Death penalty multiplies gravity of justice errors

The fallibility of the American criminal justice system, including in death-penalty cases, is being exposed ever more starkly by a revolution in DNA technology.

At least 116 inmates condemned to die by U.S. courts have been exonerated based on new evidence since capital punishment was reinstated in the mid-1970s, according to the Death Penalty Information Center. About 80 of those vindications have come since 1990, the beginning of the DNA era.

DNA has transformed the evaluation of evidence in U.S. courtrooms, said Stephen Drizin, a professor at Northwestern University School of Law and staff attorney for the Center on Wrongful Convictions.

Cases that once appeared rock solid, he said, can become quite flimsy when seen through the lens of DNA.

The undisputed leader in wielding that lens has been The Innocence Project, a nonprofit legal clinic formed in 1992 to free the wrongfully convicted and based at Benjamin N. Cardozo School of Law at Yeshiva University in New York City.

Using DNA testing, the project says it has conclusively proved the innocence of more than 150 prisoners – including Cleveland’s Michael Green – who were convicted of rape, murder or other serious crimes.

Thirty percent of the first 123 prisoners exonerated had been convicted of homicides, according to the project’s Web site, and two-thirds of those had been convicted with the help of false admissions by suspects.

But the problem is bigger than such numbers suggest.

If such fundamental errors can occur in cases that have testable DNA evidence, Drizin said, they are just as likely – but much harder to prove – in cases that don’t.

John Spirko’s case had no DNA.

Neither did Anthony Porter’s.

But few cases illustrate more clearly than Porter’s how chilling the prospect for error can be in death-penalty cases, in which the sentence – once carried out – can never be corrected.

A Chicago gang member with an IQ of 51, Porter was just 50 hours from lethal injection for a 1982 double murder when a court ordered a temporary delay in 1998 – to determine whether he was mentally fit to be executed, according to the Center on Wrongful Convictions.

The respite allowed time for a private investigator and some journalism students to prove Porter innocent – by coaxing a confession from one of the real murderers.

In February 1999, Porter was released from prison, after more than 15 years on death row.

He is one of 18 condemned inmates to be exonerated in Illinois alone, a record so dismal that former Gov. George Ryan imposed a moratorium on executions in 2000 and appointed a commission to explore reform.

In January 2003, after judging the legislature too slow in adopting the commission’s proposed reforms, Ryan commuted the death sentences of all 171 inmates then on Illinois’ death row. The state’s experience inspired a national capital-punishment debate.

Citing recent exonerations and law-enforcement foul-ups, former appeals judges in Missouri and Texas – by far the nation’s most prolific executioner – have raised concerns about executing the innocent, according to the Death Penalty Information Center.

Public support for the death penalty –still quite high at about 65 percent – has fallen from the 80 percent level a decade ago.

And the number of death sentences imposed in a year has fallen by 50 percent since the mid-1990s.

In Ohio, a state that executed seven inmates last year – second only to Texas’ 23 – some lawmakers have called for a moratorium on executions almost since they were resumed in 1999 after a 36-year hiatus.

Just last November, the Ohio House – in approving a crime bill with a bipartisan vote of 64-30 – adopted an amendment calling for a commission to study capital punishment here.

The proposal died in the Senate.

As of this month, 204 men and one woman are awaiting execution on Ohio’s death row. Spirko has been there longer than all but nine. One execution has been scheduled so far this year.

Three inmates, including Spirko, have all but exhausted their appeals. Unless the U.S. Supreme Court intervenes, they will likely be scheduled for execution later in the year.

© 2005 The Plain Dealer. Used with permission.