Monday, February 28, 2005

Honesty in the Debate over Capital Punishment

by Joshua Marquis
Special to The National Law Journal, February 28, 2005


About every four years, what inevitably becomes a highly emotional debate over capital punishment erupts in America. The last time, not coincidentally, was when then-Governor George W. Bush first ran for president.

Over the last decade, opponents have deliberately shifted their focus from a debate on whether it is right for the state to take a life, to unqualified assertions that death row is chock full of innocents. Sister Helen Prejean, of Dead Man Walking fame, was recently quoted in the New York Times as saying "[C]an anyone argue about the justice of executing the innocent? And can anyone doubt . . . that we do it all the time."

No reasonable person would disagree with the first part of Prejean's statement, but many, including recent book reviewers, take issue with the last claim.

The New York Times' Adam Liptak, in his review of Prejean's new book, The Death of Innocents, writes: "Prejean and other abolitionists are stretching the facts. Few serious students of the death penalty think we execute innocent people 'all the time.""

Steve Weinberg, a respected investigative journalist and an admirer of Prejean, said "[her] reportage is less compelling than her logic."

The power of 'innocence'

Therein lies the power of words: "executing the innocent," "condemning the exonerated." In the practice of law, words have great power and meaning. Innocent means something very different than "not guilty." As lawyers, particularly those of us who represent the government in trial work, we must be extremely careful about our use of words, and the same caution should apply to anyone who cares for the language of the law.

There is no doubt that since the Gregg v. Georgia decision in 1976, probably 20 to 30 people out of the 8,000 sentenced to death were in fact innocent of the crime for which they were eventually freed. But while any error in the justice system, particularly in capital cases, is cause for concern, it is a sign that these problems are isolated episodes and not part of some epidemic of injustice.

But that's not what the popular culture would have Americans believe. The latest assault comes with the ballyhooed debut of the play The Exonerated on CourtTV and Sister Prejean's new book.

The Exonerated tells the story of six people, now off death row, who the makers claim were innocent, despite the fact that two of the supposed "exonerated" were found guilty of murder based on their own pleas. A third pleaded guilty to an almost identical murder in another state and wasn't available to do publicity interviews because he's doing a long prison stretch for that homicide.

Prejean's book details her belief that two men (Joseph O'Dell and Dobie Williams) whom she counseled on death rows in Virginia and Louisiana and who were eventually executed, were actually innocent. This belief defies DNA testing in both cases that tied the men to their horrific crimes, and repeated reviews by appellate courts, including one by the U.S. Supreme Court.

But overwhelming evidence, the decisions of dozens of jurors and the opinions of scores of appeals judges really don't matter, because as Sister Prejean says, "Innocence or guilt -- it doesn't matter to me, they have human rights."

Those charged with capital murder in the 21st century have lots of rights, far more than were ever accorded their victims, in whom the self-described abolitionists have very little interest, almost invariably even refusing to accord them the dignity of uttering their names.

It is the moral imperative that words like "exonerated" carry that these opponents of the death penalty so desire. Because these words carry such force in the public debate, Sister Prejean and her allies will ignore and even distort the truth to gain that high ground.

Prejean claims that the man who was convicted of murdering Sonya Merritt Knippers in 1984 was retarded despite tests and testimony that put the killer's IQ above the level set recently by the Supreme Court in the Atkins v. Virginia decision. She confuses her earnest wish for mercy for the condemned with actual innocence. In the case of Joseph O'Dell's murder of Helen Scharter, the famous nun ignores DNA and other forensic evidence because she so desperately wants to believe him innocent; yet even the anti-capital punishment Death Penalty Information Center won't put O'Dell on its list of "innocents."

The words do matter -- a great deal. It does a grave disservice to those who really didn't do it to be lumped in with killers whose guilt has been tried and confirmed in forum after forum.

When confronted recently on MSNBC's Abrams Report with the fact that Sonia Jacobs (played in The Exonerated by Susan Sarandon) entered an Alford guilty plea to avoid the possibility of spending the rest of her life in prison, Barry Scheck started protesting about "prosecutorial misconduct." In magic, this device is called misdirection. In serious legal discussion, it has no place.

A subject like capital punishment deserves sober and precise language, not invective and distortion. Reasonable people can differ over the morality and efficacy of capital punishment, but at least let it be an honest intellectual debate.

Saturday, February 5, 2005

One DA's Crusade

Another good piece of work by
Michael Miner of the Chicago Reader:::
"Not Guilty Isn't the Same as Innocent:
One DA's crusade to point out the fatal flaw in Court TV's The Exonerated"

No one believes any longer that the innocent have nothing to fear from the death penalty. A contrary idea now seems like the audacious one -- that some of the prisoners set free actually committed the crimes they were convicted of.

The idea is advanced by prosecutors, who don't enjoy being painted as incompetent at best, corrupt at worst. And they have a standard-bearer, Joshua Marquis, district attorney of Clatsop County, Oregon, and an officer in the National District Attorneys Association. When Marquis' blood is up there's no one I know who's more accessible. Last week he was instant messaging me at 2 AM.

I hear from Marquis whenever the Tribune runs a series about the failures of the criminal justice system. He reads what the Tribune writes as carefully as any editor and waggles a finger at every small hole in the reporting. In 2000, after Governor George Ryan, inspired by Tribune reporting, declared a moratorium on executions in Illinois, Marquis told me the idea that innocent people were being sentenced to die was "the new urban myth." He said that of the 13 condemned convicts who'd been freed in Illinois, "my understanding is four or five of them didn't do it." His "understanding" was what prosecutors must have been telling each other, and it struck me as a sign that they were in a state of denial.

On January 22 Marquis e-mailed me. "I'm on the warpath again," he announced, "and this time it's not the Tribune but it is media. I am writing you to hopefully stir your interest in a purported 'true story' that Court TV will air next week." He meant The Exonerated, a ballyhooed TV presentation of a play that claimed to tell the true stories of six innocent people sentenced to death for murder. Jessica Blank and Erik Jensen constructed the play entirely from documentary materials.

"Of the six people 'exonerated,'" Marquis went on, "two -- Sonia Jacobs, played by Susan Sarandon, and Kerry Cook, played by Aidan Quinn, are both factually and legally GUILTY. Both served more than 15 years and were released only after they pled GUILTY to murder . . .
"I have watched the play, read the play. I have also read the actual transcripts of the trial and even have [Jacobs's] actual recorded audio interrogations. They vary wildly with the play."
He FedExed me the transcripts and a tape of the interrogation.

I was far from the only journalist Marquis contacted. Two others he had long conversations with -- Adam Liptak of the New York Times and Richard Willing of USA Today -- wrote articles before The Exonerated aired on January 27 that reflected his skepticism. Marquis also got a sympathetic hearing from James Curtis, a Court TV anchor who was assigned to interview the six freed prisoners for the show's Web site. But Marquis struck out with TV critics. The friendliest response came from Peter Carlin of the Portland Oregonian, who blew off Marquis but told him, "If it's any consolation, whatever shows up on Court TV will be dwarfed by the seven weekly hours of 'Law & Order' that show up on NBC. Because producer Dick Wolf makes no secret of his loathing for defense attorneys, nor of his enthusiasm for trashing them on his popular shows, which usually portray prosecutors in the most heroic terms."

It was no consolation. Marquis worked himself into such a lather that e-mail he sent on January 26 was all but unreadable. "With all due immodesty . . . this has been a crusade that looks like my obsession with the TRIB a junior high crush."

The night The Exonerated debuted on Court TV, which aired it three days in a row, Marquis took part in a panel discussion on MSNBC. Host Dan Abrams had also rounded up Sonia Jacobs's attorney, former prisoner Kerry Cook (on the phone), and Barry Scheck, a founder of the Innocence Project, which has championed the use of DNA evidence to identify and release innocent prisoners. Abrams allowed that he wasn't certain whether Cook or Jacobs was innocent, and Marquis insisted that they couldn't be called "exonerated" because they hadn't been. Each had gone free on an "Alford plea," a legal device that allows a prisoner to plead no contest to charges without admitting guilt. The Alford plea lets prosecutors dispose of troublesome old cases without the bother of another trial and the risk of an acquittal. Critics like Scheck see it as a sadistic tool that offers freedom to innocent prisoners only if they stop fighting to clear their names. But if Marquis' point is narrow, it's correct. Their records haven't been expunged. They aren't, in a legal sense, exonerated.

"Mr. Cook was tried four times," said Scheck on MSNBC, "and they were reversed for prosecutorial misconduct. In ringing terms -- "

"What does that have to do with innocence?" said Marquis.

"Oh, it has a lot to do with innocence in this case," said Scheck.

Later, the conversation deteriorated.
Scheck: "You have no shame to take a man like -- "

Marquis: "He's talking about a client of his -- "

Scheck: " -- Kerry Max Cook and drag him through -- "

Marquis: " -- committed the crime after he was exonerated -- "

Scheck: " -- the mud with misrepresentations like this."

Abrams: "The bottom line -- "

Scheck: "You have no shame. He suffered too much."

Abrams: "All right."

Scheck: "Stop this. You have no shame, sir."

Abrams: "All right. Josh Marquis and -- "

Marquis: "Thank you for having me."

Abrams: "Barry Scheck, it's always -- "

Scheck: "No shame."

Abrams: "All right. It's good to see both you guys."

Scheck: "No shame."

That was the night Marquis IM'd me at 2 AM to tell me about it. The next day he and Scheck went at it on a Court TV panel moderated by Catherine Crier. I heard from Marquis at 11 PM: "They lined up 6 people opposite me. But NDAA [the National District Attorneys Association] had demanded an opportunity to respond and they kind of . . . sort of, not really did. Catherine Crier oohed and ahhed over Barry and ended the show by declaring 'And that's why I'm against the death penalty.' Not the point, bimbo."

James Curtis, the Court TV anchor assigned to interview the former prisoners featured in The Exonerated for the Web, wound up talking to three of them. One of the six, Robert Hayes, wasn't interviewed by anybody. Hayes had been convicted of the murder of a female groom at a Florida racetrack in 1990 and acquitted at a second trial; but he's back in prison after pleading guilty last November to manslaughter in the death of a groom at a New York state track in 1987. Marquis wishes he'd known about Hayes when he was mounting his attack on the TV show.

Cook was convicted of the rape and murder of a Texas woman in 1979 and spent 22 years on death row. Curtis, who'd interviewed Cook for an hour and a half, told me, "He convinced me. Absolutely." A former prosecutor, Curtis immediately qualified what he'd said. He wasn't convinced Cook was innocent. He was convinced Cook believed he was innocent.

One question nags at Curtis. "I asked him, 'You pled guilty, although it was an Alford plea, and you knew the DNA was coming out. If you were so confident the DNA would prove you innocent, why didn't you wait?' It was a matter of weeks. The sense I got was that this was a man who was defeated, simply torn down by his experience on death row. He'd lost any sense of real hope. I think he was concerned they'd take the deal off the table. This was a guy who'd literally been through hell on death row . . . horrific abuse. When you sit in a room with him you get a real sense of a guy who really wanted out. It's hard to blame anybody in that situation. But why not wait?"

On The Exonerated's Web site the interview's been reduced to 17 minutes, and that question doesn't come up. We do hear Cook talking about the Alford plea. He's in despair. "This is such an empty victory," he says sadly. "They won."

Sonia Jacobs lives in Ireland now, so Curtis talked to her by phone. In 1976 she and her two kids were asleep in the back of a Camaro pulled over at a rest stop in Florida. A state trooper accompanied by a friend of his -- a policeman visiting from Canada -- noticed a gun on the floor of the car and ordered everybody out. Jacobs's boyfriend, Jesse Tafero, and the driver, Walter Rhodes, who was someone Tafero had met in prison, climbed out of the front seat. What happened next has been disputed ever since. Gunfire erupted, and both lawmen were shot dead. Rhodes fingered Tafero and Jacobs. They were convicted of murder, and even though Rhodes recanted and said he'd shot the officers, Tafero was eventually executed. But Jacobs's conviction was overturned on appeal, thanks to new evidence that pointed to Rhodes as the killer, and she was freed on an Alford plea in 1992.

"The main sins are those of omission," says Marquis. The show doesn't hint at her past brushes with the law -- arrests on suspicion of credit-card larceny and possession of illegal drugs. It doesn't acknowledge that after the murders she told police she owned and had been carrying two guns, one of which would be identified as the murder weapon. It doesn't acknowledge that, according to the state's version of the facts when she took the Alford plea, Rhodes had been driving Tafero and her around "to consummate drug deals in south Florida." It doesn't explain that she'll now go through life convicted of two counts of second-degree murder.

Curtis asked her about these things. He says, "She went berserk."

He goes on, "She was a gun-toting drug dealer -- that's what she did. In the movie they made her out to be love and peace. It's understandable why these prosecutors are fit to be tied. She wants to be known as she's been portrayed and may very well believe -- that she's a victim. That's what she's been told from early on, and she plays that role. But boy, when she got mad, talk about a 180 in attitude. Rage -- rage came out of that woman."

Curtis says his immediate bosses were fine with his tape of the Jacobs interview. But the "people on the other side" -- the executives overseeing The Exonerated -- "were less than pleased." And Jacobs wasn't pleased at all. She refused to sign a release allowing Court TV to post the interview on its Web site.

In Marquis' eyes, Curtis is a martyr to the truth. Two days before The Exonerated went on the air Court TV dropped him as an anchor. "I was in shock," he says. A Court TV spokesperson says the demotion had nothing to do with The Exonerated, and Curtis is willing to go along with this claim. "I doubt that there's a connection," he says judiciously. "But others may dispute that, and they're fully entitled to their opinions." His contract's up in May and won't be renewed. He's looking for work.