

Earlier in this chapter, the topic was individuals who made false confessions. This next segment turns its attention briefly to those who may in fact be guilty of the capital crime and who plead guilty to a lesser charge in exchange for testifying against another who is actually innocent. Anyone who knows he or she is guilty of the killing and faces the death penalty obviously has a great self-interest in pointing the finger at another. As the guilty one, this person knows all the details of the crime, which can be credibly attributed to another. Recognizing a benefit in cooperating with the prosecution, the system encourages collaboration to reduce the uncertainties within the trial. Given that the prosecution also has incentives to cooperate, it may be that the prosecutor too quickly makes a bargain with the wrong individual. Thus it is possible that actually innocent individuals become convenient scapegoats for the actual offenders who then make plea bargains to accuse someone else. This finger-pointing phenomenon also happens when accomplices are involved in criminal activity (to be discussed in Chapter 4). Many times there is no way to really know who is telling the truth except by circumstantial evidence. How important it is then that the defense attorneys must be most thorough and dedicated to their client in order to defend against prosecution witnesses and sort through the various stories that are offered at trial. (The defense attorney role will be described more fully in Chapter 5.)

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Plea bargaining by the guilty demonstrates the interaction between guilt and innocence mentioned earlier: since the system rewards those who plead guilty, there is great pressure to accept prison time but not be exposed to the death penalty. Likewise, the structures and pressures of courtroom work groups encourage those who plead guilty to fabricate testimony (Cassidy 2004) against another, enhancing the potential that convictions and death sentences will be unreliable. Lloyd Schlup: Pleading Guilty Despite Actual Innocence

As pointed out in the discussion of the legal standards for actual innocence in Chapter 2, Lloyd Schlup’s 1995 case resulted in an important rule designating the standard for innocence as probable innocence, with the requirement that with the new evidence it was “more likely than not that no reasonable juror would have convicted him in the light of the new evidence.” 4 In that “win” at the US Supreme Court, Schlup received a remand to the district court for further fact-finding in light of the Court’s ruling. In an order entered December 8, 1995, the district court found that Schlup satisfied the actual innocence standard that “it is more likely than not that no reasonable juror would have convicted Mr. Schlup in light of the new evidence” (912 F. Supp. 448, 455). Having satisfied the gateway issue, then Schlup could have a hearing on the constitutional issue of ineffective assistance of counsel. On May 3, 1996, the district court overturned his conviction, ruling that his trial lawyer was incompetent, and then ordered a new trial for Schlup. The prosecutor filed to retry the case, charging Schlup with capital murder again. In the second day of the trial (March 22, 1999), a plea agreement was made. Despite the strength of his case (as explained below), Schlup nonetheless worried that a second conviction would mean either life without parole or death. Since he was already in prison serving a life sentence (with the possibility of parole) for first-degree assault with a weapon, and given the risk of losing another capital trial that could result in an outcome worse than the sentence he was already doing, Schlup agreed to plead guilty to second-degree murder and receive a life sentence that would in effect not add any time to the sentence he was already serving. In making the plea agreement, Schlup is counted as guilty and the prosecutor has a conviction for his record. Despite strong evidence of actual innocence that is set out in the clemency petition below,5 with the guilty plea there is now no possibility for a pardon or acquittal because Schlup was not willing to take the risk of insisting on his actual innocence.

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The following is the greater part of the document submitted to the governor of Missouri for consideration of clemency—in this case, pardon. It presents the defense case for actual innocence.

Lloyd Schlup: Clemency Petition The prosecution cannot point to a single defect in Mr. Schlup’s case that does not also apply to its own witnesses who accused Mr. Schlup in the first place. The murder for which Mr. Schlup is to be executed happened in prison; the vast majority of the witnesses are convicted felons. So, too, is one of the state’s two key witnesses, John Maylee. Some, though not all, of Mr. Schlup’s witnesses have on earlier occasions made statements inconsistent with their present sworn statements. So, too, have the state’s key witnesses, Roger Flowers and John Maylee. Former Department of Corrections Captain Robert Faherty, who has come forward to support Mr. Schlup’s already very credible alibi defense, is the object of a merciless character assassination, even though allegations made against him apply equally to Roger Flowers, who left the department under similar circumstances. Although the Attorney General apparently has unrestricted access to the private personnel files of Department of Corrections employees, he has chosen not to publish or otherwise disclose the criminal record of John Maylee, the demotion of Roger Flowers, or the meritorious service of Robert Faherty that enabled him to reach the rank of Captain. Robert O’Neal, who is on death row after being convicted in this crime, found several prisoners to testify that he acted in self-defense. Rodnie Stewart, who is serving a sentence of life without parole after being convicted in this crime, found two prisoners who testified in support of his claim that he was merely an innocent by-stander when Dade was stabbed. Other prisoners exist who support neither O’Neal’s claim nor Stewart’s claim. Some prisoners dispute the defenses presented by O’Neal or Stewart, swear that Mr. Schlup was not there. Not a single prisoner, Black or White, has said that Mr. Schlup participated in the crime. It is remarkable that only Mr. Schlup has the unanimous support of prisoner testimony. It is also remarkable that while only white prisoners came to the defense of O’Neal and Stewart, many African-American prisoners have stepped forward to say that Lloyd Schlup is innocent, including one who did so in February, 1984.

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From the very beginning, the investigation into the murder of Arthur Dade took only one side: that Lloyd Schlup was guilty. Investigators never entertained the notion that Roger Flowers and John Maylee might be lying or mistaken. When Lloyd Schlup told interrogators on the day of the murder that he was innocent, that he was the first man in the dining room and that Lieutenant Robert Faherty was with him in the hallway outside the housing unit, his statement was met with disbelief, even in the face of his demand to take a polygraph test. When Lamont Griffin Bey on February 8, 1984, said that one of Dade’s attackers was still out running around the housing unit, investigators did not even ask him for a name or a description. On June 27, 1984, when Rodnie Stewart was entertaining the possibility of testifying for the state in exchange for his own life, he told prison officials that Rocky Jordan helped Robert O’Neal kill Arthur Dade. Still, no attempt was made to determine what role Jordan played in the homicide. Although it is a fact that Jordan was an informant for the prison administration, Mr. Schlup has no means by which to determine when this relationship began. The night Arthur Dade was stabbed, prison investigators found out that a video camera had taken pictures showing that Lloyd Schlup was the first prisoner in line for lunch. At that time, however, Roger Flowers had already written a report stating that Lloyd Schlup was involved in the crime, but that he fled in the opposite direction from the dining room. After the video tape surfaced during depositions in the summer of 1984, Flowers changed his story to say that he did not see where the man he said was Lloyd Schlup went. Robert Faherty had also documented his encounter with Schlup in the hallway, although he was never asked to estimate the amount of time he spent in Lloyd Schlup’s presence. O’Neal and Stewart asserted their fifth amendment privilege. Rocky Jordan was never questioned. John Maylee has never given the same story twice; significant facts change every time he tells it. Corrections Officer Danny Bower was the first officer after Roger Flowers to arrive at the scene. He had been on the second tier of the housing unit, directly above Roger Flowers. He was only seconds from the scene, and he hurried down to help. In a sworn deposition and three jury trials, he swore that he never saw Lloyd Schlup at the scene of the crime. In November, 1993, he told an investigator that he saw Lloyd Schlup, covered in blood, wash his hands in the sink at the same time that Robert O’Neal was throwing the knife out the window, Dade was being loaded on a stretcher, and

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Rodnie Stewart was being taken down to the control center. He said that it is impossible for Mr. Schlup to have been the first inmate in the dining room because he was still in the housing unit. When Danny Bower recently talked to the investigator, he was afraid that he would get in trouble for talking about the case without first giving his superiors an opportunity to show him his prior reports and tell him what to say. Mr. Schlup believes that this is exactly what went on before his trial. There were many meetings among the state’s witnesses, both in and out of the presence of the prosecutor. John Maylee complained about the pressure to change testimony in order to fit the state’s theory of the case. If Danny Bower had come forth with his true version of events, he would have destroyed the state’s theory of Mr. Schlup’s guilt. The man he identified was covered with blood; lab tests show that Mr. Schlup was not. The man he saw could not have been first in line for lunch; the video tape shows that Mr. Schlup was. The man he saw fled the housing unit as Dade was being carried out on a stretcher; the video tape shows that Mr. Schlup had already been in the dining room for one minute and thirty five seconds at that very moment. If Danny Bower is telling the truth today, the conclusion to be drawn is unavoidable: the man he saw was not Lloyd Schlup, yet it was someone who, under the circumstances, was easily mistaken for Mr. Schlup. How is it that Danny Bower could, nine years after the fact, depart so dramatically from the sworn testimony that he gave in a deposition and three jury trials that he saw only one perpetrator? The most rational explanation is that while he remembers what he saw, he forgot what he was instructed to say. He himself said that under normal circumstances, he would not be allowed to talk without first conferring with his supervisor. Bower also said that there was another corrections officer who was in the housing unit who saw the whole thing. Bower says that even though this officer claims he did not see anything, this is a lie. Bower saw him looking down on the scene of the crime. It is impossible for Mr. Schlup to know what went on among the state’s witnesses; if there was collusion to withhold evidence from him and the jury, it is unlikely that Mr. Schlup could ever prove it. However, the appearance is very strong. Mr. Schlup’s trial was far from an adversarial testing of the government’s case. Mr. Eugene Bushmann agreed to take the case for the cash-starved public defender system on what amounts to a pro bono basis. While the case was prosecuted by a skilled specialist who did not want for resources, the same is not true of the defense.

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Mr. Bushmann, primarily a civil practitioner, was paid less than most lawyers charge to handle a drunk driving case. He candidly admits that there are many things he would do differently if given the opportunity to try the case over. Mr. Bushmann believed that Lloyd Schlup would be acquitted based on the video tape showing that he was the first one to the dining room. He believed that he could show that John Maylee was lying about his ability to see the scene of the crime. A visit to the scene of the crime would show how reasonable this belief is. Neither he nor the jury knew of John Maylee’s prior felony convictions. Mr. Bushmann also believed that he could reveal enough prior inconsistent statements by Roger Flowers to discredit him. In spite of this belief, he forgot the most important of Flowers’ shifts in his story—that the perpetrators fled in the opposite direction from the dining room. Before trial, neither the prosecution nor the defense had attempted to accurately reconstruct events to determine whether the video tape excluded the possibility that Mr. Schlup was guilty. Four events on the video tape make this possible: Mr. Schlup’s entry to the dining room, the response by corrections officers to a radio call one minute and five seconds later, Robert O’Neal’s entry into the dining room twenty-six seconds after that, and Arthur Dade being carried from the housing unit a few seconds later. The prosecution witnesses testified to wildly speculative estimates of the time that elapsed during different events. To counter the video tape, the state attempted to stretch out the time before the assault call went out. The prosecution had Officer Flowers estimate that it took him about two minutes to take Stewart into custody. Unknown to the jury, Flowers said in Stewart’s trial that he had no idea how long this took; it could have been “a second or a minute or two.” The prosecution had Captain James Eberle testify that he encountered Flowers at the control center downstairs from the housing unit, and it took him at least a minute, even though he hurried, to get up the stairs. He said he was the first officer at the scene with a radio, and he called in the assault when he saw Dade had been stabbed. Again, this estimate is wildly inaccurate; George Brooks ran from the housing unit to the dining room in thirtyfive seconds, and this same stairway is less than one fifth the total distance. Nevertheless, the state “proved” that the radio call went out more than three minutes after the crime, in theory giving Lloyd Schlup time to commit the murder and run to the dining room. Defense counsel was not prepared to challenge these grossly inaccurate estimates, even though he easily could have. Neither side

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had made an earnest attempt to accurately calculate whether Mr. Schlup could be guilty; the truth of this is established by the fact that it was only after each side had rested its case and the court recessed for the night that the prosecution sent a witness, George Brooks, to the prison to time the distance from the scene of the crime to the dining room. Brooks was the last witness. The jury deliberated until after midnight, and returned the next morning and deliberated until 11:00 A.M. before finding Mr. Schlup guilty. It asked for testimony and reports of the officers who testified, but those items were never introduced into evidence, and the request was denied. Although it saw the video tape, and it heard the testimony of two prisoners who followed Lloyd Schlup to the dining room, there was much that it never heard, including: 1. Nearly twenty eyewitnesses to the crime who could have testified that Lloyd Schlup was not there; 2. Many inconsistent statements of Roger Flowers and John Maylee that call into question the truth of their testimony; 3. The truth about what Danny Bower and another corrections officer really saw; 4. Direct evidence that Rocky Jordan, not Lloyd Schlup, is guilty of this crime; 5. Circumstances and testimony showing that Captain Eberle was at the scene within a minute of Dade’s murder; 6. Lloyd Schlup’s own statement of his innocence given on the day of the murder, and corroborated by other testimony and physical evidence; 7. John Maylee’s prior convictions. Mr. Schlup was so distraught at having been convicted of a crime he did not commit that he became hysterical. The court recessed for lunch, and it was over this lunch recess that trial counsel discussed with Mr. Schlup and his mother, Mrs. Nancy Slater, the penalty stage of the trial. Only Mr. Schlup and his mother testified in the trial for his life.

Conclusions and Recommendations The Supreme Court’s 1995 decision in Schlup v. Delo articulated the basis for considering new evidence of innocence when a constitutional

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violation was at stake. It remains the innocence standard for first habeas corpus appeals (see House v. Bell 2006). In Schlup’s own case, however, winning at the Supreme Court did not result in exoneration at the state level. As Schlup was granted a new trial based on the constitutional violation of ineffective assistance of counsel, the prosecutor was able to extract a guilty plea from him, in spite of his claim of actual innocence. After much deliberation, Schlup accepted a guilty plea on a reduced charge that would run concurrently with his current sentence. So although Mr. Schlup was probably actually innocent of the capital murder, he ultimately decided to not risk a second capital conviction, not trusting the system and wanting to spare his mother more anguish. He has already had the opportunity for a parole hearing. When life is at stake, it is especially important to make recommendations to fix the system of obtaining confessions and guilty pleas. Several possibilities are well known. Videotape Interrogations

The most common recommendation to address the problem of false confessions is to videotape the entire interview process. In that way, others can review and assess to what degree the confession is voluntary and what, if anything, was promised or falsely stated to elicit the confession. Preserve Biological or DNA Evidence

Jurors tend to give great weight to testimony by medical examiners and pathologist experts. Serious cases of wrongful convictions have unfortunately been discovered to be caused by notoriously fraudulent “experts.” Three of the scandals involved Ralph Erdmann (Texas), Fred Zain (West Virginia), and Joyce Gilchrist (Oklahoma). At least twenty capital murder cases in Texas were appealed because of Erdmann’s involvement in about 100 falsified autopsies (Suro 1992). After a 1993 investigation of all of Zain’s work, the West Virginia Supreme Court stated that “as a matter of law, any testimonial or documentary evidence offered by Zain at any time in any criminal prosecution should be deemed invalid, unreliable, and inadmissible” (Scheck, Neufeld, and Dwyer 2000, p. 114), thus raising substantial doubt about the guilty convictions of 134 people. Beginning in 2001 every one of the thousands of cases with which Gilchrist was involved between 1980 and 1993 (including twelve on death row) was reviewed because of unacceptable treatment of forensic science (Luscombe 2001).

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In contrast to these “experts,” best practices in the forensic and scientific communities provide standards that evolve as the science becomes more sophisticated. That is why it is always crucial to keep biological evidence. Should opportunities for retesting develop, it would then be possible to confirm the reliability of convictions or exonerate those wrongly suspected. For example, modern DNA testing has been responsible for exonerating several hundreds of wrongfully convicted felons and clearing fifteen prisoners from death row. As of 2009 the Federal Bureau of Investigation (FBI) and states were vastly expanding their DNA databases (Moore 2009), hoping to solve more violent crimes. This new science can also serve as new evidence for purposes of postconviction appeals, and because of the trust that the criminal justice system places in DNA analyses, such appeals may be more successful in winning evidentiary hearings than with any other type of new evidence (Segal 2008, pp. 253–254). Professionalize Prosecutorial Behavior

Since at least one-third of the DPIC exonerations stem from prosecutorial misconduct, it would appear that providing more accountability could make a big difference. “Currently, no state has a system of prosecutorial accountability that effectively prevents and deters prosecutorial misconduct” (Terzano, McGee, and Holt 2009, p. 21). There are significant normative changes that could be effected through training and education of prosecutors as well as of police and trial attorneys in order to minimize some of the problems encountered in the plea bargaining of death penalty cases. When former Illinois governor George Ryan took the drastic step of imposing a moratorium on all executions until he was certain that the criminal justice system would no longer wrongly sentence persons to death, he appointed a study commission that spent twenty-four months examining the Illinois capital litigation process. Recognizing the many sources of error confirmed by independent researchers, the commission’s report proposed eighty-five recommendations pertaining to all aspects of the capital litigation that would be necessary in order to assure accuracy in the determination of guilt and innocence (Ryan Commission 2002). Table 3.1 presents a sample of recommendations that are particularly pertinent to this discussion of false confessions and plea bargaining (other recommendations will be presented in Chapter 4). Professional and institutional leadership is necessary to be open to these changes. Such leadership is demonstrated by Craig Watson, Texas Dallas County’s district attorney. After twelve wrongful convictions

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Table 3.1 Recommendations for Normative Behaviors for Police and Prosecutors

Recommendation 1: After suspect has been identified, the police should continue to pursue all reasonable lines of inquiry, whether these point toward or away from the suspect. Recommendation 4: Custodial interrogations of a suspect in a homicide case occurring at a police facility should be videotaped. Videotaping should not include merely the statement made by the suspect after interrogation, but the entire interrogation process. Recommendation 5: Any statements by a homicide suspect which are not recorded should be repeated to the suspect on tape, and his or her comments recorded. Recommendation 16: All police who work on homicide cases should receive periodic training in the following areas, and experts on these subjects be retained to conduct training and prepare training manuals on these topics: 1. The risks of false testimony by in-custody informants (“jailhouse snitches”). 2. The risks of false testimony by accomplice witnesses. 3. The dangers of tunnel vision or confirmatory bias. 4. The risks of wrongful convictions in homicide cases. 5. Police investigative and interrogation methods. 6. Police investigating and reporting of exculpatory evidence. 7. Forensic evidence. 8. The risks of false confessions. Recommendation 53: In capital cases, courts should closely scrutinize any tactic that misleads the suspect as to the strength of the evidence against him/her, or the likelihood of his/her guilt, in order to determine whether this tactic would be likely to induce an involuntary or untrustworthy confession. Source: Ryan Commission 2002.

became known through DNA exonerations, Watson created a Conviction Integrity Unit to review 400 old DNA cases and establish new policies to change the culture of the office to “do justice” rather than to “win at all costs” (Vertuno 2008). As of July 2007, it was the first such unit in the nation and signaled a trend in reform. In 2008, Judge Barbara Hervey of the court of criminal appeals established the Texas Criminal Justice Integrity Unit to improve such areas as police interrogation, eyewitness testimony, and evidence preservation (Lindell 2009). The Supreme Court contributed to a culture of leniency toward prosecutorial misconduct as it articulated the harmless error rule as a basis for evaluating mistakes or abuses by state officials. In Rose v. Clark (1986), the Supreme Court permitted misconduct to continue so long as it had no perceptible change in the trial’s outcome, calling it a “harmless error.”

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Therefore, when “a reviewing court can find that the record developed at trial establishes guilt beyond a reasonable doubt, the interest in fairness has been satisfied and [then] the judgment should be affirmed” (478 U.S. at 588–589). In capital cases, the line between harmless or fatal error is drawn by the judge or reviewing court with deference given to the prosecutor or the trial judge respectively. It is not surprising that most defense motions or appeals are rejected as harmless. In addition, prosecutors and police have absolute immunity to protect them from lawsuits when acting “within the scope of their duties as an officer of the court.” This broad authorization means that when error or misconduct occurs in the course of conducting the trial and investigation that admittedly adversely impacts the prisoner defendant, there is no civil remedy or individual sanction to make things right. In 2009, Justice Stephen Breyer reaffirmed this position in speaking for a unanimous Supreme Court, stating that a lack of absolute immunity “threatens to undermine the necessary independence and integrity of the prosecutorial decision-making process” (Van de Kamp v. Goldstein 2009, 129 S.Ct. at 864). Other professionals call for sanctioning prosecutorial misconduct. Although sanctioning is very rare, recently the media have highlighted some egregious instances of prosecutorial misconduct that have resulted in serious professional consequences for the prosecutors in question. In 2007 Michael Nifong, the district attorney who prosecuted three Duke lacrosse players for an alleged rape, was disbarred. In 2009, a four-year suspension was imposed on prosecutor Benjamin Field by a California state bar court judge for twenty-five counts of misconduct, including disobeying judges’ orders, and concealing evidence (McKee 2009). These cases are national news due to their rarity, however. Beyond putting bite into the professional standards with sanctions, others are beginning to suggest reforms to address systematic problems facing prosecutors.6 Key among the reforms called for by the Justice Project (Terzano, McGee, and Holt 2009, p. 2) are that (1) states should require trial and appellate judges to report all cases of prosecutorial misconduct, including cases where the misconduct is ruled to be harmless error; and (2) states should establish a prosecutor review board with the power to investigate allegations of misconduct and impose sanctions. These two recommendations are simple and minimal in their scope, aimed to impact state practices and legal culture. Yet the inertia of the organizational systems offer entrenched barriers that will likely preserve the flawed status quo rather than check its damages.This chapter has demonstrated that there is an organizational system in place that rewards those who plead guilty and punishes more severely those who insist on their

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innocence. It is the rare defendant who pleads guilty and is nonetheless sentenced to death.7 Thus, a defendant who knows himself or herself to be guilty has a strong self-interest to make a plea deal in order to escape the death penalty. Sometimes the deal inculpates another, who may be actually innocent. This type of plea bargaining in which the real killer points to another leads directly into the discussion of the next facet of the spectrum of innocence (in Chapter 4), one in which the prisoner is wrongly convicted and sentenced to death because of his role as an accomplice. This type of case is identified in the new framework as factually innocent of the death penalty—even though the accused may share some responsibility for the criminal behavior that resulted in a death. This behavior embodies both a shade of innocence of the death penalty and a shade of guilt.

Notes 1. The former death row prisoners who made false confessions but who were later exonerated were David Keaton, Johnny Ross, Ronald Jones, Earl Washington, Aaron Patterson, Madison Hobley, Leroy Orange, Stanley Howard, and Nicholas Yarris. 2. This practice by the police may or may not have been ended by the Court’s disapproval in Missouri v. Seibert (2004) (Rosen 2006, pp. 245–247). 3. Some types of false confessions are voluntary: perhaps the person has a pathological need for fame and recognition, wants to protect a friend or relative, or confesses to a lesser crime to avoid the more severe punishment associated with the original crime (see Conti 1999, p. 21). 4. See also 513 U.S. 298, 11 F.3d 738, and 912 F.S. 448. 5. The clemency petition was submitted by Sean O’Brien of the Public Interest Litigation Clinic. 6. The American Bar Association is another institution that has several groups exploring ways to improve the integrity and reliability of the criminal justice system. The 2006 comprehensive report “Achieving Justice: Freeing the Innocent, Convicting the Guilty,” prepared by the Ad Hoc Innocence Committee to Ensure the Integrity of the Criminal Process, resulted in a host of proposed changes to the ABA Model Rules of Professional Conduct in 2008. 7. In Missouri there is only one case in which the two defendants (Michael Anthony Taylor and Roderick Nunnelly) waived their rights to a jury trial and pleaded guilty without a deal with the prosecutor to drop the death penalty. They both received death sentences from the trial judge.

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4 The Accomplice Whereas miscarriage of justice and actual innocence are treated as though synonymous, actual innocence and innocence of death are not. —Dagger v. Adams, 489 U.S. 401, 412n6 (1989)

Chapter 1 introduced the issue that the concept of innocence is neither an objective nor an absolute concept, although in such cases as the death penalty it tends to be understood and administered as if it were. Chapter 2 demonstrated that in postconviction appeals the concept of actual innocence as applied has become so narrowed by time limitations, procedural hurdles, and shifting standards that it is only the rare appellant who can meet those arbitrary criteria. After narrowing the focus in Chapter 3 to examine in depth some of those situations that mask the identification of the actually innocent, in this chapter I explore further how the concept of innocence fits into a spectrum. Here, it will be demonstrated that the criteria for guilt have been expanded in many jurisdictions through the legal doctrine of accomplice liability and through the inclusion of felony murder as a category of crime that is considered eligible for the death penalty. Both of these situations discount the fundamental elements of first-degree murder. In doing so, the legal system has developed disproportionalities that challenge the “ends of justice” in death penalty cases. Further complicating the guilt or innocence question is the distinction that arises between death eligibility (guilt) and sentence selection. These legal nuances create real miscarriages in sentencing as well as theoretical discontinuities. The antidote to these problems is to view these cases as a distinct type of innocence and thereby restore proportionality to the death penalty decisionmaking process.

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In making this argument, close consideration will be given to the case of accomplices—defined carefully as those who may or may not be present at the scene of the crime but who do not do the actual killing— who are given the death penalty. Although accomplices may have to share some guilt for the killing, often it is not of such an intensity as to deserve execution. The resulting irony is that even though such persons may be found guilty by a court, they are factually innocent simply because they did not do the killing. In this chapter, the term factual innocence will apply to persons who do not do the actual killing but who may be involved in some way, illuminating another facet of the spectrum of innocence. The traditional definition of a crime encompasses two elements: actus reus (the act) and mens rea (criminal mind or intention). These two components are normally considered the necessary criteria to establish guilt beyond a reasonable doubt. In the practice of death penalty law, legislators, prosecutors, and courts have broadened the interpretations of both of these elements until persons can be convicted of capital murder and sentenced as if worthy of the death penalty when in fact the two basic criteria have not really been established. There is, therefore, a set of death penalty prisoners who, although they are treated as if they are the worst of the worst, are not such. In order to see this facet of the spectrum of innocence more clearly it is helpful to look at how moderating the criteria for guilt occurs in some death penalty cases. The legal doctrine of accomplice liability is just such a blurring of the concept of guilt and illustrates the capriciousness of understanding guilt or innocence in the death penalty context. Accomplices are factually innocent of the capital crime, and yet they are regarded as if they are absolutely guilty. How does that come about? Chapter 3 highlighted the significant power of the prosecutor in securing guilty pleas. In this chapter, it will become clear that the dilution of legal standards further empowers prosecutorial discretion to expand the field of defendants eligible for the death penalty.

Legal Standards The criminal justice system correlates culpability for criminal behavior with degrees of rationality; that is, the severity of crime is based on the degree of intentionality or thoughtfulness behind the actions. Thus firstdegree murder is planned or deliberate, second-degree murder (manslaughter) is killing without deliberation or unintentional, and third-degree mur-

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der is negligent behavior that causes a homicide. Persons are concomitantly punished more severely who know what harm they are inflicting and still choose to act. Given this underlying assumption about the way the law works, it is clear that the degree of crime is closely related to the state of mind (mens rea) of the actor. All states with death penalty statutes use all or some combination of deliberation, intention, or premeditation to define the mens rea requirements for capital murder (the term capital murder is used throughout this book as a generic category).1 Deliberation refers to the quality of the thought process, which includes weighing the pros and cons of the action and considering the consequences (Dressler 2001, pp. 509–510). Premeditation means to think about beforehand (although some jurisdictions allow any length of time to satisfy this criterion, so that it can be as little as the time it takes to cock and pull a trigger). Intention has two aspects: that of being willful action and whether or not the dead person was the intended victim. It is clear that each of these concepts, when included as a mens rea requirement for capital murder, reflects a high degree of rationality needed to sustain the ultimate conviction and penalty of death. The only persons who are usually proven guilty beyond a reasonable doubt, convicted, and sentenced to capital murder are persons who possess the requisite mens rea. Although the discussion of actual innocence is a reminder that this conclusion may be tenuous, it is even more problematic when a person is charged as an accomplice to the capital murder. Accomplice Liability

As stated above, an accomplice is a person who did not actually do the killing, yet was in some way involved with the killer. There is a longstanding principle in law that an accomplice can be treated as if as equally responsible for the crime as the actual doer. And yet, clearly accomplice liability is at odds with the legal principle that responsibility rests with the actor because by definition the accomplice does not perform the actus reus and may or may not possess the appropriate mens rea. According to some legal scholars, the “act requirement for an accomplice is minimal; any act that aids, abets, encourages, or solicits the perpetrator will suffice” (Mueller 1988, p. 2169). Debate within general legal theory raises a variety of questions about how to account for the accomplice’s guilt: must the accomplice’s participation actually cause the crime? Is it necessary that the perpetrator knows that the accomplice is willing to help before considering the person an accom-

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plice? What if the accomplice looked the other way while the offender acted? And some jurisdictions require that the accomplice could have foreseen the outcome in order to be culpable. When considering the crime of capital murder, if the accomplice does not actually do the killing, then some link must be made with the real perpetrator, and typically this link is made through the mens rea element of the crime. How is the intent of an accomplice established? Proving intent is also a very nebulous proposition because courts accept either direct evidence or circumstantial evidence to prove intent. When direct evidence of mens rea is not available, then the degree of participation by the accomplice can be invoked as a substitute for establishing mens rea. In this regard, then, action becomes interpreted as an indicator of intentionality. In State v. Johnson (1974, p. 489), for example, the court instructed the jury that it was acceptable to infer the necessary criminal intent (knowingly and with common purpose) from the accomplice’s “presence, companionship and conduct before and after the offense.”2 Such a lenient standard can essentially prove anything. This tenuousness of evidence to support guilt for the accomplice role is troublesome, particularly in the death penalty context. Commenting on the principles of liability and complicity the Model Penal Code recommends not punishing the accomplice unless the mental state of the accomplice matches that required of the perpetrator. “If anything, the culpability level for the accomplice should be higher than that of the principal actor, because there is generally more ambiguity in the overt conduct engaged in by the accomplice, and thus a higher risk of convicting the innocent” (Model Penal Code and Commentaries § 2.06 1985, p. 312). When dealing with capital murder, accomplice liability issues are magnified. As accomplices are included in some death penalty statutes, it is therefore possible that the accomplice can be found directly eligible and then deserving of the death penalty despite not being the actual killer. In such a circumstance, an accomplice is being sentenced for the actions of another. Because the accomplice is not the actual killer, he or she may make two different claims. The first claim is of being not guilty of first-degree capital murder (that is, not doing nor intending), in other words, factually innocent of first-degree capital murder. Should that argument fail, then the accomplice could claim not to be the most deserving of the death sentence. Thus, once the defendant is determined to be eligible for the death penalty in the guilt phase of the trial, then the sentencing decision is supposed to turn on individual culpability. Important to capital litigation is the principle that juries must determine the sentence appro-

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priate to the offender, not the crime. Because of this principle, all mandatory death sentences are rejected as unconstitutional and so are all jurors who would automatically impose a death sentence on every guilty person. To be considered equally culpable clearly clashes with the language of proportionality and individualized sentencing required by Woodson v. North Carolina (1976): “We believe that in capital cases the fundamental respect for humanity underlying the Eighth Amendment requires consideration of the character and record of the individual offender and the circumstances of the particular offense as a constitutionally indispensable part of the process of inflicting the penalty of death” (428 U.S. 280 at 304). Therefore, factual innocence distinguishes the accomplice defendant from the responsibility of the actual killer and is consistent with the principle that those offenders most responsible should receive a penalty either the same as or more than those less responsible but certainly not less. In the thirty-five states with the death penalty, there are various prescriptions concerning accomplices and capital murder (although seven of the thirty-five states are completely silent on the accomplice role in the capital crime (see Table 4.1).3 Ten of these states list an accomplice relationship only as a mitigating factor, implying that accomplices who can be convicted and sentenced to death have a mitigating factor available to demonstrate their lesser culpability. The accomplice role becomes confused in eighteen states by presenting the accomplice as being both a mitigating factor and an aggravating factor for sentencing purposes. This dual treatment permits these states to maximize the reach of eligibility for the death penalty and at the same time to potentially neutralize a sentencing mitigating factor. It is interesting that each of these states that mentions the accomplice role as an aggravator ties the role to felony murder offenses. It is apparent that charging the accomplice in felony murder situations with capital murder expands the reach of the death penalty to defendants who do not do the actual killing. In fact, all thirty-five death penalty states have some sort of felony murder offense as part of their capital murder statute.4 Although mens rea is problematic for the accomplice, it is even more problematic when the crime charged is felony murder. Felony Murder

The felony murder rule states that the accused perpetrator is responsible for a death that occurs in the course of committing some other felony. Under this rule it is not necessary to establish that the death was

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Table 4.1 States with Accomplice Connection to Death Penalty Statutes

Accomplice Is States

Aggravator

Mitigator

Tied to Felony Murder

Mitigators only (10) Connecticut X no Illinois X no Indiana X no Kansas X no Kentucky X no Louisiana X no Nebraska X no New Hampshire X no Ohio X no South Carolina X no Both aggravator and mitigator (18) Alabama X X yes a Arizona X yes a Arkansas X yes California X X yes Colorado X X yes Florida X X yes Mississippi X X yes Missouri X X yes a Montana X yes Nevada X X yes North Carolina X X yes Pennsylvania X X yes a b Oklahoma yes Oregon X X yes Tennessee X X yes Utah X X yes Washington X X yes Wyoming X X yes Neither (7) Delaware, Georgia, Idaho, Maryland, South Dakota, Texas, Virginia Notes: a. Part of definition of crime; b. unspecified.

intentional but merely that it was the product of a felonious incident. So even if the actual killer did not have the intent to kill, nonetheless he or she could be held responsible for the killing. In this circumstance of felony murder, then, mens rea is not a required element to prove guilt beyond a reasonable doubt. Rather, the proof is simply that a death has occurred during the committal of a felony. In the accomplice situation, the accomplice need only be a participant in the felony in order to be

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held responsible for the murder. Intent to commit the felony offense is all that is necessary to establish guilt, not an intent to kill.5 The felony murder rule clearly alters the fundamental mens rea element necessary to prove a defendant guilty of first-degree murder. A defendant can be found guilty of first-degree murder for the killing even if it was unintentional (simply because some other felony was the intention). Even if the killing was not committed by the defendant, capital case law extends to include felony murder offenders who may not be the worst of the worst. In this way, the execution net is widely expanded. Because this type of prosecution is contrary to the primary elements of establishing guilt, the felony murder rule is not without its critics. For example, Section 210.2[6] of the Model Penal Code recommends that the felony murder doctrine should be “abandoned as an independent basis for establishing the criminality of homicide” (American Law Institute 1980, p. 30). Supreme Court Justice Brennan also rejected this doctrine: This curious doctrine [the felony murder doctrine] is a living fossil from a legal era in which all felonies were punishable by death; in those circumstances, the state of mind of the felon with respect to the murder was understandably superfluous, because he or she could be executed simply for intentionally committing the felony. (dissenting in Tison v. Arizona, 481 U.S. at 159)

The implication of Brennan’s comment is that there is no place for the felony murder rule in modern jurisprudence.6 Just as in the accomplice situation, the felony murder rule makes a pretense of the concepts of deliberation and premeditation, stretching their meaning to give the illusion that they are being considered and proven, when in fact it is the behavior that proves the intention. There are two US Supreme Court cases that are the guiding legal standards on the death penalty issues where accomplice liability and felony murder situations are involved: Enmund v. Florida (1982) and Tison v. Arizona (1987). The first case involved a home robbery in which the victims shot at the robbers (Sampson and Jeanette Armstrong) in selfdefense; the robbers then returned fire and killed the homeowners. Earl Enmund was waiting down the road in a getaway car and did not know that the murders were taking place. Nevertheless, Earl was tried with Sampson and both received the death penalty. Earl Enmund’s appeal was considered by the US Supreme Court. After the Supreme Court reviewed objective evidence such as (1) state statutes that indicate society’s rejection of the death penalty for accomplice liability in felony murders and

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(2) jury decisions, the Court concluded that in such a circumstance as presented by Enmund, imposing the death penalty was inconsistent with the Eighth and Fourteenth Amendments. The Court said that where the petitioner did not have any intention of participating in or facilitating a murder, the death penalty was disproportional to his participation and therefore Earl Enmund’s culpability was not deserving of death. “The focus must be on his culpability, not on that of those who committed the robbery and shot the victims, for we insist on ‘individualized consideration as a constitutional requirement in imposing the death sentence’” (Justice White, writing for the majority in 458 U.S. at 798). Without outright rejecting the category of felony murder, the Supreme Court focused on the accomplice liability aspect of the case. The Court reiterated the legitimate purposes of the death penalty, which it had previously recognized as retribution and deterrence, and questioned whether those purposes made any sense when the death penalty was imposed on an accomplice. “Unless the death penalty when applied to those in Enmund’s position measurably contributes to [either of the permissible goals of retribution or deterrence], it ‘is nothing more than the purposeless and needless imposition of pain and suffering and hence unconstitutional punishment’” (458 U.S. at 798). The majority of the Court concluded that the death punishment for this type of situation does not serve as a deterrent, since the crime of robbery usually does not involve killing and so there had been no basis for Enmund to expect that a killing would occur in the course of the robbery. Presumably if Enmund could have anticipated that a killing would likely occur in the course of committing the felony, then he could be held responsible for the murders (according to deterrence theory). Likewise, the Court said that the punishment in this case did not serve the second permissible goal of retribution. Retribution means that the criminal gets what he or she deserves. So, the Court reasoned, death is not a valid penalty for someone who neither took life, attempted to take life, nor intended to take life. Such language seemed to signal a significant limitation on imposing the death penalty in accomplice situations. But in Tison v. Arizona (1987), Justice White joined the Enmund dissenters to make a new majority that modified Enmund. The Tison case involved brothers who assisted their father, Gary, and his cellmate, Randy Greenawalt, in escaping from prison; in the course of fleeing, Gary and Randy killed a family of four. The Tisons’ father, Gary, and brother, Donnie, were killed in the authorities’ attempt to capture the group, but the two boys and Greenawalt survived and were tried for capital murder and all sentenced to death.7 Although the brothers neither

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intended the murders nor pulled the trigger, the Supreme Court articulated a new rule as a modification of Enmund that would permit the conviction and death sentences of the Tison brothers. Justice O’Connor presented the majority opinion that a defendant’s “major participation in the felony committed, combined with reckless indifference to human life, is sufficient to satisfy the Enmund culpability requirement” (481 U.S. at 158). Thus the Enmund prohibition of imposing the death penalty in a situation where the defendant did not kill, attempt to kill, or intend to kill was adjusted to authorize the death penalty for an accomplice whose participation is major and who possesses a reckless indifference to human life. Notice that intention to kill is not a requirement for the accomplice to be death eligible. The Court majority presented the Tison brothers as an in-between type of accomplice felony murder, neither minor involvement or actual killers. In such a situation, the Court stated that the necessary culpable mental state need only be a reckless indifference to human life when the defendant could have foreseen that violence was likely.8 Justice O’Connor pointed out a gap in Enmund’s articulation of its rule: where “the Court recognized again the importance of mental state, explicitly permitting the death penalty in at least those cases where the felony murderer [the actual killer, not the accomplice] intended to kill and forbidding it in the case of a minor actor not shown to have had any culpable mental state” (481 U.S. at 156). Justice O’Connor stated that nonintentional murderers (actual killers) might be the most dangerous and inhumane of all (such as torturers who play with their victims before death occurs), and the Tison Court then created a mental state derived from actual killers and applied it to nonkillers as a substitute for the traditional mens rea element of intent. Justice Brennan adamantly dissented in the Tison modification of the Enmund rule, arguing that “the urge to employ the felony-murder doctrine against accomplices is undoubtedly strong when the killings stir public passion and the actual murderer is beyond human grasp” (481 U.S. at 184). He went on to say, however, that “in Enmund, the Court established that a finding of an intent to kill was a constitutional prerequisite for the imposition of the death penalty on an accomplice who did not kill” (481 U.S. at 193). Just one year before the Tison decision Justice Brennan’s interpretation of the Enmund decision was explicitly stated by Justice White, writing again for the majority in Cabana v. Bullock (1986): “Enmund imposes a categorical rule: a person who has not in fact killed, attempted to kill, or intended that a killing take place or that lethal force be used may not be sentenced to death” (474 U.S. 376 at 386).

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Besides his complaint that a new category of mens rea was created in the Tison decision (one that in his view was not supported by the evidence), Justice Brennan also complained that Tison violated the longstanding requirement that capital punishment be based on, among other things, an individualized consideration of the defendant’s personal responsibility and moral guilt (also in Lockett v. Ohio 1978, at 605). His opinion was that imposing a death sentence on the Tison brothers was disproportionate to their involvement in the murders. Lynn Wittenbrink (1987–1988) pointed out the irony that one year later, Justice Scalia, one of the members of the Tison majority, confirmed the accuracy of Brennan’s Tison complaint when Scalia dissented in Booth v. Maryland (1987, at 520), stating that had their father allowed the victims to live, the [Tison] brothers could not be put to death; but because he decided to kill, the brothers may. The difference between the life and death for these two defendants was thus a matter wholly unrelated to their blameworthiness. But it was related to their personal responsibility, i.e. to the degree of harm that they had caused.

Thus, the Court members disagree about the relative importance of moral guilt or blameworthiness (the offender’s mental state) and of responsibility (in terms of what harm resulted from the offense). Despite the strong dissent by Justice Brennan (joined by Justices Thurgood Marshall, Blackmun, and Stevens), Tison remains the law of the land. As a result, the felony murder rule is retained and preserved as is the accomplice liability doctrine.

Does It Make a Difference? More persons are sent to death row because of the felony murder aggravating factor than for any other factor (Zimring 2005, p. 1403, citing Samuel Gross and Robert Mauro, Death and Discrimination: Racial Disparities in Capital Sentencing 1989, p. 45 that “although only a minority of all reported homicides in each state involved other felonies . . . the great majority of all death sentences fell in this category, over 80% in Georgia and Florida and about 75% in Illinois”). There are multiple offenders in about 20 percent of all homicides, not just the death eligible crimes (Bureau of Justice Statistics 2007, p. 1). In normal capital murder circumstances (and probably in felony murder situations as well), the

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accomplice would be less culpable than the actual killer. This circumstance leads to the expectation that the accomplice would likely receive a lesser sentence than the actual killer as a matter of proportionality. Official record keeping by the Death Penalty Information Center reports that only ten persons nationally have been executed who were not directly responsible for the felony murder (Death Penalty Information Center 2010). In seven of those circumstances, the actual killer’s punishment was the same as or equal to that of the accomplice. In three cases the accomplice received the death penalty, whereas the actual killer received a lesser sentence. This statistic is considerably unreliable since it only reports information for six states. Even more suspect, however, is the reliance on the official description of the crime to identify the accomplice. Given the discussion in Chapter 3 of prosecutorial discretion, it could very possibly be that the real killer arranged a deal with the prosecutor, who then prosecuted the “accomplice” as the actual killer. Support for this misgiving is evident in the case of Bruce Kilgore, described below. In addition, the Roy Roberts story presented in Chapter 2 raised the possibility that the less culpable person received the more severe penalty whereas the actual killer did not. Neither Kilgore nor Roberts is included on the DPIC list despite the grave doubts that the one executed is the one most culpable in the crime. Although relying on clemency petitions for absolute truth in capital cases may be a suspect proposition, nonetheless to the degree to which these petitions present verifiable evidence—usually new evidence—insight into potential problems that deserve further consideration may be gained. For example, a recent review of clemency petitions in one state raised the disturbing uncertainty that rather than sharing an equal or greater sentence, the actual killer may in fact receive a lesser sentence than the accomplice who is given the death penalty.9 In some of these cases, the accomplices are treated by the courts as codefendants, clearly as equals in the committal of the crimes, and in 50 percent of these cases they are treated as the actual perpetrators. It is interesting that all but two of these cases were felony murder situations. Such findings beg the question in other states. The State of Missouri v. Bruce Kilgore highlights the subjectivity involved in these accomplice cases and how it is that significant issues of proportionality may be missed in official records of wrongful death sentences. Bruce Kilgore

In 1987 Bruce Kilgore was convicted by a jury in St. Louis, Missouri, of murder in the first degree, robbery in the first degree, and kidnapping.

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Kilgore was sentenced to death for the murder and to two consecutive terms of life imprisonment for the robbery and kidnapping. After losing all his appeals, Kilgore appealed to Governor Carnahan to commute his death sentence to life imprisonment based on his claim that he was only an accomplice to a felony and had no intention to participate in a murder. His clemency petition below presents his appeal to undo his wrongful death sentence.10

Bruce Kilgore’s Clemency Petition Despite Bruce Kilgore’s claim that the plan was for a kidnapping and robbery, Bruce and his codefendant, Willie Luckett, were convicted in separate trials of Marilyn Wilkins’ murder. Only Bruce received the death penalty, despite a credible claim that it was the codefendant, Luckett, who actually stabbed the victim. Bruce steadfastly maintained that he did not stab the victim and cooperated with the police by showing them where the crime occurred and how Willie stabbed Ms. Wilkins. In fact, only Willie had motive to kill the victim. The day before the murder, Willie’s employers fired him because the victim reported that Willie was stealing food from the restaurant where they worked together. No evidence exists that Bruce knew Marilyn Wilkins before she died, nor did he have a grudge against her as did Willie Luckett. But for Willie Luckett, Bruce would never have known Ms. Wilkins. There was new evidence to support the fact that Bruce did not stab the victim, new evidence that the trial jury did not hear. Willie admitted to those with whom he came into contact that he, not Bruce, stabbed Ms. Wilkins. During September of 1987, Kenneth McGee befriended Willie at the St. Louis City Jail where they were assigned to the same tier. One day during that time, Mr. McGee noted that Willie looked troubled after a court appearance. He asked Willie what was wrong. Willie responded, “Man, I’m facing the death penalty. . . . Man, my fall partner already went to trial and got the death sentence and I hate to see him die for something he didn’t do, but, I got to do whatever it takes to save my own life.” According to David Ware, who was also in the St. Louis City Jail with Willie, “Lucky looked guilty of his case because he would sit in jail and think about whether he should testify against his Rappee. Lucky really agonized over this two weeks before Bruce Kilgore’s trial.” Mr. Ware provides valuable insight into this time,

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Everyone else in the jail was telling Lucky to take his weight on this case. It seemed like Lucky was not going to take his weight for this charge and let his Rap Partner go down on this. After talking to Lucky, it seemed like Bruce Kilgore did not know that the woman was going to get killed.

Willie also admitted his culpability to William K. Murray. Willie and Mr. Murray shared a cell for four months beginning December 1994. Willie discussed his case with Mr. Murray and stated that Bruce was on death row for a crime he did not commit. Willie admitted that he stabbed the woman but was afraid to come forward because he feared the death penalty. Having become close to Willie during this time, Mr. Murray encouraged Willie to come forward. Yet, Willie did not come forward to reveal the truth. Mr. Murray’s recollections are preserved in an affidavit. Willie also told Steve Davidson that Bruce did not stab or kill Ms. Wilkins. Mr. Davidson shared a cell with Willie at Potosi in October of 1994. Willie not only told him that Bruce did not do the killing, but the plan was for it to be only a kidnapping and robbery, not a murder. According to what Willie told Mr. Davidson, it went too far because Willie was high on alcohol. Mr. Davidson’s recollections are preserved in an affidavit. According to Michael Miller, who is incarcerated at the Central Missouri Corrections Center, Willie told him that “he went and got Bruce to go rob the woman; and that things went wrong, and the woman ended up getting killed . . . Bruce had nothing to do with that.” These new revelations clearly show that Bruce did not stab Ms. Wilkins. The prosecutor’s statements. In the opening statement, the prosecutor described the agreement Bruce and Willie Luckett made:

When Mrs. Wilkins came out she was observed by two men that lay in wait for her, two men that agreed earlier that they were going to kidnap this lady, two men that had agreed that they were going to rob this lady.

It is significant the prosecutor stopped there. He did not tell the jury that they agreed to murder this lady. He stopped there because Bruce never agreed to kill this lady, and the State knew that. Also, in the opening statement, the State outlined the rationale behind why Willie Luckett was the more culpable person:

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The State’s evidence will be as Mrs. Wilkins was kept in the back seat, held down by Mr. Luckett and as Bruce Kilgore drove, that Mrs. Wilkins recognized Luckett and she said “Willie, is that you?” And at that point Willie Luckett took off his mask and told her that he was going to kill her.

Further, the prosecutor recounted: When Mr. Luckett told Marilyn as he held her down in that vehicle as the car sped west on Highway 70 that he was going to kill her, Mrs. Wilkins said, “Why are you doing this to me, Willie?”

Clearly, as demonstrated by its opening statement, the State intended to impress upon the jury that Willie, not Bruce, had motive to kill Ms. Wilkins. As the State described the ultimate murderous act, the State told the jury that the State’s evidence will be that Willie Luckett held the blade. He stuck it in her throat. During the opening statement, the State clearly articulated that Willie Luckett was the more culpable person. After presenting the guilt phase evidence it outlined during the opening statement, the State gave its proposed jury instructions to the judge. In the jury instruction submitted by the State for guilt phase deliberations, Instruction No. 5, the instruction for murder in the first degree, reads in its most pertinent parts: “First, that on August 27, 1986, Willie Luckett caused the death of Marilyn Wilkins by cutting her. . . . Third that Willie Luckett knew or was aware that his conduct was causing the death of Marilyn Wilkins. . . . Fourth, that Willie Luckett did so after deliberation, which means cool reflection upon the matter for any length of time no matter how brief.” The prosecutor’s closing argument faithfully tracked the submitted instructions. He argued “that with the purpose of promoting or furthering the death of Marilyn Wilkins” the defendant aided or encouraged Willie Luckett. In his closing argument, the State never asserted that Bruce stabbed Ms. Wilkins.” But during the penalty phase, the prosecution’s theory changed when Willie’s girlfriend, Renee Dickinson, shocked everyone in the courtroom and declared for the first time that Bruce admitted stabbing the victim. Only when she testified before Bruce’s jury in the penalty phase did Renee state that Bruce told her he had killed the victim. Previously, Willie’s girlfriend told the police and other authorities that Willie and Bruce had an alibi: they were with her. When Bruce’s trial began, Willie’s girlfriend continued to be charged

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with offenses relating to Ms. Wilkins’s death and the prosecutor continued to indicate to the defense that she would not be called as a witness. During the guilt phase of Bruce’s trial, Willie’s girlfriend suddenly pleaded guilty to hindering the prosecution of the murder of Ms. Wilkins and received a sentence of probation. As Bruce’s penalty phase commenced, the prosecutor notified defense counsel that Willie’s girlfriend would be called as a witness against Bruce. Her damning testimony came as a surprise because on at least three prior occasions on which Willie’s girlfriend spoke to the authorities she had not stated that Bruce made this admission. In fact, Detective Jerry Leyshock testified that she had not told him in previous interviews that Bruce had admitted killing Ms. Wilkins. But at the penalty phase, Willie Luckett’s girlfriend told the jury that “Willie woke me up and he said that the lady was dead, and I told him he was lying, and he said yes, that Bruce had cut his neck—cut her neck. And I looked up to Bruce to answer me and he said ‘Yeah.’ Her testimony greatly benefited Willie by shifting responsibility to Bruce. Soon after this statement from her, the jury learned Renee Dickinson pled guilty to hindering the prosecution of this case by lying to the police about her boyfriend’s whereabouts.

Conclusion and Recommendations: The Ends of Justice Bruce Kilgore’s case is illustrative of the potential disproportionalities encountered when there are accomplice defendants. Kilgore was executed as the perpetrator, despite strong evidence that he was neither the more culpable nor the one who actually did the killing. New evidence was not considered by appellate courts. The question of culpability raised in the clemency petition did not halt the execution (which occurred on June 16, 1999)—either in the courts or in the mind of the governor as the fail-safe against a miscarriage of justice. Under Enmund’s accomplice rule, Kilgore might not have been eligible for the death penalty if the new evidence supported his theory of the case that he was not the actual killer and had no intention for the killing to occur. Following the Tison rule for accomplices, Kilgore’s major participation would need to have been associated with a reckless disregard for human life. Clearly the Tison standard expands the reach of the death penalty, whereas the Enmund standard would make death sentences more infrequent.

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Was this case a miscarriage of justice? If the claims made by Bruce Kilgore are given some credence, it seems very likely that the actual killer received the lesser sentence and that a principle of fundamental fairness was upset. Although “most states are concerned about protecting those less culpable from facing the same penalty as the actual perpetrator” (Courteau 1998, p. 334), when it comes to the death penalty public sentiment seems to be that anyone involved should receive the ultimate penalty. Public passions can demand a wide net, resulting in charging and then sentencing disproportionalities. It is easy to understand how pressures to obtain a death sentence can influence the prosecutor’s judgment about making deals to obtain inculpatory testimony. In cases of factual innocence, the phrase “death is different” seems to apply to the crime, rather than to affording defendants due process that protects against receiving the ultimate punishment. Rather than expanding and making it easier to obtain convictions, the legal structures need to reclaim these cases of factual innocence from death eligibility. These accomplice felony murder cases are as vulnerable to trial errors as are other capital murder cases. The list of sources of error is long: prosecution of the wrong person as the perpetrator, prosecutorial misconduct, false testimony by witnesses, accomplice “fabrication” (Cassidy 2004, p. 1130), confessions, bargains made with witnesses in exchange for testimony, defense attorney blunders, and judicial errors.11 Indeed, David McCord (2000, p. 868) contended that the potential for witness perjury is significantly higher in accomplice situations because, as discussed in Chapter 3, the real killer has the self-interest to agree to testify against the codefendant so as to save his or her own skin. Likewise, the prosecutor may not know who is the actual killer and works a deal with anyone in order to win a conviction and close the case. These issues are not just academic possibilities. The reality of these error factors became apparent to the Ryan Commission charged with reviewing the death penalty process in Illinois. In 2002 the Illinois Governor’s Commission on Capital Punishment presented eighty-five recommendations to reform their death penalty statute and litigation process. Table 4.2 presents a selection of the recommendations that pertain to assuring reliability in the prosecutor’s presentation of the case. One of the commission’s recommendations is precisely on point: that codefendant testimony and witnesses with whom a deal had been struck in exchange for testimony never be used without corroboration. As the understanding of “miscarriage of justice” has narrowed in focus to those who are actually innocent, the courts can securely ground their decisions on death eligibility—or guilt. Comcomitantly, the meaning

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Table 4.2 Recommendations for Reliability in Making the Prosecution’s Case

Recommendation 45: All prosecutors and defense lawyers who are members of the Capital Trial Bar who are trying capital cases should receive periodic training in the following areas, and experts on these subjects be retained to conduct training and prepare training manuals on these topics: 1. The risks of false testimony by in-custody informants (“jailhouse snitches”). 2. The risks of false testimony by accomplice witnesses. 3. The dangers of tunnel vision or confirmatory bias. 4. The risks of wrongful convictions in homicide cases. 5. Police investigative and interrogation methods. 6. Police investigating and reporting of exculpatory evidence. 7. Forensic evidence. 8. The risks of false confession. Recommendation 50: Any discussions with a witness or the representative of a witness concerning benefits, potential benefits or detriments conferred on a witness by any prosecutor, police official, corrections official or anyone else, should be reduced to writing, and should be disclosed to the defense in advance of trial. Recommendation 51: Whenever the state may introduce the testimony of an in-custody informant who has agreed to testify for the prosecution in a capital case to a statement allegedly made by the defendant, at either the guilt or sentencing phase, the state should promptly inform the defense as to the identification and background of the witness. Recommendation 69: Illinois should adopt a statute which provides: 1. The uncorroborated testimony of an in-custody informant witness concerning the confession or admission of the defendant may not be the sole basis for imposition of a death penalty. 2. Convictions for murder based upon the testimony of a single eyewitness or accomplice, without any other corroboration, should not be death eligible under any circumstances. Source: Ryan Commission 2002.

of guilt has expanded to include those who do not actually kill. This expansion results in spoiling the principle of sentencing proportionality and even permits accomplices to receive greater sentences than the actual killer. This chapter has suggested that the appropriate solution to this distortion in principle is to broaden the understanding of the spectrum of innocence so as to use the Enmund rule to recognize the factually innocent as less deserving of the ultimate punishment, thus rendering those persons who did not do the actual killing ineligible for the death sentence. Only if the accomplice has the same intentionality and participation as the actual killer should the accomplice deserve the same punishment as the killer.

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Treating them alike when mens rea and actus reus are not the same stands legal theory on its head and rejects the retributive rationale for the death penalty. Because felony murder does not require any specific mens rea as to the death (Gerber 1999, p. 770), the deterrence rationale is also inoperative because the killing was not the intended action. Such are the contradictions in capital litigation. In agreement with the skepticism concerning the appropriateness of felony murder as a death eligible offense, the Constitution Project (a highly respected group that “develops bipartisan solutions to contemporary constitutional issues by combining high-level scholarship and public education”) recommended that felony murder be excluded as a basis for death penalty eligibility (Reid, Smith-Savedoff, and Sloan 2009, p. xxv). This chapter has suggested that misjudgments can be made in assessing responsibility for capital defendants. When the death penalty is at stake, being guilty of the crime does not necessarily mean that the defendant deserves the death sentence. That is why the second phase of the trial is intended to weigh the mitigating and aggravating circumstances of the individual on trial. When the Court approved the revised death penalty statutes in Gregg v. Georgia (1976), the Court endorsed the direct appeal and proportionality review as a check on the trial process to ensure that the imposition of the death sentence was not arbitrary or capricious. This safeguard on the fairness of the process unfortunately has not worked as expected. A proportionality review usually refers to a comparison of sentences between other crimes, not to other codefendants. It is surprising that in Pulley v. Harris (1984) the Supreme Court ruled that there is no constitutional requirement that a specific proportionality review is necessary as a means to safeguard against such irrationalities in death sentencing. States can consequently draw on a range of possibilities. The question is: What is the appropriate basis for comparing cases? Do courts look at only death sentenced cases to see whether the current case is similarly treated? Or do courts look at all death eligible cases to see whether the death sentence is like the others that received death? Or do they select some set of cases in between—perhaps only cases the prosecutor chose to prosecute as a death penalty case? Ellen Suni (1986, p. 577) has concluded that proportionality reviews are ineffective as any sort of protection against ineffective sentencing. The reviewing court typically uses a smaller pool for comparison, with the result that the reviewing court rarely finds a death sentence that is disproportionate to other cases (Wallace and Sorensen 1994, p. 286). An appeal does little to curb flaws in proportionality reviews because the higher courts defer to the state court’s evaluation without testing whether the procedures for the proportionality review

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actually result in an effective, rational distinction between cases that receive the death penalty and those cases that do not. As a consequence, it is more likely that effective proportionality reviews are legal fictions rather than authentic protections against arbitrariness in sentencing. Academic concern regarding this issue of sentencing proportionality does have some support. Although there may not be a constitutional requirement for a specific type of proportionality review, some legal analysts (White 1999; Bruce 2002; Latzer 2002; Mandery 2002) interpret the Court’s language in Pulley to imply that there is at least a general constitutional right to a proportional sentence, however it is defined by the state. But the Supreme Court is not likely to reconsider Pulley since the majority (led by Justices Scalia, Thomas, and Samuel Alito) generally takes a hands-off approach to state court decisions when the decisions are conservative and supportive of the death penalty (Miller and Niven 2009). This issue did arise recently, but the petitioner was denied the writ of certiorari. In Walker v. Georgia (2008), Justice Stevens seemed to be inviting a reconsideration of Pulley by making a statement, not usually done when the Supreme Court denies certiorari: “Rather than perform a thorough proportionality review to mitigate the heightened risks of arbitrariness and discrimination in this case, the Georgia Supreme Court carried out an utterly perfunctory review. . . . Particularly troubling is that the shortcomings of the Georgia Supreme Court’s review are not unique to this case” (129 S. Ct. 481). Justice Stevens emphasized that this denial has no precedential effect. Thus, if the issue comes squarely before the Supreme Court again, it may be that there will be more support for assessing whether any breakdown in statutory process has occurred. The investigation of the factually innocent, here, has illustrated that the price of expanding the legality of guilt to include accomplice and felony murder defendants is to increase the potential of undermining important legal principles that then results in increasing the risk of wrongful death sentences. It is a miscarriage of justice when an actually innocent person is given the death penalty. It should be a miscarriage of justice when a factually innocent person is eligible for the death penalty. The next facet of the spectrum of innocence continues to raise issues of mens rea: those who have killed but who are legally innocent.

Notes 1. States have various names for capital murder: first-degree murder (in 20 states), capital murder (5), murder (4), aggravated murder (3), aggravated

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first-degree murder (1), intentional murder (1), capital felony (1), and criminal homicide (1). 2. This was instruction no. 10 in State v. Johnson, which was MAI-CR 2.10. 3. Ala. Code §§§ 13A-5-40(c) and 13A-5-49(4) and 13A-5-51(4) (2009); A.R.S. §§ 13-1105.A.2 and 13-703.G.3 (2007); A.C.A. § 5-4-605(5)(2007) and § 5-10-101(a) (2008); Cal Pen Code §§ 190.2(a)(17) and 190.3(j)(2007); C.R.S. 18-3-102(1)(b) and § 18-3-102(2) (2007); Conn. Gen. Stat. § 53a-46a(h) (2007); 11 Del. C. § 4209 (2007); Fla. Stat. §§ 921.141(5)(d) and 921.141(6)(d) (2007); O.C.G.A. § 16-5-1(2007); Idaho Code § 18-4001 (2007); 720 ILCS 5/91(21)(c)(5) (2008); Burns Ind. Code Ann. § 35-50-2-9(c)(4) (2007); K.S.A. § 21-4626(4) (2006); KRS § 532.025(2)(b)5 (2008); La. C.Cr.P. Art. 905.5(g) (2007); Md. Criminal Law Cod Ann. §§ 2-201 and 2-203 (2008); Miss. Code Ann. §§ 99-19-101(5)(d) and 99-19-101(6)(d) (2007); R.S.Mo §§ 565.032.2(11) and 565.032.3(4) (2007); Mont. Code Anno. §§ 45-5-102(1)(b) and 46-18304(1)(f) (2007); R.R.S. Neb. § 29-2523(2)(e) (2007); Nev. Rev. Stat. Ann. §§ 200.033.4 and 200.035.4 (2007); N.H.RSA 630:5.VI(c) (2008); N.M. Stat. Ann. § 31-20A-5, 6 (2007); N.C. Gen. Stat. §§ 15A-2000(e)(5) and 15A-2000(f)(4) (2007); ORC Ann. 2929.04(B)(6) (2008); 21 Okl. St. § 701.7 (2007); ORS §§ 163.115(1)(b) and 163.115(2)(2005); 42 Pa.C.S. §§ 9711(d)(13) and (e)(7) ((2007); S.D. Codified Laws § 22-16-4(2007); S.C. Code Ann. § 16-320(c)((b)(4) (2006); Tenn. Code Ann. §§ 39-13-204(i)(7) and 39-13-204(j)(5) (2007); Tex. Penal Code § 19.03 (2007); Utah Code Ann. §§ 76-5-202(2) and 76-3-207(4)(f); Va. Code Ann. § 19.2-264.4 (2007); Rev. Code Wash. (ARCW) §§ 9A.32.030 (1)(c) and 9A.32.030 (1)(c)(i) (2007); and Wyo. Stat. §§ 6-2102(h)(iv) and (j)(iv) (2007). 4. It is unfortunate that there is no national database that tracks the percentage of all capital murder convictions in these jurisdictions that are obtained in felony murder prosecutions. 5. Thus, “felony-murder is an example of strict liability (liability in the absence of intention, belief, recklessness or negligence) with respect to a result” (Simons 1997, p. 1080). 6. See Guyora Binder (2004) for a thorough history of the origins of the US felony murder rules. 7. Randy Greenawalt was executed on January 23, 1997. The Tison brothers were resentenced to life in prison. 8. “‘Reckless indifference’ is a crucial legal and moral concept that usually reflects an intermediate state of desire—less serious than a desire to cause harm or social evil, but more serious than a strong desire to avoid such harm . . . literal indifference about whether or not something occurs; a desire to create a risk; and ‘callousness,’ or caring less about a result or circumstance than one should” (Simons 1992, p. 477). 9. In the Missouri study between 1989 and 2005, there are 34 of 72 total clemency cases (47 percent) with two or more perpetrators. Of those 34, 12 claim not to be the actual killer, and 10 others claim to be actually innocent. The 12 (17 percent of all Missouri clemency petitions) who claim not to be the actual killer provide the focus for this discussion of the role of the accomplice as a claim of factual innocence. Other codefendant, but not accomplice liability,

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cases in Missouri are Stanley Lingar, Michael Owsley, Stanley Hall, Jeff Tokar, Chris Simmons, and Dan Basile. 10. Quoted material taken from the Clemency Application on Behalf of Bruce Kilgore (1999). Submitted by Burton Shostak, Antonio Manansala, and John Tucci, attorneys at law in St. Louis. See also State v. Kilgore, 771 S.W. 2d 57 (1989); Kilgore v. State, 791 S.W.2d 393 (1990); Kilgore v. Bowersox and Nixon, 124 F.3d 985 (1997); and Kilgore v. Bowersox, 181 F.3d 895 (1999). 11. Prosecutor misconduct primarily deals with withholding exculpatory evidence or withholding information about bargains made with witnesses. When such information is hidden from juries, they are handicapped in evaluating the evidence before them. When “deals” are kept from the defense and the jury, the fairness of the jury deliberation weighing evidence against the defendant is jeopardized and invalidates the outcome of the case. Withholding evidence from the defense by the prosecution was ruled unconstitutional by the US Supreme Court in Brady v. Maryland (1963) and is considered serious misconduct by the American Bar Association (2000, pp. 74–76 [in Rule 3.8]). Some unlucky prisoners have been executed because of such behavior.

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5 Self-Defense A cursory question to the potential juror of whether she automatically would impose the death penalty for capital murder, for example, may lead to the honest response that she would not. If the venireperson was asked further, however, to describe the type of case in which she would not impose the death penalty, some would give examples such as cases involving self-defense, accident, or insanity. The problem is that the venireperson is not a lawyer, and quite understandably does not know that such cases would never qualify for a capital murder conviction. —Blume, Johnson, and Sundby 2008, pp. 1058–1059

In exploring the spectrum of innocence, situations have already been examined in which the defendants did not do the actual killing, being either actually innocent or factually innocent of committing the killing. Now attention is focused on those persons who did kill, but who offered a justification that should have acquitted them from conviction and as such have shielded them from receiving a death sentence, but as a matter of fact did not. These persons represent another facet of the spectrum appropriately called legal innocence. Legal innocence refers to the situation in which the defendant admits to killing the victim but offers a justification that defines conduct “otherwise criminal, which under the circumstances is socially acceptable and which deserves neither criminal liability or even censure” (Dressler 2001, p. 202). Criminal law in the United States is intended to be an adversarial process. Guided by the Fourth, Fifth, Sixth, and Eighth Amendments of the Bill of Rights, the prosecution is required to deal fairly with the accused. The defendant theoretically does not have to prove his or her innocence, but the prosecution is obligated to prove the case beyond a

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reasonable doubt by showing four things: a voluntary act, a social harm, mens rea, and a causal connection between act and harm. As seen in earlier chapters, whether or not a presumption of guilt must be overcome, it is a wise defense that attacks the prosecution’s case. Even as the prosecution has the initial burden to submit proof to establish guilt, the defense can raise defenses that could result in acquittal (Dressler 2001, p. 201). “A defense consists of evidence and arguments offered by a defendant and his or her attorneys to show why that person should not be held liable for a criminal charge” (Schmalleger 1999, p. 136). These defenses often demonstrate that the defendants in some way acted against their own free will and as such do not deserve punishment for their wrong behavior.

Defenses There are many types of defenses that may or may not be available to the defense depending on the circumstances of the case, the statutory definitions, and judicial interpretations. The most familiar defenses are accident, alibi, consent, entrapment, insanity, and self-defense (Chamelin and Thomas 2009, pp. 68–100; Reid 2009, pp. 56–76). Except for the alibi defense, which is basically a claim of actual innocence, the others require careful consideration before embarking on such a strategy, since they usually require admitting and then explaining the criminal act. In most cases, the defendant must establish his or her case by a preponderance of the evidence, which is a lower standard than the prosecution has to meet for a conviction. This chapter will focus on one type of legal innocence: the situation where the justification of self-defense is raised by the defendant. Selfdefense is an affirmative defense, which means that the defendant admits to the killing but offers a justification for that action. A person who claims to have killed in self-defense is implying that the victim precipitated the crime. Thus, the key element in this defense may rest on the mens rea element of the crime, either that the defendant did not intend to kill the victim or aggressor or, given the circumstances of the interaction, the defendant intended to kill but only as a response to life threats. It is a risky defense strategy because if the jury does not accept the defense’s explanation for the behavior, then there already exists a “confession” of the actus reus. The success of this defense strategy depends entirely on the skill of the defense attorney to overcome the jury’s presumption of guilt. This chapter further expands the spectrum of

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innocence through a discussion of the self-defense theory and explores why some death row prisoners have been sentenced to death despite claiming legal innocence. The jury’s first decision in any capital trial is whether or not the defendant is guilty of capital murder, and if guilt is the outcome, the second decision is what sentence should be imposed. The first decision is obviously the threshold question: Is the defendant guilty of capital murder? In the guilt phase of the capital trial, the jury is instructed that in order to find the defendant guilty of first-degree murder, the individual jurors must unanimously agree that all the elements of the crime exist beyond a reasonable doubt. With legal innocence, there is no question that the defendant is the actual killer. But criminal responsibility also depends on the second element of the crime, intentionality, which helps to distinguish legal innocence from guilt.

Intentionality All states use similar language to indicate intentionality: premeditation, purposely, deliberate, knowingly, malice aforethought, or willful. Missouri, for example, defines first-degree murder as “knowingly causing the death of another person after deliberation upon the matter” (Mo. Rev. Stat. § 565.020[1] [1994]). So here, the prosecutor must establish first that the defendant did the killing and second that the defendant deliberated upon the action that resulted in the death. Black’s Law Dictionary (1979, p. 384) defines deliberate action as: “Careful in considering the consequences of a step; not sudden or rash; willful rather than merely intentional; carried on coolly and steadily, especially according to a pre-conceived design; given to weighing facts and arguments with a view to a choice or decision; slow in action; unhurried; characterized by reflection; dispassionate.” The dictionary definition takes on substantial meaning as it is used in the context of court decisions so that when the prosecution is building its case against the defendant, the prosecution follows the court’s previous interpretation of this element. The Missouri Supreme Court describes the deliberation necessary for a first-degree murder charge as being a “cool and deliberate state of mind” in State v. Simmons (1997, 955 S.W.2d 729, 739). But the court continues to explain that “this mental state is rarely provable directly and is usually shown circumstantially.” Considering that “premeditation need only be shown to have existed a moment before the slaying” (State v. Turner 1981, p. 7), it appears that the prosecution’s

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burden for “proving” the mens rea necessary to sustain a finding of guilt is not very difficult, no matter what the defense. Missouri is one of twelve other death penalty states that hold that premeditation may take place immediately.1 In these states, prosecutors, judges, and juries have virtually unlimited discretion to choose between first- and second-degree murder in all cases where an intent to kill is present (Barnes, Sloss, and Thaman 2008, p. 13). In those states that permit premeditation to occur immediately or simultaneously with the action, the state of mind (mens rea) is hardly a barrier to proving guilt, and consequently it is more difficult for the defendant to counter the prosecution’s case. In contrast, twenty-one other death penalty states require serious reflection to establish deliberation. 2 The California Supreme Court, for example, listed three categories of evidence that could support a finding of premeditation and deliberation for a conviction of first-degree murder: (1) planning activity—facts regarding the defendant’s behavior prior to the killing which might indicate a design to take life; (2) facts about the defendant’s prior relationship or behavior with the victim which might indicate a motive to kill; and (3) evidence regarding the nature or manner of the killing which indicate a deliberate intention to kill according to a preconceived design (People v. Anderson, 447 P.2d 942, 949 [1968]). (cited in Barnes, Sloss, and Thaman 2008, p. 16)

These two approaches toward giving meaning to the mens rea element of crime will have different gatekeeping functions for states engaged in death penalty prosecutions. In situations where the defendant believes that the killing occurred in self-defense, there ought to be a story that could effectively counter the prosecution’s case in those states that require serious reflection in order to determine guilt in capital murder cases.

Self-Defense Given that a key element of capital murder is deliberation, if the defendant claims the killing was the result of action taken in self-defense, then what is being asserted by the defendant is that the victim precipitated the crime, that the killing was a justified (appropriate and proportional) response to the actions by the victim. As such, self-defense involves a “balancing of harms” (Robinson 1985, p. 3, n4) as the survivor (the defendant) argues that in protecting his own life he is justified in taking

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the other’s life. In such a situation, the defendant claims that he did not intend to kill but for the victim’s attack. The key issues in every self-defense (murder) case involve whether the defendant reasonably believed it was necessary to use deadly force to protect himself from what he reasonably believed to be imminent danger of serious injury or death from the victim. Black’s Law Dictionary (1979, pp. 1219–1220) defines self-defense as “the protection of one’s person or property against some injury attempted by another. The essential elements of ‘self-defense’ are that defendant does not provoke difficulty and that there must be impending peril without convenient or reasonable mode of escape. The law of ‘self-defense’ justifies an act done in the reasonable belief of immediate danger.” It is not surprising that there is much argument and debate in and out of the courtroom about these features of self-defense that play out in specific and real cases. Reasonableness

Traditionally the “reasonable man” was the standard of measurement used to determine what was a reasonable response to a perceived threat. This standard has evolved slowly, lagging a bit behind social changes in gender relationships. When litigation developed around cases of women killing men in self-defense, trial attorneys succeeded in stretching the concept of reasonableness to apply to a reasonable woman, then to apply to a person in a particularly subjective context. Female defendants, for example, claimed that it was reasonable for a 5 foot 5 inch woman who was being attacked by a 6 foot 2 inch man wielding a baseball bat to believe that her life was threatened, even though another 6 foot 2 inch man might not be in such fear. From that other man’s perspective, a reasonable self-defense posture might be to find some other prop to rebuff the attacker’s advances. A smaller, weaker woman, however, might reasonably reach for a gun or a knife to defend her life. Thus, the defensive action can be whatever a reasonable person would do in the actor’s situation. Depending upon the jury, it might be necessary to explain the defendant’s reality to the jurors who, in their own worldview, might not be able to understand the situation from the defendant’s point of view. Abusive situations are precisely those that need interpretation in order for the self-defense story to be accepted as reasonable. In the case of women suffering abuse from men, “the courts in every jurisdiction have now approved the use of expert testimony on Battered Woman Syndrome to support a self-defense claim” (Heaven 2008, p. 596). Acceptance, however, does not mean that the defense is particularly successful. Although

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very few battered women are prosecuted for capital murder, those who have been prosecuted have tended to be convicted (Braden-Maguire, Sigal, and Perrino 2005, p. 407). There are some women who are incarcerated, even on death row for killing in what they claim to be selfdefense. Through June 31, 2009, 25 percent (N = 13) of the women sentenced to death row killed either their husbands or boyfriends (Streib 2009, p. 9). Marina Angel suggested that despite the shift in understanding the “reasonable man” standard, the “person still functions within legal doctrines conceived by men and interpreted to fit the facts of men’s lives” (2008, p. 65), and so self-defense as an affirmative defense strategy is still narrowly conceived and rarely successful in trials involving females in abusive relationships. Requiring a victim to retreat into his or her home rather than battle the attacker is unrealistic for the woman whose attacker lives with her in the home. The concept of imminence is another example of the way in which men’s worldview has dominated the construction of the law. Imminence

Another element in the self-defense doctrine is that “in the context of self-defense, force is imminent if it will occur immediately or at once. The danger must be pressing and urgent” (Dressler 2001, p. 229). Angel pointed out that the construction of the imminence standard reflects a “white-male standard time” (2008, p. 72), whereas “for the abused women time is elongated. Provocation continues as does the need for self-defense” (Angel 2008, p. 73). Women in abusive relationships who can predict that the cycle of violence will escalate and who are unable to escape can rationally anticipate the imminent and necessary use of force as a preemptive strategy to protect themselves. It is precisely this question of necessity that causes controversy and disagreement when applying the self-defense doctrine to someone other than the traditional “reasonable man.” “The necessity rule provides that force should not be used against another person unless and only to the extent that it is necessary” (Dressler 2001, p. 222). It is the jury who ultimately decides based on the instructions given by the judge. The defense must prove that its story of what happened fits these elements of self-defense. As the chapter epigraph from John Blume, Sheri Johnson, and Scott Sundby signifies, a prosecutor faced with a defendant who claims to have acted in self-defense should reject the case as inappropriate for capital prosecution—unless the defendant’s story is unbelievable. The unfortunate truth is that in a social-political

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environment in which capital prosecutions and convictions are a means for upward mobility (for judges and prosecutors, but not defense attorneys), where intense media publicity fosters the public’s pressure for vengeance, and where the killer has essentially confessed, such prosecutions may be difficult to resist. If the prosecutor does accuse the survivor of the incident with capital murder, it is reasonable to expect that the capital defendants with self-defense claims will plead not guilty and will want to take their chances before a jury. They believe themselves to be innocent of a deliberate killing. If a jury does not accept the defense explanation of the events, however, then the jury’s decision for guilt is straightforward because the defendant has already admitted to doing the killing.3 It is therefore quite important in self-defense claims to effectively communicate the defendant’s story to the jury. Both sides in the courtroom have opposing narratives to explain the defendant’s action. Making the affirmative defense of self-defense in effect shifts the burden of proof from the prosecutor onto the defendant to prove to the jury his or her account of what happened. No longer does the prosecutor have to prove the actus reus, since it is essentially stipulated by the defense. As was explained in the situation of accomplices, proving the element of intentionality is a very low hurdle. Proof of the action itself is generally enough evidence from which the jury can presume intention in some jurisdictions. In the self-defense situation, the defense attorney strategy consequently must summon more than persuasive words. The defense also must submit significant evidence to corroborate the defendant’s story and bolster the defendant’s credibility so as to completely convince at least one member of the jury, in order to win a not guilty verdict. Not an easy task, given, as will be seen later in the chapter, that the jury tends to come to court predisposed toward guilt. The defense’s narrative has to explain who started the conflict and whether the resulting behavior was a proportionate and necessary response to the provocative conduct. Too often the trial attorney is unfortunately the least experienced, least funded, and least effective actor in the courtroom drama.

Effective Assistance of Counsel Like all other capital defense strategies, self-defense requires an effective trial attorney to investigate all possibilities that might corroborate the defendant’s story and counter the prosecution’s theory of the case.4

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The effort required to mount any capital defense is truly enormous. According to one expert defense attorney, it takes at least 2,500 hours of work to adequately and effectively defend a capital client (Simons 2008, p. 5). Such an estimate is not unwarranted. It is unfortunate that it is the rare defendant who receives such masterful representation (Steiker 2007). The Powell v. Alabama (1932) decision, based on the Sixth and Fourteenth Amendments, concluded that capital defendants were entitled to the assistance of counsel, but the Supreme Court later in Murray v. Giarratano (1989) limited this right by deciding that there is no constitutional expectation for representation in discretionary appeals, even in death penalty cases. It seems ironic that where life is at stake, the legal system does not guarantee even minimal defense, much less the best defense. Although most states will provide postconviction counsel, the American Bar Association Death Penalty Moratorium Implementation Project reports in its key findings that there are some death penalty states that do not provide for this (American Bar Association 2007, p. 3). Having an attorney does not assure the defendant, however, that the representation is vigorous and effective. The Supreme Court directly faced concerns about effectiveness in 1984 when, in Strickland v. Washington, the Court created a two-pronged test to assess ineffectiveness. The first prong requires that the defendant demonstrate that the attorney’s performance is deficient based on “prevailing professional norms.” The second prong insists that the defendant establish that the deficient performance actually contributed to the adverse outcome of the case, that is, had the attorney been effective, the defendant’s conviction would not have occurred. It has proven very difficult for petitioners to establish that the outcome of their cases would have been different had their attorneys been better than they were. In part, the proof has to do with what evidence is before the jury and also with what evidence is not before the jury. It has been very rare for courts to rule in favor of the prisoner because the courts presume that the attorney was effective. In addition, appellate courts give expansive interpretations to performance, generally evaluating the attorney’s work and decisionmaking, no matter how lacking, as part of “trial strategy.” In essence, attorney representation has been virtually nonreviewable. As a result, the impact of the Strickland rule has been minimal in correcting the vast problems associated with capital representation, recognizing only those instances of “egregious lawyering.” That said, the most common ground for state postconviction reversals of death sentences between 1973 and 1995 was “egregiously incompetent defense lawyering”

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(Leibman et al. 2000a, p. 1850). How many others suffered from ineffective assistance of counsel that went unrecognized? In many death penalty cases, the trial attorneys have unfortunately not been up to the defense task because they lack direct criminal practice experience, a problem that is compounded by a lack of sufficient resources to do complete investigations. Across jurisdictions, horror stories abound about the lack of qualifications for the defense side in capital trials. What may be worse than being unqualified, a significant segment of defense attorneys in capital cases is later disbarred for other inadequacies or illegalities (Coyle, Strasser, and Lavelle 1990). In some jurisdictions, appointment to capital cases goes to the lowest bidder and to attorneys who are known to try cases rapidly rather than zealously (see Berry 2003, p. 495; Bright 2003; Note 1994, pp. 1924–1925). These episodes should be red flags indicative of systematic policies designed to undercut the effectiveness of advocacy and representation rather than to protect the accused’s right to effective assistance of counsel. Although the public has been rightfully outraged when an appellate court initially endorsed the adequacy of an attorney who slept through substantial portions of the murder trial (Burdine v. Johnson 1999), less publicized are the reversals that have come in most every capital jurisdiction for such failings as the lack of investigation into the client’s background, character, or mental health (O’Brien 2008, pp. 25–26, n25). The inescapable conclusion that comes from these and other observations is precisely what Stephen Bright (1994) observed: that it is not the worst cases that receive the death penalty but the cases with the worst lawyers who gain the death penalty for their clients. The American Bar Association has recommended guidelines for trial counsel in capital cases (2003b) that are “the minimum necessary conditions for the operation of the capital justice process in a fashion that adequately guarantees fairness and due process” (Steiker and Steiker 2008, p. 36). Because no state has adopted these guidelines, it is more likely than not that most defendants are convicted and sentenced to death without the benefit of thorough investigations, adequate resources, or experienced advocacy. Beyond the trial, postconviction representation suffers from identical issues. “Given the general unavailability of competent counsel in post-conviction proceedings, the number of defendants affected by the failure to find and present mitigation evidence at trial was incalculable” (Maher 2008, pp. 768–769). Should new evidence be discovered after trial that might exonerate the prisoner, it is often too late to be considered by the courts on appeal (a pattern described in Chapter 2).

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Only in Wiggins v. Smith (2003) did the Supreme Court give some guidance as to what is normal professional defense practice by recognizing that the defense team must do a full investigation in order to be able to determine trial strategy. The definition of what constitutes a full investigation is well articulated in the professional standards published in the American Bar Association’s Guidelines for the Appointment and Performance of Defense Counsel in Death Penalty Cases (2003a), stating, in part, that the lead counsel must assemble a capital defense team consisting of no fewer than two qualified attorneys, an investigator, and a mitigation specialist (Guidelines 4.1 and 10.4C) in order to provide effective assistance of counsel to the defendant. The need for this guideline is evidenced by the fact that this has not been the practice in most death penalty cases. In Wiggins, the Court stressed that trial strategy cannot be decided without full and complete investigation to know what is and is not possible to present. Thus shortcuts are not the professional standards. It appears that the Court will no longer assume that omission of evidence is the product of trial strategy.

Costs The most significant problem in providing effective assistance of counsel is the uneven or miserly funding states provide for indigent capital defense. Without sufficient funds or at least funds that match the prosecution in capital trials, the Sixth Amendment right to counsel is meaningless, nothing more than an unfunded mandate. Some examples follow. In 2008, Maryland faced a crisis in the pay given to death penalty trial attorneys (who were on contract). The pay rate offered was fifty dollars an hour, and there was a cap on their pay of $20,000. Although that may sound like a lot of money to the public, it only provides for 400 hours of work toward the defense, which is quite insufficient if the standard defense effort should be 2,500 hours. According to Nicole Fuller, only Mississippi pays its attorneys at a lower rate (Fuller 2008). In this particular Maryland situation, the attorneys anticipated working “well in excess of 1200 hours meaning that their effective pay rate would be just $17/hour” (Fuller 2008). It is not surprising that these attorneys claim they would face financial ruin if they represented their client to the best of their ability. Robert Bohm (2007, pp. 218–219) presented a sample of the payments that states provide. As in other commercial endeavors, low payment means that you likely get what you pay for: terrible defense work resulting in fatally flawed convictions.5 As long as attorneys are

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willing to accept the low pay, the quality of their defense work cannot be other than suspect. In the past, attorneys who cared about their clients would simply complain about the low pay, but now attorneys are beginning to demand payment in order to do effective defense work. For example, defense attorneys submitted bills for $2 million before going to trial in the case of Brian Nichols, a defendant who was charged with fifty-four counts in a courthouse shooting that killed a judge, a court reporter, a sheriff’s deputy, and a federal agent in Georgia in 2005. The attorneys refused to continue unless they were paid, claiming financial ruin if not compensated properly. The capital trial ultimately cost the state and the county more than $3 million to convict Nichols, who was then sentenced to life without parole because the jury rejected the death penalty (Cook and Visser 2009). The costs of handling capital cases have become much more salient in debates about death penalty reform or repeal. The Death Penalty Information Center issued a 2009 report that documented the studies in various states and their estimates of the increasing costs involved in the death penalty in the United States (Dieter 2009). Although the average actual cost per state is around $30 million for each execution, the most extreme situation was the estimate by the Los Angeles Times that Californians and federal taxpayers are paying more than $250 million for each execution (Dieter 2009, pp. 14–15). The death penalty clearly costs more than noncapital cases (Bohm 2007, p. 213). As states attempt to carve out funding for capital cases, they will sometimes impose caps or flat fees or offer lump-sum contracts to attorneys in order to control the budgetary impact of these cases, which have been estimated to cost between $2.5 million to $5 million (per case not per execution) on average (Bohm 2007, p. 213). The effect of caps, however, is likely to result in underpayment of the defense side, whereas the prosecution side is always provided more resources since it is already an integral part of the governmental budget. The worst situation can be found in Alabama, where the caps for capital defense services are $2,000 for direct appeal and $1,000 for state postconviction proceedings (Steiker and Steiker 2008, p. 36, n143). In 1991, the Supreme Court established a cap of $5,000 for federal representation (In re Berger, 498 U.S. 233), when the attorney requested $28,756.05 in fees and expenses. The hours billed for this federal appeal were 283.5, and the defense fees requested were at the then reasonable rate of $100 per hour and $125 per hour for in-court work (Braun 1994, p. 1020). The Court’s decision effectively paid the attorney approximately $17 per hour for her work (Braun 1994, p. 1023). Competent attorneys who know how much work is required to do an

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effective job on these complex cases are deterred from accepting them when there are caps on compensation. Effective assistance of counsel is even more critical when the trial issue is self-defense because the usual conflict—who did it?—is not in question. Rather, the problem to litigate is why it happened. Selfdefense involves significant investigation and preparation in order to present a believable story to the jury. The relationship between the defendant and the defense team is critical, but so is the relationship of the defense team to the jury. So it is that an effective defense attorney also must anticipate the behavior of typical juries qualified to deliver the death penalty. John Blume, an experienced capital defense attorney, and Pamela Blume Leonard, an experienced mitigation specialist, advise capital defense lawyers on the keys for success that apply to presenting the self-defense case: Jurors must understand your evidence before they can accept your theory. They also must believe it. If they question the credibility of your evidence, they will likely stop listening and start resisting your theory. Without doubt, for your evidence to be understood (comprehensible) by jurors, it must have a reliable foundation (credible), it must not come as a surprise (comprehensive) and it must not be used as an excuse only after all else has failed (consistent). (reported in O’Brien 2008, p. 757)

In the context of a death penalty trial, the self-defense theory may require these four keys for success but they must also be shaped to address the particular profile of the jury.

Jury Behavior in Capital Trials As stated above, the burden in any capital trial is on the prosecutor to prove that the defendant did the killing and had the requisite intentionality and deliberateness. In a self-defense case, because the confession by the defendant of the actual killing is already in evidence, then the prosecutor’s task is relatively easy. In order to counter the prosecution’s conclusion that guilt requires a death sentence, it is important that the defense story makes sense to the jury. The evidence must support the defense story regarding motivation and then, if a guilty verdict is reached, must offer significant mitigation to spare the defendant’s life. This undertaking at persuasion is an uphill battle for the defense attorney given what is known about capital juries.

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Jurors Are Death Qualified

Attention to capital juries became focused in the 1968 court case of Witherspoon v. Illinois. In that case, the Court held that prospective jurors may not be removed from the jury for cause simply because they voiced general objections to the death penalty or expressed conscientious or religious scruples against imposition. Rather, only when they explicitly report during voir dire that they would automatically vote against imposition of the death penalty can potential jurors be removed from the jury panel for cause. This process resulted in what became known as “death qualified” juries. In 1972, Furman v. Georgia overturned the death penalty statutes, with the Court stating concerns that the implementation of the death penalty was arbitrary and capricious, in large part owing to unchecked jury discretion. When Gregg v. Georgia (1976) approved the new capital statutes, the Supreme Court hoped the guided discretion aspects of the statutes would restore fairness and rationality to the juries’ death sentencing. Gregg approved changes to separate the guilt and penalty phases of the trial in the hopes that emotional reactions to the crime would be separated from consideration of the offender’s individual characteristics. The Court also hoped that the guided discretion options (expecting juries to consider mitigating and aggravating circumstances) would enable the jury to determine the appropriate sentence, rationally rather than emotionally. In 1984 Robert Fitzgerald and Phoebe Ellsworth conducted a study of the differences between those excluded and those selected for capital jury duty. Besides raising questions about the community representativeness of the jurors selected, they found that those in the excluded group were less punitive and less distrustful of the defense, leaving a jury to consider the death penalty one that is “relatively biased toward the prosecution” (1984, p. 48). The Court continued to try to guide voir dire in capital cases. In 1986, in Lockart v. McCree, the Court ruled that prospective jurors whose opposition to the death penalty is so strong that it would prevent or substantially impair the performance of their duties as jurors at the sentencing phase of the trial may be removed for cause. Finally, in Morgan v. Illinois (1992), the Court made a step toward balancing the voir dire process by agreeing that a juror who will automatically vote for the death penalty in every case may be challenged for cause also. This line of cases assumes that potential jurors are questioned about their opinions of the death penalty and will be found ineligible to serve (for cause) if their opinions are so strong that they cannot apply the law to the facts that they hear in court. Of course in reality the two adversaries in the capital trial are also trying to seat jurors who are sympathetic to

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their respective positions. The intent of the death qualification process is to generate a jury that is neutral and to select jurors who can attend to the evidence presented in court with open minds, basing their decision on the law as they are instructed by the judge and on the evidence presented to them. Craig Haney criticized the jury selection process, however, for engaging in questioning about the death penalty “long before penalty is relevant” (Haney 2005, p. 222), thereby planting the idea in the jurors’ minds that the defendant is guilty and that they will be asked to decide to sentence him or her to death. Haney learned that “prolonged discussion of the death penalty was found to predispose potential jurors to believe that the defendant was guilty, that he would be convicted and sentenced to death, that the judges and attorneys shared their guilt-prone views, and that the judge in the case favored the death penalty” (Haney 2005, pp. 120–132). He realized that the preliminary questioning process itself may actually create bias as when responses during the voir dire process from potential jurors can prejudice other potential jurors (Haney 2005, p. 117). In addition, the heightened attention given to the death penalty in voir dire has the effect of “diverting jurors from the presumption of innocence and desensitizes them to imposing death” (cited in Bohm 2007, p. 321). Thus, unless the defense attorney takes aggressive peremptory means to counter the predisposition of the capital jurors, the rest of the presentation of the defense case will be filtered through a lens of guilt. Indeed, what is now known about jury behavior suggests that the Supreme Court’s line of decisions have not succeeded in eliminating bias—especially toward the imposition of death sentences. Research demonstrates that despite the efforts in death qualifying a jury, there are between two to four persons on a twelve-person jury who would automatically vote for the death penalty following a guilty verdict (Bohm 2007, p. 320). These antidefendant jurors quickly abandon a presumption of innocence when presented with any incriminating evidence (Laufer 1995, p. 367). When the judge instructs the jury to disregard some statement or question by the prosecution, it is easy to understand how difficult it is for jurors to disregard powerful evidence (Uphoff 2006, p. 790). Telling someone not to think about something almost guarantees that they will indeed think about it. Because the Court decisions regarding the capital jury have been made largely without the benefit of scholarly research to test the actual impact of their decisions on jury behavior, groundbreaking research into jury sentencing decisions in death penalty cases was initiated in 1990 under the leadership of William Bowers with funding from the National

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Science Foundation. The Capital Jury Project (CJP) conducted more than 1,000 in-depth interviews across fourteen states with jurors after their capital trial experience. This rich research has uncovered many surprising findings regarding jury behavior in capital trials and gives insight into whether the “jurors’ sentencing discretion is still infected with or cured of the arbitrariness which the U.S. Supreme Court condemned in Furman v. Georgia” (Bowers 1995, p. 1043). Some of the results indicate that there are serious problems with jurors’ understanding and their decisionmaking, concluding that courtroom efforts to guide discretion are not functioning as hoped. Overall, it appears that death qualified jurors are significantly different from jurors who are excluded from participating in the capital trials—they are more conviction prone. As Robert Bohm (2007, p. 57) summarized this body of work, the death qualified jurors are “less concerned about due process and more inclined to believe the prosecution; significantly less knowledgeable and with more misconceptions about the death penalty; less likely to believe that innocent people are convicted of capital crimes, that the death penalty is unfair to minorities, and that life without parole really means that the prisoner will not be released from prison.” Following Instructions

The death penalty trial is really two trials: after the guilt phase, the sentencing phase may follow. The judge will instruct the jury on the law to use for each stage of the capital trial, and the jurors’ decisionmaking is to be guided by these instructions. It is the two stages and the guiding instructions that are supposed to correct the arbitrariness and capriciousness attributed to the former capital litigation process. Studies from the CJP reveal, however, that the careful selection of capital jurors may not be achieving those goals. Rather than guiding decisionmaking, three out of four jurors felt that the judge’s instructions to the jury simply provided a framework for a decision already made by most jurors before the instructions were given (Bowers 1995). Because the capital trial is designed intentionally to be a two-stage trial process, jurors should decide the issue of guilt first (before the sentence) and then after additional evidence is submitted to the jury they are supposed to consider what sentence is appropriate. Instead, the CJP research found that even in deciding guilt, there was explicit discussion of what the defendant’s punishment would or should be (Bowers 1995; Bowers and Foglia 2003). More troubling was the discovery that after finding guilt but before being given any evidence about punishment, about half the jurors

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said that they had already chosen (more or less firmly) between a life or death sentence (Bowers 1995; Bowers, Sandys, and Steiner 1998; Bowers and Foglia 2003). This is extraordinarily inappropriate and clearly undermines the intention of the two-stage trial. Usually jurors who prematurely make up their minds on punishment have decided to vote for the death penalty and report being “absolutely convinced” of their decision at the conclusion of the guilt-or-innocence phase of the trial (Bowers and Steiner 1998, pp. 326, 328). These findings complement research done twenty years earlier of jurors’ misunderstanding of instructions.6 “Studies dating back to the early 1970s have consistently revealed comprehension levels at or below 50 percent for samples of actual and mock jurors for a wide range of jury instructions on the reasonable doubt rule” (Laufer 1995, p. 365, n163; Charrow and Charrow 1979; Lieberman and Sales 1997). Comprehension rates for the fundamental doctrine of presumption of innocence are similarly poor (Laufer 1995, pp. 367–368, nn175, 178). This discovery is important because it has consequences for sentencing. Jurors with lower levels of comprehension of the instructions have a greater likelihood of imposing the death penalty rather than a sentence of life imprisonment (Wiener, Pritchard, and Weston 1995). Results from the CJP research indicate that 66 percent of the study participants did not understand that each juror has the discretion to decide for himself or herself (rather than be unanimous in their decision) about what constitutes a mitigating factor (Lieberman and Sales 1997, p. 615). Sentencing Decisionmaking

Jurors frequently have mistaken views about the alternatives to a death sentence and, consequently, vote for death even though they would vote for life if they were assured that the defendant would never be released from prison or would not be released for a long time (Bowers and Steiner 1998). The courts have stressed that it is important that jurors take their roles seriously and recognize their responsibility in determining the sentence. In Caldwell v. Mississippi (1985) the Court warned that if jurors believe that others are responsible for the final decision on sentence then there is the danger that they will impose death sentences arbitrarily. Research done by the CJP reports that despite proper instruction, jurors unfortunately do not see themselves as the ones responsible for sentencing. Only three out of twenty capital jurors believe that jurors, as a group or individually, were the agents most responsible for the defendant’s punishment (Bowers 1995). Furthermore, some jurors

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believe that the sentence they impose is only preliminary and nonbinding since it will be reviewed and corrected, if necessary, by an appellate court (Bohm 2007, p. 303).7 All these research projects concerning capital jury behavior are consistent in reaching the same conclusion that despite trying to do the best that they can, there is still a great deal of misunderstanding on the part of jurors about how to deliberate and how to decide capital cases. Beyond describing these troubling results, Paul Robinson enumerated the following court practices that might account for the jury’s comprehension problems: the practice of delivering instructions after the evidence is received, the practice of delivering only verbal instructions, the use of legal jargon, the length of the instructions (in particular, the tendency to incorporate detailed statements of the law with refined qualifications and exceptions, rather than broad understandable statements of principle), illogical organization of the instructions and a reliance on abstract legal statements rather than a focus on the specific factual inquiries necessitated by the evidence. (Robinson 1985, pp. 52–53)

There are two inescapable conclusions that result from this overview of the jury research: (1) there are significant obstacles for the defense when going to trial, and (2) significant and repetitious clarification must be incorporated into presenting the defense case. Death penalty law requires complex knowledge and dedicated commitment of significant resources in order to present any defense but particularly, the self-defense story, effectively. The challenges of effective attorney representation and the challenges in jury decisionmaking are daunting. Given the additional challenges of the self-defense case, the defense team must clearly be prepared to present its mitigation evidence throughout by “frontloading or foreshadowing mitigation themes . . . [since] residual doubt about guilt is a strong predictor of life sentences” (Blume, Johnson, and Sundby 2008, p. 1044). When an affirmative defense is being raised and the only issue at the trial is why the defendant took a life, then creating a strong story that is well supported is the primary work of the trial attorney and requires extraordinary investigation and preparation. In summary, this research leads to the conclusion that jurors who are trying very hard to do the best job they can still do not do it the way the law expects. The research suggests that jurors do not understand their role or their instructions and are likely deciding cases based on fairly arbitrary criteria—their own. Certainly the court cannot be said to “guide” their discretion, as was expected when Gregg v. Georgia reauthorized the death

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penalty. If the inadequacy of defense attorneys is added to the problem of juror misunderstanding, then the capital trial is ripe for injustice.

Does It Make a Difference? Clemency petitions represent those death-sentenced prisoners whose defense has failed. In Missouri, eight death row prisoners claimed selfdefense between the years of 1989 and 2005, representing 11 percent of the total. Seventy-five percent of them claimed that their attorney did no investigation whatsoever. In virtually all of the cases there was substantiating new evidence that was not heard at trial. Ralph Feltrop’s case is an example in which reasonable doubt probably exists and except for the defense attorney’s inadequate presentation of the case to the jury, Feltrop would at least have been found guilty of a lesser offense than capital murder, if not acquitted outright. Therefore, Feltrop represents an example of legal innocence, someone who should not have been found guilty of the capital crime and who should not have been sentenced to death and executed. Self-defense defendants should not be fighting for their lives but for what lesser degree of guilt they might have. His story presented below is taken from the clemency petition.8

Ralph Feltrop—A Case of Self-Defense That Failed In March of 1987, Ralph Feltrop’s live-in girlfriend, Barbara Roam, died as a result of an incised wound to the right side of her neck, which severed her vertebral artery, causing her to bleed to death. After Roam’s death, her head, hands, and lower legs were severed from her torso. Her torso was placed in a trunk and left along a roadside in St. Charles County, Missouri. The other body parts were placed in garbage bags and found in a pond in Jefferson County, Missouri. At trial, Deputy Sheriff Robert Simcox related Feltrop’s alleged statements to the police. According to Simcox, after several hours of interrogation, Feltrop stated that during dinner on March 8, 1987, Roam had accused him of seeing other women. This accusation resulted in an argument, during which Roam threw a steak knife at Feltrop. Roam followed Feltrop around as he left the dinner table. She continued to badger him, hit him, and poked him in the arm with a knife. Eventually Feltrop went to bed. He subsequently awakened

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when Roam came to the bed in an attempt to stab Feltrop in his sleep with a knife. A struggle ensued. Somehow during his attempt to take the knife away from Roam, Feltrop accidently struck her in the throat with the knife. The defense theory was that Ralph Feltrop killed Barbara Roam in self-defense. Evidence presented at trial indicated that when Ralph was a child, he was mild mannered and timid. He was teased and pushed around even by the smaller children. Feltrop’s high school teachers testified that other students would tease and pick on him unmercifully in school, but he would never fight back or argue. He even avoided using the restroom at school while other children were around because of their mistreatment of him. He was a loner and never had any social relationships at school. Ralph seemed to consider himself a failure, and he grew to be a very depressed and lonely man. Ralph’s neighbors testified that he was never the aggressor in any situation and he always avoided confrontation. Kay DeNormandy, a former neighbor of Ralph and Barbara, testified that Roam had a reputation for being hot tempered and flying off the handle very easily. She testified that she frequently heard Roam yelling and screaming and arguing; but never heard Ralph raise his voice. William Mangrum, a former boyfriend of Roam, testified at trial that he resided with her for about one year. Mangrum and Roam often argued and fought because she was extremely jealous. He testified that once, while he was in the bathroom, Roam had pried the door open with a knife. According to him, she constantly accused Mangrum of sleeping with other women, including his mother. On several occasions, Roam would become violent, threaten Mangrum, and throw knives at him. Once she accused Mangrum of sleeping with his sister-in-law, became berserk, and scratched and clawed at him. Mr. Mangrum’s mother observed this incident and called the police to assist him. Mangrum’s mother testified that Roam had a reputation for being a jealous person and she had suggested that Roam seek medical treatment. Frank Parnell, another former boyfriend, testified that at the time he resided with Roam in 1984, she was extremely jealous which caused her to continuously falsely accuse him of various peccadillos. Parnell and Roam frequently argued as a result of her obsession. On one occasion, they argued in the bedroom, Roam left the room to obtain a knife from the kitchen, and Parnell closed the bedroom door because he was afraid of her. Roam repeatedly attacked the wooden

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bedroom door with a knife. Several times the knife blade went all the way through the door. He also testified that Roam had once attempted to run him over with her car. On June 27, 1988, a jury from the Circuit Court of Jefferson County found Ralph Feltrop guilty of first-degree murder in violation of RSMO sec. 565.020 (1986). At the penalty phase of Mr. Feltrop’s trial, the jury was instructed on a single aggravating circumstance based on Mo. Rev. Stat. § 565.032.2(7) (1986). Instruction 4B stated: In determining the punishment to be assessed against the defendant for the murder of Barbara Ann Roam, you must first unanimously determine whether the following aggravating circumstance exists: Whether the murder . . . involved torture and or depravity of mind and that as a result thereof it was outrageously or wantonly vile, horrible, or inhuman.

This aggravator is an exact duplicate copy of the aggravating circumstance that, in the absence of an appropriate narrowing instruction, had been found unconstitutional by the United States Supreme Court eight years prior to Feltrop’s trial in Godfrey v. Georgia. Although the Missouri Supreme Court had developed a limiting construction for the phrase “depravity of mind” in State v. Preston, four years prior to Feltrop’s trial, the jury in this case was not instructed in accordance with Preston’s guidelines, nor was it given any other limiting construction. On June 30, 1988, the jury returned a verdict that Feltrop be sentenced to death. In fixing the punishment at death, the jury specifically excluded “torture” in its finding, stating only that the murder “involved depravity of mind and that as a result thereof it was outrageously or wantonly vile, horrible, or inhuman.” On August 3, 1988, the trial court imposed the death sentence. Both in the Missouri Supreme Court and in his federal habeas petition, Feltrop alleged that the single aggravating circumstance submitted to the jury in Instruction 4B was unconstitutionally vague. In a divided opinion, the state court majority acknowledged that under Godfrey and its progeny “the language ‘depravity of mind . . . outrageously or wantonly vile, horrible or inhuman’ without further definition is too vague to provide adequate guidance to a sentence” but declared that it did not matter how this jury was instructed before it “announced the sentence” because the trial judge had the “power to reduce the punishment” under Missouri Rule of Criminal Procedure 29.05. Disregarding the jury’s sentencing role entirely, the majority

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rejected the rule of Godfrey and announced that the trial judge acted as the “final sentencer.” The majority held that the case was controlled by Walton v. Arizona, which held that a sentencing judge is presumed to know and apply the relevant narrowing definition. The majority also concluded that evidence in the record supported the “depravity of mind” finding. Dissenting Justices Blackmar and Holstein, however, recognized that the majority’s extension of Walton beyond its intended scope amounted to “judicial legislation substantially altering the right of trial by jury in death cases.” On habeas review, the district court concluded that the unconstitutional jury instruction was irrelevant, regardless of whether the sentencer in Missouri is the trial judge or the jury. The District Court simply declared that “the resolution of that question is not required” as long as an appellate court applied a limiting definition. A split panel of the United States Court of Appeals for the Eighth Circuit affirmed the district court’s denial, but with different reasoning. First, the majority stated that it “must accept” the Missouri Supreme Court’s conclusion that the trial judge was the sentencer and then held that the trial judge’s description of the murder in the mandatory proportionality report sufficiently cured the erroneous instruction. Second, the majority relied upon the unexplained recent holding of the panel decision in LaRette v. Delo, that “Missouri is not a weighing state,” and concluded that the state appellate court cured any instructional error—even though the aggravators and mitigators were never reweighed and there was no “harmless error” review. Where a state has a “nonweighing” capital sentencing scheme, the panel reasoned, “the finding of an aggravating circumstance does not play any role in guiding the sentencing body in the exercise of its discretion.” Dissenting opinions. Senior Circuit Judge Heaney, in a lengthy and

vigorous dissent, rejected the majority’s absolute deference, in this context, to the state court’s announcement that the judge is the “final sentencer”: Mere declaration by the state supreme court that a particular party is the “final sentencer” is not sufficient. It is the task of the federal court to determine how a capital sentencing scheme operates in fact, i.e., whether the judge, the jury, or a combination of both, acts as a “sentencer” for Eighth Amendment purposes.

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Judge Heaney also noted that the Missouri legislature had “given the jury the task ‘to assess and declare the punishment’ at death or life imprisonment” and that Missouri Rule of Criminal Procedure 29.05, which permits a judge to reduce a jury’s punishment, if excessive, does not alter that mandate. He agreed with Judge Blackmar’s dissenting comments from the state court majority, that “it would be equally logical to argue that the governor acts as the ‘final sentencer’ according to § 565.020.2, which grants the governor power to ‘release’ the defendant.” Additionally, Judge Heaney contended that even if the trial judge were the “final sentencer,” it would be illogical in this case to apply a presumption that the judge knew and applied the limiting construction of the vague terms: The judge in fact permitted the jury to receive an aggravating circumstance instruction that did not contain the limiting factors and thus was unconstitutionally vague. To presume that the judge knew the law is to say that he deliberately gave a capital sentencing jury a defective instruction despite his awareness of its constitutional infirmity.

Finally, Judge Heaney rejected the idea that the Missouri Supreme Court had cured the constitutional error. He recognized that Missouri sentencing procedure clearly requires a “weighing” step and that “the weighing of an invalid aggravating circumstance violates the Eighth Amendment.” Because it was undisputed that the Missouri Supreme Court neither reweighed nor performed harmless error review, Judge Heaney would have remanded the case for resentencing. New evidence. At trial, Dr. Mary Case testified that Barbara Roam

died as a result of a single incised wound that severed her right vertebral artery, extended through the intervertebral disc, and penetrated the cervical spinal cord at the C-5 level. According to Dr. Case, it would have taken anywhere from 15 minutes to 4 hours for Roam to die; she “very well [could] have been conscious for four hours following this injury, and her injury would not have affected her ability to speak.” In addition, Dr. Case testified that “operative procedures [could have] save[d] this particular injury.” However, Dr. Robert Zembroski, a cervical spine and brain stem specialist, and an affidavit from Dr. Kris Sperry, a well-known forensic pathologist, stated that these speculative conclusions are medically impossible and technically incorrect. First, the vertebral artery is one of the major suppliers of blood and oxygen to the brain. According to Dr. Zembroski, “severing the

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vertebral artery would have caused loss of plasma and blood to the brain and would have rendered Roam unconscious in a very short period of time,” within minutes and thus incapable of communicating. Also Barbara Roam could not have lived for up to four hours. Once the vertebral artery is severed, blood and oxygen supply to the brain is stopped. Ten minutes without blood supply almost universally destroys most, if not all, mental powers. Thus, within minutes her brain would have “died.” Finally, Dr. Zembroski explains that in some instances operative procedures could save a person from dying due to an occluded vertebral artery, but it would be impossible to save someone from a completely severed vertebral artery. To carry out a death sentence, based in part on the jury’s mistaken belief that Barbara Roam could have been saved after she was stabbed and that Ralph Feltrop simply let her lay on the ground bleeding and pleading for help, for four hours before she died, would be a manifest injustice. Whether from prosecutorial zeal or just plain ignorance, Dr. Case set the stage that invited the jury to find Ralph guilty of a deliberate murder and sentence him to death. Ralph Feltrop claims that once he realized that Barbara Roam was dead, he did not know what to do. His mind was racing. He thought of calling for help; but he did not have a phone. He was afraid to go to the police, because he did not know what they would do. He tried taking her pulse again; he could not find it. His head was ringing with different ideas and “voices” suggesting different ways to handle the situation. He eventually put the body in the bathroom, until he could figure out what to do. He finally decided that he needed to get rid of the body. He tried stuffing it into a trunk or footlocker, but it would not fit. At the time, the only thing he could think to do was to dismember it so that it would fit. There is no evidence that Ralph had planned to kill Barbara and then dismember her to dispose of the body in order to avoid detection. There had been no recent acquisition of a new storage trunk, knives, saw, etc. He panicked and acted on an impulse, a horrible and stupid impulse. But stupidity alone is not sufficient to justify the imposition of “the ultimate punishment.”

Conclusions and Recommendations It is not likely that if the prosecutor is going to trial that the jury will believe the self-defense claim unless the trial attorney goes to great lengths to present a complete story for the jury. The self-defense strategy

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depends on expert defense investigation and team work to succeed, given the very real hurdles presented by the “death qualified” jury. As in any criminal trial, only one juror needs to be convinced (or believe some part) of the self-defense story in order to frustrate a unanimous decision that is required for conviction. If the jury is not able to agree to convict on the capital murder charge, however, they may agree to convict on a lesser charge.9 As it is now, a self-defense capital trial is not a fair fight. The prosecutor is inclined to charge since admission of the killing is already made. From the prosecutor’s side, the case is easy, particularly since intent can often be inferred from actions. There are several changes in the system that would return balance to the scales of justice that presently are weighted against the legally innocent. Selection of Jury

Not only should defense attorneys be schooled in the particular art of jury selection, but also the court should give special attention to restoring the presumption of innocence before the trial per se begins. Craig Haney (2005, pp. 220–239) offered excellent suggestions for improving the potential for fairness in identifying capital jurors, including empaneling a second jury for the sentencing phase, one that is “life qualified.” Damien DeLaney also made the argument for a life qualified jury, pointing out that just as the presumption of innocence protects the defendant from loss of liberty without due process of law, the presumption of life would protect the defendant from the taking of life without due process (DeLaney 2002, p. 295). This is consistent with the justice principle that “it is better to let any number of men truly ‘guilty’ of vile capital murder be sentenced to life than to let one innocent man die” (DeLaney 2002, p. 303). A partial response to the research on jury selection and deliberation came in December 2009, when New Mexico became the first state to permit a defendant to choose to have one jury for the guilt or innocence phase and, if there was a conviction, a separate jury for the penalty phase (Sandlin 2009). Instituted by order of the New Mexico Supreme Court, this practice will affect only a few capital cases already in process because New Mexico repealed its death penalty effective July 1, 2009. Jury Instructions

It is obvious that a great deal of care needs to be given to assist jurors in doing their duty properly. Printed instructions, simple explanations, and

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monitoring their deliberations may be ways to assure rational decisionmaking. One important reform would be to ensure that jurors are instructed as to the alternative sentences that may be imposed in the event that the death penalty is not imposed. Money for Defense and ABA Guidelines

Lack of resources to fund defense work is a perennial problem in capital litigation. Fortunately the American Bar Association has offered guidelines, professional norms if you will, to provide standards to measure adequacy and effectiveness. Implementing these suggestions would be a simple and minimal beginning to fixing a system that has witnessed 139 exonerations since 1973. In the economic environment facing the states at the end of 2009, budget allocations are likely to go down rather than increase. Should funding decline while costs increase, states may decide that the death penalty is a symbolic luxury that cannot be sustained, given their list of pressing social needs. This first investigation of the legally innocent has illustrated that the supposed structural protections against capricious and arbitrary death sentencing are illusory protections. Those who claim self-defense have a high burden to overcome. Beyond establishing the truth of their claims, the gamble they make in going to trial requires that they overcome a criminal justice system that is dominated by institutional practices that adversely impact jury behavior as well as the effectiveness of defense counsel. If it is a miscarriage of justice when an actually innocent person is given the death penalty, it should also be a miscarriage of justice when a legally innocent person is given the death penalty. The next chapter addresses another type of legal innocence, one that is arguably one of the most complicated excuses legitimately available to the defense: insanity. The discussion that follows demonstrates that even the Supreme Court is confused with this body of law. In attempting to bring clarity to some of the confusions, the framework presented in this book extends to include legal innocence, setting the context for distinguishing additional wrongful death sentences.

Notes 1. Mo. Rev. Stat. § 565.002(3); 8 Pa.Cons. Stats. Ann. § 2502(a); SDCrim. Law § 22-16-5; Nev. Rev. Stats. 2000.030(1); Va. Code Ann. 18.2-32; Caldwell v. State, 203 Ala 412 (1919); Parks v. the State, 330 S.E.2d. 686 (1985);

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Windham v. Mississippi, 520 So.2d. 123 (1987); Oregon v. Garrand, 5 Ore 216 (1874); Elbert v. Cunningham, 616 F.Supp. 433 (1985); Rosemond v. State, 110 S.W. 229 (1908); 21 Okl. St. § 703. 2. Ariz. Rev. Stats. § 13-1105(A)(1); Cal. Penal Code § 189; Colo. Rev. Stats. Ann. § 18-3-102(1)(a); West’s Fla. Stats. Ann. § 782.04 (1)(a)(1); Idaho Code §§ 18-4001 18-4003; Kan. Stats. § 21-3401(1); MD Code, Criminal Law, § 2-201(A); Neb.Rev.St. § 28-303A; Ohio Revised Code, § 2903.01; Tenn. Code Ann. § 39-13-202(d); West’s Rev. Code Wash. Ann. § 9A.32.030(1)(a); Wyo. Stats. 1977 § 6-2-101 (a); N.C.Gen. Stats. Ann. § 14-17; Connecticut statute; 720 LCS 5/4-3 and 4-4 (2009) and People v. Aguirre, 334 N.E.2d 123 (1975); Booker v. Indiana, 741 N.E.2d. 748 (2000); KRS § 501.020 (2009); LAR.S. 14:30; Mont. Code Anno. § 45-5-112 (2009); State v. Webb, 389 S.e.2d. 664 (1990); Tex. Penal Code § 6.03 (2009). Utah and South Dakota are not clear. 3. In the instance of Missouri, a little more than 10 percent of those on Missouri’s death row as seen in the clemency petitions from 1989 to 2005 have claimed to be legally innocent due to a self-defense that was not believed by their juries. 4. The discussion that follows regarding effective assistance of counsel and jury behavior is relevant to all criminal cases and especially all facets of innocence in capital litigation. This material is included in this chapter because the selfdefense strategy is especially vulnerable to weaknesses in these areas. The reader should be aware, however, that these two issues permeate the process of death penalty litigation and should be applied to every situation included in this book: actual innocence, plea bargaining, accomplices, insanity defenses, and so on. 5. Missouri is at the bottom of all states in terms of funding for public defenders (Simons 2008, p. 5; Bureau of Justice Statistics 2001, pp. 2–3). “No state besides Missouri has failed to receive any additional funding between 2000–2004. Missouri clearly falls to the bottom of the list on cost–per capita at $5.22” (Spangenberg 2005, p.1). An updated report from the Spangenberg Group confirms this low ranking: “As of 2008, based upon preliminary data from the 50 states, Missouri now has the lowest per-capita expenditures of all states, except for Mississippi” (Spangenberg, Newhouse, and Gould 2009, p. 12). 6. “One study showed that individual jurors comprehended only 53.1% of the instructions that they received, and jurors who combined efforts reached a comprehension level of 63.3%. Furthermore, 83% of criminal jurors could not respond accurately to the question ‘what is proof of guilt?’ . . . Other studies indicate that jurors cannot select correct definitions of legal terms as fundamental to their duties as ‘preponderance of the evidence,’ ‘burden of proof,’ ‘impeach,’ and ‘inference’; over one-half of the jurors in one study selected ‘a slow and careful pondering of the evidence’ as the correct meaning for preponderance of the evidence. . . . In a test of Florida’s model jury charges, only 50% of the jurors understood that the defendant was not required to produce evidence of his innocence” (Robinson 1985, p. 52, n169). 7. Eisenberg and Wells (1993) found that indecision tends to be resolved in favor of death. “Studies have shown that when a jury has lingering doubt about guilt they often elect to return a verdict of life imprisonment rather than the death penalty” (Lockhart v. McCree 1986, p. 181) however.

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8. The clemency petition was written by Richard Sindel and Jerilyn Lipe. See also 803 S.W.2d 1, and 46 F.3d 766. 9. Acquitting the defendant of capital murder does not mean that the defendant is not convicted. The jury may find the defendant guilty of a lesser included offense. The jury may instead convict the accused of manslaughter where intentionality or deliberateness is not required as an element of the crime rather than acquitting the defendant outright. Some death penalty charges may not have lesser included offenses, such as felony murder (see State of Nebraska v. Mata, 275 Neb. 1).

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6 State of Mind The easiest course of action might be to execute him as a means of extermination or euthanasia, but there should be a limit to the process of burying our mistakes. The state must bear some responsibility for the situation which has developed. —Blackmar and Welliver, JJ, concurring in part and dissenting in part in State v. Parkus, 753 S.W.2d 881, 891 (Mo. 1988)

Normally the issue of intent (mens rea) is an essential element of proving guilt in general and of a capital murder charge in particular. Without the element of mens rea, literally a “guilty mind,” a crime does not exist; even though the harm exists, punishment is not appropriate. To be more precise—to be guilty of a crime, “an actor must satisfy three elements: actus reus, mens rea, and a lack of defense” (Rozelle 2007, p. 48). In this chapter, another type of legal innocence is examined that relies on an affirmative defense. This type of legal innocence deals with the situation in which the defendant admits that he killed the victim but rather than offering a justification (as in self-defense), the defendant offers the excuse that actions stemming from his flawed state of mind should not be punished. The differences between an excuse and a justification are abstract ones that are often blurred by jurisdictions and debated by scholars (Dressler 2001, pp. 205–219). Although both types of defendants are acquitted of the charged crime, a justification has the practical sense of doing something beneficial either for society or for one’s self (as in selfdefense). An excused action recognizes that the person has caused harm; for some reason, however, it recommends that he should not be blamed or punished for it. For example, in Atkins v. Virginia (2002) the Supreme Court created a prohibition against prosecuting persons with mental retardation for a capital offense because, in part, society views persons 127

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with mental retardation as categorically less culpable than the average criminal.1 This exclusion means that in the context of a capital crime, the offender with mental retardation should be excused from blame and therefore should be found not guilty of capital murder, if he goes to trial at all. But the exclusion established in Atkins does not carry over to other lesser charges. If prosecuted, the defendant with mental retardation might still be held guilty for a lesser crime. Legal insanity is the same type of affirmative defense, excusing the defendant’s harmful actions as a matter of social policy. States have generally accepted the proposition that someone who can establish himself or herself to be legally insane according to the statutory requirements of the jurisdiction should be excused from absolute culpability (responsibility). Definitions of legal insanity reflect variations on the inability to understand or to control behavior, deficits that mirror society’s expectations that rationality and free will undergird all behavior and interaction. Therefore, taking insanity as an excuse, a person who is legally insane should not be blamed for committing a crime, as responsibility is excused by the insanity. Susan Rozelle (2007, p. 25) summarized how the theories of punishment practically result in compassion and treatment for the person who is insane: “incapacitation and rehabilitation are better served by the civil commitment process than by a criminal conviction . . . [and] individual deterrence will not work on insane defendants.” In this sense, then, those who are legally insane fit into the innocence framework because their state of mind qualifies them to be legally innocent of the capital crime, and therefore not eligible for the sentence of death. Although this ideal principle of law reflects a generosity of spirit, as will become clear in this chapter there is also significant ambivalence, distrust, and punitiveness surrounding the insanity defense so that these principles are contradicted and undermined by the law in practice. Such contradictions illustrate the paradigmatic conflict between the crime control perspective and the due process perspective, always in tension in the criminal justice system. The law’s interest in the state of mind of the offender shows up at three different points in a criminal case: at the time of the crime, at the time of trial, and at the time of execution.

Time of Crime Because of the importance of rationality and intentionality in assigning responsibility for behavior (particularly discussed in Chapters 4 and 5),

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the mental state of the accused at the time of the crime is essential to knowing whether or not a crime occurred. To satisfy the mens rea element of first-degree murder, the proof must be that (depending on the statute’s definition) the offender either intended or deliberated or premeditated the action that caused the harm. The defense strategy to address the mens rea element would be to present evidence that the defendant’s mental state interferes with the ability to be so intentional. The prosecution has a presumption of sanity that acts as the baseline in any case, however, which means that the prosecution does not have to prove sanity as an element of the crime. In most cases, however, the criminal charge is more specific. If the criminal statute requires that the defendant intended to kill a police officer, and the defense proof is that the defendant thought he was shooting at an alien, then the defense claim is that the requisite mens rea is not present. “Mens rea is not about ‘capacity’ or about ‘criminal responsibility’ more broadly; it is about whether a mental state required by the definition of the crime charged was in fact formed” (Morse and Hoffman 2007, p. 1106). State courts have promulgated various rules and limitations concerning what evidence might be presented by the defense to attack the mens rea element. They also make rules on when a presumption of sanity is controlling. Invoking a presumption of sanity means that the prosecution can assume, rather than prove, that the defendant’s actions are rational. Under such a presumption, the burden then is on the defense to disprove the presumption of sanity. If the defense offers sufficient evidence, then the burden of proof would shift back to the prosecution. If the prosecution cannot convince the jury beyond a reasonable doubt that the defendant has the appropriate mental state, then the defendant should be found not guilty of the capital murder, which means in this situation that the defendant would be legally innocent of capital murder. In that situation, it may be possible that the jury would find the defendant guilty of a lesser crime, an outcome that suggests a continuum for the concept of guilt. The affirmative defense of insanity is a different strategy than a mens rea defense when addressing the state of mind of the defendant at the time of the crime. Admitting to being killers, such defendants must prove themselves legally insane in order to be excused from blame for their actions. Proving insanity is a difficult task and as will be shown later, this strategy is a risky approach because if the jury does not accept the defendant’s proof of insanity, little is left to consider other than the defendant’s admission of committing the crime.

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Time of Trial Before trial, it is the responsibility of the defense attorney to raise any questions about the current state of mind of the defendant. The court then must decide whether the accused is competent to stand trial, that is, can the defendant assist in the defense? This question is unrelated to the determination of guilt or innocence except for the fact that if the defendant is judged to be incompetent to stand trial, then it is not possible to hold a trial to answer the question of guilt or innocence. Although there are various means for reaching a decision on the competency issue, the outcome of the court’s decision is either the continuation to trial or the institutionalization of the accused until the person becomes competent enough to stand trial.

Time of Execution In Ford v. Wainwright (1986), the Supreme Court stated that a person must understand the punishment of death in order for it to be carried out: We may seriously question the retributive value of executing a person who has no comprehension of why he has been singled out and stripped of his fundamental right to life. Similarly, the natural abhorrence civilized societies feel at killing one who has no capacity to come to grips with his own conscience or deity is still vivid today. (Justice Marshall, writing for the majority in 477 U.S. at 409)

In this instance, it is not sufficient for the prisoner to merely suffer from a mental illness to disqualify him or her from the pending execution. A person must be unaware of what execution means in order to escape execution. If the person is determined by a court to be incompetent to be executed, he is kept on death row until he becomes competent. It is not surprising that persons who enter death row in a fragile mental state, perhaps even with a mental illness, are likely to become more mentally ill while waiting on death row and perhaps even become certifiably insane by the time the execution is scheduled (Acker and Lanier 1997, pp. 109–110). With some illnesses, it is possible to use drugs to control the disease, thus producing a condition of legal sanity that thereby renders the prisoners eligible for execution. But without the drugs they would be ineligible for execution. This medical capability has led to debates about whether it is appropriate to forcibly keep the condemned

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prisoners on drugs so that they are aware and therefore competent to be executed or to remove access to the drugs, resulting in the deterioration of their condition to significant mental illness (Latzer 2003). The Supreme Court has not taken up this issue as of yet. These latter two points in time are very significant for death penalty litigation, relating as they do to procedural protections for defendants in the death penalty process. If an accused is mistakenly determined to be competent to stand trial, or the defense attorney fails to raise a valid issue of competence, then any conviction obtained would be the result of unfair advantage by the prosecution and constitute a wrongful conviction.2 If a prisoner is determined (or assumed) to be competent to be executed when in fact he is not, then a wrongful execution results. Although it has been claimed that there have been cases of wrongful executions occurring in these two circumstances, those cases will not be developed here because they do not directly address the behavioral question of guilt or innocence that is the primary concern of the new framework. The case made in this chapter to give substance to the concept of legal innocence focuses on the mental state of the accused at the time of the crime. In the context of a capital murder trial, the two strategies that are relevant to a state of mind defense, mens rea and legal insanity, can be clarified and evaluated.

Mens Rea As a substantive matter, someone who lacks the mental state to satisfy the element of mens rea at the time of the crime should not be found guilty despite doing the killing (actus reus), should not be eligible for the death sentence, and should not receive the death sentence. Within the innocence framework, such defendants are considered legally innocent. The mens rea element of the crime is usually a specific knowing related to the crime, such as knowingly killing a police officer. In that situation, it must be proved beyond a reasonable doubt that the defendant intended to kill a police officer. The prosecutor, however, may be able to convince the jury to infer knowledge or intent from the factual circumstances of the crime. Chapter 4 explained how easily intent can be inferred from action. If the proof is that the defendant thought he was killing an alien instead of the police officer, then the specific mens rea element is not established. Whether or not the defendant is legally insane at the time of the crime may not matter if the prosecutor’s evidence does not support the mens rea element of the crime. Therefore,

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the defendant may choose to present evidence to negate the requisite mens rea. If presented effectively, the jury should find the defendant not guilty of the crime for lack of mens rea. When the defendant makes his state of mind to be an explicit issue in his defense by claiming the affirmative defense of insanity, however, then another set of questions comes into focus. It becomes the defendant’s burden to prove insanity.

Legal Insanity as an Affirmative Defense An affirmative defense means that the defendant has admitted committing the actus reus and then takes on the burden to prove a lack of rationality or self-control. There is no doubt about who did the killing. When the defendant claims an affirmative defense of insanity, the question before the court is, was the person sane at the time of doing the harmful behavior? If the defendant is found to be legally insane, then the outcome of the case is likely to be some type of acquittal. The critical issue for this discussion of legal innocence, then, is what is legal insanity? Insanity is a legal term that is not necessarily equivalent to the medical term of mental illness but is a narrower concept than mental illness, since a person might be mentally ill but not meet the criteria of legal insanity. Insanity has specific definitions in each jurisdiction, all of which are variations on the theme of rationality and free will. These differing standards can result in the unsettling circumstance that the defendant might be legally insane in one state where he is acquitted but not meet the standards of another state and there be found guilty of capital murder. All but four states that have the death penalty provide for the affirmative defense of insanity (see Table 6.1).3 Those states that do not permit insanity to be used as an affirmative defense permit such evidence to apply instead to considerations of the mens rea element.4 A review of the conventional standards for legal insanity follows. The most common standard used to determine insanity is a form of the earliest standard, derived from the M’Naghten case (1843). The M’Naghten Standard

The M’Naghten standard requires that the defense show that the accused did not know what he was doing or did not know the difference between right and wrong. As such, this standard only focuses on cognitive disability and does not provide for degrees of understanding that might

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Table 6.1 Insanity Standards for Affirmative Defense in Death Penalty States

M’Naghten (22)a Alabama Arizona California Coloradoe Delaware Florida Georgiae Indiana Louisiana Mississippi Missouri Nebraska Nevada North Carolina Ohio Oklahoma Pennsylvania South Carolina South Dakota Texas Virginiae Washington

Irresistible Impulse (3)b Coloradoe Georgiae Virginiae

Durham Rule (1)c New Hampshire

American Law Institute (8)d Arkansas Connecticut Illinois Kentucky Maryland Oregon Tennessee Wyoming

Notes: a. The M’Naghten standard is based on M’Naghten, 1843, 10 Cl.& F. 200, 8 Eng. Rep. 718; b. the irresistible impulse standard is based on Commonwealth v. Rogers 1844; c. the Durham rule is based on Durham v. U.S. 1954; d. the American Law Institute standard is based on its 1980 Model Penal Code; e. these states use both the M’Naghten and the irresistible impulse standards.

indicate being “out of touch” with reality, despite knowing some things. Some criticize the rule as being outdated, since it does not include mental illnesses that affect volition, that is, the ability to control one’s behavior. Notice, however, that there are two prongs to the traditional M’Naghten standard: (1) whether a defendant is unable to understand what he was doing and (2) whether a mental disease or defect leaves a defendant unable to understand that his action was wrong. Usually either prong can establish a person as legally insane. Although there are a myriad of court interpretations, a classic example of insanity recognized by the M’Naghten rule might be that of a person who, because of suffering from a delusion that hostile aliens were moving next door, kills to protect the neighborhood.

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The Irresistible Impulse Standard

Commonwealth v. Rogers (1844) requires evidence that the accused “acted from an irresistible and uncontrollable impulse and that she lost the power to choose between right and wrong and to avoid doing the act in question” (Dressler 2001, p. 349). For example, a man returns home to discover his wife in bed with another and, in a temporary rage, shoots both persons in an instant. This standard focuses on having—or not having—the ability to control one’s behavior despite knowing that what one is doing is wrong. This test can be difficult to apply if psychiatrists do not agree on their judgments of the defendant’s ability to control his or her behavior. Colorado, Georgia, and Virginia are the only states that use this standard for insanity. The Durham Rule Standard

The Durham rule, based on Durham v. U.S. (1954), requires that the accused’s action be the product of a mental disease or defect. Under this test, there must be a causal connection between the mental illness and the conduct, that is, showing that the offense would not have occurred “but for” the disease or defect. Once a mental disease is proved, however, the accused is entitled to an acquittal, even though she might know what she did was wrong and could have controlled her behavior. For example: “Assume that D suffers from a delusion (brought on by a mental disease) that X, V’s husband, will marry her if V is dead. As a result, D kills V. Pursuant to the [Durham] product rule, D is insane: but for her delusion, she would not have killed V” (Dressler 2001, p. 351). New Hampshire is the only state that uses this standard. Although offered as a reform to reflect the growing professional knowledge about mental illnesses, its lack of popularity is likely due to the relinquishing of too much authority to the experts, the ones charged with defining and identifying the mental illness. In this process, the jury’s traditional role to decide facts is superseded by the expert testimony. Once any type of mental illness is established by the expert, then the defendant’s behavior is excused without any consideration of degrees of responsibility. Concern that too many defendants are acquitted under this standard appears to be supported by research finding that the number of acquittals grew when applying this standard (Fradella 2007, p. 20). Joshua Dressler (2001, p. 352) continued to explain the critique of the application of the Durham rule to the scenario above: D’s acquittal on these facts is indefensible on utilitarian grounds. D knew what she was doing, knew that her conduct was legally and morally wrong, and, presumably, could have controlled her conduct.

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Therefore, D was deterrable. From a retributive perspective, as well, D may be blamed for her conduct. At least under the free-choice theory of excuses, a person who appreciates the illegality or immorality of her conduct, and is able to control her behavior, is a moral agent who may justifiably be held accountable for her actions. The American Law Institute Standard

The Model Penal Code (American Law Institute 1980, § 4.01[1]) attempts to address the criticisms of the earlier standards by proposing a combination standard for legal insanity: “A person is not responsible for her criminal conduct if, at the time of the conduct, as the result of a mental disease or defect, she lacked substantial capacity to: (1) appreciate the ‘criminality’ (or wrongfulness) of her conduct; or (2) to conform her conduct to the requirements of the law” (Dressler 2001, p. 350). The improvement in this standard over the earlier ones is that its language is broader (“appreciate”), more flexible (“substantial capacity”), and avoids the psychological term “impulse” that is difficult to define. A veteran recently returned from the battlefield might experience something that suddenly triggers the perception of a family member as being the enemy, threatening and requiring extermination as a defensive reaction. Such behavior could very well be the product of a mental disease, perhaps a posttraumatic stress syndrome, that interferes with the veteran’s ability to appreciate what he was doing or to refrain from killing in the civilian setting. As with the other insanity standards, criticism of this test exists, mostly concerning measurement issues—such as, how do you know? Despite being proposed as a model standard for legal insanity, only eight states have adopted this ALI standard.

Jury Verdicts Whichever standard or test is appropriate to the jurisdiction, when an insanity defense is made in a capital case, juries may have four options for resolving the case before them. The Options for Juries Not guilty. This outcome would be appropriate if the jury accepted the

defendant’s proof for insanity at the time of the crime. The defendant’s acquittal results in release into society unless a commitment hearing determines the individual still needs treatment.

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Not guilty by reason of insanity (NGRI). A person who receives this out-

come rarely is released upon acquittal. It is more likely such persons would be committed to a mental facility and then released once “cured” of their illness. Research finds that verdicts of NGRI can result in longer “sentences” than criminal convictions because treatment may take a long time to be successful (Rozelle 2007, p. 55). Guilty but mentally ill (GBMI). This is an outcome that leaves the defen-

dant under the jurisdiction of the court. With a determination of guilty but mentally ill, the person could receive even a death sentence, but then is sent to a mental institution for care until no longer in need of treatment. At that point the person is transferred to prison to complete the sentence (which might be execution). Guilty. This outcome would be appropriate if the jury rejected the defen-

dant’s proof for insanity at the time of the crime. Punishment is the outcome of this jury decision. Just as the affirmative defense of self-defense is a risky defense strategy, so too is the insanity defense. If the jury does not accept the excuse defense, then the jury already has the accused’s confession of the actus reus. The jury who is not persuaded by the defense’s case for insanity can quickly move to finding the defendant guilty, as the actual killing is not contested. If found guilty of capital murder, then the defense’s evidence of insanity may be relevant in the sentencing phase of the capital trial as a potential mitigating factor. All but eight death penalty states have some sort of clause (1) pertaining to the fact that the murder was committed while the defendant was under the influence of either extreme mental or emotional disturbance, or (2) considering the capacity of the defendant to appreciate the criminality (or wrongfulness) of his conduct, or (3) establishing that the defendant’s ability to conform his conduct to the requirements of law was substantially impaired.5 It is significant that there is no research as yet about how many persons are not given death sentences because of one of these mitigating clauses. What is known about jury deliberations (see below), however, would suggest that these factors are not persuasive as functioning mitigators. Mitigating factors such as those just mentioned are not likely to save a defendant’s life from the death penalty, since as a mitigator the information would function as just one factor against which other aggravating factors would be weighed. Even more problematic for the defendant, the evidence of insanity may factor into the jurors’ thinking that the defendant’s mental state contributes to his

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future dangerousness and hence acts as an aggravator, rather than a cause for mitigation. Seven states have an aggravating factor of being a “future danger.”6 Courtroom confusion about the concept of legal insanity as an affirmative defense intensifies the challenges faced by the defense when attacking the mens rea element for the purpose of creating reasonable doubt in the prosecution’s case. In Clark v. Arizona (2006), the US Supreme Court contributed to this tangle of law concerning the relationship between mens rea and the insanity defense. Despite legitimate defenses that ought to protect defendants from the capital murder conviction, the Court’s ruling in Clark will likely perpetuate the risks for wrongful death sentences. Clark v. Arizona (2006)

On June 21, 2000, Eric Clark killed a police officer in Flagstaff, Arizona. Although both prosecution and defense agreed that Eric Clark was suffering from paranoid schizophrenia when he shot and killed the police officer, Clark could not establish that he was legally insane according to Arizona statute. Arizona’s M’Naghten definition of insanity focused only on one prong of cognitive capacity, that is, whether Clark knew “the criminal act” was wrong. According to the trial court, Clark knew it was wrong to kill a police officer and hence was determined to be legally sane. The usual two-pronged M’Naghten rule also required knowledge, however, that he was doing the criminal act. If what the defendant believed himself to be doing differed from what the defendant actually did, then the M’Naghten rule calls him legally insane. Clark claimed that he did not realize that he was killing a police officer. His mental illness was such that he believed he was killing an alien. On the issue of insanity, Clark was able to submit all the evidence he wanted to; nonetheless the trial court was not persuaded, given the limited definition of insanity. Clark was sentenced to life without parole on his first-degree murder charge. Clark appealed, arguing that the Arizona definition of insanity was inadequate. On this first issue, the Supreme Court concluded that (1) states can (and do) define insanity in a variety of ways and (2) that the two prongs are essentially redundant. Clark had argued that they are not redundant, that one prong was not sufficient to address his conditional culpability. As Arizona is the only death penalty state that has eliminated the cognitive prong from its definition, the Court could have decided differently.

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The vast majority of states using the M’Naghten test use the full test with both prongs. Virginia, New Mexico, Iowa, Mississippi, New York and South Carolina all use the full M’Naghten test but add additional specifications. Alaska has omitted the moral prong, but only Arizona has completely eliminated the cognitive prong. These numbers offer strong evidence that cognitive capacity is a recognized piece of the insanity defense in U.S. jurisdictions. (Smith 2008, pp. 219–220)

The second issue raised in Clark turned on what evidence the defense could present to the jury to show that he was innocent of the crime charged. The judge permitted all the submitted evidence to prove the affirmative defense of insanity only but not to disprove mens rea. The trial judge in the case said that he would not consider evidence of Clark’s mental illness (paranoid schizophrenia) on the issue of mens rea because “Arizona law does not allow evidence of a defendant’s mental disorder short of insanity . . . to negate the mens rea element of a crime” (Rozelle 2007, p. 41). The majority of the Supreme Court affirmed the trial judge’s exclusion of the defense’s evidence, stating in part that it would just muddle the jury’s thinking and then require the prosecutor to prove mens rea. Justice David Souter, writing for the majority, said, “the presumption of sanity dispenses with a requirement that the government include as an element of every criminal charge an allegation that the defendant had the capacity to form the mens rea necessary for conviction and criminal responsibility” (548 U.S. at 766). Therefore, as a time-saving device, procedural law permits the presumption of sanity to fill in the logical link to intent. But that presumption does not eliminate the need to establish specific intent for the crime charged. “Any presumption of mental capacity is workable only for crimes requiring only general criminal intent; i.e., the presumption of sanity satisfies the mens rea element for a crime with no specific intent requirement” (Patel 2007, p. 33). Thus, according to the Court’s decision in Clark, states can decide what evidence would be admitted for the purpose of disproving mens rea. In upholding the lower court’s ruling in Clark, the Supreme Court created a catalog of the relevant evidence that sustained the trial judge’s exclusionary decision. The three categories of evidence they recognized were observational, mental illness, and capacity evidence. The Court declared that it would allow only observational evidence to be presented to the jury from the defense as it pertained to any lack of mens rea. Mental illness and capacity evidence that would normally be offered by expert witnesses to interpret behavior for the jury would be excluded because that evidence would be relevant to proving insanity. The Court maintained that to apply that evidence to mens rea would shortcircuit the insanity defense and con-

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fuse the jury. In limiting evidence presented by the defense to rebut mens rea, however, the Court privileged the prosecution and disadvantaged the defense, with the likely outcome of even more convictions. Writing in dissent, Justice Anthony Kennedy focused on this second issue and explained that Clark should have been able to present evidence that his schizophrenia made him delusional. “It is one thing to say he acted with intent or knowledge to pull the trigger. It is quite another to say he pulled the trigger to kill someone he knew to be a human being and a police officer” (548 U.S. at 790). Justice Kennedy lambasted his colleagues in the majority for creating a typology for evidence after the fact and then using it to exclude critical and reliable evidence that would address whether Clark had intent or knowledge of the crime. He pointed out that an expert’s explanation for the observation that schizophrenics play radios loudly to drown out the voices in their heads is a fact regarding behavior that could explain Clark’s behavior and rebut the state’s contention that the loud radio indicated a desire to lure a policeman to the scene. Only permitting observational evidence without allowing the expert knowledge of the mental disease evidence would leave the jury with an incomplete picture and handicap the defense in their alternative theory of the case. Justice Kennedy argued that such mental illness evidence should have been admitted to rebut the inference of knowledge or intent that the prosecution drew from the factual circumstances of the crime. Justice Kennedy rejected the rationale given by the Court’s majority that the exclusion of mental illness evidence on the issue of mens rea was done to protect juries from confusions. We have always trusted juries to sort through complex facts in various areas of law. . . . Evidence of Clark’s mental illness bears directly on mens rea, for it suggests Clark may not have known he was killing a human being. It is striking that while the Court discusses at length the likelihood of misjudgment from placing too much emphasis on evidence of mental illness, it ignores the risk of misjudging an innocent man guilty from refusing to consider this highly relevant evidence at all. . . . In fact, the potential to mislead will be far greater under the Court’s new evidentiary system, where jurors will receive observation evidence without the necessary explanation from experts. (548 U.S. at 793–796)

Research on Juries and the Insanity Defense There are a lot of public misconceptions about the use of the insanity defense. The first misconception is that the insanity defense is used fre-

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quently to escape responsibility, whether that is the death penalty or some other penalty. The reality is quite the opposite, however. The insanity defense is invoked quite infrequently and fails four times more than it succeeds. Borum and Fulero (1999, p. 378) confirm this fact: “Although there is some variability across jurisdictions, on average the insanity defense is raised in less than 1% of all felony cases, and is only successful about 15–25% of the time. It is the publicity of the [celebrity] cases that makes it appear so much more common.” In homicide cases particularly, scholars recognize that the insanity defense is raised in only 5 to 14 percent of the cases (Bard 2005; Perlin 1990). A second misconception about the insanity defense is that it involves dueling experts who contradict each other based on which side is paying them, thus leaving the jury to decide which side it favors, rather than assisting the jury on complex issues of psychiatry. Again, as was evident in Clark v. Arizona, where the experts agreed on the diagnosis, the reality is not so complex. Expert testimony is typically mundane and demonstrates a high degree of concurrence. “The bulk of expert psychiatric evidence presented at criminal trials does not concern novel, controversial theories, but is routine testimony on more common and generally accepted mental diseases such as schizophrenia” (Rozelle 2007, p. 54). Also, “there is incredible unanimity among defense and prosecution experts with respect to a defendant’s mental illness: on the average, there is examiner agreement in eighty-eight percent of all insanity cases” (Rozelle 2007, p. 55). Despite the mistaken impression that many defendants escape punishment by claiming to be insane, when the claim is raised juries tend to be very resistant to insanity claims. Part of their resistance is due to not understanding what they are to decide. As reported in Chapter 5, researchers have found that juror comprehension of instructions on insanity ranges from only 30 percent to 58 percent (Borum and Fulero 1999, p. 380), suggesting that more information is necessary from the defense rather than less. In addition, in real cases, it may not matter which definition of insanity is used in the courts since “research consistently indicates that jurors’ intuitive prototypes of insanity and case-relevant attitudes shape their verdicts more strongly than legal definitions of insanity” (Louden and Skeem 2007, p. 449). Rita Simon similarly found no differences in verdicts between those cases given instructions under the M’Naghten rule or under the Durham test. She concluded that “jurors shape the evidence to agree with their intuitive or ‘common sense’ beliefs about what is insane and what is not” (cited in Vidmar and Diamond 2001, pp. 1158–1159). This is a troubling finding, not unlike the findings

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from the Capital Jury Project reported in Chapter 5. If jurors tend to disregard the law and their instructions, then the defendants are not receiving due process. Juries’ pro-prosecution tendencies in insanity defenses may be explained by their reluctance to release the defendant into society (Wheatman and Shaffer 2001, p. 182), just as is the case in death penalty cases. Because jurors in death penalty trials are much more predisposed to convict defendants and much more concerned about not releasing the defendants back into society than are noncapital jurors, the tendency to recommend a death sentence when the insanity defense is invoked is also evident in social science research. Mock jurors who favored the death penalty were more accepting of the prosecution’s expert testimony, less believing that the crime was a result of the defendant’s mental illness, and less believing in the efficacy of the insanity defense itself. Moreover those mock jurors who held pro–death penalty attitudes were significantly less willing to find the defendant Not Guilty By Reason of Insanity. (Poulson et al. 1997, p. 1065)

Put together, in a capital trial when the defendant raises the affirmative defense of insanity, it seems clear that defendants are not likely to escape punishment. Unless the trial attorney is aware of these tendencies, masterful in jury selection, able to discover the commonsense views of the potential jurors and then to shape their sympathies, the horror of the crime will likely overwhelm the jurors in their deliberations. Since, as stated earlier, the insanity defense is raised infrequently, a question remains with respect to death penalty cases. A review of Missouri clemency petitions filed between 1989 and 2005 found that 43 percent of the seventy-two clemency cases raised specific psychological claims (see Table 6.2). Of the psychological claims raised 52 percent were of insanity or diminished capacity, suggesting that these are indeed significant issues that are undetected and that the system does not properly address. Eight of these cases claimed to be mental retardation cases and would now be ineligible for execution following Atkins v. Virginia (2002); unfortunately, 75 percent of those claiming mental retardation were executed. Sixty percent of those who raised an insanity defense were likely to be executed, and 50 percent of the petitioners failed with their incompetency claims. The most unsuccessful were those who raised the diminished capacity defense, claiming that they did not have the specific intent to be guilty of capital murder. Eighty-three percent of those persons lost their lives by execution. Sam McDonald is one such Missouri death row prisoner who was facing execution sixteen years after the crime and submitted his clemency petition

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Table 6.2 Missouri Capital Cases with Psychological Claims

Psychological Claims

Number

Executions

Execution (as percentage)

Mental retardation Incompetence Insanity Diminished capacity

8 6 5 12

6 3 3 10

75 50 60 83

Total

31

22

71

to the governor, claiming insanity and diminished capacity. In Sam McDonald’s case the jury was denied the opportunity to hear any expert psychological testimony whatsoever and the postconviction courts believed that such testimony would not have changed the outcome of the case. As a result, McDonald was denied a right to establish his defense as well as to submit evidence of mitigating circumstances that would support his claim of having a wrongful death sentence. He was executed September 24, 1997.

Sam McDonald—Injustice for Veterans A jury found Samuel Lee McDonald guilty of murdering Robert Jordan, an off-duty police officer, after robbing him of his wallet.7 The jurors who determined Mr. McDonald’s guilt also recommended that he be sentenced to death. Through the failure of his trial counsel, the jurors who found Mr. McDonald guilty and recommended his execution did not know that he suffered at the time of his offense from a profound mental illness which had its roots in his experiences as a teen-aged combat soldier in Vietnam. Those jurors did not know that Mr. McDonald had volunteered to go to war when other young men of his age were juniors in high school. They never learned that when he was barely old enough to drive a car Sam McDonald had served bravely as a machine gunner—had seen his enemies and his comrades blown apart, had been called upon to kill in circumstances that allowed no time for reflection, had barely escaped being killed himself. The record raises a substantial question of whether a jury properly informed of Mr. McDonald’s lack of capacity to deliberate could have found him guilty of first-degree murder. There is far less room to

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wonder whether jurors adequately apprised of his military record and the mental illness it caused would have recommended his execution. Thorough review of Mr. McDonald’s military background and psychiatric illness, and of the documentary history of his case, will lead to the conclusion that this death sentence was the product of failed advocacy, the restricted flow of vital information, and a jury which never had a chance to consider all of the facts essential to a just verdict. Mr. McDonald’s military service. Mr. McDonald enlisted in the United States Army as soon as he reached the age of seventeen years and shortly was delivered into brutal combat in Vietnam. On a single night, Mr. McDonald’s platoon lost more than seventy-five percent of its men while attempting to capture a hill from the enemy. On another occasion, Mr. McDonald was trapped behind enemy lines for five days, unsure throughout whether he could possibly survive. As a machine gunner and point man on patrols, Mr. McDonald posed a constant threat to the enemy and thus was a constant target for enemy fire. Mr. McDonald testified that he is haunted in particular by memories of mistakenly killing an old woman and a baby while “sweeping” a village for “unfriendlies.” Mr. McDonald was in Vietnam from December 5, 1967, until November 11, 1968, three days after his honorable discharge from the Army. He served during that time in the Tet Offensive. That war within a war is recognized as the mother of Vietnam horrors for American servicemen: it killed and maimed more soldiers than any other campaign and it has produced an incidence of posttraumatic stress disorder in its combatants which is unrivaled by any other single event of the war. Mr. McDonald’s military records reflect no mental or psychological evaluation and no counseling or treatment upon his return to the United States. He had learned to kill, he had lived in and delivered terror, he had passed into self-hatred, and he had discovered selfmedication through drugs. Those were Mr. McDonald’s skills when he was discharged from military service and delivered back into a society which was hostile to the war in which he had struggled and to its combatants. Posttraumatic stress disorder. John Waite, M.D., a Veterans

Administration psychiatrist who had treated a large number of veterans having post-Vietnam syndrome, testified about that mental

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illness in a postconviction deposition. He equated the syndrome to “shellshock and neurasthenia” complicated by the unique reception accorded returning Vietnam veterans: After most wars, the soldier returns in an honorable way, he’s welcomed back with gratitude. After this war, this was an unpopular war, and many of these veterans were returned stateside to be spat at, and called baby killers, and to be insulted. They weren’t debriefed, and they didn’t enter home in an honorable way, which added to their bitterness and disillusionment, and further led to them withdrawing from society.

Dr. Waite described post-Vietnam stress syndrome as a variant of posttraumatic stress disorder and “a condition in which an individual re-experiences painful, traumatic experiences that they originally experienced under war-combat conditions.” He explained that “the continuous re-experiencing of that distress and anxiety has a continuous impact on the central nervous system of the individual . . . often acute, but [sometimes] delayed.” Dr. Waite testified: Usually what happens is that one or two instances become indelibly implanted in the memory of these individuals. And then when they re-experience these instances, they re-experience them in memory, in such a way that it’s almost as if they were actually there. So what happens is that the physiological hyper-arousal that occurs within the sympathetic part of the autonomic nervous system is continuously reinforced. . . . And so . . . even ten, fifteen, twenty years after leaving the site of the traumatic experience, they’re still in a state of hyperarousal, and so in fact this brings about a permanent change in their central nervous system.

He explained that “people with this condition [are] constantly ready to explode” and “often they will react in a manner which is out of proportion to the stimulus, to the stress,” that they encounter. Dr. Waite testified that individuals suffering from post-Vietnam stress syndrome “lose their ability to deliberate accurately” and “tend to act in an impulsive manner.” He stated that individuals suffering from the syndrome tend to react to stress “almost instantaneously, like a reflex.” Dr. Waite testified that drug and alcohol use often are associated with the syndrome and exacerbate its effect by debilitating the body and making the individual more vulnerable to stress. There is no room for doubt that Mr. McDonald suffered from the Vietnam veterans’ posttraumatic stress syndrome. Dr. Waite

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interviewed him and reviewed records of his military service. Finding a full complement of symptoms and indicia, he was prepared to diagnose this psychiatric disease in Mr. McDonald. Further, Dr. Waite testified in his postconviction deposition that he or another qualified psychiatrist could have testified at Mr. McDonald’s 1981 trial that “having post-Vietnam stress disorder appreciably affected [the defendant’s] behavior” at the time of the shooting and that the defendant had had “a diminished capacity to deliberate and choose his behavior” on account of this soldier’s disease. Treatment of the mental illness issue in the trial and postconviction courts. Mr. McDonald’s trial attorney filed four motions requesting

a pretrial psychiatric evaluation of her client. In support of those motions, she stated Mr. McDonald “d[id] not seem oriented to time or place; [gave] answers [that were] vague and nonresponsive; and [could not] communicate with counsel in any manner about the offense he is charged with or assist in the preparation of his defense.” Counsel also stated that “[d]efendant is depressed and suicide prone” and that information lately received from his relatives had caused her to believe that at the time of the alleged offense (Mr. McDonald) may have been suffering from a mental disease or defect and as a result . . . may not have known or appreciated the nature, quality, or wrongfulness of the alleged conduct or may have been incapable of conforming his conduct to the requirements of law.

Each of counsel’s motions failed to comport with the statute governing pretrial psychiatric evaluation of criminal defendants and each was denied. The trial court’s lack of insight into the issue is best appreciated by reviewing the transcript of Mr. Fadek’s posttrial testimony about his experience as Mr. McDonald’s platoon leader in Vietnam. The judge noted gratuitously during that testimony: “War is war. . . . And in World War II people were gassed and they were in trenches and they died too. War is war. . . . Everybody was there under trying circumstances, (Mr. McDonald) was just one of the troop, right?” Remarkably, the Circuit Court which heard Mr. McDonald’s motion for postconviction relief found that the defendant never gave his trial counsel an indication of past or present psychiatric problems. That determination largely has dictated the outcome of all of the postconviction litigation arising from

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this prosecution. First, it is untrue. The undisputed evidence was that Mr. McDonald identified for his attorney and her associate the nature of his problem after he read about other veterans who had experienced similar manifestations of the disease. Second, every possible “fact” that appears in the record and that ever so slightly diminishes the claim has been seized upon by every reviewing court to reject what any reasonable human being can see is a compelling argument for relief. Despite its observation that each of the four motions for psychiatric evaluation filed by Mr. McDonald’s trial counsel had failed to conform to the governing statute, the state appellate court was able to conclude that “[c]ounsel had done all that was possible based on the known facts” by requesting evaluation “even though she had no evidence of mental disease or defect” (McDonald v. State, 758 S.W.2d 101, 105). The latter Court also declared that “it cannot be said that evidence such as Dr. Waite’s testimony would have been helpful to McDonald’s case either in the guilt phase . . . or with respect to punishment” and that “testimony like that of Dr. Waite . . . could have had an extremely detrimental effect on (Mr. McDonald’s) case in the eyes of the jury” (758 S.W.2d at 106–7). The United States Court of Appeals agreed with the United States District Court finding that McDonald’s trial attorney “never demonstrated to the state trial court that there existed a reasonable probability that an expert would aid in McDonald’s defense or that denying the expert assistance would result in an unfair trial” (McDonald v. Bowersox, 101 F.3d at 593 (1996)). Both federal courts noted specifically the state appellate court findings that trial counsel’s motions for psychiatric evaluation had been insufficient under the governing statute: “Thus, according to the Missouri Court of Appeals and the Missouri Supreme Court, McDonald’s trial counsel never filed a motion that triggered Missouri’s obligation to provide McDonald with a psychiatric expert under Mo.Rev.Stat. § 552.030” (101 F.3d at 594). Judge Blackmar’s dissent. Judge Blackmar, who dissented from the

Missouri Supreme Court’s affirmance of the conviction and death sentence in this case, was critical of counsel and also of the circuit judges who failed to order a psychiatric examination prior to trial. He noted: The entire responsibility for the absence of a psychiatric evaluation should not be placed on the defendant or on his counsel. It would have

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been far better if one of the judges to whom the successive motions (for a psychiatric examination) were presented had assumed a more active role. (661 S.W.2d at 515)

Judge Blackmar was especially disturbed by the omission of psychiatric information from the penalty phase of Mr. McDonald’s trial: The request for an examination for use at the penalty stage was tendered nearly three weeks before trial. There was occasion for it. The application should have been granted. The inquiry as to mental condition at the penalty stage may range far more widely than in the trial of the issue of guilt. It is not possible to determine at this time what the jury might have done at the penalty stage, had it had the benefit of a psychiatric evaluation of the defendant. A death sentence, under these circumstances, should not be sustained. (661 S.W.2d at 516) Other issues: improper closing argument. Prior to trial, Mr. McDonald’s

attorney requested an order precluding the prosecuting attorney from attempting to diminish the jury’s sense of responsibility by telling them that a death sentence recommendation would be reviewed by higher authorities. The motion was denied. The prosecutor then was allowed to argue to the jury: “This case, if you decide to give the death penalty, will be reviewed and reviewed and reviewed. It will be reviewed and reviewed again to make sure there are no legal mistakes.” Some three years after Mr. McDonald’s trial, the United States Supreme Court held in Caldwell v. Mississippi (1985) that arguments such as the one made by the prosecutor in Mr. McDonald’s trial— which tend to reduce a juror’s sense of responsibility by assuring him or her that the final decision on execution will be made by a higher authority—can undermine the “fundamental fairness of the sentencing proceeding” so severely “as to violate the Eighth Amendment” and require the reversal of any resulting death sentence (472 U.S. at 330). The Caldwell case was argued in the US Supreme Court on February 25, 1985. Mr. McDonald’s petition for a writ of certiorari was pending in the Supreme Court at that time, as was that of another condemned Missouri prisoner named Robert Driscoll [see Chapter 2]. A similar prosecutorial argument had been made over objection in Mr. Driscoll’s trial. The Supreme Court filed its Caldwell opinion on June 5, 1985, several weeks after it had denied Mr. McDonald’s petition and several weeks before it would deny Mr. Driscoll’s. Later, the US Court of

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Appeals ruled that Mr. Driscoll was entitled to have his conviction reversed because his certiorari petition still had been pending when the Caldwell opinion was announced, but Mr. McDonald would be consigned to the executioner because his certiorari petition had been denied before the Caldwell case was decided. Such whimsy should have no place in the extinguishment of a citizen’s life. Conclusion. As common as eleventh-hour pleas for clemency may have become and as similar as one must seem to another, Mr. McDonald’s case is different: he was sentenced to death by a jury which knew little about his combat service and nothing at all about the servicerelated mental illness which drove him to impulsive behavior and robbed him of the capacity to deliberate in stressful situations. The popular perception seems to be that a condemned prisoner who remains alive sixteen years after having been sentenced to die can only have survived by the grace of loopholes in the law. The great and singularly undeniable irony of this case is that loopholes are about to be the death of Sam McDonald. In Mr. McDonald’s case, as in too many other capital cases, the difference between life and death comes down to whether the defendant was able to afford or had the remarkable good luck to be given competent trial counsel. Simply stated, competent lawyers investigate capital murder cases thoroughly, prepare for trial as if someone’s life depended upon it, and put on a thoughtful and meaningful defense at both the guilt and penalty stages of trial. Incompetent lawyers do not. Mr. McDonald’s case is a textbook illustration of the grave injustice which can result when individuals held to account for capital crimes are assigned lawyers wanting in experience and skill. In short, sparing Mr. McDonald’s life would represent not a failure but an exercise of law enforcement. Commuting this sentence because of the failure of the criminal justice system to operate fairly in Mr. McDonald’s case would be a declaration that the letter and the spirit of the law are alive and well in this state, and that, when the bottom line is reached, adherence to the fundamental rules of criminal justice will be demanded both of citizens and of the system itself.

Conclusions and Recommendations In order to be found guilty of a crime, the prosecutor must prove beyond a reasonable doubt both actus reus and mens rea; from the defense side,

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there is no affirmative defense to excuse responsibility. The subjects of this chapter are those individuals who because of their mental issues should not be on death row. They are individuals who deserve the label of being legally innocent of the death penalty. As a matter of social policy, the law provides protection for these individuals who are deemed to be inappropriate for punishment. Thirty-one states employ some form of an affirmative insanity defense for criminal defendants, signifying that criminal responsibility should not attach to the acts of insane persons. Short of that, diminished capacity may be relevant to counter mens rea or to mitigate the sentence. The Supreme Court has complicated the defense tools in this area concerning state of mind evidence. In Clark v. Arizona, the Court upheld the trial judge’s exclusion of expert testimony, thus limiting the jury’s information about the defendant’s behavior. In Arizona, evidence of insanity would not be available to challenge mens rea. The two strategies are distinct, however, and should be treated separately rather than as overlapping. In order to support the Arizona schema, the Supreme Court created a catalog for evidence that justified Arizona’s limitations. It is possible that Clark will have a limited impact, restricting it to only Arizona cases because the Arizona insanity statute is unique in the nation. To date, only four federal district courts outside of Arizona have followed Clark substantively to deny defendants the ability to introduce evidence supporting their claims of insanity. 8 It remains to be seen whether the catalog of what evidence can be excluded from the mens rea advocacy announced in Clark will have more far-ranging impact. The central problem with the majority’s channeling argument is one of basic fairness. When a citizen is being threatened with the most awesome exercise of state power—criminal blame and punishment—it seems that we should be most permissive in allowing that citizen to defend himself with the same relevant and reliable evidence allowed without limitation in all other legal contexts. What is it about the criminal trial that drives the Court to tolerate defense handicaps it would not tolerate in any other arena? (Morse and Hoffman 2007, p. 1110)

Society must provide protection from those who are dangerous. At least ten death penalty states (Dressler 2001, p. 360; Bumby 1993, p. 193) have adopted the alternative sentence of guilty but mentally ill in order to maintain the court’s control over defendants once they recover from their disease. With this sentencing option punishment will follow treatment, thereby satisfying those who desire retribution for the criminal action. When a death occurs, however, the court’s determination of

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whether a crime occurred depends on establishing the state of mind of the perpetrator beyond a reasonable doubt. In capital murder trials, the publicity surrounding such cases can overwhelm a rational fair deliberation by a jury. A death sentence, however, is not only intended to be retribution for the killing. It is intended to be an appropriate penalty for the worst of the worst. The reality of death penalty litigation is that those few persons given the death penalty are likely those who were not protected by the systemic standards. Although the legal system is meant to be set up to filter out the legally insane, instead the filter is confused and imperfect. More often than not, those executed have psychological issues that could have protected them from execution. The care and consideration that the jury brings to the task of deliberation must be matched by the effectiveness of the trial attorney. Research on the insanity defense has shown that juries are not guided well by instructions or by the various definitions of insanity. The solution is to provide better information to the jurors, rather than eliminating expert information to guide their deliberations as the Supreme Court did in Clark v. Arizona. But as with Sam McDonald, everything in an affirmative defense depends on the trial attorney to do a thorough investigation of the social background, including mental health, of the defendant. When this does not happen, wrongful death convictions and executions can occur. As in so many situations already explored, new information is not available until too late in the case’s career. Following are some suggestions for reforming the system to rebalance the scales of justice. Provide pretrial psychiatric or psychological testing. The classification of legal innocence applies to persons invoking an insanity defense in the context of capital murder, that is, they would be not guilty of the crime or not deserving of the death sentence. What should happen in these cases is that the court ensures that psychiatric or psychological testing is done. Then, not unlike reliable DNA testing, the trial can proceed with full and complete information, and the decisionmakers will be able to base their decision on the best practices that exist. Such a policy would have eliminated the situation in McDonald’s case, where he was in procedural default to have another hearing in order to present expert testimony that had been earlier denied by other courts. He then was required by the Eighth Circuit Federal Court of Appeals to “make a showing of cause for the procedural default and prejudice resulting from an alleged constitutional violation, or ‘that a fundamental miscarriage of justice would otherwise result because he is actually innocent of capital murder or the death penalty’” (101 F.3d 588). Expecting a prisoner to produce

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evidence of actual innocence when the affirmative defense of insanity is predicated on an admission of doing the killing shows the extent to which the legal system is fixated on actual innocence as the only type of miscarriage of justice. The thesis of this chapter is to expand the legal system’s lens to focus on other possibilities for wrongful convictions in death penalty cases. Provide training for defense attorneys (judges and prosecutors also) on issues of mental illness and legal insanity. In 1999, the Florida Bar

Association’s board of governors voted to include mental health issues within the ethics and professionalism continuing education requirement that all Florida attorneys must take to remain a Bar member in good standing (“Florida Bar Urges Lawyers to Improve Behavioral Awareness” 1999). This is a good beginning, instituted to assist lawyers in serving others but having a second benefit of assisting lawyers to be more aware of their own mental health needs. Attorneys with criminal law practices and especially those handling capital cases should be knowledgeable of mental illness and legal insanity within their jurisdiction as well as the factors related to bias in jurors’ attitudes toward the insanity defense (see Bloechl et al. 2007) so as to cover thoroughly potential defense strategies. “Persons with severe mental disorders should be excluded from death penalty eligibility.” The Constitution Project, primarily focusing on the

problems of admitting evidence of severe mental disorders for purposes of mitigation, made this statement their recommendation number 7 (Reid, Smith-Savedoff, and Sloan 2009, pp. 23–26). Given the discussion of all the issues related to state of mind evidence in this chapter, it seems clear that “a systematic risk of disproportionate punishment arises in cases” (Reid, Smith-Savedoff, and Sloan 2009, p. 24) involving such capital defendants. Identifying such defendants as legally innocent would clarify the basis for exclusion.

Notes 1. Mental retardation is a condition that exists that is independent of mental illness; once established, it is relevant at all time periods in consideration. 2. This sort of wrongful conviction would be considered to be an error due to procedural flaws. 3. Code of Ala. § 13A-3-1(a) (2009); A.R.S. § 13-502(A) (2008); A.C.A § 5-2-312(a)(1)(2008); Cal Pen Code § 25(b) (2008); C.R.S. 16-8-101.1 (2008); Conn. Gen. Stat. § 53a-13.a (2008); 11 Del. C. § 401(a) (2009); Fla. Stat. §

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775.027 (2009); O.C.G.A. §§ 16-3-2 and 16-3-3 (2009); Burns Ind. Code Ann. § 35-41-3-6(a) (2009); 720 ILCS 5/6-2(a) (2009); KRS § 504.020(1)(2009); La. R.S. 14:14 (2008); Md. Criminal Procedure Code Ann. § 3-109 (2008); Mississippi (Gerlach v. State, 466 So.2d 75 (1985); 552.030.1 R.S.Mo. (2009); R.R.S. Neb. § 29-2203 (2009); Nev. Rev. Stat. Ann. § 174.035.5 (2009); RSA 651:8-a(2009); N.C. Gen. Stat. § 15A-959(b) (2009) and State v. Harris 28 S.E.2d 232; ORC Ann. 2901.01(A)(14); 21 Okl. St. § 152.4 (2009); ORS § 161.295.1 (2007); 18 Pa.C.S. §§ 314(c)(2) and 314(d) (2008); S.C. Code Ann. § 17-24-10(A) (2007); S.D. Codified Laws § 22-1-2.20 (2009); Tenn. Code Ann. § 39-11-501(a) (2009); Tex. Penal Code § 8.01 (2009); Va. Code Ann. § 18.2-31 (2009), Morgan v. Virginia 646 S.E.2d 899 (2007); Rev. Code Wash. (ARCW) § 9a.12.010.1 (2009); Wyo. Stat. § 7-11-304(a) (2008). 4. Four states have abolished the insanity defense: Idaho, Montana, Utah, and Kansas. 5. The eight states that are the exception are Colorado, Delaware, Georgia, Idaho, Oregon, South Dakota, Texas, and Virginia. 6. The states that have “being a future danger” as an aggravator are Idaho, Oklahoma, Oregon, Texas, Virginia, Washington, and Wyoming. 7. The clemency petition for Sam McDonald was written by Richard Sindel, Jerilyn Lipe, and Michael Gross. See also McDonald v. State, 758 S.W.2d 101 (Mo. App. 1988); 661 S.W.2d 497 (Mo. 1983); McDonald v. Delo, 897 F. Supp. 1224 (1995); 101 F.3d 588 (8th Cir. 1996). 8. Dixon v. Hickman, 203 Fed. Appx. 164, 2006; Daniels v. Henry, N.D. Cal. Feb. 5, 2007; O’Brien v. United States, 962 A.2d 282; and Morgan v. Commonwealth, 50 Va. App. 120.

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7 The Spectrum of Innocence: Focusing on Behavior [I]magine a petitioner in Davis’s situation who possesses new evidence conclusively and definitively proving, beyond any scintilla of doubt, that he is an innocent man. The dissent’s reasoning would allow such a petitioner to be put to death nonetheless. The Court correctly refuses to endorse such reasoning. —Stevens concurrence in In Re Troy Anthony Davis, 130 S.Ct. 1, 4

This book began with the proposition that the concept of innocence, whether in the public or legal arenas, fails to address significant problems with the death penalty. The focus in these pages has been to widen the aperture of the lens used to look at actual innocence so that the issues of innocence are now seen as a spectrum based on categories of behavior. In each of the situations considered (actual, factual, and legal), the discussion should be about eligibility for the death sentence, which is decided in the first stage of a capital trial. It is precisely the behaviors of each of these types of defendants that are at issue when considering their guilt or innocence. I have outlined a basic model of the spectrum and explored its significance through death penalty jurisprudence and criminal justice processes. The concern for more carefully specifying the concept of innocence stems from extending the factors that contribute to the wrongful death sentences that are known to occur in other types of capital cases and that have been easily overlooked. The potential for wrongful death sentences is greater than commonly understood when the definition of innocence is broadened. Chapter 2 explores the relatively straightforward situation of actual innocence, with the conclusion that this facet of the spectrum of inno153

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cence is not at all a simple or objective category. Overcoming a conviction with new evidence of innocence is quite difficult because of the rules relating to time constraints and because of shifting legal standards that make it virtually impossible to obtain an evidentiary hearing. In addition, until the order given in the 2009 case of In Re Troy Anthony Davis, which sent the case back to the federal district court for an evidentiary hearing, the trend in Supreme Court decisions has narrowed the Court’s ability to recognize and correct wrongful convictions, assuming a conservative states’ rights philosophy of rejecting appellate review as unwarranted interference in lower court decisionmaking. Thus, it appears through their decisions that the courts value finality more than protecting the innocent from wrongful death sentences. In fact, although five (out of nine) justices stated in both concurring and dissenting opinions of Herrera v. Collins (1993) that the execution of an innocent person violates the Constitution (see 506 U.S. at 419, 431), they have never directly decided that issue. “This Court has only ‘assumed,’ without deciding that the execution of an innocent man is unconstitutional” (Justice Rehnquist for the majority in Herrera v. Collins 506 U.S. at 417). Without the Supreme Court to offer protection from wrongful executions, prisoners claiming actual innocence can hope to prevail only if they have extraordinary attorney assistance, abundant resources, or DNA evidence. The Davis case appears to signal a shift in the majority’s approach when innocence is the issue. Chapter 3 explores the special cases of actual innocence in which tunnel vision, false confessions, and plea bargaining interfere with the detection of innocence. Because prosecutorial immunity is virtually absolute (Van de Kamp v. Goldstein 2009), the rewards for winning a conviction outweigh the penalties prosecutors ever receive for abusing their authority in gaining a wrongful conviction. It is obvious that political and media pressures surrounding homicide cases aggravate the factors that contribute to wrongful convictions. In addition to these accumulating social forces, the constitutional protections that should prevent wrongful death sentences do little to overcome the effect of legitimate and illegitimate coercive police interrogation methods, especially when they are not transparent interactions. As a result, Miranda warnings and other such due process protections cannot ensure reliability in the outcome of criminal cases. The second band of the innocence spectrum is identified in Chapter 4 as the factually innocent—those who do not do the killing but because of the construction of the law can be treated as if equally as guilty as the actual perpetrator. They are accomplices and because of a range in the

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degree of their participation in the crime (or the felony crime), the legal system has to deal with issues of proportionality and intentionality. Although official records claim that only a few nontriggermen have ever been executed, given what is known about the prosecutor’s role, there can be mistakes in recognizing who are the triggermen. If this should be the case, then these mistakes produce disproportionalities in assessing punishments. Indeed, the accomplice can receive a death sentence when the actual killer receives a lesser sentence, especially in situations where a reward is given for testimony against the other. The argument is made that unless the legal system treats the accomplice as factually innocent, principles of justice are distorted simply in order to execute. Thus, although legal and procedurally correct according to court rulings, it would be more consistent with behavioral participation to treat accomplices as factually innocent, ineligible for the death penalty but certainly eligible for proportional punishment. Chapters 5 and 6 present the third band on the spectrum of innocence, legal innocence. This category represents those who actually kill but who have an affirmative defense for their actions. After a brief discussion of defenses, those persons claiming self-defense or insanity are given special attention and included within this type of innocence. They are identified as legally innocent because the law (and theoretically also society) gives them an excuse to evade punishment for their otherwise illegal actions, thus making them absolutely ineligible for a death sentence if they succeed in establishing their claim. Chapter 4 explores how the important concept of mens rea is loosely applied in order to convict accomplices, and Chapter 5 demonstrates that this looseness requires that the defense attorney at trial must disprove intent precisely because self-defense is claimed. Because of the essential importance of the trial attorney in winning the jury, Chapter 5 offers the opportunity to discuss some of the attorney and jury problems that can taint all death penalty trials. Contradicting the expectations for normal jury decisionmaking, there is convincing research that death qualified juries are not necessarily guided by the instructions given to them, with fatal consequences for self-defense (and other) strategies. Chapter 6 examines the complicated affirmative defense of legal insanity. The rarity of successful insanity claims shows it is clear that the crime control preference for public safety tends to still dominate, delivering more incarceration and punitiveness than treatment in these types of cases, despite social policy and jurisprudence to the contrary. These particular defendants are distinctly vulnerable to being misunderstood by the jury, and with the recent decision in Clark v. Arizona, psy-

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chological expertise may not be available to assist juries in interpreting defendants’ antisocial behavior. It is feared by due process advocates that with less information available, the jury’s decisionmaking will, as a result, be more likely to produce miscarriages of justice. Overall conclusions to be drawn from the work outlined in the six chapters are that (1) the legal status of innocence belongs to a wider spectrum than the present working assumption of the “actually innocent,” (2) wrongful death sentences do occur throughout the legal process and in every type of defense, (3) wrongful death sentences have strong systemic barriers to overcome.

Wider Implications This work can be placed within a broader domain of research by scholars and professionals who are “expanding the zone” of concern about capital cases. Craig Haney has suggested as much in his 2006 article, where he identifies factual, legal, and moral guilt as categories to use to recognize other types of miscarriages of justice. His attempt to come to terms with a broader range of miscarriages of justice resonates with this book, yet Haney perpetuates the language confusions regarding actual and factual innocence that this book is attempting to clarify. He also redefines legal guilt to incorporate mens rea into a distinctive type of guilt. Such a redefinition process unfortunately complicates the meaning of the words because the definition of crime already includes both action and mens rea. To simplify terminology, the thrust here has been to elevate the importance of mens rea in the particular context of accomplice liability, as discussed in Chapter 4 and labeled factual innocence. Then, consideration of the state of mind of the defendant is addressed by the spectrum metaphor, specifically concentrating on the affirmative defense situation of legal innocence. Haney suggests a third category, moral guilt, which “surfaces at the sentencing proceedings” (2006, p. 137). Sentencing decisions are necessarily subjective judgments and involve elements of proportionality and degrees of culpability. As such, the recognition of “moral guilt” is more likely to be an intuitive process, not an objective concept on which to base a consistent and reliable expansion of the discussion of innocence. Because the sentencing decision is vulnerable to all the procedural flaws already recognized, particularly of inadequate assistance of counsel and biased jurors, it is more properly considered a miscarriage of justice, rather than part of this spectrum of innocence,

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which is focused on the guilt-finding stage of the capital trial. Despite these arguments with Haney’s language, his effort to expand the view of wrongful convictions is commendable. Others, too, have urged a greater parsing between the two stages of the capital trial, raising the specter of being innocent of the capital crime and then possibly being innocent of the sentence of death (Carter and Kreitzberg 2006). The argument is clear in terms of the first stage of death eligibility. Finding the defendant guilty of the capital crime, including the qualifying aggravating factor, would be the universal threshold decision. Proving all of the elements of the crime beyond a reasonable doubt in order to establish eligibility for the death sentence would be the first decision. Although “death selection has never been included in the definition of actual innocence” (Carter and Kreitzberg 2006, p. 457), clearly there are instances in which some would like to move in that direction. Thus, Carter and Kreitzberg correctly suggest that the jury’s selection of the death sentence could also be in error. This second stage, what sentence to recommend, is a frequently ignored subset within the literature of actual innocence, receiving some mention but no real attention. Virtually all of the research on wrongful convictions has focused on the actually innocent, which means that there is no need to look beyond eligibility (or guilt) to the second decision in the capital trial. At this second stage prisoners usually claim that if the jurors had heard complete mitigating evidence, they would have reached a different judgment. Thus, they claim that their death sentence is based on incomplete information and as such is wrongful—a miscarriage of justice. This type of miscarriage was important to the justices who concurred in Sawyer v. Whitley (1992): Blackmun, Stevens, and O’Connor seek to revive the fundamental miscarriage of justice exception. Stevens persuasively argues that a death sentence imposed in clear error, even though the defendant is not actually innocent of the crime, is a fundamental miscarriage of justice to be remedied by federal review. Blackmun reminds us that habeas purports to protect individual rights, not simply to ensure accuracy of the guilt or innocence determination. The concurrences correctly distinguish fundamental miscarriage of justice from actual innocence, procedural protection from factual inquiry. (Gander 1993, p. 256)

These prisoners claim to be innocent of their death sentences. That a death sentence may or may not be warranted is, however, still a subjective judgment to be made (as in Haney’s moral guilt), and although within the domain of miscarriages of justice, it is not in itself an includ-

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ed type of innocence in the current framework that posits actual, factual, and legal innocence in the “objective” terms of the defendant’s behavior. The primary focus of this book has been to remind the reader that more than actual innocence is worthy of an acquittal. The accomplice, self-defense, and insanity claims are several of the most important defenses that should all deserve acquittal as not guilty of the capital offense. This reminder inserts itself into the midst of attempts to estimate frequencies of wrongful convictions and debates about who is a true exoneree, debates that have been extremely useful to highlight the flaws and structures that account for the wrong outcomes of those who are actually innocent. As this exploration of an expanded spectrum of innocence is concluded, it is clear that in each category of innocence the potential for error is high. The usual focus on the actually innocent begs the question about those more than 3,000 other persons who remain on death row—about whom we must ask, how extensive might be the miscarriage of justice? James Liebman (2000) coined the phrase overproduction of death to describe the risk and flaws that produced reversible error in at least twothirds of capital convictions between 1973 and 1995. Researchers troubled by this possibility of serious errors continue to investigate the various factors that subvert the reliable disposition of capital cases. Focusing on actual innocence cases and reviewing what happened in the cases of the exonerees, those researching wrongful convictions find commonalities contributing to wrongful convictions. Key factors found are false eyewitness testimony, false testimony by “snitches” and jailhouse informants, and the prosecutorial misconduct of withholding exculpatory evidence from the defense and introducing false expert testimony using pseudoscience. All these factors frustrate the reliability of the criminal justice system. It is important to note that these same factors identified as contributing to wrongful convictions are all potential pitfalls in each innocence category. Most of these factors stem from prosecutorial misconduct. For example, how is it that eyewitness testimony can be so wrong, that prosecutors can withhold exculpatory evidence, that informants can give false testimony, and that pseudoscience can so persuasively support convictions? Appellate courts are susceptible to errors as well (Burnett 2002b). The factors just outlined are particularly obvious in relation to those exonerated owing to actual innocence, but of course they would be relevant in the trials of those claiming to be factually innocent and legally innocent. Beyond flaws that become evident in individual cases, there are systems and structures that permit such flaws to exist. Some of those structures grounded in court precedents and state rule making have been presented in this book. The discussion throughout this book has centered on

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structures and legal doctrines that create legalities that are responsible for mistakes and then go uncorrected. These include time limitations for appeals, shifting standards, psychological coercion, plea bargaining, statutory definitions that favor the prosecution, death qualified jurors, and underfunding of defense attorneys. There are other scholars who also take this structural approach for researching the reliability in the criminal justice system. Andrew Leipold (2005), for example, has described how the pretrial process contributes to wrongful convictions, and Andrew Siegel (2005, p. 1231) specified that the “seemingly innocuous procedural rule” that gives prosecutors in South Carolina power to control court dockets has grave consequences for potential wrongful convictions. Craig Haney, too, has valiantly presented a psychological analysis of the factors that shape jury selection and deliberation and that structure biases toward death sentencing (Haney 2005). All these processes are embedded in the legal culture and unless exposed they will continue to support the legitimacy of the capital litigation process. As noted in Chapter 2, Justice O’Connor’s concurring opinion in Herrera drew attention to the protections against convicting the innocent that are found in the Constitution: “Our society has a high degree of confidence in its criminal trials, in no small part because the Constitution offers unparalleled protections against convicting the innocent” (372 U.S. at 420), referring to such principles as the right to confront witnesses, the right to compulsory process, the right to effective assistance of counsel, the requirement that the prosecution must prove guilt beyond a reasonable doubt, the right to jury trial, the requirement that the prosecution must disclose exculpatory evidence, and the right to a fair trial in a fair tribunal. The Herrera decision was made in 1993, when only fifteen postconviction DNA exonerations had been discovered. Since then, 250 DNA exonerations proven by the Innocence Project indicate that more than 75 percent of those cases are due to eyewitness misidentifications (Innocence Project 2010). With such certain evidence of the existence of wrongful convictions, confidence in the reliability of criminal trials may well indeed be shaken and the constitutional protections that Justice O’Connor relied upon warrant closer examination of the realities defendants encounter at trial.

Reforms Despite those who challenge the classification of individual cases as actually innocent and despite the dominance of the crime control model

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that favors efficiency while taking reliability for granted, there is broad agreement that professional standards (investigation, prosecution, and litigation) can be improved and made more uniform. Such reforms in the death penalty litigation process and procedures could also improve the rest of the criminal justice system. Many of these recommendations for reforms have been suggested at the end of each chapter. 1. No time limit for presenting new evidence of innocence after conviction 2. No extension of deference to lower courts when the context is a death penalty appeal in federal habeas courts 3. Permit a lower standard to decide whether new evidence will be granted a hearing 4. Videotape all interrogations 5. Preserve biological or DNA evidence 6. Professionalize prosecutorial behavior 7. Pursuit by police of all reasonable lines of inquiry after suspect has been identified 8. Periodic training for all homicide police officers, prosecutors, and defense lawyers trying capital cases on these topics especially: • The risks of false testimony by in-custody informants (“jailhouse snitches”) • The risks of false testimony by accomplice witnesses • The dangers of tunnel vision or confirmatory bias • The risks of wrongful convictions in homicide cases • Police investigative and interrogation methods • Police investigation and reporting of exculpatory evidence • Forensic evidence • The risks of false confession 9. Discussions with a witness concerning benefits, potential benefits, or detriments conferred on a witness by any prosecutor, police official, corrections official, or anyone else should be reduced to writing and disclosed to the defense in advance of trial 10. Whenever the state may introduce the testimony of an in-custody informant, the state should promptly inform the defense as to the identification and background of the witness 11. Require state trial and appellate judges to report all cases of prosecutorial misconduct, including cases where the misconduct is ruled to be harmless error 12. Establish state prosecutor review boards with the power to investigate allegations of misconduct and impose sanctions

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13. Custodial interrogations of a suspect in a homicide case occurring at a police facility should be videotaped; videotaping should include the entire interrogation process 14. Any statements by a homicide suspect that are not recorded should be repeated to the suspect on tape and his or her comments recorded 15. Scrutinize any tactic that misleads the suspect as to the strength of the evidence against him or her, or the likelihood of his or her guilt, in order to determine whether this tactic would be likely to induce an involuntary or untrustworthy confession 16. Adopt statutes that provide: a. The uncorroborated testimony of an in-custody informant witness concerning the confession or admission of the defendant may not be the sole basis for imposition of a death penalty b. Convictions for murder based upon the testimony of a single eyewitness or accomplice, without any other corroboration, should not be death eligible under any circumstances 17. States that provide proportionality reviews should be accountable for providing reasonable reviews 18. Empanel a second jury (life qualified) for the sentencing phase 19. Revise jury instructions 20. Increase money for defense and implementation of the ABA Guidelines 21. Provide pretrial psychiatric or psychological testing 22. Provide training for defense attorneys (judges and prosecutors also) on issues of mental illness and legal insanity 23. Exclude persons with severe mental disorders from death penalty eligibility It is not at all certain how these reforms will be enacted, particularly since they impact the entire field of administration of justice. The political arena has been slow to institute change. During 2009 a variety of reforms was pursued through legislatures that have attempted reform in death penalty litigation.1 Joining New York and New Jersey in eliminating the state death penalty, New Mexico successfully repealed its law. Nine other states considered repeal legislation, and although Maryland did not succeed in abolition, the state did pass legislation drastically limiting eligibility for such prosecutions. The only three conditions under which a death penalty case might now be pursued in Maryland are where there is (1) biological or DNA evidence of guilt, (2) a videotaped confession, or (3) a videotape linking the defendant to the homicide.

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During the 2009 legislative season, however, three states proposed reinstating the death penalty, and five others introduced expansion legislation; five states proposed moratoriums on executions in order to study their capital systems, and one state approved a study commission and with some overlapping, thirteen states proposed multiple reforms to their death penalty statutes. It would appear then that (including New Mexico) this significant volume of activity in twenty-six different states indicates that public attention is highly engaged in the death penalty debate about criminal justice policy. And yet, despite this activity, “capital punishment has remained an issue strongly resistant to reform through the political process in most jurisdictions” (Steiker and Steiker 2008, p. 4). Except for New Mexico’s repeal and New Hampshire’s study commission, only nine reform measures passed in 2009. This resistance to reform is evident in the passage of a Racial Justice Act in 2009 in North Carolina, which became just the second jurisdiction to react to the 1987 McCleskey v. Kemp decision regarding use of statistics to prove racial discrimination. In that case, research of the Georgia experience with the death penalty (Baldus, Pulaski, and Woodworth 1983) collected data on 230 variables, and through analysis could establish that 48 percent of the variance in death sentencing could be explained by racial disparities. The Supreme Court rejected that research and denied McCleskey’s claim of racial discrimination, stating that less than half of the variance was not good enough to establish racial discrimination in McCleskey’s case. Rather than using the data to establish a “risk of discrimination” that would shift the burden of proof to the state to justify the disparate numbers, instead the Court required the evidence to prove discrimination in McCleskey’s specific case. This rationale was a departure from the Court’s decisionmaking in other cases of racial discrimination, thus casting a stricter standard for the death sentenced prisoner than in civil law areas such as employment and housing discrimination. Twenty-two years later, North Carolina (G.S. § 15A-2010-2012) joined Kentucky (KRS § 532) in passing a Racial Justice Act, permitting pretrial defendants and death row inmates to challenge racial bias through statistical studies. In the North Carolina statute, prosecutors can rebut the charge; if racial bias is established, however, the judge could overturn the death sentence or prohibit prosecutors from seeking the death penalty in the case (Associated Press 2009). It is unfortunate that the statutes may not address the McCleskey problem at all, since both states’ statutes focus on the individual case, not on changing the focus to a more generalized “risk” of racial discrimination. There is also no guidance as to what level of statistical signifi-

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cance will satisfy the judge or how much explained variance constitutes sufficient racial discrimination to overturn a death sentence. Two particular criminal justice areas may be even more resistant to change than those that have had recommendations from professional associations such as the American Bar Association: law enforcement and the capital jury. Police are at the front line in keeping the public safe, doing their best while not particularly open to oversight by anyone who does not understand or appreciate the stresses of their job. Effecting needed change in interrogation practices, for example, will have to rely on public pressure, jurisdiction by jurisdiction, to institute continuing education and training opportunities in investigation and interrogation. Perhaps Maryland’s legislative approach mentioned above can provide an alternative reform mode, solving perceived problems across jurisdictions with one sweeping statewide mandate. Reforming the capital jury system is an even tougher part of the capital litigation process in which to effect change. In 2002, the Court enhanced the importance of the jury in Ring v. Arizona by stating that juries must be the entity that decides the aggravating factor making the defendant eligible for a capital sentence. This enhancement, however, deserves to be reviewed in light of the significant research that has become available to inform the public and professionals about the realities of the death qualified jury deliberation processes. Although the Supreme Court earlier ruled concerning the voir dire jury selection process of capital juries, another Court mandate may be necessary to reaffirm the presumption of innocence and fairness in deliberation.

What Is Next? Supreme Court Justice Scalia believes that “the American people have determined that the good to be derived from capital punishment outweighs the risk of error.”2 As seen in the Herrera v. Collins case (1993), the Court favors reliance on executive clemency to correct miscarriages of justice rather than keeping that responsibility for themselves. With this present judicial approach, there is no doubt that wrongful executions have occurred, albeit officially unacknowledged. The 139 death row exonerations defined as actual innocence cases have been hardfought freedoms, demonstrating that the system is stacked against admitting errors (Marshall 2002). Beyond the circumstances of those 139 exonerees, all court observers can reasonably question whether or not there are systemic

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miscarriages of justice that are being intentionally disregarded. In conflict with Justice Scalia’s contention, Justice Marshall insisted that if the public knew how the death penalty system actually works, “the great mass of citizens would conclude . . . that the death penalty is immoral and therefore unconstitutional.”3 In this book, I have tried to shed light on how the death penalty system works so that the public can reconsider their support for this social policy. One wonders whether innocence is still to be protected. Society’s willingness to jump to the conclusion of guilt from the mere fact that a person has been accused probably relates to people’s general fear of crime, a fear that is actively shaped by the media. The media construct guilt by rehearsing the crime story and images of the victims, whereas the accused receives a cursory glance, albeit more in depth if the suspect has a prior conviction record. Crime stories from across the nation fill the local media when news is slow, fostering a sense of anxiety and fear irrespective of the local situation. Responding to this perspective, society may be willing to wrongly convict a certain number of innocent persons in exchange for the certainty of convicting all those who are guilty. A result of the heightened media attention to crime is that society seems increasingly unwilling to take any risk of releasing any guilty person. This shift is of utmost concern particularly in the death penalty cases, where emphasis is on convictions, and the entire legal system is straining to resolve and finish each case. Most courtroom observers would agree that in the courtroom, the burden of any criminal case (and especially capital trials) rests on the defense to prove innocence. As already seen, so many aspects of the trial work together to point toward guilt. As a result, it is not farfetched to wonder whether the presumption of innocence is becoming a relic. Is the presumption of innocence merely a “hollow symbol of our . . . commitment to an impartial . . . system of criminal justice?” (Laufer 1995, p. 374). Without the presumption of innocence, there will no longer be the foundation for procedural due process protections. Without these protections, the numbers of wrongful convictions and wrongful death sentences will likely swell. When a justice system permits its due process protections to erode in the name of crime control, the balance that is the genius of the US legal system is debased. It is time to rebalance the scales. The signs are mixed and the future direction of the criminal justice system is not easy to predict. As recently as October 2009, the American Law Institute (which presents the Model Penal Code as a resource to all jurisdictions as they revise their own state statutes) approved the following statement: “The [American Law] Institute withdraws Section 210.6

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(the capital punishment provision) of the Model Penal Code in light of the current intractable institutional and structural obstacles to ensuring a minimally adequate system for administering capital punishment” (emphasis added) (Liebman 2009). A powerful, thoughtful, legitimate, and well-respected professional organization such as the American Law Institute is nonetheless doubtful that any reform recommendations would have any broader political impact outside of its own organization. They have therefore decided not to “play a further role in legitimating capital punishment” (American Law Institute 2009 p. 4). Activists and advocates will likely continue the change movement through legislative reforms because the accumulating exonerations are troubling to the public and professionals alike. And the voices of change are diversifying. Family members of murder victims are not served by a process that makes mistakes. A national poll of police chiefs reported that they do not believe the death penalty acts as a deterrent to murder, and they rate it as one of the most inefficient uses of taxpayer dollars in fighting crime (Dieter 2009). Despite their predisposition toward the prosecution, capital juries are giving fewer death sentences—declining from 328 in 1994 to 106 in 2009 (Death Penalty Information Center 2010). Prosecutors are not charging as many defendants with capital crimes (Purpura 2009) and executions have also declined from a high in 1999 of 98 to 52 in 2009 (Death Penalty Information Center 2010). There are even mounting voices in the judiciary dissenting in postconviction appeals. “Elisabeth Semel, director of the Death Penalty Clinic at Berkeley, said ‘many jurists had been shaken by the rise of exonerations due to DNA evidence’” (Schwartz 2009). Presently there is a noticeable decline in public support for the death penalty. Nationally, public opinion favoring the death penalty has been declining since its peak support in 1994. A 2008 Harris Poll found that overall support for the death penalty was 63 percent, down significantly from 1994 when 80 percent supported capital punishment. A 2004 public opinion survey of Missourians directly related this drop in support of the death penalty to the increasing number of exonerations. For example, more than 80 percent of respondents said that learning about innocent individuals who had been wrongly convicted had the most effect on their opinion about the death penalty (Center of Social Science and Public Policy Research 2004). Even so, when given a choice between the sentencing options of life without parole and the death penalty (as seen in a 2006 Gallup Poll), only 47 percent of respondents chose capital punishment, and 48 percent favored life without parole for those convicted of murder. Therefore it is no longer accurate to say (as did Justice

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Scalia in Kansas v. Marsh 2006) that there is “vast support” in society for the death penalty. Will there be a continuation of both reform and repeal efforts? The research presented here demonstrates that the death penalty system is fallible, just as Justice Rehnquist admitted when he affirmed Herrera’s execution (1993) and referred petitioners to the executive clemency process. Justice Blackmun came to a different conclusion, however, when he opted to stop “tinkering with the death penalty process” in 1994 (dissenting in Callins v. Collins). Armed with knowledge of the many problems, known and unknown, with the capital punishment system in the United States, the question of delivering justice remains. How many wrongful death sentences will be tolerated by society?

Notes 1. See “Recent Legislative Activity” in Death Penalty Information Center (2010) for more details on legislative activities in the states. 2. Quote is from Justice Scalia’s concurrence in Kansas v. Marsh (2006, p. 199). 3. Quote is from Justice Marshall’s concurrence in Furman v. Georgia (1972, p. 363).

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Abolition of the death penalty, 161 Abuse of prisoners, 56–57 Accidental death, 2 Accomplices: actual and factual innocence, 11–12; defining, 78; execution of, 15–16; felony murder, 81–86; Kilgore’s execution, 88–94; liability for the crime, 79–81; mens rea application, 155–156; Missouri study of accomplice liability, 96(n9); plea bargaining, 64–65; proportionality and intentionality, 154–155; Roy Roberts case, 40–41; sentencing statistics for felony murder, 87. See also Factual innocence Acquittals: conviction of lesser offense, 125(n9); exonerees, 12–13; important defenses meriting, 158 Actual innocence, 12–14; clemency appeals, 49(n18); deference to lower courts, 46; defining, 11–12; DPIC definition, 22–23; goals and process of plea bargaining, 58–62; grounds and time constraints for retrial, 24–27; obstacles to overcoming conviction, 154; pleading guilty, 62–70; procedural barriers to establishing, 51; spectrum of innocence, 2; state time limits for retrials, 48(n7); traditional language of innocence, 5. See also False confessions Actual innocence, standards for, 27–28; AEDPA, 35–37; arbitrary nature of, 43–47; federal standards, 29(table); Furman v. Georgia, 21; Herrera v. Collins, 31–32; House v. Bell, 37–38;

Roy Roberts murder case, 39–43; Schlup v. Delo, 34–35, 46–47; variations in standards, 38–43 Actus reus (guilty act), 78; accomplice liability, 79–81, 93–94; establishing guilt through, 11; insanity, 131; self-defense, 100–101 Affidavits, 33 Affirmative defense, 132–135 Aggravating circumstance, 118 Alibi defense, 100 Alito, Samuel, 95 American Bar Association (ABA): capital case guidelines, 107; Death Penalty Moratorium Implementation Project, 106; effectiveness standards, 123; justice system reform, 75(n6); plea bargaining standards, 61; prosecutor misconduct, 97(n11) American Law Institute standard, 135, 164–165 Amrine, Joe, 14–15, 44, 48(n4) Antiterrorism and Effective Death Penalty Act (AEDPA), 26–27, 29(table), 35–37, 41–43, 49(nn11,15) Arbitrariness in instituting the death penalty, 21–22 Arizona v. Fulminante, 54 Armstrong, Jeanette, 83 Armstrong, Sampson, 83 Atkins v. Virginia, 127–128 Autopsy evidence, falsified, 71–72 Balancing of harms, 102–103 Bare-innocence claims, 32–33 Battered Woman Syndrome, 103

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Behavior defining innocence, 17(n2) Belief perseverance, 57 Bench trial, 60–61 Bey, Lamont Griffin, 67 Bill of Rights, 53, 99 Blackmar, Charles, 119–120, 127, 146–147 Blackmun, Harry, 30, 32–33, 86, 157, 166 Black’s Law Dictionary, 101, 103 Blair, Walter, 33–34, 39 Blume, John, 104, 110 Booth v. Maryland, 86 Bower, Danny, 67 Bowers, William, 112–113 Brady v. Maryland, 97(n11) Brennan, William, 63, 83, 85–86 Brooks, George, 70 Bushmann, Eugene, 68–69 Cabana v. Bullock, 85 Caldwell v. Mississippi, 40, 114, 147–148 Capital Jury Project (CJP), 113–114, 141 Carnahan, Mel, 50(n21), 88 Carrier. See Murray v. Carrier Carrier, Clifford, 28 Certiorari, writ of, 95 Clark, Eric, 137–139 Clark v. Arizona, 137–140, 149–150, 155–156 Clear and convincing evidence, 32, 35 Clemency: accomplice executions for felony murder, 87; actual innocence standards, 38–39; Kilgore’s failure to obtain, 91; Missouri, 124(n3); Missouri study of accomplice liability, 96(n9); psychological claims, 141; Roy Roberts murder case, 39–40, 43; Schlup petition, 66–70; self-defense claims, 116; veteran’s insanity defense, 148 Coerced confessions, 56–57, 63 Commonwealth v. Rogers, 134 Confirmation bias, 57 Constitution, U.S.: constitutional protection against wrongful conviction, 33; constitutionality of the death penalty, 21–22; due process model, 6; protection against convicting the innocent, 159; unconstitutionality of instructions in Feltrop case, 118–120 Constitution Project, 94, 151 Conviction Integrity Unit, 73 Crime, components of, 78 Crime control model, 5–7, 159–160 Crime funnel, 17(n3)

Dade, Arthur, 66–69 Davis, Troy, 45, 50(n22), 153 Deals, prosecutor misconduct over, 97(n11) Death eligibility, 30, 32, 77–78, 85–87, 92–94, 161 Death Penalty Information Center (DPIC): actual innocence, 12–13; costs of capital cases, 109; developing wrongful convictions list, 22–23; DNA exonerating prisoners, 52; exonerees for self-defense, 16; felony murder doctrine and accomplice liability, 87 Death qualified juries, 111–113 Deck v. Missouri, 9 Defense, lack of, 11 Defense counsel: burden of proof, 100; caps on costs and fees, 47(n2), 109–110; costs associated with, 108–110, 123, 124(n5); effective selfdefense assistance, 105–108, 110; false confessions, 57–58; ineffectiveness, 49(n14); ineffectiveness in Roy Roberts trial, 40–41; ineffectiveness in Schlup v. Delo, 34–35, 68–70; ineffectiveness in self-defense claims, 116; legal innocence, 100–101; M’Naghten standard for insanity, 132–133; plea bargains, 61–62; policy recommendations in insanity defense, 151; posttraumatic stress disorder and insanity defense, 145–146, 148 Degree of participation: accomplice liability, 80 Deliberate action, 101–102; defining, 79; self-defense, 110 Delo v. Blair, 33–34, 39 Depravity of mind, 118 Dickinson, Renee, 90–91 Direct appeal and proportionality review, 94 Disabled individuals, 56–57, 127–128, 141, 151(n1) Discretionary decision, 30 Discrimination, racial, 162–163 Disproportionality. See Proportionality DNA evidence: actual innocence standards, 38; Amrine case, 14–15; documenting wrongful convictions, 23; false confessions and, 52, 71–72; House v. Bell, 37–38; Innocence Project, 159; Roy Roberts murder case, 42; scientific fallibility, 33 Driscoll, Robert, 40, 42–43, 147–148 Drizin, Steven, 52

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Dropped charges, 13–14 Drug possession: documenting wrongful convictions, 23 Due process model, 6–8 Durham rule standard, 134–135, 140 Eberle, James, 69 Effectiveness of counsel, 49(n14); insanity defense, 150; Roy Roberts trial, 40–41; Schlup v. Delo, 34–35, 68–70; selfdefense claims, 116; self-defense trials, 105–108, 110 Eighth Amendment, 84 Eligibility for the death penalty. See Death eligibility Enmund, Earl, 83–84 Enmund v. Florida, 83–85, 91 Erdmann, Ralph, 71 Evidence: ambiguity of exoneration, 14–15; constructing actual innocence, 21–24; defining new evidence, 48(n4); fabrication to obtain confessions, 55–56; falsified autopsy evidence, 71–72; federal actual innocence standards, 29(table); grounds and time constraints for retrials, 24–26; as grounds for retrial, 48(n5); habeas review, 35; limiting risk of wrongful conviction, 16; mental illness and insanity defense, 139; prosecutor misconduct, 97(n11); proving actual innocence, 38; rules of, 5; suppression in Kilgore, 88, 91. See also Eyewitness evidence Excuse, 127–128 Executions: of accomplices, 15–16; time between conviction and, 26 Exhaustion doctrine, 49(n15) Exoneration: ambiguity of, 14–15; documenting, 22–23; etymology, 18(n9); false confessions, 52–53, 75(n1); growth in numbers of exonerees, 1 Eyewitness evidence: contribution to false convictions, 33; by felons, 65–70; Kilgore case, 91; prosecutor misconduct, 97(n11); reliability model, 17(n5) Factual innocence: accomplice liability, 78, 80–81; defining, 11–12, 17(n2); disproportionality, 3; spectrum of innocence, 2; traditional language of innocence, 5 False confessions, 47; categories of, 51–52; coerced confessions, 56–57, 63; DNA evidence, 71–72; exonerees,

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75(n1); frustrating actual innocence, 3; jury response to, 57–58; police role in obtaining, 53–57; prosecutor misconduct, 72–75; protection against self-incrimination, 53–54; rationale and process of, 52–58; Schlup v. Delo, 65–71; videotaping, 71; voluntary, 75(n3) Farmer, Millard, 61 Felony murder: accomplice executions for felony murder in Kilgore, 87–92; accomplice liability, 81; accomplice liability and death eligibility, 94; doctrine of, 81–86 Feltrop, Ralph, 116–121 Fifth Amendment, 53–54 Findley, Keith, 54 First-degree murder, 77 Fletcher, William, 50(n23) Flowers, Roger, 66–67, 69 Ford v. Wainwright, 130 Fourteenth Amendment, 84, 106 Freestanding claim of actual innocence, 33–34, 37, 44 Furman v. Georgia, 11, 21–22, 25–26, 111, 113–114 Gilchrist, Joyce, 71 Godfrey v. Georgia, 118–119 Greenawalt, Randy, 84, 96(n7) Gregg v. Georgia, 21–22, 26, 94, 111, 115–116 Guidelines for the Appointment and Performance of Defense Counsel in Death Penalty Cases, 108 Guilt: accomplice liability, 79–81; establishing, 11; expansion of meaning to include accomplices, 93. See also Presumption of guilt Guilt phase of trial, 22, 80, 90–91, 94, 101, 113; penalty phase connection, 156–158 Guilty but mentally ill (GBMI), 136, 149–150 Guilty pleas, 47 Gun possession: documenting wrongful convictions, 23 Habeas corpus review, 26–27, 35–38, 46, 49(n13), 50(n22), 119 Haney, Craig, 112, 122, 156–157, 159 Heaney, Gerald, 33–34, 119–120 Herrera, Leonel Torres, 31 Herrera v. Collins, 21, 29(table), 31–32, 34, 39, 44, 154, 159, 163

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House, Paul, 37 House v. Bell, 29(table), 37–38, 49(n17) Illinois Governor’s Commission on Capital Punishment, 92 Imminence, self-defense and, 104–105 Impunity, errors of, 6–7 In Re Troy Anthony Davis, 45, 50(n22), 153–154 Indigent defense services, 47(n2), 108 Innocence: absolute innocence, 10; broadening the concept of, 153; defining, 2; etymology, 17(n1); exoneration criteria, 13–14; miscarriage of justice potential, 158–159; participation and state of mind determining, 11, 17(n2), 18(n7); procedural innocence, 18(n7); social, political, and legal construct, 15; as sociopolitical and legal construct, 24; spectrum of, 4–5, 77–78; traditional language of innocence, 5. See also Actual innocence; Factual innocence; Legal innocence; Presumption of innocence Innocence Project, 23, 52, 159 Insanity defense, 4; as affirmative defense, 132–135; American Law Institute standard, 135; awareness of execution, 130–131; crime control attitude, 155–156; defining and characterizing, 128, 132; Durham rule standard, 134; exonerations, 16; irresistible impulse standard, 134; jury verdict options, 135–139; McDonald case, 141–148; mens rea and actus reus, 129, 131–132; misconceptions about, 139–142; policy recommendations, 149–151 Intent, 4; accomplice liability, 79–81, 85–86; defining, 79, 101–102; felony murder, 82–83; self-defense, 110. See also Mens rea Interrogation practices, 54–56 Irresistible impulse standard, 134 Jackson, Thomas, 39, 42 Judicial expediency, 13 Juries: behavior in capital trials, 110–116; guilt phase of capital trials, 101; insanity defense, 135–141; instruction comprehension, 124(n6); jury selection, 9, 159; Kilgore instructions, 90; plea bargains, 58; resistance to reform, 163; response to false confessions, 57–58; self-defense instructions, 122–123; sentencing in capital cases, 22, 30,

113–116; unconstitutionality of instructions in Feltrop case, 118–120 Justice Project, 74 Justifiable homicide, 2 Justification, 127–128. See also Insanity defense; Self-defense Kennedy, Anthony, 139 Kidnapping, 87–94 Kilgore, Bruce, 87–92 Kuhlmann v. Wilson, 28 LaRette v. Delo, 119 Legal innocence, 16; death ineligibility, 155; defining, 11–12, 17(n2); selfdefense, 99; spectrum of innocence, 2; state of mind, 156; traditional language of innocence, 5 Leo, Richard, 52, 55–56 Leonard, Pamela Blume, 110 Leyshock, Jerry, 91 Liu, Brittany, 55–56 Lockart v. McCree, 111 Loopholes and technicalities, 7, 17(n3), 58, 148 Luckett, Willie, 88–91 Mangrum, William, 117 Marquis, Joshua, 23, 47(nn2, 3) Marshall, Thurgood, 86, 130, 164 Maylee, John, 66–67, 69 McCleskey v. Kemp, 162 McDonald, Samuel Lee, 141–148, 150 Mease, Darrell, 50(n21) Media attention to crime, 164 Mens rea (guilty mind), 4; accomplice liability, 79–81, 85–86, 93–94, 155–156; establishing guilt through, 11, 78–79; felony murder, 82–83, 85–86; insanity defense in Clark, 137–139; jury instructions in Kilgore, 90; legal innocence by means of insanity, 127, 131–132, 137–139; legal interest in, 128; Missouri defining first-degree murder, 101–102; reckless indifference, 96(n8); self-defense, 100–101, 155; at the time of execution, 130–131; time of the crime, 128–129; at the time of trial, 130. See also Intention Mental illness, 133, 137–139, 141–148, 151 Mentally disabled individuals, 56–57, 127–128, 141, 151(n1) Miller, Michael, 89

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Miranda v. Arizona, 53–54 Miscarriage of justice, 49(n13); actual innocence and, 22; due process and, 6–7; intentional disregard of, 163–164; professional concern over, 156; wrongful conviction and wrongful acquittals, 6–8, 19(n13) Missouri: accomplice liability, 96(n9); AEDPA, 49(n11); clemency and innocence, 18(n6); defining first-degree murder, 101; defining new evidence, 48(n4); funding defense counsel, 124(n5); prosecutor misconduct in Roberts case, 40–43 M’Naghten standard, 132–133, 137, 140 Model Penal Code, 80, 83, 164–165 Moral guilt, 86, 156–157 Morgan v. Illinois, 111 Murder cases: death eligibility recommendations, 91–95, 93(table); documenting wrongful convictions, 23; false confessions of, 52; felony murder doctrine, 81–86; first-degree, 77; Herrera v. Collins, 31–32; House v. Bell, 37–38; Kilgore case, 87–91; Roy Roberts, 39–43; Sawyer v. Whitley, 28, 30–31; Schlup v. Delo, 34–35 Murray, William K., 89 Murray v. Carrier, 27–28, 29(table), 30–31, 41 Murray v. Giarratano, 106 Nichols, Brian, 109 Nifong, Michael, 74 Norfolk Four, 52 North Carolina, 162 North Carolina v. Alford, 63 Not guilty by reason of insanity (NGRI), 136 O’Connor, Sandra Day, 28, 32–33, 85, 157, 159 O’Neal, Robert, 66–67, 69 Packer, Herbert, 8, 17(n2) Pardons, gubernatorial, 12–14, 19(n11), 24 Parnell, Frank, 117–118 Pay rate for defense counsel, 108 Penalty phase of trial. See Sentencing Perjury: police perjury, 23; prison stabbing, 39–40; witness perjury in accomplice situations, 92 Plea bargaining: actually innocent, pleading guilty, 62–70; defense

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responsibilities and strategies, 60–62; frustrating actual innocence, 3; goals and process, 58–62; guilty pleading guilty, 64–65; innocence of capital murder, 19(n12); Schlup’s guilty plea despite innocence, 65–70 Police: false confessions, 53–57; perjury in wrongful convictions, 23; presumption of guilt, 9; recommendations for normative behaviors, 73(table); resistance to reform, 163 Polygraph evidence, 42 Posttraumatic stress disorder, 143–148 Powell v. Alabama, 106 Premeditation, 79, 101–102 President’s Crime Commission, 10, 17(n3) Presumption of guilt: police attitudes and actions, 6; police obtaining false confessions, 53–57; presumption of innocence and, 8–9; public opinion, 164; self-defense, 100–101; trial conviction and plea bargains, 58–59 Presumption of innocence, 8–11; limiting risk of wrongful conviction, 16; plea bargaining, 58 Prevention of crime, 5–7 Procedurally barred claim, 28–29 Proportionality: accomplice liability, 3, 77–78, 81, 84, 86–87, 91–95; death penalty for minorities, 21–22; policeinduced false confessions, 56–57; safeguarding wrongful imposition of death sentence, 94–95 Prosecuting attorneys: accomplice executions for felony murder, 87; ambiguous exoneration, 14–15; burden of proof, 100; capital prosecution of self-defense, 105; limiting risk of wrongful conviction, 16; plea bargain incentives, 59–60; psychological biases leading to false confessions, 57–58; recommendations for normative behaviors, 73(table) Prosecutor misconduct and error: characteristics of, 97(n11); immunity increasing occurrence of, 154; Kilgore case, 89–90; professionalizing prosecutor behavior, 72–75; Roy Roberts trial, 40–42; source of wrongful death sentences, 47 Pulley v. Harris, 94–95 Racial Justice Act (2009), 162 Rakoff, Jed, 47(n3)

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Rape cases, 18(n8), 19(n13), 23, 28, 52, 74 Rationality, degrees of, 78–79 Reasonable doubt rule, 8, 114 Reasonable man standard, 103–104 Reasonableness of self-defense claim, 103–104 Reckless indifference, 85, 96(n8) Reform, judicial, 22, 75(n6), 159–163 Rehnquist, William, 28, 30–32, 35, 154, 166 Reinstatement of the death penalty, 162 Reliability model, 17(n5) Ring v. Arizona, 18(n7), 163 Roam, Barbara, 116–118, 120–121 Robbery, 87–94 Roberts, John, 37 Roberts, Roy, 39–43, 50(n21), 87 Robinson, Paul, 115 Rose v. Clark, 73–74 Rules of evidence, 5 Ryan, George, 13, 72 Ryan Commission, 92 Sanders v. U.S., 27 Sawyer, Robert Wayne, 28, 30–31 Sawyer v. Whitley, 28, 29(table), 30–31, 34, 49(n14), 157–158 Scalia, Antonin, 37, 86, 95, 163–164, 166 Schlup, Lloyd, 64–70 Schlup v. Delo, 29(table), 34–35, 38–39, 42, 65–71 Self-defense: correcting inherent bias in trial procedures, 121–123; defining, 100–103; effective assistance of counsel, 105–108, 110; exoneration, 16; failure in Feltrop case, 116–121; felony murder, 83; funding defense work, 123; imminence, 104–105; intentionality and, 4; jury behavior in capital trials, 110–116; mens rea application, 155; reasonableness, 103–104; sentencing decisions, 115–116; spectrum of innocence, 2 Self-incrimination, 53–54 Semel, Elisabeth, 165 Sentencing, 22; accomplice liability, 80–81; felony murder doctrine, 83–87; guilt phase connection, 156–158; judge versus jury as final sentences in capital cases, 118–120; juror responsibility, 30, 147–148; jury selection in capital trials, 113–116; legal nuances of guilt and innocence affecting, 77; moral guilt, 156–158; safeguarding wrongful

imposition of death sentence, 94–95; trial conviction and plea bargains, 59–61 Shackling prisoners, 9 Silberman, Charles, 17(n3) Sixth Amendment, 59, 106, 108 Smith v. Murray, 1, 28, 49(n13) State of Missouri v. Bruce Kilgore, 87–92 State v. Johnson, 80 State v. Preston, 118 States’ rights: caps on fees and expenses, 47(n2); constitutionality of the death penalty, 21–22; habeas relief in freestanding claims, 44; retrials, 25; Supreme Court overturning death penalty statutes, 11 Statute of limitations: actual innocence claims, 46; federal habeas corpus proceedings, 26–27. See also Time limitations Stevens, John Paul, 30, 43, 45, 86, 95, 157 Stewart, Rodnie, 66–69 Strickland v. Washington, 106–107 Sundby, Scott, 104 Supreme Court, California, 102 Supreme Court, Georgia, 95 Supreme Court, Missouri, 14–15, 101, 118–120, 142–148 Supreme Court, U.S.: accomplice liability and felony murder doctrine, 83–86; AEDPA, 35–37; capital jury reform, 163; caps on costs and fees, 47(n2), 109–110; coerced confessions, 54; constitutionality of the death penalty, 21–22; death qualified juries, 111–113; evidentiary hearing, 45; Herrera v. Collins, 31–32; House v. Bell, 37–38; ineffectiveness of defense counsel, 49(n14); innocent pleading guilty, 63; insanity and awareness of execution, 130–131; juror responsibility in capital case sentencing, 147–148; mens rea and insanity defense, 137–139, 149–150; Miranda decision, 53–54; narrowing ability to recognize and correct wrongful convictions, 154; overturning states’ death penalty statutes, 11; presumption of innocence, 8; prosecutorial misconduct, 73–74; safeguarding wrongful imposition of death sentence, 94; Sawyer v. Whitley, 28, 30–31; Schlup v. Delo, 34–35, 65–71; self-defense representation, 106

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Taylor v. Kentucky, 88 Technicalities and loopholes, 7, 17(n3), 58, 148 Thomas, Clarence, 37, 95 Time limitations: actual innocence claims, 21, 46; federal actual innocence standards, 29(table); grounds and time constraints for retrial, 24–27; Roy Roberts case, 42; state limits for retrials, 48(n7) Timing: mens rea at the time of execution, 130–131; mens rea at the time of the crime, 128–129; mens rea at the time of trial, 130 Tison, Donnie, 84 Tison, Gary, 84–85 Tison, Randy, 84–85 Tison v. Arizona, 83–86, 91, 96(n7) Torture, 56–57 Townsend v. Sain, 31–32 True Stories of False Confessions, 52 Truth: traditional language of innocence, 5 Tunnel vision, 57

Veterans, 135, 141–148 Videotape: as corroborating evidence, 67–70, 161; interrogation sessions, 56, 58, 71, 93(table), 160–161 Vogelpohl, Joseph, 40 Voir dire, 9, 111–113, 163

U.S. v. Quinones, 47(n3)

Zain, Fred, 71

Waite, John, 143–144 Walton v. Arizona, 119 Warden, Rob, 52 Ware, David, 88–89 Watson, Craig, 72–73 Wells, Tom, 52 White, Byron, 84–85, 88 Wiggins v. Smith, 49(n14), 108 Wilkins, Marilyn, 88–91 Witherspoon v. Illinois, 111 Witnesses. See Eyewitness evidence Women, self defense and, 103–105 Woodson v. North Carolina, 81 The Wrong Guys (Wells and Leo), 52

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About the Book

What acts truly deserve the death penalty? And how equitably do we apply this ultimate punishment? Cathleen Burnett explores wrongful capital sentencing to offer a sober yet searing critique of the criminal justice procedures and legal criteria involved. Highlighting problems such as the elicitation of false confessions, prosecutors who choose to ignore mitigating factors, and Supreme Court decisions that limit appeals, Burnett shows why those accused of capital crimes frequently fail to receive a fair hearing. Her rigorous and measured analysis underscores the crucial importance of the presumption of innocence in our society’s pursuit of justice. Cathleen Burnett is associate professor of criminal justice and

criminology at the University of Missouri–Kansas City. She is author of Justice Denied: Clemency Appeals in Death Penalty Cases.

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