Thursday, May 10, 2007

Part 1

By Jeffrey Deskovic

Why We Should Not Bring The Death Penalty Back In New York.

Out of the wisdom of the Greeks, I believe, comes the paraphrased saying that “He who does not learn the lessons of the past is doomed to repeat them in the future.” The death penalty has been around quite a long time in America. Currently, in Albany, there is a debate concerning the possibility of bringing the death penalty back to New York. There are two separate bills Why We Should Not Bring The Death Penalty Back In New York
being considered. One of them is to bring the death penalty back for cop killers, the other is a general bill. For
the following reasons, I am against each of those bills, and I hope that my readers who agree with me will
call their local State Senators and Assemblypersons and voice their opposition. If we do not speak up,
there is a real possibility that one, or both, of these will pass.

The issue which should unite us all, both those who are pro-death penalty, and those that are anti-death penalty,
is the certainty that innocent people will be executed. Much has been said about the death penalty on a moral basis, and I see no reason to restate what has already been said. But regardless of what one may think of the pro or cons of those issues, there is one issue which should unite us all: The reality is if we have a death penalty we will execute innocent people. The system is too flawed.

There have been 200 exonerations in the United S t a t e s t h r o u g h DNA by The Inn o c e n c e Project. It
took them 13 years to clear one hundred people and it has taken them only five more years to double that figure.

As their slogan goes, “200 Exonerated Too Many Wrongfully Convicted”. That figure is not counting exonerations achieved by other means. There are so many things that can go wrong leading to an innocent person being arrested and convicted, capital murder cases being no exception:

It is a common misconception that only the guilty confess; after all, why would someone who is innocent confess? Statistics show, out of 195 DNA exonerations, false confessions accounted for 25% of the wrongful convictions, including some cases in which the suspect was pressured into pleading guilty in court to charges they went on to be cleared of. What are the reasons that the innocent falsely confess? According to the website of The Innocence
Project, duress, coercion, intoxication, psychological and/or emotional problems, fear of violence, the actual
infliction of harm, threats of harsher sentence, false promises of being allowed to “go home” afterwards, are all
factors. Lengthy interrogations also result in false confessions. According to the treatise False Interrogations In
The Post DNA World by Drizin and Leo, eighty percent of the false confessors were interrogated for more
than six hours, and fifty percent of the false confessors were interrogated for more than twelve hours. Why
would lengthy interrogation make a difference? Because, as the same treatise later states, “Interrogationinduced
false confessions tend to be correlated with lengthy interrogations in which the innocent suspect’s resistance is worn down, coercive techniques are used, and the suspect is made to feel hopeless, regardless of his innocence.” Other factors, such as the police falsely claiming to have evidence that they do not have, and the abuse of the polygraph machine by claiming that the machine has indicated that a suspect is lying, also produce false confessions utilizing the same theme, which is to convince the suspect that maintaining innocence is futile and that no matter what they will be arrested, it’s just a matter of whether they will make it harder on themselves by lying to authorities by asserting their innocence.

All it would take is one person mistakenly identifying us. Misidentification has been the cause of 75% of all DNA-proven wrongful conviction cases. Some of the reasons for misidentification include: seeing the perpetrator only briefly during a very traumatic moment, physical resemblance to a perpetrator, wearing the same color or type of jacket or pants, or driving the same make and model of a car used in a crime. Considering how many cars of the same make are made and sold, along with that of clothing, the chances of resemblance is great. In many of the misidentifi-cation cases, including those which should have been overturned but were not, discrepancies in weight, height, and distinguishing characteristics that perpetrators had but the person arrested did not, such as scars, tattoos, and dimples, have not mattered.

The sad truth about public defenders is that most of the public defenders frankly are not very good. They are not paid the same amount of money per hour that prosecutors are, consequently many of the good lawyers go into private practice or work for the district attorney’s office.

They don’t have the same human resources that the prosecution has at its disposal for investigative purposes.
They don’t have adequate budgets to permit experts to examine evidence, run tests, and render opinions that
the prosecution has. Instead, they often must ask the court for funds for an expert to examine evidence, which is sometimes denied. They are often too friendly with the prosecutors they go against in court and the judges presiding over a case, having been playing golf and drinking together for years. It isn’t hard to see how this out-of-court familiarity often results in defense lawyers not going all-out, within legal limits, to win a case. After all,
they do not want to get their friend angry with them or damage the relationship, do they? Some of them get
worn down and jaded by the system.

As an example of how bad representation results in justice going awry, consider the case of Jimmy Bromgard.
His lawyer made no opening statement or closing argument, did no investigation, led no pretrial motions, did not get any experts to examine the hairs which the state’s hair expert said were indistinguishable from his, or to
refute the fraudulent testimony that the chance that they did not belong to him were less than one in ten thousand.
There has never been a standard by which to statistically match hair through microscopic inspection; the “expert” simply made them up. The lawyer never led an appeal. Jimmy was proven innocent by DNA in 2002 after serving 15-1/2 years. In other cases, lawyering which has not been held to be ineffective by courts include sleeping during portions of the case and being addicted to drugs.

Can anyone forget how Anthony DiSimone’s murder conviction was thrown out after the district attorney,
other than the one who prosecuted him, admitted that three hundred and seventy six pages and fifty two
boxes of evidence had been withheld from his defense lawyers, including a police statement from a man who
stated that a relative admitted that he stabbed the victim outside a bar.

This is when people have been offered bene ts in exchange for testifying, such as by having a case against them dropped, or getting a lesser sentence, or getting a financial reward “for information leading to the arrest and conviction of ” various suspects, including but not limited to, shooting police. Lying informants accounted for 15% of wrongful convictions in cases where DNA proved innocence. - ose who have information about a crime should come forward on a moral basis without being compensated for doing so.

As an example of how incentivized witness testimony can convict the innocent, Larry Peterson, of New Jersey, was wrongfully convicted of Capital Murder and served 17 years before DNA cleared him. Three of his co-workers told police that they were with Larry when the body was found. When they were threatened with prosecution themselves, coworkers claimed than on the way to work Larry had confessed to them.

Employment records show that he had not even worked on the day of this supposed admission. Additionally,
a man who was in jail and facing charges in three separate counties claimed that Larry had confessed to him while in the county jail. DNA cleared Larry in 2006.

When prejudicial coverage of a case saturates a given geographical area from which a case comes, an
atmosphere of hostility whose effect spills into the courtroom can affect how a case turns out. How?

Prospective jurors, like anybody else, read and hear about cases. How many will be honest and admit
this? During trials themselves jurors could hear news reports through television, radio, family or friends. they are not supposed to, but human nature is what it is, and everybody everywhere isn’t always following all of the rules.

Judges often are pro prosecution in their leanings to begin with, since many are former prosecutors themselves.
There are some who have integrity and this isn’t the case with them.

But, what about on a subconscious level? Judges, too, can get swept up by the general atmosphere the media
can create. If anyone doubts how saturated coverage can be an obstacle to a fair trial, remember the famous U.S. Supreme Court case in which the murder conviction of Dr. Sam Sheppard was overturned based upon this, and was found not guilty at his retrial.

Judges are human like everybody else and are subject to the same emotions, feelings, and passions. - is means that some of them are swayed by things in their outlook on cases which affects their rulings, sometimes deliberately, sometimes subconsciously.

The phrase “the hanging judge” did not come about out of the clear blue sky; it is coined out of the reputation
that some judges have regarding their hostility towards defendants both in their rulings in a trial which winds
up impacting upon the verdict, and in the sentence which they mete out.

There are proposed remedies for all of these factors which lead to wrongful convictions, which I have written about in previous articles for the Westchester Guardian. Even with them enacted, there would still be a risk of executing someone who is innocent.

But not a single one has been enacted as of yet by the Legislature. Yet there are some Senators and Assemblypersons who have no qualms about bringing back the death penalty without bothering to enact a
single one of them, thus setting the stage for the innocent to be wrongfully convicted and executed.

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