July 28, 2003

JUSTICE IN INDIANA....Darnell Williams is on death row in Indiana, and his attorneys want to perform a DNA test to try and establish his innocence. Last week the Indiana Supreme Court said no:

The justices ruled that, in the context of his trial as a whole, the blood evidence Williams seeks to retest was not that important. Not so important, in any event, that his execution should be delayed.

Oops, did I say his attorneys? I meant the prosecuting attorney:

I strongly disagree. As the lawyer who prosecuted him, I saw and heard every bit of the trial, and I knew then — and still think now — that the blood evidence in question played a big role in his death sentence. For that reason, I joined his attorneys in asking for the DNA retest.

The resistance of the legal community to making DNA testing routine is simply astonishing. This man is on death row, both the defense attorneys and the prosecuting attorney agree that a DNA test ought to be performed on a piece of critical evidence, but the court won't let them. It would probably take all of a week or two and cost a few thousand dollars.

Nor is there a chance that allowing this will open the floodgates for every prisoner in the state to demand DNA testing. After all, everyone knows that the tests are reliable and highly accurate, so there's not much point in demanding a test if you know that you really are guilty.

DNA testing is routine in active cases, and there's no reason not to use improved modern techniques in older cases as well, especially capital ones. After all, what are they afraid of? That they might find out he didn't commit the crime after all?

UPDATE: Unlearned Hand adds something I didn't know: if you are exonerated of a crime, your felony conviction still isn't expunged. So even if you've been found actually innocent, you still have a criminal record.

That's unbelievable. If a court finds you not guilty, regardless of whether it's now or 20 years from now, you shouldn't have a felony conviction on your record. How on earth does a rule like that stay around?

Posted by KEVIN DRUM at July 28, 2003 09:08 AM | TrackBack


Comments

http://www.innocenceproject.org/

Support this group.

It's ridiculous that this task has been relegated to a small group of private-sector volunteers when the government would be in a better position to correct it's own mistakes. This is an issue that transcends partisan lines. There are people on death row who are demonstrably innocent. Set them free.

Posted by: theperegrine at July 28, 2003 09:13 AM

The Innocence Project.

Posted by: theperegrine at July 28, 2003 09:16 AM

It should at least be mandatory for capital cases, as a start. That should alleviate the knee-jerk concern about the size and cost of the project.

Posted by: Unlearned Hand at July 28, 2003 09:20 AM

"Nor is there a chance that allowing this will open the floodgates for every prisoner in the state to demand DNA testing. After all, everyone knows that the tests are reliable and highly accurate, so there's not much point in demanding a test if you know that you really are guilty."

You would be amazed what prisoners will do just to gum up the works. Kind of like public school students that way.

Seriously, I agree that if there is potentially exculpatory evidence in a capital case, DNA tests should be used. It isn't a magic bullet, though. In this case, for example, the idea is that the blood on his shirt is evidence that Williams was a shooter, rather than just a participant in the overall crime. What if it wasn't the victims? Maybe he cut himself shaving. Does that mean he didn't do the shooting? Not necessarily - the shooter might be far enough away not to get splattered. A non-shooter may even have been closer. There seems to be little doubt that Williams was INVOLVED - in many states he'd get the death penalty for participating in a capital crime. Since the Indiana supreme court has held that a kidnapper can be convicted of murder when a law enforcement officer kills an accomplice to the kidnapper(Palmer v. Indiana 1999), and Indiana's death statute only requires murder with one aggavating circumstance(in this case, commission of a felony), I suspect Indiana is one. It may be that the prosecutor wouldn't have asked for death if Williams had been a mere accomplice, but Williams is, under the law, eligible. This isn't a case of "executing an innocent man".

Posted by: rvman at July 28, 2003 09:47 AM

rvman-

I'm not a forensic scientist, but I watch them being played on TV. If Williams were the shooter, wouldn't there have been powder burns on his shirt along with the blood?

Even if he were close enough to the shooting to be spattered with blood, that in and of itself doesn't demonstrate that he consipred with the shooter. Irrespective of that, he's asking for the DNA test for a reason: He, and the attorney who prosecuted him for that matter, doesn't believe the blood on his shirt was from the victim. In his trial it was asserted that the blood [i]was[/i] from the victim.

Without that evidence it isn't known whether or not he would have been convicted at trial, either of being the shooter or being an accomplice to the shooter.

Posted by: theperegrine at July 28, 2003 10:01 AM

I just googled the case: there were four people indicted in the robbery/murder of John and Henrietta Rease. Two were completely exonerated...a third was sentenced to death but it was commuted because the defendant was considered 'mentally retarded' by the court and therefore ineligible under Indiana law. Williams is also retarded, so why this standard isn't being applied to him I'm not certain.

He admits to being a part of the robbery, which technically makes him a candidate for death...but there was a material witness who didn't testify at trial who claims to have seen him fleeing the house as the shots were fired, meaning he couldn't have been the shooter. They were hoping the DNA evidence would support that account.

Bottom line: Somebody shot the Reases. It probably wasn't Williams. That means it must have been one of the other three, and two of them are free men, the third not slated for execution.

How is that justice?

Posted by: theperegrine at July 28, 2003 10:10 AM

"I'm not a forensic scientist, but I watch them being played on TV."

I'm sorry to interrupt on such a serious topic, but that is one of the most amusing lines I've seen in some time.

Posted by: denise at July 28, 2003 10:13 AM

DNA testing should obvioulsy be available upon request in every case. It may be expenisve and time-consuming, but the stakes are enormous here; people may be executed, or remain in prision for the rest of their lives, for a crime they did not permit.

It is true that some prisioners will request DNA tests just to throw a monkey wrench in the gears of the system. The pro bono committee of the first law firm I worked at took two or three capital cases. My friend, who had the office next door to mine, worked on one of the cases nonstop for something like four months. My friend tried to get a DNA test for almost two years, and had to go all the way up the appellate ladder to the Alabama Supreme Court. He finally got the test. The results confirmed that the client was guilty. The client had insisted all along that the DNA tests would clear him, but he was lying. He was just (understandably) trying to avoid execution, and was hoping against hope that the test results would be erroneous.

But that kind of thing goes on all the time. Every lawyer knows that the federal courts are filled wiht frivilous prisoner lawsuits. We put up them, even though 999 out of 1000 are worthess, because every so often, a prsioner really will have been mistreated, and the courts want to be able to correct the situation. When someone has been sentenced to death, the stakes are infinitely higher. DNA tests should always be avaialble to anyone who requests them.

Posted by: Joe Schmoe at July 28, 2003 10:14 AM

people may be executed, or remain in prision for the rest of their lives, for a crime they did not permit.

This one is pretty good too, malapropism or no.

Posted by: theperegrine at July 28, 2003 10:16 AM

What? You can be convicted of murder and sentenced to death if your accomplice in a felony is killed by the police? That's fucking ridiculous.

Posted by: John at July 28, 2003 10:35 AM

'You can be convicted of murder and sentenced to death if your accomplice in a felony is killed by the police?'

So if you are committing a felony like (from instapundits post on felonies) filling in a pothole in your driveway that happens to be a wetland and your friend who is helping you is hit by a stray bullet from a police shootout for a crime down the road, you could be executed? even in theory?

Posted by: Brian at July 28, 2003 10:47 AM

"What? You can be convicted of murder and sentenced to death if your accomplice in a felony is killed by the police? That's fucking ridiculous."

Yes, that is the felony-murder rule in action. Commit a felony. Someone dies. It counts as murder. It isn't pretty,

Many states have changed the rule to exempt the death of co-conspirators (but leave Volokh alone.)

There are lots and lots of ugly cases that have come out of that rule.

Don't even get me started about drug war induced property seizure laws. You'd be really outraged about the woman who got her car taken by the police department because her ex-husband was a drug dealer.

Posted by: Sebastian Holsclaw at July 28, 2003 10:56 AM

The so-called "felony murder rule" generally applies only to a limited number of felonies, such as arson, rape, burglary, robbery or kidnapping.

Posted by: nameless at July 28, 2003 10:58 AM

So if you are committing a felony ... filling in a pothole in your driveway that happens to be a wetland and your friend who is helping you is hit by a stray bullet from a police shootout for a crime down the road, you could be executed? even in theory?

Generally, not unless the police were firing at you to stop you filling in the wetlands. Otherwise the cause of death would not follow from the commission of a felony.

Posted by: Claude Muncey at July 28, 2003 11:00 AM

I double-checked - in Indiana, at least, there is a laundry list of mostly-violent crimes (though drug-dealing is on the list), not just generic "felony".) It also requires the offender "intentionally kill" to use that aggravator. So I may have been wrong.

On the other hand, merely being on parole IS on the list. Also, it is specifically listed that it is a mitigating circumstance if the defendant is a accomplice, but only if the defendant's participation is "relatively minor".

http://www.clarkprosecutor.org/html/death/row/willia~1.htm

Gunpowder residue may or may not be found in these cases, depending on how long after the killings they were caught.

For what its worth, I think the DNA test should be run. I just don't think that a clean DNA test would be enough to throw out the death penalty in this case.

Posted by: rvman at July 28, 2003 11:06 AM

Note that Indiana law holds that one need not be the killer to "intentionally commit murder". Only that one intentionally commit one of the crimes on a list similar to the aggravator list.

Posted by: rvman at July 28, 2003 11:14 AM

The distinction between intentionally kill, and other murder crimes makes sense to me because if you recklessly risk someone's life to kidnap them and they end up dying, my moral intuition suggests that murder is what occurred.

I'm not sure that the same applies in mechanical felony-murder cases where you get charged for the death of your co-conspirator. They recklessly risked their own life and lost it. That isn't murder, that is consorting with stupid people.

Posted by: Sebastian Holsclaw at July 28, 2003 11:27 AM

Here is some more on the case, including that the defense lawyer is Barry Scheck and the Innocence Project of which he is cofounder offered to pay for the tests.

We need to pass the Innocence Protection Act which will allow for dna testing of inmates.

Posted by: talkleft at July 28, 2003 11:34 AM

After working in a genetics lab, I think you overestimate the costs of the test, especially if it is a lab that has a high volume of tests.

I never did testing to find identity, but I'm guessing $100 is a high estimate.

Posted by: Adam at July 28, 2003 12:45 PM

Rvman, you are missing a crucial point. Sure, if the jury had known that the blood on the shirt wasn't the victim's, they might still have convicted him of murder and even conceivably given him the death penalty. But that's not what the jury did. To affirm here, the appellate court has to be convinced, not merely that the jury could have reached the same result if it knew the truth, but that it would have. Any other rule deprives the defendant of a jury trial on the issues.

Posted by: rea at July 28, 2003 12:46 PM

"What? You can be convicted of murder and sentenced to death if your accomplice in a felony is killed by the police? That's fucking ridiculous."

Yup, that's the rule in a lot of states. I'm enough of a Michigan chauvanist to say my state's rule is much better. To be convicted of murder, the defendant must have intended to kill somone, or to inflict great bodily harm, or have acting in willfull disregard of the fact that the natural and probale consequence of his or her actions was to kill. A felony can then turn the murder into 1st degree murder, which otherwis would require premeditation and deliberation. We doin't wind up convicting people of first degree murder on the basis that their accomplices got themselves killed committing the crime.

Michigan's never had the death penalty, either, not even back in the 1830's when other jurisdictions were still hanging pickpockets.

Posted by: rea at July 28, 2003 12:54 PM

People that might possibly have committed violent crimes deserve to die anyway. Why waste my tax dollars on potential innocence?

Posted by: mr. p at July 28, 2003 02:13 PM

I just heard on CNN where the governor granted a 60 day stay so the DNA evidence can be examined.

I have no problem with this. In fact, I remember Gov. Jeb Bush granting a similar request to a convict a while ago. In that case, the DNA result turned out to be a match, proving the guilt.

Posted by: mark at July 28, 2003 02:26 PM

the entire discussion brings up the essential flaw in having a death penalty (ask Gov Ryan).
Executing people is final....and the system is too full of holes.

Posted by: John Steppling at July 28, 2003 02:54 PM

One of the core tenets of "conservatism" is rarely articulated. It is that the deterrent effect of criminal punishment does not depend on getting the right guy. This extends to capital punishment. Any "conservative" would balance some significant number of innocent lives lost against the possibility that the system might ever have to publicly climb down or appear fallible. They genuinely believe that the latter eventuality would result in a sharp, immediate uptick of all kinds of crime, and they think the harm done by this would outweigh the effect, in the eyes of man or God, of carrying out sentence of death upon the innocent.

This is the very, stinking heart of the absolute moral bankruptcy of "conservatism".

Posted by: Frank Wilhoit at July 28, 2003 03:00 PM

Sorry Frank, you have your wires crossed. You articulate a particularly nasty brand of utilitarianism. It isn't a brand of conservatism at all. It is a actually a particularly ugly sub-branch of humanitarian theories. The deterrent-innocent man argument has been around quite a while. A particularly good essay on the topic was written by C.S. Lewis: The Humanitarian Theory of Punishment.

http://www.angelfire.com/pro/lewiscs/humanitarian.html

I'm not bright enough to try to summarize it adequately, so go read it.

It isn't very long.

Posted by: Sebastian Holsclaw at July 28, 2003 03:06 PM

They've OK'd the DNA testing, and some jurors have said that they only chose the death penalty because of the blood. The Governor has said that he might execute him even if the DNA test is negative. We think our governor is OK, in general. CNN has a segment.

Posted by: John Isbell at July 28, 2003 03:15 PM

Actually, I think this is an issue where conservatives aren't facing reality.

The reality is that in the past two or three years, Illinois has released twelve innocent men from Death Row. These guys didn't get off on a technicality, or get their sentences reduced to life in prison because of some procedural screwup. No, they were set free from prision becasue they did not commit the crime of which they were accused.

The reality is that our justice system isn't perfect. Conservatives simply haven't acknowledged this yet.

It's not that conservatives are unfeeling, or that they don't care if innocent people are executed; it's that the issue simply hasn't taken hold of their consciousness yet.

It's kind of like how a minority of liberal pacifists say stuff like "war is never the answer." When asked whether a campaign of nonviolent passive resistance would work against bin Laden, or Hitler, they simply don't have an answer. They just go on saying that "war is never the answer" without seriously thinking abotu the alternatives. It is not that they are stupid or hypocritical; most are genuine idealists. They are just blind.

Many conservative death penalty supporters seem to be behaving in a similar fashion.

Posted by: Joe Schmoe at July 28, 2003 03:27 PM

Why did I know this guy was black without even having to look?

And some people wonder why black people think this country is still racist!

Posted by: right at July 28, 2003 03:34 PM

"It's not that conservatives are unfeeling, or that they don't care if innocent people are executed; it's that the issue simply hasn't taken hold of their consciousness yet."

That Pat Robertson road-to-damascus moment on the death penalty when Bush offed Tucker is illustrative. As long as its not *their* people getting it, they won't care.

Posted by: Jason McCullough at July 28, 2003 03:58 PM

Maybe the conservatives will listen to a bottom-line, dollars-and-cents approach to the death penalty question- if the state spends a couple thousand bucks on a DNA test that resolves the issue beyond doubt, that's a lot cheaper than defending against very expensive court appeals.
It's a win-win; we don't execute the innocent, and the conservatives get to limit government spending- Everybody is happy, no?

Posted by: peter jung at July 28, 2003 04:27 PM

Conservatives tend to have a large diconnect here. Government is always inefficent and dangerous, except when it prosectues crimes, then its close to infalleable.

Posted by: Rob at July 28, 2003 04:37 PM

I think there's too much emphasis in this thread on conservatives. Conservatism has nothing to do with this. This isn't a partisan issue. It's not that liberals are falling over themselves to redress failures of the justice system, or that conservatives are blocking such efforts. Everyone in this country is in deep, almost psychotic denial about the inherent fallibility of 'trial-by-jury'. Nobody wants to confront the reality because it is too frightening.

When people are convicted by a jury in this country it is taken as a certain indication of guilt, not for what it is: the decision of 12 random anonymous people off the street who will not be held accountable for the accuracy or fairness of their decision. These people could be prejudiced. They could be of less than average intelligence. They could be naive, gullible...they could be intellectually lazy. They may be on the jury against their will. They may not have the patience to listen carefully as complicated testimony is presented. They may not be able to analyze that testimony adequately if they do listen to it. And they are not beholden to rule with the evidence by anything except an empty promise they're required to make at the beginning of their period of service. There will be no consequence to them if they fail to keep that promise.

There could be mountains of incontrovertible evidence that exonerates you of a given crime and an American jury could convict you anyway. They probably wouldn't, but they could. The judge would be obligated to honor the verdict no matter how unreasonable or untenable it may be. There have been some exceptions where judges have used extraordinary power to overturn verdicts, but in those cases there has inevitably been public outcry. The people are supposed to rule, not political appointees. That's the entire point of the trial by jury system. When you're accused of a crime your fate lies in the hand of your peers, not the government. And it is extremely democratic. But what does democracy have to do with justice?

How can you reconcile the two?

The question is too difficult for most people (of any political persuasion) to contemplate. They're uncomfortable with the volatility of justice under the jury system, and they're doubly uncomfortable with the suggestion that it should be abandoned or modified.

So they avoid the issue altogether. They pretend that the system almost always works and they look the other way when 'accidents' happen.

Posted by: theperegrine at July 28, 2003 05:10 PM

You really should read Law Prof. Jeff Cooper on this one. I can see why the SCOTUS did what they did...

Indiana Justice

Frank O'Bannon, governor of Indiana, has stayed the execution of Darnell Williams, who is on death row for two 1986 murders. During the stay, DNA testing will be performed on blood samples found on Williams's clothing after the murders.

The case is an odd one, as DNA cases go, because Williams is not claiming innocence. He concedes that he participated in the robbery that led to the deaths of the two robbery victims. His claim, rather, is that he did not play a substantial role in the robbery and, in particular, did not himself shoot the two victims. That argument is insufficient, under Indiana's felony-murder statute, to absolve him of the killings. But, he argues, if he did not pull the trigger, he should not face the death penalty. To further that argument, he seeks DNA testing to show that blood found on his clothing (which was shown at trial to be of the same type as the blood of the victims) did not come from the victims.

In many states, if someone is involved in the act of a crime whereby another person in same party to this crime, kills someone as the crime was committed, generally speaking the crime warrants the dealth penality to ALL members involved whether or not someone else in party pull the triger become irrelevant.

Darnell Williams isn't really an innocent person.

Posted by: Cheryl at July 28, 2003 05:43 PM

theperegrine-

You are right. Actually, I personally am aware of the limitations of the jury system. I realize that juries don't always make the right decision. I continue to support it because I think that the jury system, while flawed, is nonetheless preferable to the alternatives.

I really don't see how anyone could oppose a moratorium on executions, given what we are learing today. We have proof (and lots of it) that innocent people really have been sent to Death Row. Why not call a time out so that we can review the cases and ensure, to the best of our ability, that no innocent person is executed?

I myself am not opposed to the death penalty, but obviously we need to ensure that no innocent person is executed. I don't have a problem with a moratorium, even though it will delay the executions of some people who are clearly guilty. How could anyone be opposed to to that?

The answer is as you have described it: people aren't willing to face reality. They simply pretend that there is nothing wrong with the system, even though the facts contradict this.

Posted by: Joe Schmoe at July 28, 2003 05:57 PM

That Pat Robertson road-to-damascus moment on the death penalty when Bush offed Tucker

Pat Robertson facing an angel with a flaming sword.

Sweet.

Posted by: julia at July 28, 2003 06:20 PM

I'm pretty liberal, and against the death penalty. But if the guy participated in a crime where people were killed, he's guilty too, regardless of who pulled the trigger.
If you bring a gun to a crime, or go with those who do, intending to commit a crime with them, I don't care whose blood is on your shirt.

Posted by: sal at July 28, 2003 07:54 PM

This country's criminal (in)justice and prison system is a national disgrace and a crime against humanity. It is far more criminal than most of the unfortunates behind bars.

Posted by: Jim Fiala at July 28, 2003 11:27 PM

"There could be mountains of incontrovertible evidence that exonerates you of a given crime and an American jury could convict you anyway. They probably wouldn't, but they could. The judge would be obligated to honor the verdict no matter how unreasonable or untenable it may be."

Actually this isn't true. If there is incontrovertivle exonerating evidence, the judge doesn't even give it to the jury. He enters a directed verdict. (At least in most jurisdictions.)

Posted by: Sebastian Holsclaw at July 29, 2003 10:18 AM

"Maybe the conservatives will listen to a bottom-line, dollars-and-cents approach to the death penalty question- if the state spends a couple thousand bucks on a DNA test that resolves the issue beyond doubt, that's a lot cheaper than defending against very expensive court appeals."

Yeah, and it is astronomically cheaper than an EXECUTION.

Posted by: scarshapedstar at July 29, 2003 02:14 PM
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