Death penalty: How foolproof is our justice?

[lulu]

WASHINGTON - Prosecutors are becoming increasingly resistant to appeals of
convictions in death-penalty cases. Appellate courts and even legislative
bodies are becoming increasingly insistent on fixing a point of closure in
such cases - sometimes at the expense of justice. In federal cases, the
Justice Department is pushing prosecutors to ask for death more often.

As sentiment seems to be growing against the death penalty, those who
support it appear to be pushing harder for it. These factors combine to
sharpen and politicize the issue.

In a hearing before the Missouri Supreme Court recently, the following
chilling snippet of dialogue took place, brought to us courtesy of The New
York Times:

Judge: "Are you suggesting, even if we find Mr. Amrine innocent, he should
be executed?"

Prosecutor: "That's correct, your honor."

That brought to mind for this commentator a memory from a federal court
house in Providence, R.I. when I was a young reporter for the Providence
Journal-Bulletin and the judge sternly lectured an assistant US attorney
that a prosecutor's first duty is not securing convictions but seeing that
justice is done.

Americans have long prided themselves that their system of criminal
justice is the fairest in the world, refined over nearly 800 years since a
reluctant King John signed Magna Carta at Runnymede June 15, 1215. The
Charter has been reinforced by the US Constitution, especially as amended,
and has been further strengthened by a long line of Supreme Court
decisions.

Noteworthy among the standards prosecutors must meet is conviction of
defendants by a 12-member jury of their peers, each of whom must be
convinced of their guilt beyond a reasonable doubt by evidence that must
itself meet strict standards. One of the arguments frequently made by
supporters of the death penalty is that if prosecutors meet these
standards, the defendant must surely be guilty. This is why prosecutors
and appellate courts are so frustrated when convictions are appealed
repeatedly, especially over the issue of penalty instead of guilt.
Consequently, Congress and the Supreme Court have limited grounds for
appeal. This is partly to advance a political purpose (preserve the death
penalty) and partly a procedural one (to prevent clogging appellate court
calendars).

Last week, the Supreme Court lowered the standards of proof the accused
must meet when appealing on the basis of racial bias in a trial that
resulted in a death sentence. Nevertheless, recent experience leads one to
question whether the protections provided to individual rights by the
revered documents of Anglo-American jurisprudence have always been
scrupulously observed.

Defendants are frequently underprivileged and sometimes underrepresented,
despite constitutional guarantees of the right to counsel. The defense
tends to be poor and weak; the prosecution is always rich and strong.
State or local prosecutors and judges are frequently elected and subject
to popular pressure for convictions in cases involving gruesome crimes.
Police also feel such pressure. There have been some notorious cases of
police brutality against suspects.

If over-zealous police and prosecutors get convictions in such cases and,
later, zealous appellate lawyers get the convictions overturned, how many
other such convictions remain enforced? How many innocent defendants are
put to death while pious governors cite our supposedly foolproof judicial
system in turning down last-minute appeals for executive clemency?

Technology has recently made available types of evidence such as DNA that
have led to the reversal of convictions after death sentences have already
been irretrievably carried out. How many other such cases were carried out
without having been appealed? How many rape cases have drawn long
sentences, and have been in the process of being carried out when DNA
evidence established the defendant's innocence? How many wrongful
convictions for lesser crimes have gone unappealed for lack of resources
by defendants?

Reasonable people are entitled to wonder how foolproof our judicial system
in fact is. Is it adequate to the demands of the 21st century, both in
protecting the innocent and punishing the guilty? How could it be made
better? Two modest steps suggest themselves:

- Governors should exercise more leadership in shielding state judges and
prosecutors from political pressure.

- The number of public defenders should be increased and be better-funded.

Others would doubtless come from the further study the problem deserves.

----------

Source : The Christian Science Monitor (Pat M. Holt is former chief of
staff of the Senate Foreign Relations Committee)