The New York Times 12.06.2000
DEATH SENTENCES BEING OVERTURNED IN 2 OF 3 APPEALS
By FOX BUTTERFIELD
The most far-reaching study of the death penalty in the United States has found that two out of three convictions were overturned on appeal, mostly because of serious errors by incompetent defense lawyers or overzealous police officers and prosecutors who withheld evidence.
The study, an examination of appeals in all capital cases from the time the Supreme Court reinstated the death penalty, in 1973, to 1995, also found that 75 percent of the people whose death sentences were set aside were later given lesser sentences after retrials, in plea bargains or by order of a judge. An additional 7 percent were found not guilty on retrial. Eighteen percent were given the death penalty on retrial, but many of these had their convictions overturned again in the appeals process.
The study, to be released today, is based on a search of state and federal court records. It was conducted by a team of lawyers and criminologists at Columbia University led by James S. Liebman, a professor of law who has served as a defense lawyer in a number of death penalty trials and appeals.
The report is likely to intensify an already gathering debate about the death penalty, which has been provoked by the release of some death row inmates after new DNA technology helped exonerate them. Concerns about the death penalty were heightened by the decision in March by Gov. George Ryan of Illinois, a Republican, to declare a moratorium on executions in his state after 13 men on death row there were cleared by new evidence. While some death penalty supporters have argued that Illinois is an aberration and produces less reliable death sentences than other states, the Columbia study found that the rate of serious error detected by court reviews in Illinois capital cases was 66 percent, slightly below the national average of 68 percent.
Support for the death penalty is overwhelming, but recent Gallup polls have shown it slipping, from a peak of 80 percent in 1994, to 66 percent, its lowest point since 1978, when it was 62 percent. Even many death penalty supporters have expressed serious concerns about its fairness. Last month, the historically conservative New Hampshire Legislature voted to abolish the death penalty, though the bill was vetoed by the state´s Democratic governor, Jeanne Shaheen. The debate has even made a surprise entrance into the presidential race, where Gov. George W. Bush of Texas, the presumptive Republican presidential nominee who has been an outspoken supporter of the penalty, postponed the execution of a convicted killer earlier this month to allow DNA testing. It was the first stay Mr. Bush had granted, after presiding over 131 executions, the most of any governor since the death penalty was reinstated.
A spokesman for Governor Bush, Ari Fleischer, said that «Some people will use this study to call for the abolition of the death penalty.» But, Mr. Fleischer said, the finding of so many errors in the appeals process «shows that there is an extra level of vigilance and caution in death penalty cases, appropriately so.»
As for the study´s finding that of the death row inmates whose sentences were set aside on appeal 75 percent were later given lesser sentences and 7 percent were found not guilty, Mr. Fleischer said, «This shows that 93 percent are still found guilty» of some crime. «It´s not an error about their innocence. It´s just a question of the appropriate punishment,» he said.
The study had its origin in a request in 1991 by Senator Joseph F. Biden Jr., Democrat of Delaware, then chairman of the Senate Judiciary Committee, to Professor Liebman to calculate the frequency with which federal judges found errors in appeals of death penalty cases and then set aside the sentence.
The high national rate of serious errors leading to verdicts being set aside in the cases stands in sharp contrast to the error rate found in appeals in other criminal cases, which is estimated to be below 10 percent, several legal experts said.
The rate of error found in appeals in death penalty cases ranged from 100 percent in three states — Kentucky, Maryland and Tennessee — and 91 percent in Mississippi, to 18 percent in Virginia, by far the lowest of any of the 34 states with the death penalty, raising questions about whether Virginia´s court system is unusually fair or works to make it hard to detect errors.
In fact, 24 of the 26 states with the death penalty where there have been fully completed appeals had an error rate of 52 percent or higher, the report said.
The report also shows that there is little, if any, relationship between the number of death sentences or executions in a state and its homicide rate or population.
Instead, said Franklin Zimring, director of the Earl Warren Legal Institute at the University of California at Berkeley, «This study tells us that the enormous inconsistencies, the justice by geography and the sheer luck nature of the death penalty system» that the Supreme Court criticized when it invalidated death penalty laws in 1972 remains true today. In that decision, Justice Potter Stewart suggested that the administration of the death penalty was so capricious that the chances of receiving it were like being hit by lightning.
In 1973, the court began to uphold rewritten death penalty laws that addressed its concerns.
Beth Wilkinson, a former assistant United States attorney who won a death penalty conviction against Timothy McVeigh for the Oklahoma City bombing, said the report provided important data to help sort out the issues in the debate over the death penalty. «Up to now, the debate has been heavily ideological; this gives us some data,» said Ms. Wilkinson, a lawyer with Latham & Watkins in Washington who is a member of the National Committee to
Prevent Wrongful Executions.
She said it had long been known that there was a high error rate in death penalty cases. «But what was really shocking to me,» she said, «was that 82 percent of the cases that are sent back after review receive some lesser
penalty.»
Professor Liebman, the main author of the study, acknowledged that some death penalty advocates might seize on the 68 percent rate of serious errors to say that this proves the system works, that mistakes are caught and innocent people are not put to death. But he said the fact that «there are so many mistakes,» and that it takes an average of nine years to complete the review process, «raises grave doubts whether we do catch all the mistakes.»
In fact, one of the 13 cases that led Governor Ryan to suspend executions in Illinois, that of Anthony Porter, went through the entire review process without any error being detected, said Lawrence C. Marshall, a professor of law at Northwestern University and director of its Center on Wrongful Convictions. Mr. Porter came within 48 hours of execution, only to win a stay from a state court because of a psychologist´s test showing he had an I.Q. of only 50, raising doubts whether he was mentally competent. After the stay, journalism students at Northwestern, under the direction of a journalism professor, David Protess, found evidence to exonerate Mr. Porter and lead to the conviction of another man. «To me, this is compelling evidence that the appeals process still does not screen out all the innocent people,» Professor Marshall said, «and that the number of people who ought to be taken out of the death penalty pool is far higher than the 68 percent in the study.» For example, if a defense lawyer was truly incompetent, he said, the lawyer might never do the work necessary so that legal and factual issues could be raised later on appeal.
The number of errors, and the number that go undetected, may have risen since the study was completed, Professor Liebman said, because since the mid-1990´s several states and Congress have curbed appeals by death row inmates and sped th
e execution process. A 1996 federal law, signed by President Clinton, put a one-year limit on the time death row inmates have to appeal to federal courts after exhausting their appeals in state courts. And a number of states have shut down special public defender units that formerly helped death row inmates with their appeals.
From the reinstatement of the death penalty in 1973 to the end of 1995, there were a total of 5,760 death penalty convictions, of which 4,578 were appealed. The study looked at all three possible stages of appeal — direct appeal to a state´s highest court, what is known as post-conviction review, usually by the original trial judge, and habeas corpus review, under which convictions in state courts are reviewed for error in federal courts. (The study did not include New York, New Jersey and Connecticut, states in which either no cases have been appealed or no appeals have gone through the full three-stage process.)
Although state court judges, many of whom are elected, are usually thought to be less likely to find in favor of a convicted killer on appeal than federal judges, the report found that 46 percent of all death penalty cases in which error was found were in state courts. Federal judges reversed 40 percent of the capital cases that survived and were appealed to them.
In cases where no error was found, it took an average of nine years from the time of sentencing to execution, the report found. As a result, the study reported, only 5 percent of all people who had been given the death penalty
since 1973 had been executed.
The authors of the report said their findings confirmed a complaint by supporters of the death penalty who say the appeals process takes a long time. But, the authors said, «Judicial review takes so long precisely because American capital sentences are so persistently and systematically fraught with error.» It takes years of review to catch the mistakes, they said.
As for the cause of so many errors in death penalty cases, the study found that 37 percent were the result of incompetent defense attorneys, who are often poorly paid or inexperienced in capital trials. An additional 19
percent of the errors were caused by misconduct by the police or prosecutors in suppressing evidence that would have helped the defendant. In addition, 5 percent of the errors were the result of bias by the judge or jury, such as a judge telling the news media what he thought about the defendant during the trial. A further 20 percent were errors caused by faulty instructions given to juries by the judge. And the remaining 19 percent were in a miscellaneous category that included coerced confessions, prosecutors keeping African-Americans off the jury when a black defendant was on trial or the police planting informers in jails to listen to conversations between defendants and their lawyers.
«These are not the kind of technicalities people complain about helping a defendant,» Professor Liebman said. Indeed, some of them amount to overzealous law enforcement railroading suspects, he said. A major factor, Professor Liebman and other lawyers, judges and prosecutors said, is that in capital cases there is no plea bargaining. In other felony indictments, 90 percent of the defendants end up pleading guilty, often in exchange for a reduced sentence, a process that leads to conversations between the prosecutor and the defense attorney and a less adversarial
situation.
But in murder cases, particularly those that have received a lot of publicity and the prosecutor decides to go for a death sentence, there is intense public interest, creating enormous pressure to win and leaving little room for the kind of plea bargaining in other criminal cases. «In death penalty cases, the prosecutor feels pressure,» said William Broadhus, a former attorney general of Virginia who tried death penalty cases and is now in private practice. «So maybe you press harder than the situation warrants.»
And juries in death penalty cases often feel a rush to convict, Mr. Broadhus said, as they sit in the courtroom looking at pictures of the dead person and see the victim´s family members in court. The report also finds that there is no apparent reduction in homicide in states with the death penalty. For the nation as a whole, in the period from
1973 to 1995, the murder rate was 9 per 100,000. But in the states with the death penalty, it was 9.3 per 100,000.
In addition, the report found huge variations among the states with the death penalty in the rates at which the penalty is handed out and in the rates of executions. The variations seemed to have no relation to the states´ population or number of slayings.
In Wyoming, for example, almost 6 percent of all homicides result in a death sentence, more than four times the national average among states with the death penalty, while in Maryland less than six-tenths of 1 percent of
homicides result in the death penalty.
Three states that have a high number of executions — Texas, Virginia and Louisiana — rank fourth, second and seventh in executions per homicide. But Texas is only 18th in death sentences per homicide, Virginia is 22nd and Louisiana is 25th. In other words, the report concluded, these states convert death sentences into executions more swiftly and in larger number than other states.
