Thursday, June 29, 2000

The Reader on the Tribune's death penalty series

Prosecutors vs. Journalists: The Gloves Are Off
an editorial by the Chicago Reader

Joshua Marquis, district attorney for Clatsop County, Oregon, didn’t simply believe the Chicago Tribune got the story wrong—he knew it. As we talked last week, he dug into his Tribune file and read me the following passage:
“A [national] Tribune search found six prosecutors this century...who have faced criminal charges alleging the sort of misconduct at the heart of the DuPage 7 indictments—concealing evidence or using false evidence. Of those six, two were convicted of misdemeanors and fined $500 each, two were acquitted and charges against the other two were dropped before trial.”
Marquis was reading from “Trial & Error,” a 1999 Tribune investigative series subtitled “How prosecutors sacrifice justice to win.” He told me, “I’m a DA because my predecessor went to jail. The whole thing was on Court TV.”

The predecessor, Julie Leonhardt, was convicted in 1994 of forgery, tampering with public records, and misconduct. She’d tried and failed to squelch a reckless-driving charge against her fiance, a convicted felon on probation. Out of apparent spite, she’d then issued a fraudulent indictment against two police officers, one of whom had been connected to her boyfriend’s case, charging them with criminal conspiracy. Leonhardt spent two months in jail and was disbarred.

“My predecessor is a disgrace to my profession,” said Marquis. She’s also a contradiction of the Tribune’s premise that, as Marquis put it, “by their fundamental nature prosecutors are a bunch of rotters and nothing ever happens to them when they get caught.” Leonhardt was an embarrassing exception to overlook. The Tribune had published a story on her conviction.

The thing is, the Tribune didn’t overlook Leonhardt. Ken Armstrong, the Tribune’s legal reporter who with Maurice Possley wrote “Trial & Error,” knew about her case and ignored it. He told me this week that he only counted prosecutors who’d faced criminal charges for misconduct that caused a conviction to be reversed; Leonhardt’s case against the two cops collapsed before they ever went to trial. Armstrong and Possley made their criteria pretty clear in the first few paragraphs of their series. The passage Marquis read to me showed up midway through the third day’s installment, and it wasn’t written as carefully.

So Marquis, an experienced prosecutor who had a hunch about what the Tribune meant to say but recognized that it hadn’t, has an irrefutable contradiction he can point to.

The Tribune had high hopes that the combination of “Trial & Error” and the later “Failure of the Death Penalty in Illinois,” reported by Armstrong and Steve Mills, would win it a Pulitzer Prize this spring. Pulitzer judges weigh nominated stories by what they accomplish, and the Tribune’s had transformed the death penalty debate in America. In reaction, Governor Ryan ordered a moratorium on executions in Illinois, forcing the question on governors across the country.

But though the Tribune series did win plenty of honors—including a National Headliner Award, a Scripps Howard Foundation National Journalism Award, and a George Polk Award—the biggest one got away. A finalist in the public-service category, the Tribune entry was rejected by the Pulitzer Board, which received blistering letters from the National District Attorneys Association, the Illinois State’s Attorneys Association, and a group of assistant state’s attorneys in Cook County. And the argument continues.

Journalists celebrate the Tribune studies, particularly the second, and prosecutors condemn them, particularly the first. Last month, Brill’s Content placed the death penalty series on its “honor roll,” observing that “rarely does journalism have such a direct impact on a major area of public policy,” and reporting that “lawyers and journalists involved in death penalty cases...say the scope of the journalists’ work brought the death penalty debate to a level beyond polemics.” In April Editor & Publisher said the Tribune had thrown down the gauntlet for newspapers in other states: “If reporters were able to find so many inmates wrongfully convicted in Illinois—which has executed 12 people since 1977—where are the similar projects in Florida, which has executed 46; Virginia, with 76 executions; or Texas, with 211?”

Texas—whose governor, George W. Bush, has boasted that his capital-justice system works flawlessly—begs for scrutiny, and now it’s getting it. The Tribune and New York Times have both sent teams to comb Texas’s death row for injustices, and when Bush changed his stripes last week, postponing an execution for 30 days to allow for DNA testing, the Tribune played the story on page one.

But prosecutors continue to strike back. The president of the National District Attorneys Association immediately wrote Editor &Publisher to assail “Trial & Error” (which wasn’t the series the magazine focused on) as “inaccurate, misleading, and based on fatally flawed research.” Joshua Marquis sits on the board of the NDAA, and he tells me he suggested the research that produced the numbers the NDAA is rebutting with. He cochairs the NDAA’s media committee, “which I helped found on the theory prosecutors are not doing enough to reach out and be forthright and available to the press.”

Marquis accuses the Tribune of trying to project Illinois’ judicial shame onto the rest of the country. He argues that there have been some 400,000 homicide prosecutions during the period the Tribune examined—the paper’s earliest case was from 1963—and even if every last case counted by the Tribune were a solid-gold example of prosecutorial misconduct, this would still leave prosecutors on the side of the angels 99.9 percent of the time. That’s why Marquis, appearing with Ryan on Good Morning America this past Monday, told the governor that the only way to make capital punishment more fail-safe than it already is would be to abolish it.

But Marquis and the NDAA don’t accept the Tribune’s 381 cases at face value. Marquis told me three of the cases were from Oregon, so he looked them up and discovered they were all 25 to 30 years old and that in all of them the defendants were retried and reconvicted. “By prosecutorial misconduct the Tribune means ‘evil by prosecutors,’” Marquis said, but in his view the misconduct here was technical—prosecutors being held responsible for evidence that should have been turned over to the defense.

In his letter to Editor & Publisher, president Stuart VanMeveren of Fort Collins, Colorado, wrote that the NDAA had developed its own information “concerning 221 of 384 cited cases” (for some reason he didn’t use the Tribune’s number) and concluded that clear or possible misconduct could be identified in less than a third of them. He reported that in 26 percent of the 221 cases the defendant went free, either immediately or after acquittal at a retrial, while over half the time the defendant wound up retried and convicted of (or pleading guilty to) the same or a lesser offense. Said VanMeveren, “Our findings belie the impression given by the ‘Trial and Error’ series that all of the cases resulted in ‘exoneration.’”

Did the series give any such impression? Did it intend to? Yes and yes, says Marquis. “Why does the Tribune use words like ‘innocent,’ ‘exonerated,’ and ‘free’?” he wondered. “Because it wants to convey to its readers these were people who did nothing wrong who were snatched up by a corrupt system and thrown into prison.”

Given the subject matter, I’m not sure that words like “innocent,” “exonerated,” and “free” were avoidable. The declaration on page one of the first “Trial &Error” installment, “Innocent people went to prison, some to Death Row,” is manifestly true. But Marquis is clearly correct that the Tribune planted the idea of a “corrupt system.” Also on page one opening day was the headline “The verdict: Dishonor,” the subhead “How prosecutors sacrifice justice to win,” and the thumbnail description of the story asserting “A Tribune investigation finds 381 wrongful homicide convictions.” The opening sentence began, “With impunity, prosecutors across the country have violated their oaths and the law.”

Tuesday, June 13, 2000

June 2000 Senate Judiciary Committee Testimony on DNA Testing

JUNE 13, 2000

I am honored to be here today and thank Chairman Hatch, Senator Leahy, Senator Smith, and the honorable members of this Committee for giving me the chance to testify about DNA testing legislation. I'm the elected District Attorney in Clatsop County, on Oregon's North Coast. I have handled more than two dozen homicide cases and have four aggravated murder cases pending, two of which potentially involve the death penalty. Before being appointed and then elected District Attorney, I was the chief deputy to other Oregon counties. I have also served as the speechwriter to former California Attorney General John Van de Kamp, and I worked as a reporter and columnist for the Los Angeles Daily Journal newspaper. I serve as co-chair of the Media Committee on the Board of the National District Attorneys Association. I 'm also Vice-President of the Oregon District Attorneys Association.
DNA can be a marvelous forensic tool, but it is not a magic bullet. In 1983, in the English village of Narborough, 15-year-old Lynda Mann was murdered. Two years later another young girl in the village was murdered. DNA technology was in its infancy, but local constables got the idea to use DNA technology. They systematically collected blood samples from every adult male in the town, and methodically and eventually caught the rapist, appropriately named Colin Pitchfork, in 1987.* But it is important to remember that even when DNA evidence is overwhelming, as it was in, for example, the OJ Simpson case, a skillful defense lawyer can convince a jury to ignore the scientific evidence. The idea of allowing modern technology to convict the guilty and free the innocent is now in widespread use, and existing DNA labs are seriously backlogged. The Justice Department has estimated there are 350,000 DNA samples currently awaiting testing. **

The concept behind Senator Leahy's bill has value, but standards are necessary to make it workable. Without standards it could open the floodgates to a deluge from guilty and/or simply bored criminals who will demand DNA testing whenever there is even a possibility it will reveal relevant evidence. Mr. Scheck's Innocence Project requires that DNA testing be dispositive of actual guilt or actual innocence, a far cry from the of the Leahy bill. In some cases, like a stranger-to stranger rape, DNA can be dispositive. But in a domestic murder the presence of DNA evidence answers no significant questions. Senator Hatch's proposals recognize that difference.
Let me give you a concrete example. I tried, for the second and third time, and now I or perhaps another prosecutor will need to try for the fourth time, the penalty phase of a vicious murder of two Oregon residents who were slaughtered in their home in 1987. The defendant has never claimed actual innocence. The state of Oregon has shelled out more than million dollars for his defense. The defendant has been sentenced to death by three separate juries. Without the definition provided in the Hatch bill, this defendant could come into court a fifth time, claiming his nine previous trial and appellate lawyers forgot to raise a DNA issue. He could claim that a spot of blood on a TV set that has been kept in a locked mini-storage locker might show relevant evidence that someone else's blood was at the crime scene. DNA technology is improving almost monthly. However, since no one has ever claimed the TV set has relevant biological evidence, the DNA sample may well be untestable or seriously contaminated. A defense attorney might then get up in court and claim that the prosecutor has allowed critical evidence that could clear the client to be destroyed. This killer would get yet another trial, forcing the victims to come back again. Or, worse yet, he might even get out of prison.
As a career prosecutor my worst nightmare is that I convict an innocent person of a crime that sends them to prison, to say nothing of death row. In this country we have an incredibly elaborate appellate system that recognizes that police, prosecutors, judges and juries are not infallible. More than 400,000 homicides cases have been charged since the Supreme Court, in 1976, allowed states to re-implement capital punishment. Somewhere between five and ten thousand of those cases, depending on the source and the way they are counted, have garnered the death penalty. In that same time, for those same numbers, death penalty opponents have cited 87 cases in which evidence later surfaced that showed the condemned to be actually innocent or raised sufficient doubts to remove them from death row. Only eight of these cases have involved DNA.
And we must be careful with our use of the language. The media have interchangeably used the word "exonerated", "freed" or "cleared" to describe cases where the actual guilt of the defendant is still very much an open question. Make no mistake about it: It is far from clear that we are really talking about "actually innocent."
While there are many people, like my own state's Senator Gordon Smith, whose goal is to make our system more efficient, there are also those whose real intent is simply to abolish the death penalty. On National Public Radio last week, Peter Neufeld admitted that he will never be satisfied with any system of capital punishment. The American people have consistently supported the death penalty as a concept. A recent Newsweek poll showed more than 70 percent support for capital punishment. In my own state a recent poll showed more than two-thirds of Oregonians would vote against the so-called "Life for Life" initiative which would abolish the death penalty that our state's voters popularly abolished in 1964, and re-instated -- more than once -- twenty years later.
Honorable and principled people like my state's former Senator and Governor Mark Hatfield, have sincere moral objections to the death penalty. But some opponents have recognized they have lost that battle with the public and are attempting now to re-shape the discussion in the form of a new urban myth: that our justice system is growing increasingly reckless in its zeal to execute and, worse yet, that significant numbers of innocents are ending up on death row. This is a myth in search of a crisis that doesn't exist
Another study, launched by anti-death penalty advocates here in Washington on Saturday, June 10th, made the bizarre claim that because America's state and federal courts overturn such a high proportion of capital cases, that must mean the system "is so fraught with error as to make it unreliable." Interestingly, the states with the lowest reversal rates in this somewhat recycled study are Virginia and Texas, states that abolitionists constantly attack for their capital punishment systems. The state with supposedly one of the "worst" reputations -- Illinois -- in fact overturns 66 percent of cases, according to Professor Leibman's study.
The study inadvertently or intentionally misses the obvious point. When we apply to death sentences what Justice Powell called "super due process," as well we should, we would expect to find the extreme scrutiny that results in otherwise clearly guilty defendants getting yet another trial. But make no mistake, almost every last one of these cases is not an "innocent on death row." It is someone whose case is overturned, like two cases I'm getting ready to retry, solely because the victim's family was allowed to tell the sentencing jury something about what the victims were like as living human beings, before the defendant robbed them of their lives
We can and must use technology to accomplish what Senator Smith has called "making a good system near perfect." "Near perfect" is the operative expression. No human endeavor is without risk. Our elaborate system of appeals in capital cases has the lowest error rate not only of any criminal sanction in the world, but is far less risky than elective surgery or a trip to the pharmacy. We must never forget the other, massively larger part of this risk-benefit analysis: the thousands of truly innocent victims who die at the hands of criminals that the legal system has failed to hold accountable.
I commend Senator Leahy for bringing the issue before your committee, but I strongly urge you to adopt the precise and effective language of Chairman Hatch's proposal. The standards laid down in Chairman Hatch's bill would ensure that even cases where defendants have exhausted state and federal appeals would be eligible for DNA testing if the testing would have the potential to show "actual innocence." Chairman Hatch's standard is similar to the statutes in New York and Illinois, as well as the standard enumerated by the United States Supreme Court in Herrera v. Collins.
Without this preciseness of language we will be opening the barn door to a flood of demands by jail-house lawyers who are indisputably guilty. The DNA resources in our nation are already taxed beyond their abilities. Senator Hatch's bill allocates money to strengthen those resources.
I urge you to look carefully at this issue and consider both the "actually innocent," a term which 99 percent of the time describes the killers' victims, and the "actually guilty."
And I thank you again for this opportunity.

*The Blooding, Joseph Wambaugh, 1989
**David Boyd, DOJ Office of Science & Technology, 2000
***Amnesty International USA, Program to Abolish Death Penalty, 2000
****Herrera vs. Collins, 506 U.S. 390 (1993)