# Would you rather let a thousand guilty men go free or put one innocent man to death? **URL:** \ **Category:** Great Debates\ **Created:** [June 29, 2004, 12:54am UTC](https://boards.straightdope.com/t/would-you-rather-let-a-thousand-guilty-men-go-free-or-put-one-innocent-man-to-death/252637 "2004-06-29T00:54:54Z")\ **Posts on this page:** 20\ **Page:** 3
**Author:** ![Shodan](https://avatars.discourse-cdn.com/v4/letter/s/9f8e36/32.png) [@Shodan](https://boards.straightdope.com/u/Shodan)\ **Post date:** [June 29, 2004, 7:08pm UTC](https://boards.straightdope.com/t/would-you-rather-let-a-thousand-guilty-men-go-free-or-put-one-innocent-man-to-death/252637/41 "2004-06-29T19:08:00Z")
> [@Hamlet](#): > > According to [this site](http://www.ojp.usdoj.gov/bjs/pub/pdf/rpr83.pdf) 6.6% of all murderers released from prison were rearrested for a new murder. Using your thought process (If I understand it), then the release of 1,000 guilty murderers would result in 66 more people killed by those murderers. Keeping the same rate, for every 15.1515… murderers released from prison, another victim will be killed. Should that imply that the proper standard should be “Better that 15.15151515… guilty people go free than one innocent be killed?” Thanks for the cite. Even I, a death penalty proponent, did not guess that the repeat murder rate was so high. Indeed, it may even be higher, as some murderers kill more than one person. But it does seem to imply that those who agree “better to let 1000 guilty go free than one innocent die” are actually saying “66 innocent deaths are better than one”. If you want to change the argument away from “go free” to “lock them up forever”, that is slightly different. But I have the same issue with the “life in prison is better because it can be reversed” argument as I generally do when it is coupled with the “life in prison is better because it is cheaper”. Arguing that convicts in prison would be released on appeal as they occasionally are from death row\* would seem to imply that the whole process of appeals we now experience with those on death row would continue just the same for those in prison for life with no parole. Thus life without parole would be no cheaper than the DP - indeed, it would be _more_ expensive, since the appeals could (in theory) continue for life, instead of eventually coming to an end with the execution of the convict. And if you are going to argue in favor of limits on the right of prisoners to appeal, I see no reason not to accept those limits - and then execute the prisoner at the end of it. If it has been established beyond doubt that the prisoner in prison for life is definitely guilty, and we aren’t going to go on trying to square the circle of guilt beyond even the most contrived objections, then what do we gain by feeding, clothing, housing, and otherwise supporting a person whose guilt has been established? So I don’t think those two arguments (life in prison is cheaper, and life in prison is reversible) work taken together. And, for those arguing that locking someone up in prison is just as effective in reducing the danger they pose to the public, I disagree. As evidence, I offer [George Rivas,](http://www.kvue.com/news/local/stories/062304kvueSeven-eh.28d4ff9e1.html)[Lem Tuggle (and five others),](http://www.courttv.com/onair/shows/thesystem/a_f_episodes/escape_death_row.html), [James Earl Ray](http://www.crimelibrary.com/terrorists_spies/assassins/ray/5.html?sect=24), [Willie Horton](http://www.1988election.com/), [Christopher Scarver](http://www.members.tripod.com/mayhem44/dahmerbio.html), [the Birdman of Alcatraz](http://www.alcatrazhistory.com/stroud.htm), and so forth. Regards, Shodan \*Keeping in mind that no person executed in the US since the reinstatement of the death penalty has ever been shown to be factually innocent. In every instance that I am aware of, the appeals process worked. If you have evidence to the contrary, I would be interested. But I will need a cite. ---
**Author:** ![scule](https://avatars.discourse-cdn.com/v4/letter/s/4af34b/32.png) [@scule](https://boards.straightdope.com/u/scule)\ **Post date:** [June 29, 2004, 7:35pm UTC](https://boards.straightdope.com/t/would-you-rather-let-a-thousand-guilty-men-go-free-or-put-one-innocent-man-to-death/252637/42 "2004-06-29T19:35:28Z")
> [@AHunter3](#): > > We need to rethink how we do prisons. The best answer yet (and I’m no anarchist). Meaning no offence to the OP, but these kinds of either-or questions are pretty ridiculous and generally never yield useful, practical answers because the world just doesn’t work in such a simple, cut-and-dry way. In truth, the real issue should be how do we deal with those 1000 guilty men (or women) and make sure they don’t commit future crimes. Prison serves as a perfectly effective deterrent for me, because I can imagine anything worse than ending up in prison, but since I have pretty much zero inclination to ever commit a crime, this doesn’t mean much. It’s the folks who do who need to be dealt with, and since recidivism rates are so high, it would seem prison terms don’t really help. So what then? I don’t know, but there’s got to be something that can help. Certainly not killing people. ---
**Author:** ![pervert](https://avatars.discourse-cdn.com/v4/letter/p/bbe5ce/32.png) [@pervert](https://boards.straightdope.com/u/pervert)\ **Post date:** [June 29, 2004, 7:37pm UTC](https://boards.straightdope.com/t/would-you-rather-let-a-thousand-guilty-men-go-free-or-put-one-innocent-man-to-death/252637/43 "2004-06-29T19:37:02Z")
> [@Kalhoun](#): > > No, you don’t let them out. But you don’t kill them. Why is that so hard for the death squad types to understand? Perhaps because the question is so often presented in the false dicotomy way that this one was? ---
**Author:** ![BobLibDem](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/boblibdem/32/3149_2.png) [@BobLibDem](https://boards.straightdope.com/u/BobLibDem)\ **Post date:** [June 29, 2004, 7:39pm UTC](https://boards.straightdope.com/t/would-you-rather-let-a-thousand-guilty-men-go-free-or-put-one-innocent-man-to-death/252637/44 "2004-06-29T19:39:06Z")
> [@Shodan](#): > > If it has been established beyond doubt that the prisoner in prison for life is definitely guilty, and we aren’t going to go on trying to square the circle of guilt beyond even the most contrived objections, then what do we gain by feeding, clothing, housing, and otherwise supporting a person whose guilt has been established? But juries are not perfect. Nor are police and prosecutors 100% flawless in their work, no matter how hard they try (even if they never try to frame someone). Innocent people can and do get convicted. The only thing we do by killing them is making it impossible to correct a mistake. It is not always true that it is “established beyond doubt that the prisoner in prison for life is definitely guilty”. DNA evidence has on occasion exonerated people convicted of murder. What do you say if you’ve already executed them, “oops?” ---
**Author:** ![scule](https://avatars.discourse-cdn.com/v4/letter/s/4af34b/32.png) [@scule](https://boards.straightdope.com/u/scule)\ **Post date:** [June 29, 2004, 7:41pm UTC](https://boards.straightdope.com/t/would-you-rather-let-a-thousand-guilty-men-go-free-or-put-one-innocent-man-to-death/252637/45 "2004-06-29T19:41:05Z")
The other concern is that you can never know what someone is going to do in the future; you can never be sure of what will come to pass. You can’t condemn people for their potential actions unless they have consistently proven beyond a shadow of doubt that they are likely to re-offend (by having done so many times before), and even then there is contention. ---
**Author:** ![Largo62](https://avatars.discourse-cdn.com/v4/letter/l/45deac/32.png) [@Largo62](https://boards.straightdope.com/u/Largo62)\ **Post date:** [June 29, 2004, 7:45pm UTC](https://boards.straightdope.com/t/would-you-rather-let-a-thousand-guilty-men-go-free-or-put-one-innocent-man-to-death/252637/46 "2004-06-29T19:45:14Z")
> [@pravnik](#): > > A lot of guilty people go free because we don’t have enough evidence to convict them. Theoretically, we could fix this problem by lowering the burden of proof from “beyond a reasonable doubt” to “preponderance of the evidence”, making it merely more likely than not that the person committed the crime. Presumably this would save lives as well. Would anybody advocate this? I wouldn’t. If anything the standard should be raised, at least in capital cases (as long as there are capital cases). As I have said, there are people whose guilt is absolutely not in doubt (Timpthy McVeigh and Ted Bundy, for example) who deserve to be utterly destroyed. But some juries seem to apply preponderance of evidence anyway. Not every jury is capable of making the distinction. Lowering the standard would no doubt convict more evil doers, but it would also incarcerate or execute more innocent people. [quote=Shodan] But it does seem to imply that those who agree “better to let 1000 guilty go free than one innocent die” are actually saying “66 innocent deaths are better than one”. I think we’re losing sight of who is killing the innocents. If 1000 guilty people released actually resulted in another 66 deaths, that would be deplorable. But the society that released the killers because it couldn’t prove they were killers would not be responsible for the 66 new deaths. If, on the other hand, the society executed one innocent man, they would be entirely responsible for his death. In the one case, a criminal commits murder; in the other the society becomes a collective murderer. There will always be murderers. I prefer not to be in league with them. ---
**Author:** ![Hamlet](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/hamlet/32/2818_2.png) [@Hamlet](https://boards.straightdope.com/u/Hamlet)\ **Post date:** [June 29, 2004, 7:59pm UTC](https://boards.straightdope.com/t/would-you-rather-let-a-thousand-guilty-men-go-free-or-put-one-innocent-man-to-death/252637/47 "2004-06-29T19:59:01Z")
> [@Shodan](#): > > Thanks for the cite. Even I, a death penalty proponent, did not guess that the repeat murder rate was so high. I was quite surprised also. I did a little more checking, and a more recent study found at [this site](http://www.ojp.usdoj.gov/bjs/pub/pdf/rpr94.pdf) indicates that the percentage may be a good deal lower, setting the recidivism rate at 1.2% of murderers who are rearrested for murder. Of course, this second cite only considers rearrest within _3_ years of release, so it is not necessarily a good indicator over the entire life of a released murderer. Even accepting the lower, 3 year rate of recidivism, thats still 12 murder victims for those 1,000 murderers going free. And that’s only in 3 years after release. Of course, none of that deals with the issue of life in prison without possibility of parole versus the death penalty. ---
**Author:** ![pervert](https://avatars.discourse-cdn.com/v4/letter/p/bbe5ce/32.png) [@pervert](https://boards.straightdope.com/u/pervert)\ **Post date:** [June 29, 2004, 8:16pm UTC](https://boards.straightdope.com/t/would-you-rather-let-a-thousand-guilty-men-go-free-or-put-one-innocent-man-to-death/252637/48 "2004-06-29T20:16:56Z")
> [@Shodan](#): > > \*Keeping in mind that no person executed in the US since the reinstatement of the death penalty has ever been shown to be factually innocent. In every instance that I am aware of, the appeals process worked. If you have evidence to the contrary, I would be interested. But I will need a cite. I’m sory to disagree with you **Shodan**. But on this point I think you are mistaken. [Here is a list from the ACLU.](http://archive.aclu.org/issues/death/23executed.html) I did not look up a more definitive source on any of the cases. But if you can show that any of them is falsely portrayed, I’d be happy to continue the research. The link lists that particulars about 23 people executed in America who were later shown to be innocent. Most of them are from quite a long time ago (before 1950). But the first one is instructive (as well as the best example). > [@](#): > > 1. Adams, James. Florida. Adams was convicted of first-degree murder, sentenced to death, and executed in 1984. A witness identified Adams as driving the car away from the victim’s home shortly after the crime. This witness, however, was driving a large truck in the direction opposite to that of Adams’ car, and it was later discovered that this witness was angry with Adams for allegedly dating his wife. A second witness the day after the crime stated that the fleeing person was positively not Adams. A hair sample found clutched in the victim’s hand, which in all likelihood had come from the assailant, did not match Adams’ hair. [This is a much more detailed list of innocents executed (thier claim).](http://www.justicedenied.org/executed.htm) Significantly, it includes this argument: > [@](#): > > As we noted in our editorial in Issue 10, one leading reason for our stance is the astonishing number – now well over eighty and rising rapidly – of prisoners who in the past quarter century were sentenced to death but were released from prison because of the likelihood of their innocence. A frequent rebuttal to this argument is that no innocent person has actually been executed. In this article we examine the weakness of that claim. > > The rebuttal is fatuous partly because of its circular logic. There is no judicial mechanism for review of guilt or pronouncement of innocence after an execution. The courts are done with it. Therefore, it should go without saying that no court has announced that an executed person was innocent, since American courts by definition do not make such findings. If I recall correctly, I remember reading an article about a case where an attorney wiched to do a DNA or some other such test on evidence to determine once and for all that an executed man was innocent. The courts denied his request. That is, far from proving that innocent have never been killed, the courst actively prevent the sorts of tests which could decide one way or another. [For anyone interested, this is a much more detailed study of the death penalty as used between 1973 and 1995.](http://justice.policy.net/cjedfund/jpreport/) ---
**Author:** ![Shodan](https://avatars.discourse-cdn.com/v4/letter/s/9f8e36/32.png) [@Shodan](https://boards.straightdope.com/u/Shodan)\ **Post date:** [June 29, 2004, 8:19pm UTC](https://boards.straightdope.com/t/would-you-rather-let-a-thousand-guilty-men-go-free-or-put-one-innocent-man-to-death/252637/49 "2004-06-29T20:19:30Z")
> [@BobLibDem](#): > > But juries are not perfect. Nor are police and prosecutors 100% flawless in their work, no matter how hard they try (even if they never try to frame someone). Innocent people can and do get convicted. The only thing we do by killing them is making it impossible to correct a mistake. It is not always true that it is “established beyond doubt that the prisoner in prison for life is definitely guilty”. DNA evidence has on occasion exonerated people convicted of murder. What do you say if you’ve already executed them, “oops?” I would guess the same thing you say if some murderer escapes from prison, or is released, and then kills someone else. But yes, occasionally innocent people get convicted. And so far, none of them ever got executed. Therefore the system of “the death penalty after appeal” is working as well as can be expected - perfectly, as far as the hard evidence goes. Perfectly, that is, as far as reducing the number of wrongful **executions** to the absolute minimum. It has failed far more often in its core function - protecting the innocent from the threat posed by violent felons. According to **Hamlet** ’s cite, it fails on average at 6.6%. Sixty-six innocent deaths vs. one, if you accepted the parameters of the OP. Isn’t it better to accept one innocent death, if the alternative is sixty-six times worse? The system is not perfect, and cannot be made so. But to increase its imperfections such that the number of innocent deaths goes **up** - that is a very large step in the wrong direction. Or maybe sixty-five steps in the wrong direction. On the one hand, we have these 6.6% that we know, definitely and unmistakably, would not have occured if the murderers were dead. As **Brutus** points out, the recidivism rate for executed murderers is 0.0% On the other hand, we have a theoretical possibility of somewhere, somehow, despite our best efforts, maybe one wrongful execution. Although no evidence exists that this has actually happened. So we knowingly sacrifice sixty-six innocent lives, on the off chance that we might spare one along the way. This sounds like a good deal to you? > [@DesertGeezer](#): > > think we’re losing sight of who is killing the innocents. If 1000 guilty people released actually resulted in another 66 deaths, that would be deplorable. But the society that released the killers because it couldn’t prove they were killers would not be responsible for the 66 new deaths. If, on the other hand, the society executed one innocent man, they would be entirely responsible for his death. In the one case, a criminal commits murder; in the other the society becomes a collective murderer. There will always be murderers. I prefer not to be in league with them. No offence, but this does not sound like good reasoning to me. I don’t think it is morally relevant who is the murderer. The purpose of the criminal justice system is to minimize the impact of crime on the community. To simply say, in essence, "I care less about how many die than I do preserving myself from the icky feeling that, despite my best efforts, one in a thousand might possibly be innocent. Even though I know that sixty-six people who would otherwise be dead are alive and unharmed. " I hope you will excuse me if it sounds to me like saving innocent life is not your top priority here. In which case, your argument that we want to avoid innocent deaths by eliminating the death penalty does not strike me as very consistent. If, as in my view, the purpose of the criminal justice system is to punish the guilty **and** to protect the innocent, then it is a mistake to allow a sort of moral squeamishness to paralyze our decision-making capability. If more people die from locking murderers up instead of giving them the needle, then it seems to me to be beyond question that we ought not to waste prison space on these people. Give them a fair trial (a fair trial, not a perfect one - there ain’t so such), give them a reasonable chance to appeal. Then do what needs to be done to protect the public. Regards, Shodan ---
**Author:** ![pravnik](https://avatars.discourse-cdn.com/v4/letter/p/8edcca/32.png) [@pravnik](https://boards.straightdope.com/u/pravnik)\ **Post date:** [June 29, 2004, 8:33pm UTC](https://boards.straightdope.com/t/would-you-rather-let-a-thousand-guilty-men-go-free-or-put-one-innocent-man-to-death/252637/50 "2004-06-29T20:33:27Z")
> [@DesertGeezer](#): > > I wouldn’t. I wouldn’t either. The actual quote is “it is better that ten guilty persons escape than one innocent suffer,” and it’s not by some left-wing anti death penalty kook. It’s from _Commentaries on the Laws of England_ by Sir William Blackstone (1723-1780), the first comprehensive treatment of the English common law and the dominant influence on the development of U.S. law. It’s not meant as an ethical puzzler of the “who do you save from the burning building, the baby, the painting, or the old woman?” variety. It’s a simple statement on the burden of proof and the presumption of innocence in criminal proceedings. We could safeguard the public in many ways by taking away the fundamental rights of criminal defendants. We could lower the burden of prrof required by the state to prove guilt We could.place the burden of proof on the defendant to prove his own innocence. We could dispense with trial altogether. However, we don’t do any of these things. We instead have a system in place that deliberately favors the defendant and on occasion _allows the factually guilty to go free_. If we did away with those rights we could in theory guarantee more convictions and be safer from criminals than we are now. We wouldn’t be very safe from our governent. ---
**Author:** ![pervert](https://avatars.discourse-cdn.com/v4/letter/p/bbe5ce/32.png) [@pervert](https://boards.straightdope.com/u/pervert)\ **Post date:** [June 29, 2004, 8:36pm UTC](https://boards.straightdope.com/t/would-you-rather-let-a-thousand-guilty-men-go-free-or-put-one-innocent-man-to-death/252637/51 "2004-06-29T20:36:49Z")
Sorry, the article I could not remember concerned this case, from the end of the second link I posted above. > [@](#): > > Joseph O’Dell > Virginia authorities continue to try to prevent state-of-the-art testing of DNA evidence in the case of Joseph O’Dell, who was executed on July 23, 1997. > > Early DNA tests gave inconclusive results, and O’Dell argued that improved tests would demonstrate his innocence. Virginia courts refused to allow the testing. Since his execution, prosecutors have attempted to have the evidence destroyed. Commonwealth’s Attorney Robert Humphries, interviewed on a PBS “Frontline” program broadcast in January, 2000 on the subject of legal obstacles to DNA testing, declared frankly, "Is there any doubt … that if this sample was analyzed … and it turned out that it was inconclusive, it was not Joseph O’Dell’s blood type or DNA or [the victim] Helen Schartner’s DNA, that there wouldn’t be a press conference held announcing to the world that the Commonwealth of Virginia had executed a completely innocent man? > > There’s no doubt in my mind of that." Humphries said that “closure” for himself and Helen Schartner’s survivors were his concern. His advice to O’Dell’s supporters was, “Joseph O’Dell got what he deserved. He got what the law required. It’s over. And if people can’t bring that to closure, that isn’t my problem, it’s their problem.” ---
**Author:** ![Shodan](https://avatars.discourse-cdn.com/v4/letter/s/9f8e36/32.png) [@Shodan](https://boards.straightdope.com/u/Shodan)\ **Post date:** [June 29, 2004, 8:55pm UTC](https://boards.straightdope.com/t/would-you-rather-let-a-thousand-guilty-men-go-free-or-put-one-innocent-man-to-death/252637/52 "2004-06-29T20:55:03Z")
> [@pervert](#): > > I’m sory to disagree with you **Shodan**. But on this point I think you are mistaken. [Here is a list from the ACLU.](http://archive.aclu.org/issues/death/23executed.html) I did not look up a more definitive source on any of the cases. But if you can show that any of them is falsely portrayed, I’d be happy to continue the research. Well, thanks, but I hope I don’t come across as nitpicking when I repeat my original statement. > [@Shodan](#): > > Keeping in mind that no person executed in the US **since the reinstatement of the death penalty** has ever been shown to be **factually innocent.** I phrased it that way for a reason. The DP was reinstituted (IIRC) in 1976. Therefore, I was deliberately not including cases from (for instance) the 1920s or 1930s, as scientific standards were much different then. It is possible that miscarriages of justice happened then, that would be far less likely since the advent of DNA, gas chromatography, etc. I therefore think that circumstances since then have changed to the point that such miscarriages are not as strong an argument against the DP as they were before criminal justice and scientific investigation made their current advances. That having been said, I also am reluctant to accept what the ACLU says at face value. For instance, from your cite: > [@](#): > > 1. Lamble, Harold. New Jersey. Lamble was convicted and sentenced to death. After the execution, Governor Edward Edwards refused requests to appoint a special counsel to investigate the case, despite what the New York Times called a “rather widespread fear that perhaps” Lamble was innocent. Lamble’s attorney was disbarred for mishandling the defense. I would not exactly classify what the New York Times claims was a widespread fear that “perhaps” Lamble was innocent as definitive proof that he was factually innocent. The same objection can be made to most of the rest of the cases. I am not willing to take the confident assertion of the ACLU, a known death penalty opponent, that the people involved have been proven innocent. Particularly since their description of what constitutes proof of innocence seems to consist mostly of “the prison chaplain always said he didn’t do it”, or that the eyewitness could not be believed because he was driving a truck. I guess the short answer is that I am not willing to take the ACLU’s word for it. If you have more information about any of these cases, you can present it. But I think we need to know more about each case than simply what the ACLU wants to present. If you see what I am getting at. > [@pervert](#): > > If I recall correctly, I remember reading an article about a case where an attorney wiched to do a DNA or some other such test on evidence to determine once and for all that an executed man was innocent. The courts denied his request. That is, far from proving that innocent have never been killed, the courst actively prevent the sorts of tests which could decide one way or another. You might be talking about the Coleman case. DNA testing was performed in that case. It was not as sophisticated as it is now. Nonetheless, it matched Coleman to a semen sample recovered from the victim with 0.2% accuracy - which is to say, one chance in five hundred. This is in addition to the other evidence which convicted him (DNA testing was done about a decade after his conviction). [Cite.](http://www.truthinjustice.org/va-oped.htm) Regards, Shodan ---
**Author:** ![pravnik](https://avatars.discourse-cdn.com/v4/letter/p/8edcca/32.png) [@pravnik](https://boards.straightdope.com/u/pravnik)\ **Post date:** [June 29, 2004, 9:04pm UTC](https://boards.straightdope.com/t/would-you-rather-let-a-thousand-guilty-men-go-free-or-put-one-innocent-man-to-death/252637/53 "2004-06-29T21:04:23Z")
> [@](#): > > But yes, occasionally innocent people get convicted. And so far, none of them ever got executed. Therefore the system of “the death penalty after appeal” is working as well as can be expected - perfectly, as far as the hard evidence goes. [Anthony Porter](http://www.medill.northwestern.edu/inside/1999/protess022499.html) was two days away from execution and had exhausted all regular avenues of appeal. His court appointed attorneys had washed their hands of his case. His execution was halted becuse of evidence that Porter was innocent and another man committed the murder was unearthed by six undergraduate journalism students. > [@Shodan](#): > > Perfectly, that is, as far as reducing the number of wrongful executions to the absolute minimum. It has failed far more often in its core function - protecting the innocent from the threat posed by violent felons. According to Hamlet’s cite, it fails on average at 6.6%. Sixty-six innocent deaths vs. one, if you accepted the parameters of the OP. Isn’t it better to accept one innocent death, if the alternative is sixty-six times worse?[ Even more criminals are set free by the Bill of Rights. Doing away with it would save lives. Would you do so? ---
**Author:** ![Shodan](https://avatars.discourse-cdn.com/v4/letter/s/9f8e36/32.png) [@Shodan](https://boards.straightdope.com/u/Shodan)\ **Post date:** [June 29, 2004, 9:05pm UTC](https://boards.straightdope.com/t/would-you-rather-let-a-thousand-guilty-men-go-free-or-put-one-innocent-man-to-death/252637/54 "2004-06-29T21:05:36Z")
And as an addendum, your list of 23 innocents seems to come from a book called In Spite of Innocence, by Michael Randelet, Hugo Bedau, and Constance Putnam. [This site](http://www.cyberussr.com/hcunn/deathpen/radelet.html) says that the authors no longer claim that the 23 were factually innocent. And [this site](http://www.prodeathpenalty.com/DP.html) quotes Michigan Supreme Court justice Stephen Markman as saying: > [@](#): > > This study… fails to prove that a single such mistake has occurred in the United States during the 20th century. Regards, Shodan ---
**Author:** ![Hamlet](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/hamlet/32/2818_2.png) [@Hamlet](https://boards.straightdope.com/u/Hamlet)\ **Post date:** [June 29, 2004, 9:36pm UTC](https://boards.straightdope.com/t/would-you-rather-let-a-thousand-guilty-men-go-free-or-put-one-innocent-man-to-death/252637/55 "2004-06-29T21:36:53Z")
> [@pervert](#): > > Sorry, the article I could not remember concerned this case, from the end of the second link I posted above. From 117 S.Ct. 631 (Mem) U.S., (1996) as written by Justice Antonin Scalia: > [@](#): > > We have not granted certiorari on Question 3, the actual-innocence claim based upon newly available DNA evidence. That claim has been rejected by every one of the 13 Court of Appeals Judges who have heard this case, as well as by the District Court that originally considered the claim. 95 F.3d 1214, 1246- 1254 (CA4 1996) (en banc); id., at 1255-1256 (Ervin, J., concurring in part and dissenting in part); id., at 1218 (describing District Court decision). The unanimity of these 14 federal judges is unsurprising when the full story of the DNA evidence is told. While the DNA tests showed that blood stains on O’Dell’s shirt did not come from the murder victim, Helen Schartner, they also showed that blood stains on his jacket did come from the victim–a conclusion consistent with the overwhelming evidence at trial that blood stains on numerous pieces of O’Dell’s clothing came from her. Id., at 1247-1248. Not one of the judges reviewing this evidence has been persuaded of O’Dell’s innocence. and here’s some interesting facts about the DNA tests: > [@](#): > > Five years after the trial, O’Dell requested permission to have DNA testing performed on the evidence that was introduced at trial, testing which was not commonly available when he was tried in 1986. \ ***The Commonwealth consented, and O’Dell proposed that the evidence be sent to LifeCodes laboratory. _1248 The Commonwealth again consented._** J.A. at 2895. LifeCodes was only able to test the shirt and the blue jacket, because the blood samples on the remaining items had deteriorated too much in the five years to be of use. See Petitioner’s Reply Memorandum in Support of Motion to Supplement Oral Argument at 3 & Ex. A. The LifeCodes Report concluded that the blood stain on the shirt “can be excluded as having a common origin” with either Helen Schartner’s or O’Dell’s blood, but that the blood on the blue jacket “matched the DNA-PRINT pattern from the blood of Helen Schartner.” J.A. at 2990 And, as in most cases, facts are important. Here’s a quick review of the evidence against O’Dell: > [@](#): > > On Tuesday, February 5, 1985, the victim, Helen Schartner, left a night club in Virginia Beach known as the County Line Lounge about 11:30 p.m. O’Dell left the same club sometime between 11:30 p.m. and 11:45 p.m. The next day, February 6, 1985, Schartner’s car was found in the parking lot of the County Line Lounge. Near 3:00 p.m. the same day, Schartner’s body was discovered among the reeds in a field near a muddy area behind another club, across the highway from the County Line Lounge. Tracks from tires consistent with the tires on O’Dell’s car were discovered in an area near Schartner’s body. > Schartner had been killed by manual strangulation. She also had eight separate wounds on her head caused by blows from a handgun equipped with a cylinder. These head wounds produced extensive bleeding. A handgun with a cylinder was seen in O’Dell’s car about 10 days prior to the murder. > Not more than two and a half hours after Schartner left the County Line Lounge, O’Dell entered a convenience store with blood on his face and hands, in his hair, and down the front of his clothes. > Vaginal and anal swabs disclosed the presence of seminal fluid in the victim’s vagina and anus containing enzymes consistent with those in O’Dell’s seminal fluid. > O’Dell had been living in the home of a woman friend, Connie Craig. Approximately a week before the murder, Craig ordered O’Dell from the premises. O’Dell called Craig about 7:00 a.m. on Wednesday, the morning after the murder, said that he had vomited blood all over his clothes, [FN2] and stated that he wanted to talk with her before he left for Florida. > FN2. In an alibi inconsistent with the one he had given to Craig, O’Dell told the police the blood came from a nose bleed caused by being struck while attempting to stop a fight at another club on the night of February 5. > When O’Dell reached Craig’s house at about 7:30 a.m., he said he wanted to sleep, and he slept until 9:30 or 10:00 o’clock that evening. When O’Dell awakened, he asked Craig how to remove the blood from his new blue-gray jacket. > The next day, Thursday, about 1:00 p.m., O’Dell called Craig from his place of work and told her he had put his clothes in her garage, but he intended to take them out the following day. After the telephone \*\*496 conversation, Craig read the local newspaper’s account of the murder of Schartner. The account said the victim had last been seen at the County Line Lounge. When Craig remembered that O’Dell customarily visited the County Line Lounge on Tuesday nights, “something clicked.” Craig went to her garage and found a paper bag containing four pieces of bloody clothing, including a pair of jeans which also had mud on them. Craig brought these clothes into the house and called the police. > Forensic evidence established that the dried blood on two of O’Dell’s articles of clothing was the same type as Schartner’s in each of the 11 blood classification systems analyzed. Only three out of a thousand persons are in this blood classification. O’Dell’s blood was not the same type as Schartner’s. O’Dell’s car was later \*681 seized and searched, and dried blood found on objects in the car also had several enzyme markers consistent with Schartner’s blood, but not O’Dell’s. > During his incarceration, O’Dell told Steven Watson, a fellow inmate, he had strangled Schartner after she refused to have sexual intercourse with him. and some information about poor Mr. O’Dell: > [@](#): > > At the penalty phase of petitioner’s state trial on capital murder, rape, and sodomy charges, evidence was presented that he had been convicted of a host of other offenses–including the kidnaping and assault of another woman while he was on parole and the murder of a fellow prisoner during a previous prison stint. Please don’t kid yourself. Joseph Roger O’Dell killed Helen Shartner. ---
**Author:** ![pervert](https://avatars.discourse-cdn.com/v4/letter/p/bbe5ce/32.png) [@pervert](https://boards.straightdope.com/u/pervert)\ **Post date:** [June 29, 2004, 10:03pm UTC](https://boards.straightdope.com/t/would-you-rather-let-a-thousand-guilty-men-go-free-or-put-one-innocent-man-to-death/252637/56 "2004-06-29T22:03:05Z")
> [@Shodan](#): > > Well, thanks, but I hope I don’t come across as nitpicking when I repeat my original statement. > I phrased it that way for a reason. Not at all. That’s why I mentioned that many of the ones listed in my first cite were old. I wanted to make sure that I did not mislead anyone. I think my second cite is much better as it contains many “innocents” executed since reinstatement. > [@](#): > > I therefore think that circumstances since then have changed to the point that such miscarriages are not as strong an argument against the DP as they were before criminal justice and scientific investigation made their current advances. Oh, I agree entirely. I believe it is much less likely for someone to be imprisoned or executed dispite innocence. However, it is not impossible. And in my opinion, the bar is not high enough. I simply do not trust the government with that much power. > [@](#): > > That having been said, I also am reluctant to accept what the ACLU says at face value. Neither am I. That was the first site I found. On review, I should not have included it. > [@](#): > > The same objection can be made to most of the rest of the cases. I am not willing to take the confident assertion of the ACLU, a known death penalty opponent, that the people involved have been proven innocent. Ok, but this brings up the issue of what would constitute proof of inocence. > [@](#): > > I guess the short answer is that I am not willing to take the ACLU’s word for it. If you have more information about any of these cases, you can present it. But I think we need to know more about each case than simply what the ACLU wants to present. Fair enough. Let’s ignore all but the first case from the ACLU cite (which I quoted from in my previous post).[Here is a cite with more details on the James Adams case.](http://www.lairdcarlson.com/grip/Adams/Case%20Summary.htm) I must appologize in advance for the crappy nature of this cite. It is clearly a blog with an aggenda. If this disqualifies it in anyone’s opinion, I am willing to accept that. The only two items I would point out are the eyewittness who claimed Adams was not the man seen near the murder, and the hair sample which did not match Adams. Not conclusive proof of innocence, perhaps, but compelling to some degree. The second link I provided contains much more information. It does not seem to view the book you mentioned unfavorabley. However, all we have to do is concentrate on one case to disprove your assertion. Let’s look at this one: > [@](#): > > In Florida, Sonia Jacobs and Jesse Tafero were convicted of murdering a state trooper and his companion in 1976 and were sentenced to death. The chief evidence against them was supplied by the third person at the scene of the crime, an ex-convict named Walter Rhodes. In exchange for his testimony, Rhodes pleaded guilty to second-degree murder and received a life sentence. > > In 1981 Jacobs’ death sentence was reduced to life imprisonment. But in 1990 Tafero – despite his protestations of innocence – was executed. Micki Dickoff, a childhood friend of Jacobs’, read about Tafero’s execution and reestablished contact with Jacobs. Thanks to Dickoff’s unflagging efforts, federal courts threw out Jacobs’ conviction; in 1992 she was released when the state admitted not having the evidence to retry her. It now appears Jacobs was completely innocent. Why is the Jacobs-Tafero case so significant? > > If Jacobs was innocent, then the execution of Tafero was probably the execution of an innocent man, because the same evidence (later shown to be insufficient) used to convict Jacobs had also been used to convict Tafero. > > The information that freed her would have freed him – if he had not already been executed. [This is much more information about that case.](http://www.lairdcarlson.com/grip/Tafero/Case%20Summary.htm) It is from the same blog, so I am again, willing to dismiss it if you want. It alleges that evidence was witheld from the defence. The defence was not allowed to cal witnesses. Gunpowder tests and two eyewitness accounts apperently showed that the state’s main witness, not Tafero, had most likely fired the gun. This evidence was deemed reliable enough to release Jacobs, but was brought forth too late to save Tafero. In summare, I’d just like to mention 2 things. I do not object to the death penalty on moral grounds. I believe that killing another person, especially in particularly henious ways, amounts to surrendering ones own right to life. However, I am loath to grant the state that power to execute people. The apperati (?) that we have invented to determine innocence or guilt are simply not reliable enough IMO to grant the state such an absolute power. My objection to the death penalty is entirely based on this concept. It does not work as we would all like it to. Far too many people are convicted of capital crimes, sentenced to death and only then found to be inocent. ## Unfortunately, the courts do not rule on cases which have already gone to execution. We will never find a case of a judge declaring that an executed person was innocent. They simply do not review cases this way. If you can find me a single case where a judge opened it for review after execution, I will recant this. But until then, I do not trust at all that our record of not killing innocent people is all that reliable. It is true only because we have never looked. And as we say around here, absence of something is not something of absence. 😉 > [@](#): > > This site says that the authors no longer claim that the 23 were factually innocent. That seems a resonable claim. The short explanations in the ACLU cite did not look very convincing to me either. However, it does not seem that the authors have reversed their position. The other cite I included mentions that they updated their 1999 book with more cases and evidence. * * * I’m willing to entertain a side discussion about what exactly would constitute a proof of innocence for someone executed. We can argue back and forth on any of the cases I brought up, or any of the others in the second cite I included. However, I think we may need to come to some agreement as to the sorts of things which we could both accept as proof of an innocent man who has been executed. ---
**Author:** ![pervert](https://avatars.discourse-cdn.com/v4/letter/p/bbe5ce/32.png) [@pervert](https://boards.straightdope.com/u/pervert)\ **Post date:** [June 29, 2004, 10:09pm UTC](https://boards.straightdope.com/t/would-you-rather-let-a-thousand-guilty-men-go-free-or-put-one-innocent-man-to-death/252637/57 "2004-06-29T22:09:37Z")
Thank you, \*\*Hamlet \*\*. That is good information to hear. I am willing to believe that all of the evidence I have cited is biased. The O’Dell case was only mentioned in passing. I probably heard about it on the Frontline episode mentioned. Perhaps I misremembered that episode. They do not usually leave out such salient details. Can you dig up similar information about the Jacobs case? And let me ask you. What would you consider sufficient evidence to conclude that an executed man was in fact innocent. ---
**Author:** ![pravnik](https://avatars.discourse-cdn.com/v4/letter/p/8edcca/32.png) [@pravnik](https://boards.straightdope.com/u/pravnik)\ **Post date:** [June 29, 2004, 10:22pm UTC](https://boards.straightdope.com/t/would-you-rather-let-a-thousand-guilty-men-go-free-or-put-one-innocent-man-to-death/252637/58 "2004-06-29T22:22:05Z")
I’m not familiar with the case, but I found an interesting article by a law student who was an investigator and paralegal in the O’ Dell case claiming that Scalia’s statement that the blood was conclusively shown to be a “match” was a flat out misstatement. Among other things, she seems to be saying that the statement that there was a third person’s blood on his clothes doesn’t exonerate O’ Dell missies the point, that the blood spot that was shown to be from a third party was originally identified as the victim’s and that all of the DNA evidence was suspect. [Link.](http://www.nesl.edu/journal/vol25/urs.pdf) (warning: large pdf) ---
**Author:** ![Hamlet](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/hamlet/32/2818_2.png) [@Hamlet](https://boards.straightdope.com/u/Hamlet)\ **Post date:** [June 29, 2004, 11:56pm UTC](https://boards.straightdope.com/t/would-you-rather-let-a-thousand-guilty-men-go-free-or-put-one-innocent-man-to-death/252637/59 "2004-06-29T23:56:54Z")
> [@pravnik](#): > > I’m not familiar with the case, but I found an interesting article by a law student who was an investigator and paralegal in the O’ Dell case claiming that Scalia’s statement that the blood was conclusively shown to be a “match” was a flat out misstatement. Among other things, she seems to be saying that the statement that there was a third person’s blood on his clothes doesn’t exonerate O’ Dell missies the point, that the blood spot that was shown to be from a third party was originally identified as the victim’s and that all of the DNA evidence was suspect. [Link.](http://www.nesl.edu/journal/vol25/urs.pdf) (warning: large pdf) Ummm. I can’t get the article opened, but I find it very intriguing that the author of the piece, Lori Urs, married O’Dell while he was on death row. I’m not saying that she is completely without credibility, but I find it very thought provoking. I’d also point out that it wasn’t just Scalia, but also the lesser courts that said (as I previously cited): The LifeCodes Report concluded that the blood stain on the shirt “can be excluded as having a common origin” with either Helen Schartner’s or O’Dell’s blood, but that the blood on the blue jacket “matched the DNA-PRINT pattern from the blood of Helen Schartner.” Now, since I don’t have access to the defendant’s wife’s article, I don’t know what she is specifically arguing. But it seems clear from the opinions that the DNA on the shirt was that of the victims. That, in addition to the mountain of other evidence, makes it clear to me that he’s guilty. The argument that the defendant’s jacket didn’t have the victim’s blood on it does nothing to disprove the fact that the victim’s blood was on his shirt. > [@pervert](#): > > Can you dig up similar information about the Jacobs case? Not tonight nor tomorrow, but I’ll try to get around to it sometime soon. ---
**Author:** ![pervert](https://avatars.discourse-cdn.com/v4/letter/p/bbe5ce/32.png) [@pervert](https://boards.straightdope.com/u/pervert)\ **Post date:** [June 30, 2004, 12:35am UTC](https://boards.straightdope.com/t/would-you-rather-let-a-thousand-guilty-men-go-free-or-put-one-innocent-man-to-death/252637/60 "2004-06-30T00:35:11Z")
> [@Hamlet](#): > > Not tonight nor tomorrow, but I’ll try to get around to it sometime soon. Thanks very much for any contribution you can make. I have been googling on the Jesse Tafero case for a couple hours. Most of what I find is heavily slanted. Much of it seems to be repeat information (one anti death penalty site borrowing from another). I’m especially concerned that the new evidence (or the new findings concering the old evicdence) was sufficient grounds for releasing Sonia, but too late to help Jesse. The case (if it turns out that these cites are true) seems tailor made for this debate. As I said, however, I have only read sites which are obviously anti death penalty. I would greatly appreciate to have something from the prosecutors side explaining the situatiion. It would be intriguing to hear how the prosecutor characterizes the deal offered to Sonia. Especially given that she was never considered a suspect for actually shooting the patrolman. Perhaps her release had something to do with a technical matter in which it was deemed inappropriate to link her with the shooting. I don’t know. But I would be very grateful for any official information you could dig up. [Previous page](https://boards.straightdope.com/t/would-you-rather-let-a-thousand-guilty-men-go-free-or-put-one-innocent-man-to-death/252637.md?page=2) [Next page](https://boards.straightdope.com/t/would-you-rather-let-a-thousand-guilty-men-go-free-or-put-one-innocent-man-to-death/252637.md?page=4)