The Death Penalty and Verifiability

Tuesday, June 27, 2006

The Death Penalty and Verifiability

Yesterday, the SCOTUS ruled in a 5-4 decision to uphold a Kansas law that tends to encourage jurors to render the death penalty. In this case (Kansas v. Marsh), Justice Antonin Scalia wrote an opinion in which he declared:
Those ideologically driven to ferret out and proclaim a mistaken modern execution have not a single verifiable case to point to ...
Scalia's statement may be technically accurate, although this depends on how one defines the term "verifiable." It could be argued that the mere fact that a jury finds a defendant guilty is not, in and of itself, verifiable proof of the defendant's guilt.

The "beyond a reasonable doubt" standard is surely not the same as "verifiable." This is simply the standard our society has established for determining guilt in criminal law cases.

Although there may be no "verifiable" proof that America has executed an innocent person, Scalia's argument ignores the fact that we know of numerous death-row inmates who have come within weeks, days or even hours of being executed for crimes they did not commit.

Ironically, on the same day that Scalia's opinion was released, this article in the Chicago Tribune examined a Texas case in which a man executed in 1989 may well have been innocent of the murder for which he was convicted.

As is often so in these cases, there is no "verifiable" proof of his innocence. But there are serious reasons to question his conviction -- and, unfortunately, no chance to correct what may have been a horrible miscarriage of justice.

Tribune reporters Steve Mills and Maurice Possley write:
By the time jurors sat down to decide the fate of Carlos De Luna, there was little to debate.

Though no physical evidence linked him to the fatal stabbing of gas station clerk Wanda Lopez, two eyewitnesses did. One said he observed De Luna outside the station with a knife; the other said he saw him leaving the blood-spattered scene.

... Finally, jurors rejected De Luna's testimony that another man, Carlos Hernandez, was the real killer. The lead prosecutor scoffed at De Luna's assertion, calling Hernandez a "phantom." But the jurors who found De Luna guilty and then sentenced him to death in July 1983, five months after his arrest, didn't hear the whole truth.

Hernandez did exist. Not only was he well-known to police in this Gulf Coast city as a violent felon, but the co-prosecutor at De Luna's trial and the lead detective in the case knew Hernandez too. Four years earlier, they confronted him when he emerged as a leading suspect in a case they handled together -- the murder of another Corpus Christi woman.

Jurors heard none of that information. The prosecutor sat silently as his colleague branded Hernandez a figment of De Luna's imagination.

Yet a Tribune investigation shows that the circumstances of Lopez's murder eerily echo the details of Hernandez's lengthy rap sheet -- gas station robberies, knife attacks and several assaults on women.
The use of DNA samples may come as close as anything to providing "verifiable" evidence of a person's guilt or innocence. Unfortunately, De Luna was executed at a time (1989) when DNA testing was not widely used to confirm a person's guilt or innocence. Anyway, The Tribune article is long, but well worth reading.

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