From: Rich Winkel <[log in to unmask]>

http://dailynews.yahoo.com/htx/nm/20000612/ts/crime_capital_dc_1.html

Monday June 12 12:18 AM ET

Study Cites 68 Pct Error in Capital Case Appeals

By Grant McCool

NEW YORK (Reuters) - The U.S. death penalty system is ''collapsing under
the weight of its own mistakes'' according to a report released Monday on a
statistical study of capital appeals that found two thirds of cases were
reversed by courts because of errors.

The research headed by Columbia University School of Law Professor James
Leibman, an opponent of the death penalty, also showed that of the 5,760
death sentences imposed in the United States between 1973 and 1995, only
313 or 5.4 percent resulted in execution. Leibman said the study upheld
claims that capital appeals take too long -- a national average of nine
years in the period studied.

At least one pro-death penalty academic who read the report, University of
Utah law professor Paul Cassell, interpreted the statistics differently. He
said he believed the data showed the system was working and criticized the
report as ``recycled material'' issued for ``political purposes'' as U.S.
Senators studied a bill on proposed legislative changes.

The growing national debate on the U.S. capital punishment system heated up
in February when the pro-death penalty governor of Illinois declared a
moratorium on executions, citing 13 death row inmates released since 1977
after their convictions were overturned, outnumbering the 12 executed.

Leibman said in an interview the study showed that ``errors that cause
individual cases to pop into the public eye and then cause Illinois to pop
into the public eye, really is a process that is epidemic throughout the
system, state to state, year to year.''

The report, ``A Broken System: Error Rates in Capital Cases, 1973-1995''
said the most common errors that led to reversals at the post-conviction
stage were ``ineffective assistance of counsel at a very egregious level''
for defendants and ''prosecutorial withholding evidence of innocence and
keeping it from the jury.'' In some cases, racial discrimination in
selecting a jury was cited as a reason for reversal.

It said the overall rate of serious error was 68 percent and the remaining
32 percent of cases were found to be reliable. The study was based on
research into court records of the three stages of review of capital cases
before they reached executive level -- state direct appeal, state
post-conviction and federal habeas corpus.

Beth Wilkinson, one of the prosecutors who tried Timothy McVeigh and Terry
Nichols for the April 1995 Oklahoma City bombing, said the report would
help provide a factual, rather than an emotional basis for the debate on
capital punishment.

``Only five percent of the death sentences were actually implemented and I
think that would be difficult to accept if you were a victim or believe in
the system because there is supposed to be some finality,'' said Wilkinson,
who favors the death penalty in very limited circumstances.

``It tells me that we probably are putting too many people on trial for
death sentences, cases that shouldn't have been death cases from the outset.''

Utah's Cassell argued that the use of the term ``error rates'' was
counter-intuitive.

``I think most Americans would be interested in the error rate in the sense
of how many people are wrongfully convicted and that can be derived from
the study,'' Cassell said. ``Based on that data, the death penalty system
is more than 99 percent accurate in that more than 99 percent of the time
the system identifies the proper person. There is no claim that anyone has
been wrongfully executed.''

The report found Virginia, the state with the second highest number of
executions after Texas, had caught mistakes at a rate of 18 percent. While
Leibman suggested ``something there is not happening'' death penalty
proponent Cassell argued ``the judges there are doing their job and maybe
we should move them to California, where liberal judges are going on their
personal views.''

The study found an overall error rate of 87 percent in California and 52
percent in Texas.

``Our 23 years worth of results reveal a death penalty system collapsing
under the weight of its own mistakes,'' the report said. ``They reveal a
system in which lives and public order are at stake, yet for decades has
made more mistakes than we would tolerate in far less important activities.''

There are no definitive cases of innocent people having been executed, but
according to the Death Penalty Information Center public policy group, 87
people have been released from death row since 1973 -- eight were cleared
by DNA evidence and the rest for a variety of reasons, from recanted
testimony to evidence overlooked or withheld to inadequate legal
representation.

A Gallup Poll in February revealed that 66 percent of Americans still
support the death sentence for murder, although that's fewer than just six
years ago, when support reached its peak at 80 percent. The U.S. Supreme
Court reinstated the death penalty in 1976.

Efforts to make changes to the system at the state and federal levels are
underway, with about half a dozen state legislatures reexamining death
penalty practices. Last month, the New Hampshire state legislature
symbolically abolished the death penalty. The governor made it known she
would veto the measure and no one was on death row.

Last week, Vermont Democrat Sen. Patrick Leahy, a former prosecutor, led a
bipartisan group of lawmakers in a bid to pass a bill that would give
people convicted of serious violent crimes the right to present DNA
evidence that may not have been available at the time of their initial
conviction.