The American death penalty has a big innocence problem, and it is not going away. The events of last week show why.
On Wednesday, Missouri planned to execute Marcellus Williams. The problem was that he may be innocent. Governor Eric Greitens wisely put that execution on hold while a panel investigates further. On Thursday, Florida did execute Mark Asay. We may never fully know whether he actually deserved the death penalty.
In the Williams case, although the courts said that the execution could go forward, the courts disregarded new DNA tests that show Williams’ DNA was not on the weapon that killed Lisha Gayle at her home in 1998. The DNA of another unidentified man was on the weapon. The victim was stabbed 43 times, and it stands to reason that the male DNA on the weapon is that of the actual culprit.
The state of Missouri said that the other evidence in the case is still strong. Yet that evidence consisted of the testimony of informants, both drug addicts, who received financial incentives to testify against him. The footprint at the crime scene and the hair samples from the crime scene do not match Williams either.
To be sure, Williams had a number of items belonging to the victim and sold a laptop belonging to the victim’s husband. That is strong circumstantial evidence. Then again, those items were found by one of the cooperating informants, Williams’ girlfriend at the time. The case was built around the informants. Both had hoped to get a $10,000 reward.
The jury that convicted Williams never heard about the DNA evidence, and it is hard to imagine that if he was tried today that he would get a death sentence, given the new doubts about guilt. That DNA evidence has never been presented in court.
Compare the Asay case. He fully admitted that he shot one of the victims, but in a fight over money, and not the type of murder that would likely qualify as so egregious that it deserves the ultimate punishment. The evidence that put his case in the category of a death penalty case was testimony that he uttered a racial epithet when killing the victim and had white supremacist motives. However, he denies ever having such views, and that evidence came from the same type of unreliable source as in the Williams case: a jailhouse informant.
It may surprise many people that such unreliable evidence is still used even in the most serious death penalty cases. Today, there is much more awareness about wrongful convictions, including those due to false informant testimony. Polls show that more people are concerned about wrongful convictions and executions. Twenty people have been exonerated from death row based on DNA testing. Most of those individuals had allegedly made confessions, which we now know to be false, to police or to jailhouse informants.
Yet, that awareness has not stopped states from trying to execute people whose convictions are based on such flimsy evidence. Indeed, the more death sentences in a state, the more death row exonerations, as I describe in my new book, “End of Its Rope [hup.harvard.edu].” Florida, where Asay was just executed, leads the country in exonerations [deathpenaltyinfo.org] in death penalty cases.
Today, death sentences and executions are fading fast and one might think that we could limit the death penalty to the cases where we are sure that the person actually did it, with “it” being a murder serious enough to warrant the death penalty. Only 20 people were executed in 2016 and only 31 people were sentenced to death. Yet serious claims of innocence and unreliable evidence persist.
The evidence in death penalty cases is not always very strong. After all, in many murders, there are no surviving witnesses. Unfortunately, as a result, police sometimes cut corners to try to solve high-profile homicides, by relying on unreliable jailhouse informants or by coercing confessions from mentally ill individuals.
Source: The Washington Post, Brandon Garret, August 28, 2017. Brandon Garrett, a professor at the University of Virginia School of Law, is the author of the forthcoming book, “End of Its Rope: How Killing the Death Penalty Can Revive Criminal Justice.” Here are his thoughts on the developments of last week.
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"One is absolutely sickened, not by the crimes that the wicked have committed, but by the punishments that the good have inflicted." -- Oscar Wilde
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