February 20, 2002

Op-ed: The Risk of Executing the Innocent
By Sandra K. Manning

   Since the death penalty was reinstated, 758 people have been executed in the United States. Reports suggest that some of those may have been innocent, a possibility underscored by the fact that 99 individuals condemned to death were subsequently exonerated, some within days of their scheduled executions. 

   The courts would have allowed many of those executions to proceed. Only luck and the help of strangers saved innocent lives. 

   Although New Jersey has not yet had exonerations from death row, legal errors occur here as well as in other states. Jim McCloskey, who runs Centurion Ministries in Princeton, confirms that fact, as do the cases of the exonerated within this state. None of the cases involved death sentences, yet there is no reason to believe that a wrongful conviction could not occur in a 
capital case in this state. 

   The following is a sample of people in New Jersey who had been wrongfully convicted of crimes from rape to murder. Other New Jersey cases are pending, both at Centurion Ministries and at the Innocence Project in Newark. 

   The exonerated include: 

   Could there be a wrongful conviction in a capital case in New Jersey? An evaluation of the reasons for the wrongful convictions in these New Jersey cases and in the cases of death row exonerations demonstrates that a risk does exist. 

   An examination by the Northwestern Law Center on Wrongful Convictions on DNA exonerations in the United States and in Canada showed that 76 percent of the wrongful convictions were based in whole or in part on eyewitness testimony. The center also analyzed 70 cases in which 86 people had been sentenced to death but legally exonerated. Eyewitness testimony played a role in the conviction of 53.5 percent and was the only testimony in 38.4 percent. 

   In New Jersey, David Shepherd, Nathaniel Walker, McKinley Cromedy and Earl Berrymen were sent to prison on the basis of eyewitness misidentifications. 

   In their 2001 book, Actual Innocence: When Justice Goes Wrong and How To Make It Right, Jim Dwyer, Peter Neufeld and Barry Scheck found that prosecutorial misconduct was a factor in 45 percent of the cases reviewed, police misconduct in 50 percent of the cases. 

   Here in New Jersey, prosecutorial misconduct played a role in a number of the wrongful convictions. In Jorge De Los Santos' case, the prosecutor knew and concealed from the defense that the jailhouse snitch had testified in numerous cases. 

   Jimmy Landano served 13 years of a life term for the murder of a police officer, a capital crime under current law, although not at the time of Landano's conviction. The conviction was overturned after it was learned that the prosecutor withheld from the defense the fact that a primary witness was under investigation for involvement in organized crime,money-laundering and 
loan-sharking and that the chief witness had later committed a murder with the weapon used to kill the officer. 

   Samuel R. Gross, a professor of law at the University of Michigan, wrote in an article, " Lost Lives: Miscarriages of Justice in Capital Cases," published in Law and Contemporary Problems, August 1998, that "witness perjury is a far more common cause of error in murders and other capital crimes than in lesser crimes." 

   In Florida, Jesse Tafero and Sonya Jacobs were convicted of capital murder by a man who later confessed that he had been the shooter. Sonya was released, but Jesse had already been put to death in the electric chair.  

   In New Jersey, George Parker was convicted on the testimony of two eyewitnesses, one of whom was the real killer.  

   Lawrence Simmons was also convicted on the testimony of the killer, who afterward recanted. 

   The testimony of jailhouse snitches was used in the De Los Santos case: perjured testimony resulted in the conviction of Damaso Vega. 

False Confessions 

   Mentally ill or mentally retarded individuals may falsely confess to please authorities. People will also falsely confess in order to avoid a harsher fate, especially if the death penalty is threatened. The Actual Innocence project found false confessions to be the cause of a conviction in 22 percent of the cases of those exonerated. 

   In Oklahoma, Robert Miller, a mentally ill man, confessed to a murder rape but DNA excluded him. Of the four men in Illinois convicted of a rape-murder but whose DNA tests exonerated them in December 2001, two had confessed, their claims of coerced confession ignored by the judge and jury. 

   In New Jersey, John Dixon pleaded guilty to a rape that he did not commit. A judge vacated his 45-year sentence in November 2001 after DNA established Dixon's innocence. 

Poor Lawyering 

   While New Jersey does have an adequately funded public defender system, the system is not foolproof. The public defender often farms out cases where a conflict exists. Those private lawyers, substituting for the public defender, are paid $50 an hour - close to the bottom of the national hourly rate for capital work. And in any system, no matter how well meaning, lawyers 
are of unequal ability. 

   David Shephard's lawyer urged him to take a plea, stating that it appeared he had done the crime. His lawyer didn't talk to him before he took the stand. John Dixon's attorney failed to obtain a DNA test for him, which was readily available in 1991. Nathaniel Walker's attorney asked no questions of the doctor who examined the victim and did not even ask to test the semen for blood type. 

DNA 

   Unfortunately, DNA is not a fix-all. It only frees the innocent when physical evidence is available. The same types of errors - mistaken eyewitness testimony, perjured testimony, authority misconduct - exist in the myriad of cases of wrongful convictions for which DNA cannot be used. 

   In summary, New Jersey has no immunity from condemning or even executing  the innocent. As Michael Posner, a federal district judge in Boston, wrote in The Boston Globe on last July 8: "I have a hard time imagining anything as complicated as a capital trial being repeated very often, even by the best system, without an innocent person eventually being executed. The simple question - not for me as a judge, but for all of us as citizens - is: Is the penalty worth the price?"