The Failures of Capital Punishment

In a revealing interview with the Associated Press, retiring Florida Supreme Court Justice Gerald Kogan admitted that, in "two or three " capital crimes cases, he wasn't convinced of the guilt of the person who was executed. Kogan went so far as to state, "There are several cases where I had grave doubts as to the guilt of a particular person (and) other cases where I just felt they were treated unfairly in the system.

As a prosecutor in Miami, Kogan often asked juries to recommend the death penalty in cases of capital crimes. In his estimate, he has visited some 1200 crime scenes where murders had taken place and worked with the families of the victims in hopes of attaining convictions which would lead to the execution of the guilty party(s).

Nevertheless, when questioned about Kogan's statements and whether he believes that an innocent person may have at some time been executed, Rep. Victor Crist (R-Temple Terrace), chairman of the House Criminal Justice and Corrections Council flatly stated, "No." Crist, as a Republican, naturally ignores the fact that 53 people have been released from death row in the last ten years solely on the basis of DNA evidence showing their obvious innocence. Many more have been determined to be innocent only after their lives were taken by the justice system.

Justice Kogan relies on only one argument that, in his opinion, is far more compelling than any other made, pro or con, "To me, the only valid reason...and the one that really rings true is the possibility of making a mistake and executing an innocent person. To take the life of an innocent person is indeed the most tragic thing that we can do." (1)

Let's look at just a few of the many instances where individuals convicted of capital crimes were either later found to be innocent or, as has been the case in an estimated 1% of all executions since 1900, those who were innocent but executed, anyway.

Since the passage of a group of laws by the Republican Congress in 1996 that were directly aimed at curtailing the appeals process in capital crimes so that the process could become less expensive and that the individuals on Death Row could be executed in far less time, a number of executions have taken place even where the actual guilt of the accused was in question both before and after the execution.

One such case was of Roy Roberts who was executed recently by the state of Missouri, the same state which granted clemency (from the death penalty to a life sentence without possibility of parole) to Albert Mease, a convict who openly admitted in court that he was guilty, but was spared by Gov. Mel Carnahan, a very, very pro-death Democratic politician, at the request of Pope John Paul II during his visit there.

Roberts had a criminal past, on that point there is no argument. He served time for stealing CB radios and was serving time for the holdup of a restaurant in 1979. During the second period of incarceration, he earned two degrees (in what areas I have not been able to discover) and was considered by most to be a good prisoner who never presented a problem for his jailers. Sadly, in 1983 he took part in a violent, drunken prison riot that resulted in the stabbing death of a prison guard.

Roberts was convicted of holding the guard down while two others stabbed the guard to death. The two who did the actual stabbing are both still alive, one having received a life sentence and the other awaiting a new trial. The two who stabbed the guard were covered in blood but Robert's uniform was clean and he was never proven to have had any weapon.

Nevertheless, he was convicted on what is known in the legal profession as "evolving" testimony, testimony that changes between when the first interview takes place and the time that it is given in evidence at trial.

In the 17 page report issued after the riot by the Missouri Department of Corrections no mention was made whatsoever about "Hog" Roberts who, weighing 337 pounds at the time of the riot, stood out like a "red rose in the Sahara Desert", according to the report of one guard. In fact, in a number of later reports and interviews, including of one guard placed under hypnosis (a procedure whose results are never allowed as evidence in court), Roberts was never mentioned nor later picked out of a line-up. In fact, video evidence showed Roberts in a fist fight with another guard on the other side of the room at the time of the stabbing.

By the time of the trial, however, a guard with a known dislike of Roberts, Correctional Officer Denver Halley, suddenly fingered him as one of the participants in the stabbing, even though he had not included any such account in the reports and interviews the guard had written and participated in since the riot. Other guards and even an inmate who was suspected of being one of the stabbers also suddenly found their memories clearer and pointed to Roberts as being the third party in the murder.

As just another illogical twist in the tale, even the crime for which Roberts was imprisoned in the first place proved to be a case of innocence punished when another man confessed to being the person who committed the restaurant robber. Sadly, the confession came too late for Roberts because he was now being tried for the murder of the guard.

The points never fully addressed either during the investigation of the incident nor at the trial nor, sadly, during the appeals process which ended in the execution of Roy Roberts still stand out. First, if the video showed Roberts fighting with another guard on the other side of the room, how could he have simultaneously been holding down the guard while the guard was being stabbed. Next, why didn't Halley identify Roberts as a participant during the first two interviews and the line-up and why did he suddenly become "certain" of Robert's guilt only in court? Finally, why wasn't the polygraph test that Roberts took and passed without any difficulty prior to his execution spoken of during any of the appeals?

Tragically, there is some evidence that Gov. Carnahan denied clemency to Roberts for no reason other than the fact that Carnahan is running for the Senate against another pro-death politician, John Ashcroft, and that Carnahan didn't want to appear soft on crime by granting clemency twice in the same year. (2)

Even though Roberts admitted that he blamed himself for "missed opportunities", the fact remains that he was serving time for a crime he did not commit and, during that sentence, was convicted of a second crime that the evidence suggests he did not commit and was executed for that final disaster. Roberts, of course, is only one of the many people murdered by the states in the name of "being hard on crime", a conservative motto that makes as little sense and results in as little progress as Nancy Reagan's ridiculous "Just Say No!" advice. According to the Death Penalty Information Center, (3)at least 77 people assigned to Death Row have either been found innocent of the charges and released or found innocent of the capital crime charges but remain incarcerated for other, lessor crimes. A report by Professors Hugo Bedau and Michael Radelet cites 23 instances where innocent people have been executed since 1900. (4)

Among the many cases of the innocent wrongly forced to give up their lives to satisfy the bloodlust of the conservative movement and, strangely, the Religious Right (who should know better if they have ever taken the time to check the "Judge not lest ye be judged" and "Vengeance is mine sayeth the Lord" parts of their Bibles) are the following small sample.

Roger Keith Coleman was convicted in 1982 of the rape and murder of his sister-in-law. Even though both his trial and appeal were plagued with numerous errors made by his attorneys, the U.S. Supreme Court refused to consider the merits of his petition for appeal for the lone reason that his state appeal had been filed one day late. He was executed in 1992, his guilt still in question. David Spence was charged with the murder of two teenagers and convicted of the crime in 1983. After an investigation into the crime by NY Times columnist Bob Herbert, he concluded "Mr. Spence was almost certainly innocent". Marvin Horton, the police lieutenant in charge of the original investigation stated flatly, "I do not think David Spence committed this crime". And, finally, even Ramon Salinas, the homicide detective who investigated the crime concluded, "My opinion is that David Spence was innocent. Nothing from the investigation ever led us to any evidence that he was involved". In fact, the entire case against Spence relied mainly on the testimony of prison inmates who received generous favors in exchange for their testimony. David Spence was executed in 1997.

Leo Jones was convicted of the murder of a police officer in Jacksonville, Florida in 1981. He signed the confession, which he later recanted, only after many hours of grueling interrogation by two officers who were, in the mid-1980's, forced out of law enforcement for "ethics violations." One of the two was later described by another officer as an "enforcer" and, even though many witnesses came forward accusing a different person of being the real murderer, Leo Jones was executed in 1998.

Finally, Joseph O'Dell was convicted of the crimes of murder and rape. Even though there was little to connect O'Dell to the crime and even though DNA tests cast further doubt on his guilt and even after three Supreme Court Justices reviewed his case and stated that they had "doubts" about his guilt, the 4th Circuit of the U.S. Court of Appeals reinstated his death penalty and refused to review his claims of innocence. It also held that that its decision to require judges to inform the jury in death penalty cases that they had the right to choose life imprisonment over the death penalty wasn't retroactive to his trial. When both state and federal courts refused to hear new evidence concerning the DNA tests and refused his attorneys access to blood evidence from the crime scene, he was executed on July 23, 1997.

Gentle Readers, the death penalty is a disaster constantly waiting to inflict itself on those in our society least able to afford the very best justice available. Those who cannot afford to hire their own legal representation must make do with court appointed attorneys who, in many instances, are just out of college or who are basically incapable of lending any level of skill to the process of representing the accused. Furthermore, the punishment is used against the African-American community far more often that against Caucasians.

In Philadelphia alone, in 16 first-degree murder cases handled by Assistant District Attorney Jack McMahon, he removed black jurors 4 times as often as jurors of other races, black women were removed six times as often as non-African-Americans, and, overall in the Philadelphia prosecutor's office, prosecutors removed 52% of all African-American jurors but only 23% of all others.

In Alabama, a district attorney had a policy of using preemptory challenges to strike as many African-American jurors as possible from death penalty cases.

Finally, in the famed Chattahoochee case in Georgia, prosecutors used 83% of their preemptory strikes against blacks, leaving six black defendants to be tried by an all-white jury.

Once again, the arguments surrounding the debate on Capital Punishment, as moot as it is, is being allowed to be formed by the far right. Instead of acknowledging the many, many cases of injustice and outright murder by our horribly flawed justice system, the words of Matthew D. Bartlett, the Corporate Vice-President of the Students for a Better America, sums it up best, "A battle rages between Americans who are fighting for a safe and just world and those who want to abolish the death penalty weakening our already struggling legal system".

Ignoring the fact that the group is incorporated and ignoring the fact that any conservative group that includes the words a "Better America" usually means a more fascist America, the debate has been forced into one where the "good guys" want to kill 'em all and let God sort it out and the bleeding heart liberal "bad guys" want to weaken "our already struggling legal system".

Personally, I leave the argument against the death penalty to far more intelligent and far less hateful individuals than Mr. Bartlett.

"The mood and temper of the public in regard to crime and criminals is one of the most unfailing tests of the civilization of any country".

Winston Churchill

"Capital punishment is society's final assertion that it will not forgive".

Dr. Martin Luther King, Jr.

And last, but most eloquently, "I shall ask for the abolition of the death penalty until I have the infallibility of human judgment demonstrated for me."

Marquis de Lafayette.

If you would like to take a short quiz to test your knowledge of death penalty issues, then hie thee to: the quiz . Having read this will help but, even so, there is far information needed to be placed before the public than one article can convey.

I haven't had my final say on this issue, gentle readers. I am constantly finding more and more information and it all points to the fact that the only people who seem to support the state sponsored murder of Americans also seem to be the ones ranting on about being "Pro-Life" and who will support any military action instigated by a conservative president.

I have the sad pleasure of working with a fellow who had the audacity to state that he would gladly sacrifice his wife and children in a case where they were wrongly convicted of a capital crime so long as real murderers were being put to death as well. I asked if he had either omitted himself from that offering to the altar of unwarranted murders for any special reason but received no answer but a hard, dirty stare. I received the same "answer" when I inquired as to whether or not he had ever discussed this magnificent gesture with any of the other involved parties. Apparently, sending others off to their "final rewards" is an easy alternative but going onesself takes much more courage in one's convictions.

And to think, this is the type of person who is most likely to vote. Sigh!

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Copyright 4/19/99