Weighing the Evidence

Peculiar Institutionby By David GarlandBelknap/Harvard Univ. Press. 432p $35

As Marcus Lyons approached the arched courthouse entrance in March 1991, it was not his naval uniform that drew attention. It was the eight-foot-long wooden cross he shouldered. Curiosity turned to alarm when Lyons attempted self-crucifixion, raising a hammer and pounding a nail into his foot.

Police saved Lyons. But that did not even begin to set things right. Lyons had left an Illinois prison two weeks before to serve out parole for a rape he did not commit. His life in ruins—a fiancée lost, a good job gone, a reputation shattered—Lyons had mutilated himself in desperate protest.

The protest did not bring immediate justice. Eventually, though, Lyons read about another man’s exoneration through DNA evidence. Lyons contacted the man’s lawyer, who agreed to take on Lyons’s case. In 2007, thanks to DNA testing, Lyons won official exoneration from the state.

In Convicting the Innocent: Where Criminal Prosecutions Go Wrong, Professor Brandon L. Garrett, of the University of Virginia School of Law, insists that the story of Lyons and other DNA exonerees should incite and not reassure, should spur reform rather than engender complacency. The United States should not focus on the DNA evidence that liberated the innocent. It should instead turn its attention to the non-DNA evidence that put the wrong people in jail to begin with.

Most crimes do not yield DNA evidence that will identify the real perpetrator and exclude the falsely accused. Rape will ordinarily do this, but robbery, assault, arson, extortion and murder usually will not. Innocent Americans accused of the latter crimes will, without benefit of the DNA deus ex machina, be at risk for wrongful convictions. The risk arises from the same things that allowed DNA exonerees to be convicted in the first place—sincere but mistaken eyewitness identifications, coerced confessions, shoddy forensic science and scheming informants.

Looking at the 250 people exonerated through DNA as of February 2010, Garrett aimed to determine how often each of these malignant factors had warped the criminal justice process at the expense of an innocent person (and to the benefit of an actual criminal who went unpursued). Garrett tracked down court transcripts and dug into case files. He then sliced, diced, sifted and collated the data.

Some law professors would take a pass on this kind of grunt work. Garrett did not, and our justice system can be the better for it.

Garrett found that eyewitness misidentification helped jail the innocent in 76 percent of the false convictions he analyzed. No surprise. Little tests the presumption of innocence as much as a jury’s inability to distinguish between certainty and accuracy when a victim points at the defendant and tells the jury: “That is the man.” And little tilts the playing field so much as pretrial police steering of an eyewitness; Garrett found that show-ups (one-to-one showing of a suspect to a witness), flawed line-ups and suggestive remarks paved the way to unjust verdicts in most instances of eyewitness misidentification.

Forensic science evidence played a role, usually a pernicious one, in 74 percent of the cases. Sometimes this evidence centered on microscopic hair comparisons, at other times on bite marks, shoe prints, fingerprints or serology. Some errors arose from unreliable methodologies that were high in subjective judgment and low in accepted quantitative standards (like microscopic hair comparison). Other errors derived from testimony and argument overstating the significance of findings reliable in themselves.

Faulty informant testimony infected the proceedings in 21 percent of the cases. In 23 of 52 cases, the informant was a codefendant. In 28, the informant resided in the jail that housed the wrongly accused. This latter situation is spring-loaded for the most egregious miscarriages of justice. As Garrett points out, the unscrupulous jailhouse snitch looking to exchange testimony for a break on his own case will likely do so at the expense of the fellow inmate facing the gravest charges. He understands that the prosecutor will most richly reward the inmate who helps him win the big conviction for capital murder.

In 16 percent of the cases Garrett analyzed, 40 of 250, the wrongly accused himself confessed to a crime he did not commit. Fourteen of these false confessors were mentally retarded, three were mentally ill and 13 were juveniles. Virtually all these people implicated themselves after unusually long interrogations.

Of course, serious diagnosis without recommended treatment leads to despair. So Garrett closes out his book with some very concrete prescriptions. Many of them were presaged a decade ago in the superb book Actual Innocence, by Jim Dwyer (disclosure: a friend), Peter Neufeld and Barry Scheck. Yet each merits renewed consideration by legislators, judges, prosecutors and police authorities. Here is a partial list:

• Police identification procedures should conform to written protocols, and each procedure should be documented contemporaneously. Ideally, officers unfamiliar with the specific investigation should conduct the procedures to prevent influencing witnesses with even unintended clues and cues. Judges should emphatically instruct jurors not to evaluate an identifying witness solely by the person’s certainty and not to imagine that the memory works like a camera.

• Forensic labs should stand independent of law enforcement and submit to external oversight in the form of periodic blind audits. “All examiners should be blind-tested for proficiency. The defense should have access to underlying bench notes and laboratory reports, and to their own defense experts.” Courts should stand guard against junk science.

• Before allowing a jailhouse informant to testify, a trial court should render a threshold judgment of minimal reliability. All police or prosecutor conversations with informants should be recorded; this will ensure full disclosure of deals struck and deter informants’ ascribing to defendants details learned from the police.

• Interrogations should be recorded, as 11 states and the District of Columbia currently require or encourage. Trial courts should scrutinize resultant recordings for hints of coercion or of the police’s feeding a suspect crime details the suspect then weaves into his confession. Minors and the mentally compromised should enjoy special safeguards.

Though Garrett’s prescriptions mostly track specific procedural or systemic infirmities, one category of crime merits its own reform. Garrett would endow the accused capital murderer with extra protections, such as a standard of proof effectively higher than beyond-a-reasonable-doubt.

Garrett does not pretend that any reform will absolutely ensure against the society’s killing the wrong person. That guarantee will come only when we abandon the death penalty.

Which brings us to David Garland’s Peculiar Institution: America’s Death Penalty in an Age of Abolition. Garland, currently a professor of sociology at New York University, scants the problem of capital innocence. This, along with his light treatment of religion, might seem odd initially. Faith and fatal error loom large for death penalty opponents.

Garland, though, has not written a game plan for getting rid of the death penalty. One need not infer too wildly to recognize that Garland would like us to get rid of it. But for now he aims to deepen our understanding of why we still have a death penalty when nations toward whom we feel most kindred do not. In the tradition of de Toqueville, Dickens, Chesterton and Gunnar Myrdal, Garland, who hails from the Scottish Lowlands, casts the discerning eye of the outsider on us. And to compelling result.

With minimal “Oh you Yanks” condescension, Garland identifies the legal, political and cultural factors behind our retaining a punishment left behind by neighbors and friends such as Canada, Mexico, Britain, Italy, France, Spain, Portugal, Austria, Germany, Holland, Belgium, Denmark, Poland, Australia and New Zealand.

The death penalty can survive in the United States because America does not lend itself to centralized, top-down reform, much less to centralized, top-down reform that is contrary to popular sentiment.

In Europe, national parliamentary “elites” imposed abolition from on high. With the possible exception of the Irish, no European citizenry favored abolition before the fact.

In 1972, with the U.S. Supreme Court’s decision in Furman v. Georgia, judicial abolition (a species of top-down reform) seemed imminent, or even accomplished, here. But, as Garland brilliantly recounts, by 1976 a majority of Justices (deciding Gregg v. Georgia, which revived capital punishment) could not—or would not—say no to the 35 state legislatures that had readied new death statutes over the previous 48 months. Thinly disguised racial backlash and calls for “law and order” won out. Roughly a decade later, the victory was solidified in a 5-to-4 decision in McCleskey v. Kemp to ignore powerful statistical evidence of capital discrimination based on the “race of the victim.”

Today, barring fundamental change on the Supreme Court, American abolition will have to occur in our “’hyperdemocratic’” political arenas. This means one state at a time against the backdrop of a criminal justice system driven by local elected officials rather than, as elsewhere, appointed career professionals.

The death penalty survives because in the United States we suffer high homicide rates; because the Deep South underfunds law enforcement; because the death penalty serves as a proxy for states’ rights, itself a proxy for white hegemony; and because the illusion of our collectively controlling death holds some allure for our Thanatos-phobic society. The death penalty “tames death and puts it to work.”

There is another reason the death penalty survives: American consciences rest easy in the notion that capital defendants receive elevated due process. That, however, is a lie, even if Garland, for reasons unknown, abstains from calling it that.

Granted, I have a dog in the fight. Or maybe I have been a dog in the fight, having practiced law on behalf of capital defendants in Alabama and New York. Still, I have no doubt that average citizens would be appalled were they to watch what passes for adequate capital defense in most death jurisdictions. (Only recently have I given up my Prince-and-the-Pauper fantasy of a disguised Chief Justice Roberts slipping into a Death Belt courtroom and comparing the advocacy there to that which he provided moneyed clients when in private practice.)

Even to attempt a halfway reliable capital justice system costs an obscene amount. Garland understates when he pegs at $170 million the cost (prosecutorial, judicial, defense and corrections) of New York’s 12-year effort toward a responsible death penalty. Were the Supreme Court even to begin seriously enforcing the right to counsel throughout the country, budgetary hell would break loose.

Given the current fiscal climate, it might break loose anyway. Garland points out that in many death states the death penalty is far more a symbol and political cudgel than a practice, “a resource for political exchange and cultural consumption” more than “a penal instrument that puts persons to death.”

To be sure, we have executed over 1,200 men and women since 1976. The overall national rate of execution, however, remains low. As of 2007, the lag between conviction and execution ran 12 years on average. Most death rows serve more as warehouses than as hospices or on-deck circles for executions.

As towns and cities lay off police and teachers, it may not be long before non-abolitionists take a more pragmatic look at the death penalty. California maintains the nation’s largest death row. A poll has already found that a 63-percent majority there favor mass commutation as a cost-saving measure.

Ideally, abolition should be a triumph of conscience, not of calculators. It ought to spring from concerns over the human fallibility Brandon Garrett explores or the sanctity of life John Paul II proclaimed. Still, perhaps we are destined to emulate our European cousins and condemn the death penalty only after we are free of it.