Death Row Sweepstakes: Counting Up Capital Mistakes

Actual Innocence: Five Days to Execution, and Other Dispatches From the Wrongly Convicted , by Barry Scheck, Peter Neufeld and Jim Dwyer. Doubleday, 298 pages, $24.95.

Opinion polls reveal a great American contradiction: On the one hand, Americans show widespread disdain for lawyers, politicians and the press; on the other hand, they wholeheartedly support the death penalty. Somehow Americans leap that chasm of contempt for all the main players in the criminal justice system and land gung-ho for the system’s most consequential action: making sure the convicted defendant in capital cases is strapped onto the gurney for lethal injection. Call it a leap of faith–but one with horrifying results, as is quickly made clear in Actual Innocence , a disturbingly effective book by O.J. Dream Team lawyers Barry Scheck and Peter Neufeld and New York journalist Jim Dwyer.

Mr. Scheck and Mr. Neufeld are New York City criminal-defense lawyers who early on seized upon DNA fingerprinting technology. From the start, they understood its potential: In the largely inexact world of the criminal courtroom, comparing the most basic element of human life could offer at last scientific proof of guilt or innocence. DNA extracted from human particles left behind at a crime scene–blood, bits of skin, semen–could be analyzed and compared to suspects, so prosecutors could know before the fact and, if necessary, jurors could know before it was too late that the system had indeed seized the right suspect. This practice, now largely woven into the investigative process, especially in New York, is all well and good for those facing charges. But what about those who have already been convicted?

For the condemned, there is Mr. Scheck, Mr. Neufeld, the crusading Mr. Dwyer (full disclosure: a former colleague)–and, until recently, all too few other lawyers, prosecutors and investigators. Mr. Scheck and Mr. Neufeld, with the aid of Mr. Scheck’s students at the Benjamin N. Cardozo School of Law in Manhattan, have been running something called the Innocence Project, a last-chance source of legal aid for those rotting away in the nation’s prisons knowing they are not guilty of the crimes for which they have been convicted. The project has not lacked for clients.

By the time Actual Innocence was completed last summer, some 6,000 people had been sent to death row since 1976, when the death penalty was reinstated. Some 550 had been executed. Eighty others had been cleared through DNA testing and other means–meaning for every seven executed, one was freed. Of the first 18,000 DNA tests done at the F.B.I. and other crime laboratories, at least 5,000 suspects were excluded before trial–a one-in-four failure rate for investigators.

Saved from the gurney was Ron Williamson, who was convicted on the testimony of a jailhouse snitch of raping, sodomizing and murdering a young woman in Ada, Okla. Mr. Williamson, a broken-down piece of man who had once played professional baseball and degenerated into mental illness and drug and alcohol abuse, spent a dozen years on death row until DNA testing exonerated him. At one point, five days from execution, he stood in his cell on death row, clutching the bars, yelling, ” I’m innocent! I’m innocent! I’m innocent! “–”yelling it over and over until he had no voice left to yell with,” the authors add. One of the key prosecution witnesses later was found to be the real murderer.

Others were sentenced to another kind of hell: endless days, months, years in prison. Since DNA testing has been most effective in sex crime cases–for the innocent, the semen left behind is a virtual get-out-of-jail card, if the authorities consent to have it tested–many of the tortured souls in Actual Innocence experienced the added prison pleasures that come from being labeled “sex offenders.” Tim Durham had at least 11 eyewitnesses who could vouch for him in Dallas on the day he allegedly raped a little girl in Tulsa, Okla. Yet he had had a troubled past, matched the description of the child’s attacker and was a victim of flawed forensics that linked him to hairs found at the crime scene. Surely he cursed his fate the night he was pulled from his jail bed “and kicked until his ribs were broken, a punishment administered to him by other inmates for molesting a child. As he lay on the ground, cowering, he could hardly begin to explain that he, too, was a victim, of a court system unwilling to scrutinize any evidence coated with a veneer of ‘science.’”

Each chapter of Actual Innocence includes a case study or two that dramatically illustrates the many ways justice can be ill served in a courtroom: mistaken identification, false confessions, jailhouse snitches and informants, junk science, politically driven prosecutors, sleeping lawyers, forensic fraud, racial prejudice. At times, the cases blend into one another; it all seems repetitive: All right, already, we get it .

But do we? On Jan. 31, the State of Illinois, which wrongfully convicted at least a dozen defendants sentenced to death, imposed a moratorium on executions. At least five other states are considering similar or more permanent actions. Yet this is a sadly recent phenomenon. Last spring, driven by Mr. Dwyer’s powerful columns in the Daily News and similar reporting by Bob Herbert in The New York Times , I gave my teenage daughter an assignment: Westchester Country District Attorney Jeanine Pirro (she of the notorious philandering, tax-challenged husband) was to hold a press conference at my daughter’s school. “Ask her,” I said, “how she can justify her support for the death penalty.” At that point, 64 persons on death row had been freed after being found innocent of the crimes for which they had been convicted.

My daughter did my bidding–and, based on accounts in the local newspaper the next day and other firsthand reports, took quite a tongue lashing for it. Basically, Ms. Pirro said she would not run from making sure the scum of the earth was swept from the streets.

But that’s not the point, is it? Ah, how far we have come from the days when prosecutors and defense attorneys alike could agree with this legal maxim: “It is better that 99 … offenders shall escape than that one innocent man shall be condemned.” Contrast with the wisdom of former U.S. Attorney General Edwin Meese in 1986: “The thing is, you don’t have many suspects who are innocent of a crime. That’s contradictory. If a person is innocent of crime, then he is not a suspect.”

It’s obvious what drives our zeal to kill. Crime. Fear. And the criminal acts recounted in this book, told well, with neither embellishment nor any attempt to play down the impact on the victims, will make you want to draw your children a bit closer, give your partner an extra hug, take a second glance over your shoulder on the walk to the subway.

But isn’t it downright un-American to react out of fear? To set public policy on the basis of collective terror? We can understand district attorneys and other politicians: Avoiding voter rejection is the motivating principle in politics today. But the rest of us: Will we tolerate prosecutors who refuse to open flawed cases, judges who push to trial tainted evidence and appeals courts that turn a blind eye to attempts to right possible wrongs–all because we’re frightened by crime?

Obviously, I greatly admire this book (I think it should be mandatory reading for all law students, judges, prosecutors and legislators), and one reason is that the authors make useful suggestions for systemic change. Interestingly, those suggestions do not include abolishing the death penalty. Rather, they are suggestions that will allow society to put away the bad guys among us while protecting the truly innocent. The authors’ ideas are sprinkled throughout the chapters, then reprised in an appendix that smart local legislators should photocopy and turn into bills. Republican, Democrat, it shouldn’t matter. In fact, Actual Innocence is decidedly nonpartisan. (How easy it would have been to slam George W. Bush, master of death row, for his sustained ability to just say No to last-chance appeals. Messrs. Scheck, Neufeld and Dwyer show great self-control in resisting temptation.)

The alternative to reform is to continue living the great American contradiction: Distrust lawyers, the police, politicians and the press–and then, when it comes to perhaps the weightiest issue in society, have faith they’ll do the right thing. What’s the saying: “Cross your fingers, hope to die”?