Death Penalty Reversal Rates

[kiffa]

Help me out here. The news is focusing on the results of a Columbia Univ Law School study conducted by Prof James Liebman which focuses on reversal rates of death penalty cases. It found that about 68% of all cases which went to appeals court were reversed. Virginia's rate was low at 18%, but Texas appeal courts reversed the death sentence in 52% of the cases with Florida's rates topping out at a fantastic rate of 73%! Overall, only 5% of the 5,760 death sentences imposed between 1973 and 1995 have actually been carried out.

Something is obviously very wrong. Gov Roger of Illinois looks like a hero for his moratorium on state executions.

I am not a supporter of the death penality, but I have some questions about this study:

a. Don't all death penalty convictions go automatically thru the appeals court process? If yes, the results of this study are shocking. One of the reasons cited for successful appeals cases is the widespread incompetence among defense lawyers. The OJ case showed that incompetence is not necessarily limited to defense lawyers and, more important, money can buy you freedom.

b. If death penalty convictions are not automatically routed to the appeals process, the study has a basic flaw which tosses out their findings. The cases heard had a better chance of being successfully appealed because they were deemed as "appealable" ie: something happened which cancelled out a fair trial.

Anyone know the answer? If you are a supporter of the death penalty, doesn't this study provoke second thoughts about your position?

[Nika]

I am not sure that the problem is so much the death penalty as the legal system in general. I mean, it is hard to prove and dissprove a lot of things, especially if the criminal is good.

But, do we have a better system?? I don't think that any egal system in the world (and I might be very ignorant here), but I don't THINK that there is a better legal system in history. So, I am not sure that there is an answer without re-thinking everything in our legal system. But, maybe that is what needs to happen. What do you guys think??

[kiffa]

Thanks for your reply, but I really would like a response to my question whether the study is valid or not. Are all death penalty convictions routed automatically to the appeals process or not? If the answer is no, the study's methodology is wrong. If the answer is yes, then there is a real problem with the legal system and the death penalty. Even if the system is the best, we need to fix it when it's broken.

[Typo Negative]

In California, all death penalty cases are automatically appealed as a matter of law. I'm not sure, but I believe most, if not all states do also.

[Necros]

kiffa said:

If you are a supporter of the death penalty, doesn't this study provoke second thoughts about your position?

Well, I can answer this question, at least. I am a death penalty supporter, but this study, and some other statistics I have heard being bandied about, including several death penalty convictions overturned on the basis of DNA evidence, definitely gives me pause.

There may be other proponents that feel that there is an acceptable margin of innocent people executed in order to snag all the guilty ones, and if that margin was one wrongly convicted person was executed while one hundred thousand guilty ones were, that might be OK. But if five percent were wrongly executed? 10 percent? 15 percent? Or, as this study says, 68 percent? That's just crazy.

If this study is correct, I would definitely modify my support of the death penalty. I am eagerly awaiting the truth on this issue. C'mon Dopers! Let's have it!

[Saint Zero]

Was there any solid reason given for tossing out 80%+ of the verdicts? Funny that a law professor cites "Incompetence" as a reason. he'd be training the "incompetents", wouldn't he?

I'd prefer a breakdown of the reasons, rather than a media driven sound bite.

[tomndebb]

Funny that a law professor cites "Incompetence" as a reason. he'd be training the "incompetents", wouldn't he?

Only if most of the incompetent lawyers he reviewed graduated from Columbia.

Liebman (or one of his associates) was interviewed on NPR just after the report was published. One of the interesting points that interviewee made was that most states provide fairly good counsel for capital cases (as opposed to the hit-or-miss quality of the lawyers assigned to defend the local loitering panhandler or small-time drug dealer). However, the perception that many people (especially the poor) have received from the public defenders that get the lower cases has caused many of them to refuse a public defender and they have gone into debt to acquire the services of a private attorney--many of whom are not as well trained for capital cases as the state-supplied counsel.

I know of no state in which a capital case is not immediately scheduled for appeal.

I am trying to find the exact citations in Liebman's study, but have not come up with them, yet.

[Whack-a-Mole]

Was there any solid reason given for tossing out 80%+ of the verdicts? Funny that a law professor cites "Incompetence" as a reason. he'd be training the "incompetents", wouldn't he?

I heard a report on this on NPR this morning as well. I forget the guy's name but he mentioned that nearly all appeals are on procedural grounds and not that the accused was falsely convicted. In other words...

The defendants do not suggest that they aren't guilty but rather that something wasn't exactly right during their trial. To pararphrase the commentator that means that only his mother was called as a witness and not his aunt or that the judge didn't phrase his instructions to the jury exactly right and so on.

Given the extreme nature of the penalty the appeals courts tend to be MUCH more nitpicking than in most cases and will overturn the penalty for what might otherwise be small reasons.

To think of this another way...If 68% of death penalty cases are overturned do 68% of the defendants walk free? Nope...most of them just end up staying in jail the rest of their lives instead of being killed. In short, they are guilty but maybe not guilty enough to be sentenced to death.

[The Ryan]

What does "reversed" mean? Does it mean that the defendant was found innocent, or does it mean that it was decided that the defendant should have a new trial?

[kiffa]

I just read some newspaper articles on the study and found that yes, indeed all death penalty cases which have gone thru the entire appeals process were included in this study.

Distribution of "who messed up":
37% incompetent defense counsel
20% faulty instructions given to the jury
19% overzealous police and prosecutors withholding evidence which might favor the defendant [!yikes]
19% misc ie planted informants, coerced confessions
5% dirty judge or jury

According to the review, only 7% of the cases resulted in not guilty verdicts at a retrial. That means, like many posers pointed out, 93% were still found guilty. 18% were given the death penalty again, but many were overturned in subsequent appeals steps.

As many of the articles pointed out, a capital crime case receives much more review after the initial court trial that mistakes are bound to caught. Do we catch all the mistakes?
Take the story of Anthony Porter who received a stay of execution 48 hours before it was to have taken place. Why?.
Inspite of all the appeals review, it was found that Mr Porter had an extremely low IQ and therefore might not have been mentally competent to stand trial. During this stay of execution, evidence was found that exonerated him and helped to convict the real murderer in subsequent trial. I am sure that DNA testing will probably free more innocent prisonners found guilty of a capital offense.

The report convinces me that we aren't ready yet to use the death penalty as punishment. It has no impact on reducing these types of crimes. Its administration is too inconsistent and riddled with mistakes. Too much is dependent upon the geographical location, whether you are white or of color, whether you are rich enough that your multimillion dollar defense team can create enough reasonable doubt to let you free, whether you have a good public defender with extensive experience in capital defenses, whether the judge likes you or not, whether the cops are so anxious to find someone guilty that it doesn't matter that there exists exonerating evidence against you, a conviction is what counts.... too much human error to deal with justify putting folks to death.

I can understand the victims families wanting harsh revenge. Two members of my extended family were both shot with guns
[different times, different cities] and their murderers received only a slap on the wrist. But I cannot in all good conscience support capital punishment.

[Arnold Winkelried]

I typed up this message before noticing kiffa's post, so I will include it here.

I based my information on an article today in the Los Angeles Times, Death Penalty Is Overturned in Most Cases.

The result of a study of death penalty cases in the USA showed that death sentences have been overturned in more than two thirds of all cases reviewed.

The detailed study ("A Broken System: Error Rates in Capital Cases, 1973-95" by Columbia University law professor James S. Liebman and two associates) of nearly 4,600 capital cases that went through the state and federal appellate process between 1973 and 1995, shows that state courts initially overturned 47% of the death sentences, having found serious legal flaws. Later federal review discovered "serious error"--meaning error serious enough to undermine the reliability of a verdict--in 40% of the remaining cases, resulting in an overall 68% reversal rate nationwide.

The article cites these numbers (which I assume are meant to be a representative proportion):
Outcomes after 342 post-conviction reversals (between April 1973 and 2000): sentence less than death 247 (22 found not guilty of capital crime), death sentence 54, awaiting retrial 376, unknown outcome or died awaiting retrial 4.

(From 1996 to 1999, the authors did not have full data, but concluded that there were signs of continuing high reversal rates.)

As a matter of comparison, in Illinois, where Gov. Ryan declared a moratorium on the death penalty after revelations in recent years of 13 wrongful capital convictions, the state's overall reversal rate is 66%, just under the national average of 68%, suggesting that the Illinois wrongful conviction rate is not extraordinary.

Virginia, the only state that managed to carry out more than a quarter of the death sentences it imposed over the 23-year study period, had a reversal rate of only 19%, by far the nation's lowest.

Death penalty opponents claimed the study showed the error-prone process of death penalty convictions. In the case of Virginia, they claim that there is "poor error detection."

Death penalty advocates claim that the numbers show that our review system for death penalty cases is efficient at catching mistakes, and that in Virginia there are simply less mistakes to catch.

My opinion: the numbers show that the death penalty process is fraught with errors. In particular, in Virginia, I do not understand how it can be said that Virginia would have a higher accuracy rate in the initial sentence, since Virginia is (in)famous for limiting the appeals of condemned inmates.

If the governor of Illinois found enough reason to declare a moratorium in his state, and his state seems to have an "average" number of overturned convictions, the study in my mind shows strong evidence to support a national moratorium on the death penalty.

(P.S. My personal view of the DP: I am opposed to the death penalty in any case, regardless of the accuracy rate of convictions.)

[Whack-a-Mole]

Is it possible that the entire judicial system is flawed (beyond capital cases)? It seems that Death Penalty cases get much more and closer scrutiny than 'standard' criminal cases. Does anyone here think we would see similar reversal rates if all cases were reviewed so stringently? Or is there something unique to capital crimes that make them more prone to error (i.e. a hideous crime that people feel compelled to find someone to take the blame and therefore may give the 'truth' less scrutiny than it deserves)?

[Danielinthewolvesden]

I believe the Study shows that the System IS working. All death penalty cases are automatically appealed. Of those, only 6% were found to have an incorrect verdict, after retrial. And those 6% were caught during the appeals/ retrial system. It shows how carefully these types of cases are scrutinized.

[oldscratch]

Or is there something unique to capital crimes that make them more prone to error (i.e. a hideous crime that people feel compelled to find someone to take the blame and therefore may give the 'truth' less scrutiny than it deserves)?

I think this is somewhat correct. Not just in death penalty cases but all murder/serious crimes. There is usually some need to find a culprit, to not let the crime go unsolved. Couple that with prosecuters wanting to make a name for themselves, judges facing re-election who want to appear tough on crime, etc and you have a recipe for innocent people being convicted.

[David B]

Nika said:

But, do we have a better system?? I don't think that any egal system in the world (and I might be very ignorant here), but I don't THINK that there is a better legal system in history. So, I am not sure that there is an answer without re-thinking everything in our legal system.

It may be the best system, but if we're still sending innocent people to death row, there's a problem. So one thing that we need to re-think is capital punishment.

Necros said:

Well, I can answer this question, at least. I am a death penalty supporter, but this study, and some other statistics I have heard being bandied about, including several death penalty convictions overturned on the basis of DNA evidence, definitely gives me pause.

Indeed, this kind of evidence is what turned me from being an out-and-out death penalty supporter.

Kiffa said:

According to the review, only 7% of the cases resulted in not guilty verdicts at a retrial.

Which means that "only" 7% were wrongly sent to death row and could have been executed. Scary.

Daniel said:
I believe the Study shows that the System IS working. All death penalty cases are automatically appealed. Of those, only 6% were found to have an incorrect verdict, after retrial. And those 6% were caught during the appeals/ retrial system. It shows how carefully these types of cases are scrutinized.[/quote]What a completely backwards way to look at it!

You seem to be assuming that because they caught those cases, that means those were the only cases that needed to be caught. In other words, you're using your preconceived notions to prove your preconceived notions.

Yes, these cases were caught. But we need to look at what this means. If there are this many problems at the trial court level, how many others have gotten by? How many other mistakes were made that weren't found? As I quoted in the other death penalty thread, where I also mentioned this article: "'It's not one case, it's thousands of cases. It's not one state, it's almost all of the states,' Liebman said in an interview. 'You're creating a very high risk that some errors are going to get through the process.'"

[Arnold Winkelried]

I believe the Study shows that the System IS working. All death penalty cases are automatically appealed. Of those, only 6% were found to have an incorrect verdict, after retrial. And those 6% were caught during the appeals/ retrial system. It shows how carefully these types of cases are scrutinized.

Yes, and 82% of the people whose convictions were overturned due to serious errors and retried did not receive a capital sentence. How does that show careful scrutiny? I don't see how you arrive at your conclusion. One could equally well argue that it shows an 82% error rate in sentencing.

[kiffa]

I just finished watching Rivera's MSNBC show tonight where folks/experts talked about the Graham case [this is the Texas man found guilty of murder based on eyewitness testimony by someone sitting in a car some sixty feet away who "saw" the perp shooting the victim for two seconds]. Reminds me of the thread about eyewitnesses needing eyeglasses.... Anyway, Gov Bush has put a stay on his case.
Turns out Graham's attorneys [at the first trial and the appeal trial] never, never called other witnesses at the scene who could identify or describe another possible killer. The sticky point [which is probably on the other thread about Texan death penalty and Bush] is that the appeals process CANNOT address the testimony of these witnesses who did not identify Graham in the lineup because the incompetent attorneys did not talk about these other witnesses [and obviously the prosecutor did not want to address in the trial either].

I don't think that we should accept the 7% of those found innocent in a retrial as the figure of all real innocents.
A large number of those originally convicted plea bargained for a lesser charge. How many of these were innocent but given shitty legal advice to get off death row?

All in all, the death penalty is a loser for all. I would rather have a bunch of nuts in max security for research
[a la FBI Silence of the Lambs profiling] or maybe to see if there is a gene or genetic link to sociopaths? We keep samples of small pox don't we?

[Typo Negative]

Try this one on for size. http://www.dailynews.com/archives/extra/lapd/lapd9.asp

The man has been in prison for 19 years for a murder that someone else has just confessed to. And while he was being questioned, in custody and in handcuffs, a cop shot him in the chest! The cop was part of the CRASH unit. The CRASH unit was just disbanded after the 'Rampart' scandal. As a result of this scandal more than 60 felony convictions, from drug charges to murder, have been vacated due to purjured testimony and planted evidence. 60 'so far', and that's just from the corruption found at 1 precinct.

I, personally, due not have great faith in our justice system anymore.

[Typo Negative]

BTW, CRASH stands for Community Resources Against Street Hoodlums. Isn't that a hoot?

[Olentzero]

I just finished watching Rivera's MSNBC show tonight where folks/experts talked about the Graham case... Anyway, Gov Bush has put a stay on his case.

Where did you hear that, [b]kiffa[/i]? I've looked through a couple of news sites and haven't found anything on it. I know Bush gave another Death Row inmate a 30-day reprieve, however.

I believe Virginia and Maryland also grant an automatic appeal after a capital sentencing - trying to find that one out for sure. Couple of people here at the office believe it's the same for all 50 states.

The Chicago Tribune ran a story on Sunday looking at the death penalty in Texas here that raises some interesting points about the way trials are handled and presented.

I for one find it pleasing that these questions are finally being raised, and that some who were former supporters of the death penalty are reconsidering their opinions. The recent events (the commutation of Eugene Colvin-El's sentence in Maryland, Dubya's admission that the race of the accused and of the victim was a factor in at least nine capital cases in TX) give me great confidence that abolition of the death penalty in the U.S. is coming soon.

[kiffa]

Olentzera, maybe I'm mixed up, but it was my understanding that there wasn't much that Bush can actually do. The ten day clock is still ticking for Graham so maybe it was the other case Rivera was referring to - sorry for the confusion.

Like you, I am glad that the Columbia Univ study and the Chicago newspaper article on Texas are receiving the attention that they deserve. My OP was more of a methodological question to help me understand what was actually being said. The more I read, the more I feel that
we aren't prepared legally, administratively, morally to official sentence people to death.

Let's hope that more public officials like Gov Ryan have the
gumption to call for a moratorium.

[Olentzero]

Bush uses the Texas Parole Board (or whatever institution it is) as a shield to abdicate personal responsibility for executions in his state. He's got as much power to stop any executions there as Glendening in Maryland or Ryan in Illinois.

IIRC, and I wish to God I had the source for this one in front of me, Bush is directly involved in the appointment of the staff that reviews clemency appeals. He's in all the way up to his elbows in this one.

As to your question b), I think if it weren't true that capital cases got an automatic appeal, it would raise the even more important question "Who determines what cases are appealable?". Just because there are cases that have been granted appeals doesn't imply that all cases deserving appeals have been granted one.

There are capital cases that have lost on appeal for the same reasons the sentence was handed down in the first place - evidence withheld or ruled inadmissible due to the expiry of the statute of limitations, incompetent defense, etc. If appeals were granted only on merit I believe it would create an even greater potential for innocent men and women to fall through the cracks.

I am glad, however, to see that you're exercising critical thinking to clarify your opposition to the death penalty.