Is Erroneous Conviction More Likely In Capital Cases?

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7 Responses

  1. AF says:

    I would add another reason, which I think is the most important one: the grisly crimes that are the subject of capital trials cry out for revenge. It is hard to weigh the evidence coolly and give every presumption to the defendant when the crime for which he stands accused is the manifestation of pure evil.

  2. RCinProv says:

    I haven’t gone to the underlying decisions, so I don’t know if the Souter comment was about death penalty cases only. But the quote you used seems to be about murder cases in general. If the Souter argument is broader, then your second and third reasons would obviously apply only in some states.

    I agree entirely that the pressure to solve murder cases is enormous — just look at the difference in arrest clearance rates for murder versus all another crimes. This seems like the strongest argument on your side. (And AF’s additional reason seems redundant.)

    I wonder whether there are two factors you might grant in the other direction: (1) there is more investigative work on the defense side in murder cases tha most other cases. And the state is much more likely to pay for defense investigators and experts in a murder case, aren’t they? (2) Murder cases are more likely to have physical evidence, particularly blood. That means much more on the question of accuracy in the era of DNA testing, of course, than it did before.

    I would not have thought your No. 4 is true; but you have a very persuasive argument.

  3. Doug B. says:

    Dan, your counsel point I think is surely right with respect to penalty phase issues, but do you think the private bar is worse than the PDs on helping an innocent person get acquitted?

    In any event,I’ve extrapolated on my first (intemperate?) reaction to Souter’s claim:

  4. I think I disagree: #1 misstates the situation, indigent defense (outside PDs) basically sucks for everybody, and the barriers to habeas relief for innocents are high for everyone, not just capital defendants. Folks in Tulia, Hearne and other places where innocents were falsely convicted would tell you plenty of wrongful convictions happen in drug cases. The vast majority of undercover buys happen with a crook acting as a confidential informant, not a police officer making a transaction, so false accusations are easy and common. Drug sentences may last decades these days, so there’s plenty of incentive to lie and blame others there, too.

    It may be that murder cases have higher rates of wrongful convictions, but the rate in non-murder cases isn’t insignificant at all and shouldn’t be downplayed. Berman’s reply on SL&P, I think, was correct: If it turns out that the rate of wrongful convictions for murder is higher, then it’s still true that bulk of total wrongful convictions occur elsewhere, in staggering numbers when considered system-wide.

  5. Eh Nonymous says:

    Grits: It’s a stupid argument Berman makes, and it’s bizarre that you’re backing him up.

    “Death is different.” How so? Well, a wrongful conviction for a felony deprives you of certain political and social rights, possibly permanently (if you live in a barbaric, Jim-Crow-ish state). Wrongful imposition of the death penalty, in contrast, removes all your political, social, economic, and personal rights, permanently.

    Death is therefore different.

    Wrongful convictions in non-capital cases, while possibly a “larger” as in more widespread and numerous problem, are therefore less serious in my view, serious being defined by, “Which would you rather have happen to you?” If a miscarriage of justice is more serious when done to me, then it is more serious if it really occurs, period, full stop.

    Also, re. Dan’s # 4: That’s horrifying. Why do we let private counsel take *any* capital cases, if by properly funding, training, and letting loose PDs (as here in Philly), you can approximate a 100% no-death-penalty rate for a period of 15 years?

    That kind of statistic (if not skewed, as when only salvageable cases are managed by an office) would prove beyond question that the death penalty should be abolished. (But suddenly I wonder – is it accurately reflective of reality?

    Or does the most gruesome, the most newsworthy case often go to the lawyer with the most pull and the quickest car and the snazziest suit to offer their services to the defendant’s family?)

  6. @ Eh: I’m not minimizing wrongful convictions in capital cases, don’t get me wrong, I was debating the question of whether rates of wrongful conviction are higher in capital cases. I think they’re highest in drug cases.

    Death is different, obviously. However, the machinery of justice is broken and the flaws that allow innocents to wind up on death row by the dozens also put innocents in prison by the thousands or tens of thousands, by Berman’s back-of-the-envelope estimates. From a political perspective, I see high profile wrongful convictions in capital cases as bellewethers for systemic change, not just affecting death row inmates. E.g., lying snitches are the cause of wrongful convictions in lots of cases, including those of about half of exonerated death row inmates. Fixing such procedures helps everybody, not just capital defendants. and IMO that should be the focus.

    I’m with you on the PD office, again, across the board not just for capital cases. They cost less and do more than appointed indigent systems. Best,

  7. Dan Filler says:

    Eh – Your doubts about the Philly PD are understandable. How do they have a 100% non-death rate? Let me assure you that it’s not by trying and avoiding death in all the cases. Rather, they try cases they can’t plead. And they plead a very high percentage of these cases. It turns out that the Philly PD is exceptionally strong in building client trust and that trust makes it possible to convince people that it’s not worth tempting fate by going to trial on a death case.