Judges’ Dissents for Death Row Inmates Are Rising

One point which has not been sufficiently addressed about the death penalty is the likelihood of some error in the process leading to executions. In a recent case, below, a man may well be sentenced to death despite overwhelming evidence that the police, the prosecution and the trial court all severely bungled the case, at best, and intentionally framed the defendant, at worst.

“William A. Fletcher of the United States Court of Appeals . . . argued that the police and prosecutors had withheld and tampered with evidence in the case for decades; Judge Fletcher even accused the district court of having sabotaged the case.”


Read the opinion (and the dissent) here:

Today, Judge Fletcher spoke at my law school. His point about the death penalty was not that it was per se wrong, but that the process leading to the death penalty is in such a bad state that we cannot continue executions.

Among the problems Judge Fletcher discussed today:
-Misconduct by the investigating police department. Murder cases often involve a great deal of political pressure, and there are many examples where police have fabricated evidence, mishandled or destroyed exculpatory evidence, forced confessions, struck plea bargains with other witnesses to fabricate or exaggerate stories, etc.
-Misconduct by the prosecutor. Prosecutors in several recent capital cases have neglected to turn important evidence over to the defense (in violation of both law and ethical duties).
-Misconduct by the trial judge. All kinds of rulings can be made incorrectly. One example was where jury instructions gave the jury the option of either sentencing the defendant to “life WITH the possibility of parole, or death” where the instruction should have given the option of life WITHOUT parole or death. Incredibly, the state supreme court held that that was a harmless (nonreversible) error.
-Misconduct by state appeals judges. Many state supreme court justices are elected, and bow to political pressure to uphold wrongful (or at least problematic) convictions.

These are problems that exist with the whole of the justice system; but unlike most criminal cases, mistakes made in dealing death cannot be fixed. And whether the death penalty, if perfectly administered, is justified is really not the issue in front of us; the issue is whether we should support the death penalty as it exists today.

All these arguments are deflated by

n 2001, Cooper became the first death row inmate in California to get post-conviction DNA testing of evidence. The results of those DNA tests failed to exonerate him of the 1983 murders and indicated that hairs found on three of the victims were likely their own, which undermines Cooper’s theory that other people committed the murder.The testing also establishes that there is strong evidence that Cooper is the donor of the DNA extracted from the following items of evidence:

  1. A bloodstain found inside the Ryens’ home;
  2. The saliva on a hand rolled cigarette butt found inside the Ryen station wagon;
  3. The saliva on a manufactured cigarette butt found inside the Ryen station wagon;
  4. A bloodstain located on a tee shirt that was found beside a road some distance from the Ryen home.

There is strong evidence that one of the victims, Doug Ryen, was the donor of another bloodstain found on the same tee shirt. Cooper is also consistent with being the donor of two additional blood smears and a possible donor of blood spatter on the same tee shirt.

However, that does not detract from this

One point which has not been sufficiently addressed about the death penalty is the likelihood of some error in the process leading to executions

I would disagree with it being a “likelihood” but a possibility. I don’t support the death penalty for every murder committed. It should only be used when society would not be protected by life imprisonment. What I haven’t seen address is what to do with those who kill in prison when they themselves are there for life without parole? I would like to see thoughts on that situation.

Each instance of DNA evidence you discuss is addressed by the extremely thorough (100+ page) dissent. There is much evidence that the DNA evidence was planted by the police, from a vial of blood the police obtained from the defendant. As the dissent notes, that vial now contains DNA from TWO people–indicating either that the defendant is actually two people in one, or that the police filled back up the vial with someone else’s blood. So the DNA evidence in this case is irreparably tainted. Of course, as you recognize, this is just one example. And, as the Judge mentioned today, it is quite possible to frame a guilty person–but the problematic implications for the death penalty remain.

I don’t wish to go down the road on your second point, which assumes the person actually committed the crime. The point of my post is that we can be much less certain of guilt than we think. Sure, it is positively true that most of the time, the actual murders are put to death, and most of the time, police and prosecutors act honorably. But it is also positively true that SOME of the time, innocent people are put to death, and police and prosecutors act dishonorably.

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