June 12, 2000

USA:

"A Judicial Error Machine: In the United States, 68% of the Death

Sentences Pronounced Between 1973 and 1995 Have Had to Be Revised," by

Fabrice Rousselot

Between 1973 and 1995, the American judicial system has been forced

to overturn 68% of the death sentences pronounced by the courts, because

of "prejudicial errors." Such is the explosive conclusion of a report

published today in New York under the aegis of the Columbia University Law

School. LIBERATION has obtained a copy of this report. The document,

which closely examines the 5670 death penalty cases and 4578 appeals

recorded during these 23 years, shows that the appeals courts have had to

overturn "almost" 7 death sentences out of 10 because the defendent did not

get a fair trial. "Our work reveals a capital system which is collapsing

under the weight of its own dysfunction... It reveals a broken system,

which functions at a loss, and which needs to be reformed," state the three

authors of the study, Professors James Liebman and Jeffrey Faggan of

Columbia University and Valerie West of New York University.

The study should have the effect of a bomb in a political climate

which is seeing America asking more and more questions about the death

penalty since its reinstatement in 1976. Two weeks ago, George W. Bush,

the Republican candidate for President who has approved 131 executions as

Governor of Texas, thus for the first time granted a 30-day stay to a

condemned man so that DNA tests could be done to prove his guilt. In

January the Governor of Illinois decreed a moratorium on executions after

thirteen death row prisoners had been found innocent. And, in a recent

poll on the death penalty, TIME magazine recalled that now "only" 66% of

the Americans say they favor capital punishment, as opposed to 80% in 1994.

In doing this colossal job of analyzing all the death sentences

handed down in 38 states over such a long period, the report is inevitably

going to relaunch the debate over the problem of innocents on death row.

For the most disturbing part, perhaps, is the "negative" reading of these

300-odd pages. If the appeals courts, both state and federal, have had to

admit such a large percentage of judicial errors, one can wonder how many

have slipped through. "There is such a dysfunction that inevitably the

system cannot check everything and innocents are not identified during the

appeals process," continues James Liebman. "You then find yourself with

prisoners on death row whose sentences are more than questionable, but who

have only the Governor's clemency or the Supreme Court as recourse. The

system has become a machine for producing judicial errors. At the risk of

costing the lives of people who have committed no crime."

On the average, one thus learns that for the some 5800 death

sentences studied, it takes the courts more than ten years to recognize the

errors. In 82% of the cases, in addition, the accused who sees his death

sentence overturned "is given a lesser sentence or no sentence at all." In

a state like Maryland, for example, which, it is true, has handed down only

three death sentences, the "error rate" is 100%. The same is true in

Kentucky and Tennessee. In Texas, George Bush's state, which has recorded

the largest number of executions this year, the rate is 52%.

The report identifies two principal causes of judicial error.

First of all, the problem of "incredibly incompetent lawyers who do not

seek - or inexplicably fail to find - the proofs showing that their client

is innocent or does not deserve to die." In most of the capital cases,

these lawyers are court appointed and have only a minimal budget for

conducting what often resembles a semblance of an investigation.

Then and especially, the study points the finger at "the police or

prosecutors who have discovered such elements but decide to suppress them

and withhold them from the jury." Dozens of examples of trials during

which such practices have been revealed are given in the appendix. Facing

these elements, the three experts feel that the American judicial system

"can no longer continue to function this way."

"When the moratorium was imposed in Illinois, the other Governors

concluded that it was a special case," says James Liebman. "We prove the

contrary. Each state must revise its capital system and the government

must also realize what is going on. Are the Americans ready to support a

system which is totally ineffective and whose ultimate aim is being totally

questioned?"

Yesterday the NEW YORK TIMES chose to put on its front page the

picture of a Texas lawyer whose claim to fame is "having defended the

greatest number of clients ever executed in the United States." The

aforesaid lawyer forgot to file appeal motions for his clients in time.

And he drank regularly before appearing in court.