Professor Garrett cites one of the relatively few genuine death row exonerations—Kirk Bloodsworth—and then invokes that case to argue that wrongful convictions on death row are epidemic because Georgia murderer Troy Davis' case did not turn on DNA.
In the space available it is not possible to address all of Garrett's issues, so I will concentrate on the definition and reality of exonerations using DNA testing.
Garrett repeats the often wishful thinking of death penalty opponents that "the death penalty is dying in America." Of those states that abolished the death penalty, only Oregon, in 1964, did so by popular vote—and then reinstated it in 1984 by a 75 percent vote. Using the U.S. Department of Justice's Bureau of Justice statistics, it is clear that in the first decade of the 21st century (2000-09) the states that do execute murderers used the penalty 26 percent more often than in the last decade of the 20th century (1990-1999). And, not coincidentally in the minds of many of us, over the same time period the murder rate in America declined over 20 percent.
DNA came into America's courtrooms state-by-state, mostly in the late 1980s and early 1990s. It was propounded not by defense attorneys but by prosecutors who noted what happened in England in the case well-portrayed in Joseph Wambaugh's book The Blooding. In it, the appropriately named Colin Pitchfork was brought to justice through a form of DNA testing that would horrify most American civil libertarians: the British police pretty much required all the males of a certain age to submit to having their blood taken by needles. (DNA can now be collected with a Q-tip like device that swabs the inside of the subject's mouth.)
For any scientific technique to be accepted or to withstand the attack that it is mere junk science, federal courts have imposed the Daubert standard. Virtually every state either has adopted that standard or has fashioned its own. In Oregon, for example, it is called the Brown/O'Key standard, and it examines “the technique's general acceptance in the field, the expert's qualifications and stature, the use which has been made of the technique, the potential rate of error, the existence of specialized literature, the novelty of the invention and the extent to which the technique relies on the subjective interpretation of the expert.”
Since a prosecutor's role is to seek justice, not simply convictions, it is always in our interest to find the right person—to defeat the claim of SODDI (Some Other Dude Did It). My predecessors in Clatsop County, where I am the DA, finally convinced the Oregon appellate courts, in State vs. Futch, to allow DNA evidence. Defense attorneys had fought it tooth and nail until the Futch decision.
It turned out that in a relatively tiny percentage of cases, DNA would exonerate people. Kirk Bloodsworth’s case makes headlines because it is so rare. There were two poster boys, literally, for death row innocence in the 1990s, both of whose supporters claimed DNA would free them. One of them was championed for over a decade after Virginia legally killed him.
In 1992, Roger Coleman was sentenced to die for the 1981 rape and murder of Wanda McCoy in a tiny Virginia coal mining town. (Victims have names too.) Coleman’s picture graced the cover of Time magazine, and he protested his innocence to Ted Koppel on ABC's Nightline shortly before his execution. Coleman was represented, like many death row inmates, by a top-flight law firm—Washington, DC’s Arnold & Porter.
The 11 years Coleman languished between his crime and his execution is much shorter than would occur in most of the 35 states with the death penalty. His last words were, "An innocent man is going to be murdered tonight. When my innocence is proven, I hope America will realize the injustice of the death penalty as all other civilized countries have." The same Dr. Edward Blake cited by Garrett had the one remaining biological sample from Coleman. It was too small to be tested under the PCR testing available in 1992. When Virginia authorities tried to get the sample post-execution, Blake refused, telling the BBC it was an act of civil disobedience on his part because he was so sure Virginia would try to cover up the execution of an innocent man.
This standoff continued until January 2006, when outgoing Governor Mark Warner brokered a deal to have a neutral Canadian lab test the sample using the latest DNA technology. Coleman's most dogged supporter, Jim McCloskey of Centurion Ministries, which fights to free the wrongfully imprisoned, planned to announce the results on live TV. He didn’t. The test came back with a 1 in 19million probability that anyone other than Roger Coleman could have murdered and raped Wanda McCoy.
During the election summer of 2000, the death row practices of Texas came under particular scrutiny. Barry Scheck and the Innocence Project represented Ricky McGinn who had been on Texas’ death row for six years for the rape and murder of his 12-year old step-daughter, Stephanie Flannery. There was a tiny speck of biological material that could not be tested when McGinn went to trial. A Newsweek cover featured McGinn’s face, coincidentally on the same day Scheck testified before the U.S. Senate Judiciary Committee, citing McGinn's case. (I testified that same day.)
Texas Governor George W. Bush did he was allowed (a single 30-day reprieve) so that the speck on Stephanie’s underwear could be tested. But again, you never heard about it.Newsweek never published an update. Hardly anyone remembers the now-executed McGinn because the DNA test proved beyond any possible doubt that he was both a killer and a rapist.
Do these two high profile non-exonerations means we should say "game over?" Of course not.
In response to the Senate hearings, the National District Attorneys Association, on whose board I have sat since 1997, adopted the policy that DNA tests should be afforded at any stage of a proceeding—even after all appeals have been denied—if the testing can reveal actual guilt or innocence. There is little downside to a DNA test for a convicted murderer when the test won’t answer any question regarding guilt. But a defense attorney will demand one because his job is to cast doubt on any part of the state’s case, not just that which establishes guilt or innocence.
Garrett references a study by Professor Samuel Gross that came out of a Northwestern Law School symposium and subsequent issue of their Journal of Criminal Law. I used Gross' own numbers to estimate the incidence of real-life exonerations, as opposed to those in TV shows or movies. Gross cited about 390 cases from 1989 to 2003 where he and his team believed serious felony sentences were unfairly handed down against innocent defendants. The cases he cited from Oregon hardly met that test. Gross posits there must be many more exonerations than he identified because he asserts (and Garrett repeats) that in many cases DNA or a recantation by a key witness does not exist. So I rounded Gross's number up to 400 and multiplied it by ten, yielding 4,000 exonerations—far more than I believe exist for the time period. I divided the 4,000 by 15 million, the number of felonies committed during the same period, yielding a “rightful” conviction rate of 99.93%. My article in the New York Times drew howls of protest, many attacking my math, pointing out that my base statistic of 15 million was all felonies.
Okay, so let's refine the numbers down to just willful homicide and forcible rape. This is narrower than Gross's sample and amounts to about 1.5 million. Move the decimal one point and you have a "rightful" conviction rate of 99.72%. Small consolation if you are in that .28 of one percent.
The wrongful conviction rate should be lower and prosecutors can do more than anyone in the criminal justice system to make sure that happens by being very discriminating in bringing capital cases. Pharmacists and doctors separately kill 10,000 Americans—by accident—every year, but we don't ban prescriptions or elective surgery. We try to find out what went wrong and fix it.
Garrett and his fellow opponents of the death penalty—and then true life, and then mandatory sentencing of any sort—claim they really just want to fix the problem. But, as Justice Antonin Scalia acidly pointed out in his concurrence in Kansas v. Marsh, they aren't interested in fixing the system, but in tearing it down. I have no doubt their beliefs are sincere and deeply held, but if we are to debate such an emotional issue we should do so with context, not ignoring the stories that don't make the front page or are relegated to the newspaper’s "airplane pages" (B-2, C-5, etc).
States are doing all kinds of things to prevent the errors that led to Kirk Bloodsworth’s convictions—better trained and paid public defenders and prosecutors, and a true national DNA bank, the latter of which is ironically opposed on civil liberties grounds by people apparently unaware that the DNA we use to identify a suspect is considered “junk DNA” for medical purposes. We can't, for example, find out whether a person is inclined to get Tay-Sachs disease even if we wanted to.
I can understand how libertarians generally don't trust the government to get things right and accordingly might be even more leery of the government killing someone. Professor Cass Sunstein proposed in "Is Capital Punishment Morally Required: The Relevance of Life-Life Tradeoffs" that if the series of nonideological studies done in the last decade are right, then having a death penalty spares between 10 and 24 innocent victims of murder. How can we abandon indisputably innocent men, women, and children to homicide?
 Joseph Wambaugh, T he Blooding (William Morrow), 1989.
 Daubert v. Merrell Dow Pharmaceuticals, 509 U.S. 579 (1993).
 State v. Brown, 297 Or 404, 416, 687 P2d 751 (1984).
 State v. Futch, 123 Or App 176, 860 P2d 264 (1993).
 “The Roger Coleman Case: Did Virginia Execute an Innocent Man?” Inside Out, WBUR.
 William Tucker, “Guilty Again!” American Spectator, January 17, 2005.
 Senate Judiciary Committee Testimony of Barry Scheck on Post-Conviction DNA Testing, June 13, 2000.
 Senate Judiciary Committee Hearing on Post-Conviction DNA Testing, June 13, 2000.
 Symposium: Innocence in Capital Sentencing, Journal of Criminal Law and Criminology, Vol. 95, Issue 2, Winter 2005.
 Joshua Marquis, “The Innocent and the Shammed,” New York Times, January 26, 2006.
 Kansas v. Marsh, Supreme Court of the U.S. No. 04-1170, 548 U.S. 163 (2006).
 Cass Sunstein and Adrian Vermeule, “Is Capital Punishment Morally Required? The Relevance of Life-Life Tradeoffs,” U Chicago Law &Econ, Olin Working Paper No. 239; AEI-Brookings Joint Center Working Paper No. 05-06; U of Chicago, Public Law Working Paper No. 85.