The Execution of Innocence

Even if you can prove you're innocent, you can still be executed under US law

by Michael B. Ross, Free Press contributor

"The recent developments of reliable scientific evidentiary methods has made it possible to establish conclusively that a disturbing number of persons who had been sentenced to death were actually innocent."

--US Supreme Court Justice John Paul Stevens, during his opening assemble address at the 1996 American Bar Association annual meeting

Generally, Americans know very little about who is executed and why. And they are blissfully unaware of the potential dangers of executing and innocent person.

Our judicial system relies on a burden of proof called "beyond a reasonable doubt," which is intended to protect the innocent. But it is not foolproof. As the late US Supreme Court Justice Thurgood Marshall once wrote: "No matter how careful courts are, the possibility of perjured testimony, mistaken honest testimony and human error remain too real. We have no way of judging how many innocent persons have been executed, but we can be certain that there were some."

No issue posed by capital punishment disturbs the public more than the possible execution of an innocent person. A recent nationwide poll found that fifty-eight percent of Americans are disturbed by the fact that the death penalty might result in the execution of someone who is actually innocent.

The most conclusive evidence that innocent persons have been condemned to death comes from examining the large number of people who were sentenced to death and later were lucky enough to be able to prove their innocence and gain release from death row.

Consider the case of Walter McMillian. He was released from Alabama's death row after having spent six years there because of perjured testimony and despite evidence that pointed to his innocence. He was convicted of the shooting death of a storekeeper. On the day of the murder he was at a fish fry with his friends and relatives, many of whom testified to this at his trial. No physical evidence linked him to the crime, but three people who testified at his trial connected him to the murder. All three witnesses received favors from the state for their incriminating testimony.

Only sheer luck saved McMillian. After listening to a tape recording of a key witness's testimony against McMillian, a volunteer apellate lawyer flipped the tape to see if there was anything on the other side. Only then did he hear the same witness complaining that he was being pressured to frame McMillian. With that fortuitous break, the whole case against McMillian began to fall apart. Every element of the prosecution's case has now been discredited. In 1993, McMillian was finally freed.

Cases involving innocent people condemned to death are not all that hard to find and are not as rare as the public might imagine. An article printed in the Stanford Law Review in November 1987 reports of an extensive nationwide study that found 349 cases of wrongfully convicted individuals sentenced to death. And the recently published book, In Spite of Innocence (Northeastern University Press), expands on the Stanford study and found that since 1900 there have been 416 documented cases of innocent Americans who have been convicted of potentially capital cases.

Unfortunately, once an innocent person has been convicted and sentenced to death, chances of enventual exoneration are poor. After the trial, the presumption of guilt shifts in favor of the state. Now the burden falls on the defendant to prove innocence. And it is no longer enough to raise a reasonable doubt. To overturn a conviction, the defendant must produce a "clear and convincing" proof. And this new evidence often must be presented within a limited time. Seventeen states limit the time to present new evidence to 60 days after conviction. Eighteen other states have limits that range from one to three years. And they strictly adhere to that rule.

Leonel Herrera was convicted and sentenced to death for the 1982 murders of two police officers. Some years after his conviction, an attorney who had represented Herrera's brother came forward with evidence that Herrera's brother Raul, who had died in 1984, had confessed to the murders. In addition, Raul's son, who was nine years old at the time of the killings, gave a sworn statement that he was an eyewitness to the crime and saw Raul commit the murders. However, because Texas law requires that any new evidence must be presented within 30 days of the conviction, Leonel Herrera's motion for a new trial was denied. The US Supreme Court upheld Texas' decision by ruling that Herrera's claim of "actual innocence" was in itself not a constitutional claim, stating that the Constitution does not forbid the execution of an innocent man so long as that man had a fair trial at the time of his conviction. Justice Harry Blackmunn attacked what he saw as an outrageous and ominous decision by the court, declaring in his dissenting opinion that "the execution of a person who can show that he is innocent comes perilously close to simple murder." Leonel Herrera was executed on May 12, 1993.

We have no way of knowing how many innocent people have been executed or how many currently remain on death row. We do know that since 1970, over 72 people have been released from death row after being erroneously sentenced to death.

For the sake of argument, let's assume that there are some individuals who, in some sense, "deserve" to be executed. The real question that should be asked is: Do we really need the death penalty? As long as capital punishment remains a part of our penal system, innocent persons will continue to be executed. It is inevitable.

There are suitable alternatives. Those who favor the abolition of capital punishment do not advocate releasing convicted murderers into society. The choice is not between the death penalty and unconditional release, but between the death penalty and meaningful long-term sentences. Life with no parole, or natural life sentences, meet the necessary requirements for protection of society. Granted, some innocent people will still be wrongfully sentenced, but since they remain alive, there remains the hope of someday proving their innocence. Once an innocent person is executed, no one can correct that mistake.

What can you do? You can get involved, for no justice is done if everyone leaves the work of justice to everyone else. For a list of abolitionist organizations near you, send $3 for The Abolitionist's Directory, The National Coalition to Abolish the Death Penalty, 1436 U-Street NW, #104, Washington DC 20009

Author's note: Michael B. Ross is a condemned man on Connecticut's death row. He has been on death row since June of 1987. He is currently under a stay of execution pending the resolution of the appeals process. He expects to be executed shortly after the new millenium.