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Sunday, September 25, 2011

The Answer We Don't Want To Hear

The case against Troy Davis was based heavily on eyewitness testimony. 7 of the 9 witnesses recanted their testimony. There was little physical evidence. Many will disagree with the fact that he could of been innocent. However, you cannot dispute the statistic cited in the Observer editorial that since the United States reinstated the death penalty, more than 130 people have been released from death row with evidence of their innocence. For those who look at it from an economic prospective, the death penalty has issues:

Studies show repeatedly that states without the death penalty have fewer murderers. They also show that the costs of death penalty cases are anywhere from 48 percent more (in Tennessee) to 70 percent more (in Maryland and Kansas) than non-death-penalty murder cases. Death penalty cases cost more even if post-conviction appeals aren't included. That's because the greatest costs in death-penalty cases are before and during the trials.

Today's column in the Observer by Leonard Pitts of the Miami Herald suggests that it is ignorant to believe that we always get it right:

You have to believe that. You have to make yourself believe it. Otherwise, how do you sleep at night? So of course a prosecutor speaks confidence. What else is he going to speak? Truth? Truth is too big, too dangerous, too damning. Truth asks a simple question: in what field of endeavor have we always gotten it right? And you know the answer to that .Meaning the death penalty, a flimsy edifice erected on the shaky premise that we always get it right, that human systems always work as designed, that witnesses make no mistakes, that science is never fallible, that cops never lie, that lawyers are never incompetent....
We hear about the death penalty cases. The national media rarely focuses on non-violent cases that occur at the local level. There are still mistakes.

Several years ago when I was a prosecutor in Orange County,  a friend of mine in the office was handling a case where a homeless man in a park allegedly touched several students inappropriately. These students were all friends. The man was arrested and held in jail for over a year awaiting trial. He denied everything. The case went through a police investigation where the victims all identified the same person, several months of court hearings, motions, discovery issues and was set for trial. On the trial date, the parents called and said the kids didn't want to come to court. The prosecutor was confused and didn't understand the turn of events. One child finally admitted that they made it up. The case was dismissed.

How could this happen? How did the kids all pick the same guy out of the photo line up? My fellow prosecutor went back to the police department and reviewed the line up. She asked the detectives if they had the kids ID the suspect individually or in a group. They said individually. They used a six photo line up, called a six pack. She then asked the detectives if they changed the order of the pictures for each child. They said no- months earlier they had all the kids in the waiting room. They brought them in one at a time. All identified the same guy. Case closed. What they didn't know was that the first child told the others which one she picked and others followed suit. Since there was no change in the order of the pictures, everyone identified the homeless guy. The case proceeded through the system. A man sat in county jail accused of something he didn't do.

Mistakes happen. However, that didn't help Frank Lee Smith who was exonerated 11 months after he died, 14 years after he was convicted.

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