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.