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Massachusetts Gov. Mitt Romney has proposed a more perfect death penalty system designed to execute only when there is foolproof evidence such as fingerprints or DNA (his examples). What hubris! Or maybe it’s just a briefing failure.
Surely the governor failed to get a memo entitled, “Man [Stephan Cowans] Wrongly Convicted in Boston Based on Faulty 16-Point Fingerprint Match; Chief O’Toole Audits, Shuts Down Fingerprint Unit; O’Toole and District Attorney Conley Adopt Eyewitness Reform Proposals.” Apparently, Gov. Romney also missed a recent Court TV special on the case, Fingered By a Print, Stories From the Files of the Innocence Project (yes, that’s a shameless plug), as well as nationwide coverage by everybody, including Fox News, of the FBI’s problems with a false 15-point fingerprint match linking Oregon lawyer Brandon Mayfield to the Madrid train bombings. Especially good reading would have been a Mayfield post-mortem by Robert Stacey, on behalf of the FBI, who concludes that the danger of error from examiner bias in fingerprint analysis increases the more high-profile and important the case. Not exactly a reassuring conclusion for those who accept this form of evidence as perfect.
Another memo for Gov. Romney: “Public Pressure and Human Error Can Affect the Reliability of DNA Evidence.” The Virginia State Crime Laboratory’s much vaunted DNA unit (reputed to be one of the very best public laboratories) was found to have made a grievous error in one of the state’s most notorious cases, the near execution of Earl Washington, a mentally retarded man who falsely confessed to a rape murder. In a first-rate report that will long be remembered for its professional, no-fear-or-favor approach, an audit group from the American Society of Crime Laboratory Directors found that DNA testing performed on the eve of Earl’s execution contained serious errors, errors brought about by political pressure to get a DNA result (not a particular result) that led then-Gov. Douglas Wilder to commute Earl’s sentence to life, not a full pardon and release based on innocence. Subsequent DNA tests finally got Earl his full pardon years later and ultimately exposed the earlier errors. Gov. Mark Warner has ordered an audit of past DNA work in the laboratory including executions.
Texas Gov. Rick Perry and Florida Gov. Jeb Bush must not be getting adequate memos either. Last February, Gov. Perry executed Cameron Willingham for arson-murder despite the plea of renowned arson expert Gerald Hurst who decried the evidence used to convict Willingham as unreliable and discredited. Eight months later Pecos County District Attorney Ori White, relying on Gerald Hurst and his colleagues (prosecution experts all) dismissed arson-murder charges against Ernest Willis, a man who had previously been sentenced to death, and joined defense lawyers in a successful effort to get state compensation for Willis on the grounds of actual innocence. Hurst says the unreliable arson evidence in Willis and Willingham, both involving experts from the Texas Department of Public Safety, were virtually identical. Surely this is a contradiction worth investigating! How can Willingham be executed and Willis exonerated based on the same unreliable arson evidence? The only difference in the cases is that Willis was lucky enough to have a bad lawyer at trial and the marvelous pro bono assistance of James Blank, a patent lawyer with Latham & Watkins, whose firm literally spent millions getting the Fifth Circuit to reverse on ineffective assistance grounds. So far, Gov. Perry has resisted attempts by the legislature to give his proposed criminal justice advisory panel subpoena power so they could get to the bottom of this matter.
Gov. Jeb Bush has let Florida’s post-conviction DNA statute sunset, despite public statements that he was in favor of such testing. Many Florida legislators, who, like Bush, publicly support post-conviction testing and erring on the side of life (there’s profound irony here) never got around to it. In theory, under the terms of the Justice For All Act, Florida’s failure to continue post-conviction DNA testing disqualifies it from receiving millions in federal DNA funding, and contradicts the President’s strong statement in favor of such testing in his State of the Union speech. Go figure.
There are new revelations about a failure to brief the President himself before his last execution, a man named Claude Jones, in December of 2000. Jones requested a reprieve from then-Gov. George Bush so that mitochondrial DNA testing could be performed on a hair found at the scene of a robbery murder that microscopic analysis attributed to him. If the mitochondrial test showed that the hair did not come from Jones but from one of two accomplices that Jones claimed really committed the crime, then it could produce strong evidence of innocence. If the tests showed the hair came from the victim, then, under Texas law, there would be a serious legal insufficiency issue (the Court of Criminal Appeals sustained the conviction by just one vote, relying primarily on the microscopic hair analysis as the independent evidence necessary to corroborate the accomplice testimony against Jones). Amazingly, based on a memo from the counsel’s office to the governor recommending against the reprieve, Gov. George Bush was never told about the request for DNA testing, much less its potential significance, before he denied that stay and went ahead with the execution. Talk about system failures! Again, if Gov. Perry wants, his advisory board could have subpoena power and serve as a legal mechanism to get that hair tested, if it still exists.
So as Gov. Romney pushes ahead with misguided effort to create a foolproof death penalty based on foolproof evidence, and as other governors get briefed before making the momentous decision to execute, they should pause for a moment and think about Earl Washington, Cameron Willingham, and Claude Jones. Lessons can be learned here. Then call George Ryan
