Is Erroneous Conviction More Likely In Capital Cases?

Dissenting in Kansas v. Marsh, Justice Souter made the controversial claim that “among all prosecutions homicide cases suffer an unusually high incidence of false conviction.” He explained this phenomenon as due to “the combined difficulty of investigating (capital cases) without help from the victim, intense pressure to get convictions in homicide cases, and the corresponding incentive for the guilty to frame the innocent”. Doug Berman, at Sentencing Law and Policy, takes serious issue with this claim. writing:

Not only do I think that this assertion is wrong, but I think it is sad and dangerous that the four “liberal” Justices might actually believe it is true.

Unfortunately, like a couple of his commenters, I think there is a good chance that Souter is right and Doug is wrong. Why? At least six reasons.

1. The plurality, if not majority, of criminal cases involve a crime witnessed by a police officer where arrest followed immediately. In these cases – from drug cases, to DUI, to disorderly conduct – error rates are likely low. This is true for two reasons. First, notwithstanding their competitive urges, officers have relatively little incentive to lie. (This may be a bit less true in officer assault cases, where disciplinary or tort consequences for offender injuries hinge on asserting that the defender was the cause of the problem.) Second, when the arrest follows immediately after the offense, there is very low risk of misidentification. Civilian assaults – including homicides – involve seriously higher risk of jury error. In assault cases involving unknown assailants, identification errors are a significant problem. The incidents are often quick and unexpected, and witnesses have little opportunity to observe what really occurred. Cross-racial identification problems infect the accuracy of ID’s in some cases. Poor line-up and photo array techniques further undermine accuracy of these identifications. And despite all these problems, witnesses are typically very confident that their testimony is accurate. Unfortunately, juries often rely on this confidence factor to “believe” eyewitnesses; the problem is that confidence is not a proxy for accuracy. Witnesses are sure they’re telling the truth, but they are often wrong. Thus capital cases, and cases lacking officer observation more generally, involve more guilt error than average.

2. Capital juries are likely to be less sympathetic to the defense because they are death-qualified (i.e., only people who are willing to impose death are permitted to be jurors in a capital case.) This eliminates a not insignificant portion of the population that is most attractive to the defense.

3. In capital cases, defense attorneys frequently do not mount serious innocence defenses during trial for fear that, if the defendant is convicted, he or she will appear less remorseful at the punishment phase. This is basic strategy in any capital case. The sentencing tail typically wags the guilt/innocence dog.


4. Lawyers in many capital cases are lousier than the norm. Seem hard to believe? With the exception of public defenders (I’ve argued the virtues of PD’s here), indigent defense does not (on the whole) draw top practitioners. The reasons are simple: compensation is low and social status of criminal defense attorneys is lower. In a place like Philadelphia, most indigent defense work is done by public defenders. But most capital work (in Philly, as well as in many – if not most – jurisdictions with public defenders) is done by appointed counsel. This is because the private bar wants capital cases. They provide an opportunity for lawyers to get their names in the paper. They have the potential to generate business. Sadly, capital cases benefit even more from sophisticated public defense than smaller matters. PD’s have an economy of scale, have existing investigation and social work resources, and have a hierarchy that allows the office to direct capital cases to their strongest lawyers. The proof is in the pudding. In Philly, the PD has not had a single client get a death sentence in the roughly 15 years in which it has handled capital cass. But the Philly PD only gets about 20% of these matters; private counsel cannot claim a similar record.

5. Souter’s explanations are right. There is is immense pressue for any potential defendant in a capital case to blame another party. There is virtually no downside to doing so. The lack of an actual victim makes accuracy much harder to achieve. And the public puts far more pressure on police and DA’s to close these matters than serious non-homicide crimes. This pressure results in both premature action and error-prone investigatory techniques like badly run lineups and photo arrays and high pressure interrogation.

6. Habeas corpus proceedings are not particularly effective at identifying guilt error. They are much better at identifying procedural problems – from bad lawyering to improper policing. For example, it is near impossible to claim ineffctiveness of counsel for an attorney who puts on a watered down case at the guilt phase, when she does so for the purpose of saving the defendant at the punishment stage. And it is near impossible to have a post-conviction court revisit the testimony of an eyewitness on the grounds that there was a cross-racial ID, and data shows that these are inaccurate a shockingly high percentage of the time.

There are aspects of homicide prosecutions that reduce error as well, of course. These include more aggressive search for evidence, more extensive use of DNA testing, and state requirements that indigent counsel be minimally qualified. But in the end, I don’t think these things compensate nearly enough for the risks of error otherwise built into capital prosecutions.

This does not mean the death penalty is an unacceptable sanction. But it does mean at least two things. First, society has a duty to work really hard – much harder than it has – to do these cases right. And second, it means that society must accept that inncocent people will be executed. The majority in Kansas v. Marsh is aboslutely right; imperfect systems will produce imperfect results. The only person who can honestly say she’s made peace with the death penalty is one who can accept the periodic execution of an innocent person. That risk is not necessarily unbearable, but it cannot be denied.

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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:

    http://sentencing.typepad.com/sentencing_law_and_policy/2006/06/carefully_explo.html

  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.