No Room for Mistakes (Spring 2007 Trust Magazine article)

Kirk Bloodsworth knows all about problems with the death penalty.

In 1985, Bloodsworth, a commercial fisherman in Maryland, was convicted of sexually assaulting and killing a nineyear- old girl. Five witnesses identified him. Sentenced to be executed, he was sent to await his fate on Maryland's death row.

At the time, the FBI concluded there was no evidence of bodily fluid on which a DNA test could be run. But in 1992, Bloodsworth's appellate lawyer discovered that a small amount of DNA evidence did exist, and prosecutors agreed to have a leading private lab run a test. The results—confirmed by an FBI lab—showed that Bloodsworth's DNA did not match.

In 1993, the state dismissed the charges, freed Bloodsworth and paid him $300,000 for lost income, and Maryland's governor granted him a full pardon. Yet some Baltimore County officials continued to state publicly that they believed he could have been involved in the crime.

It took law enforcement agencies nearly a decade to run the same evidence through a national DNA database. They immediately got a hit—against Kimberly Shay Ruffner, a convicted sex offender already in prison. In 2004, Ruffner pleaded guilty to the murder for which Bloodsworth had been wrongfully convicted.

Bloodsworth, a former Marine, was the first person in the country to be sentenced to death and then exonerated by DNA evidence. Instead of just taking Maryland's compensation for its mistake and trying to forget and be forgotten, Bloodsworth became a man with a mission: reform of the nation's death-penalty system. He's now working for the Trusts-supported Justice Project Education Fund, which uses the tools of public education and coalition-building to make the death-penalty system fair and just—to make sure, in other words, that the guilty are caught and the innocent are not punished.

Ever since capital punishment was reinstated by the U.S. Supreme Court in 1976, more than 110 people on death row have been exonerated based on new evidence of their innocence. “They're finding them every day,” Bloodsworth says—or so it can seem from the publicity attending reversals of capital convictions.

A majority of Americans still support capital punishment. But concerns about innocent people being wrongfully convicted—and the truly guilty going free as a result—seem to have taken a toll. A Gallup Poll released in October 2006 found that 67 percent of Americans support the death penalty, a significant drop from the high of 80 percent in 1994. A Gallup survey in May 2006 found that when given the choice between capital punishment and a life sentence without parole for murderers, more respondents opted for the life sentence (48 percent) than the death penalty (47 percent) for the first time in two decades.

Wariness among both citizens and policy makers about problems in the way capital punishment is applied has likely contributed to a number of recent, striking developments across the country. There were 53 executions in 2006, the lowest level in a decade, and 45 of those were carried out by just six of the 38 states that allow capital punishment, according to statistics compiled by the nonprofit Death Penalty Information Center. The number of death sentences imposed last year was less than half the annual total throughout most of the 1990s.

Among states taking action, New Jersey legislators passed a moratorium on executions and appointed a commission to study the state's deathpenalty system. The commission ultimately recommended that the state abolish the practice, and lawmakers are considering next steps.

In Maryland, after the state's highest court issued a stay on executions until officials developed a new protocol for lethal injections, a newly elected and strongly anti-death-penalty governor urged state legislators to use the opportunity to repeal capital punishment. At this writing, Maryland lawmakers were debating abolition as well as several other proposals, including a bill that would limit the death penalty to just a few types of offenders.

In other states, policy makers were deliberating a range of reforms, from taping of murder-suspect interrogations and new procedures for eyewitness identifications to revised methods for execution by lethal injection.

Not all states are headed in the same direction. Lawmakers in some jurisdictions, such as Texas, have moved to broaden eligibility for the death penalty to include repeat child sex offenders. Last November, 56 percent of voters in Wisconsin—a state that abolished the death penalty in 1853—approved a non-binding resolution recommending that capital punishment be reinstated for firstdegree intentional homicide cases if DNA evidence supports a conviction.

Still, concerns about wrongful convictions disturb deathpenalty supporters and opponents alike. In 2001, citing cases in which death row inmates had inferior representation and may not have had access to DNA testing that could have cleared them, then-Justice Sandra Day O'Connor of the U.S. Supreme Court said in a speech that the death-penalty system “may well be allowing some innocent defendants to be executed.” And in a 2005 speech, Justice John Paul Stevens noted that a “substantial number of death sentences have been imposed erroneously.”

That view is far from unanimous on the Supreme Court. In a case last year in which the Court, by a 5-4 decision, upheld the constitutionality of Kansas's death penalty, Justice Antonin Scalia strongly criticized as baseless the concern among some of his colleagues about executing the innocent. But in the past several years, some key Court decisions have cheered reform supporters. With evidence showing that mentally retarded and juvenile defendants are more likely to make false confessions, the Court ruled in 2002 that the execution of mentally retarded defendants was unconstitutional and in 2004 that executing defendants who committed crimes when they were younger than age 18 was unconstitutional as well.

Also in 2004, Congress passed and President George W. Bush signed the Innocence Protection Act—a landmark law authorizing $400 million to help states provide death-penalty defendants with adequate counsel and access to DNA testing. The act was part of a larger bill, the Justice for All Act, authorizing more than $1 billion to eliminate a backlog in DNA testing in criminal cases, upgrade criminal laboratories and provide DNA-evidence training to medical and law-enforcement personnel.

The Education Fund collaborated with a range of organizations to disseminate research documenting flaws in the system and to tell the stories—in the media, at public events and in invited testimony before lawmakers— of cases such as Kirk Bloodsworth's. Meanwhile, The Justice Project, Inc., worked with members of Congress to develop the legislation, address members' concerns and build bipartisan support. It also developed a coalition of victims'-rights groups and other allies who endorsed the bill.

(The Justice Project actually consists of two separate organizations: The Education Fund, a 501(c)(3) supported by Pew and other funders, focuses on educating the public, media and state and federal policy makers about the need for reforms and policy options. The Justice Project, Inc., a 501(c)(4), builds advocacy coalitions and lobbies for particular legislative solutions.)

The Innocence Protection Act “is the only piece of progressive death-penalty reform that has been passed in Congress in recent decades,” says John Terzano, president of the Education Fund, and its approval indicates that “policy makers have become more aware of what causes wrongful convictions.”

Among those endorsing the act was Beth Wilkinson, the federal prosecutor in the Oklahoma City bombing case who successfully sought the death penalty against Timothy McVeigh. Wilkinson is co-chair of the Death Penalty Initiative of the nonprofit Constitution Project, which frequently collaborates with the Education Fund on death-penalty reform efforts. The initiative is a bipartisan commission of prominent death-penalty supporters and opponents who seek reforms.

In 2001, Wilkinson was invited to testify on the legislation before the Senate Judiciary Committee. “When a [death-penalty] defendant has ineffective counsel, the state, the families of victims and society all suffer,” Wilkinson told lawmakers. “Litigation becomes protracted, complicated and costly, putting legitimate convictions at risk. This subjects the victims' families to continuing uncertainty and deprives society of the knowledge that the real perpetrator is behind bars.”

On the other hand, she continued, “Ensuring competent counsel to defendants facing the death penalty benefits not only the defendant, but also victims and society at large.”

Another supporter of the Innocence Protection Act—and longtime ally of the Education Fund—is Anne Seymour, co-founder of Justice Solutions, a nonprofit, nonpartisan, victims'-rights and assistance organization. Seymour was previously involved with Mothers Against Drunk Driving, and she cofounded the National Victim Center, now called the National Center for Victims of Crime.

Seymour says she sees both sides of the death-penalty issue.

“I never second-guess someone for or against the death penalty,” she explains. “It's a very personal moral issue. People at prison protests of executions have the right to be there, just as families of victims who witness executions do. I've had to help many victims go through the process. . . . It's helping them go through the hardest time in their lives.

“Most of the folks I work with want everyone to have a fair and just trial. Every time someone brings up the [1995 incident of a defense] lawyer falling asleep [in a Texas courtroom during a murder trial], I could bring up victims not being notified of hearings, not being allowed to be present, victims not getting their legal rights observed. Everyone in my field feels it needs to be fair for everyone.”

Victims want to see a system where cases aren't in the appeals courts interminably, says Seymour. “We want to make sure it was a strong conviction, and accurate.”

Among supporters of reform, no one is certain whether such efforts might actually mend or end capital punishment. Some would like to see the death penalty abolished; others firmly believe that murderers who are guilty should pay for their crimes with their lives. But they find common ground in the belief that as long as capital punishment exists in this country, the government must ensure that trials are fair, innocent people are not wrongly convicted, and the truly guilty are caught.

It is within that arena that the Education Fund has established its credibility and influence. Rather than being identified with one side or another in the emotionally charged debate, where there often seems to be no middle ground for rational discussion, the group has been able to reach out to both sides and, through a campaign of educating the public, media and state and national leaders, persuasively argue that reforms that strive for fairness and accuracy are in everybody's interest.

Both the Education Fund and The Justice Project, Inc., collaborate with other groups to raise awareness among lawmakers and the public about serious flaws in the administration of capital punishment. They conduct some research of their own and frequently publicize the research of others to document the case for change. And they use media campaigns, conferences, invited testimony before legislators and a range of other tactics to amplify the voices of prominent supporters and opponents who endorse reform.

All of these efforts are aimed at creating a climate for change at the state level, where the vast majority of American executions take place—and it appears the work is taking root.

A growing number of states are exploring reforms such as expanding access to DNA testing for death penalty defendants; audio recording or videotaping all custodial interrogations of homicide suspects; establishing more reliable eyewitness-identification procedures; toughening rules governing investigations and prosecutions; and improving legal representation for indigent defendants.

“There is much more of an awareness of the flaws in the justice system” since the Education Fund began its efforts, says Terzano.

Some states present greater opportunity for reform, or have bigger problems in their capital-punishment systems, than others. The Education Fund, with support from Pew and other funders, launched intensive deathpenalty reform education efforts in Illinois, Texas, Tennessee and Georgia. “We either have individuals on the ground in those states, or else we work with organizations already on the ground,” Terzano says.

By providing detailed information through nonpartisan research and analysis, media outreach and other efforts on what has been done and is being done across the country, he explains, “we help educate individuals in those states about these serious problems and make recommendations how to resolve them.” The Education Fund hopes reforms achieved in those states and others exploring change will be models for the rest of the country.

A major focus of the Education Fund's attention since its creation has been Illinois, where the current death-penalty reform movement burst into life seven years ago. In 2000, then-Governor George Ryan imposed a moratorium on the death penalty after his state had executed 12 death row inmates and exonerated 13 others—a number of them based on DNA evidence—in the 23 years since the death penalty there was reinstated.

Ryan, who as a legislator had coauthored the measure re-establishing Illinois's death penalty, created a commission to study the system and propose reforms to ensure that the state didn't carry out unwarranted executions. The commission, whose members were a mix of death-penalty supporters and opponents, issued a report with 85 recommendations.

Then, as he was about to leave office in early 2005, Ryan emptied death row, pardoning four convicts and commuting the death sentences of 167 others to life imprisonment. It was a highly controversial move, but Ryan said he could do no less, given a system that was “haunted by the demon of error: error in determining guilt and error in determining who among the guilty deserves to die.”

Meanwhile, many of the Ryan commission's recommendations earned widespread bipartisan support from the Illinois state legislature, which in 2003 adopted a significant package of reforms. One of the most widely hailed was the nation's first-ever law requiring start-to-finish recording of all murder interrogations. Maine, New Mexico and Washington, D.C., subsequently enacted similar laws, and the practice is in use in local and county jurisdictions in other states.

Other changes adopted by Illinois lawmakers include pre-trial screening of testimony by jailhouse informants, or “snitches,” and a pilot program to ensure more accurate lineup procedures to avoid mistaken eyewitness identification, the leading cause of wrongful convictions.

In 2005, the legislature appointed a commission to study the impact of those reforms and recommend further measures. Today, the death-penalty moratorium is still in effect, and the commission created by the state legislature is more than midway into its five-year study.

Education Fund staff members have been invited to testify before legislative committees examining reforms and joined forces with prominent state leaders, such as Thomas P. Sullivan, the former U.S. attorney for the Northern District of Illinois, to educate policy makers, the public and the media about the need for change.

Sullivan co-chaired the original Ryan commission and now chairs the legislative study commission. He was one of the prime advocates of interrogation recording, having spoken and written widely on the subject and thrown his considerable reputation as a former prosecutor into the fight.

Sullivan also is deeply involved in the effort to encourage states to revamp eyewitness-identification procedures, noting, “It's probably the biggest area where you can make good-faith mistakes.”

Studies show that when eyewitnesses look at a group of people in a lineup or a group of photographs, they tend to make a relative judgment and pick the one that most resembles the person they saw. But close resemblance isn't good enough.

An alternative is “sequential, doubleblind” identification. In this practice, a witness is shown photographs of potential suspects, or participants in a lineup, one at a time rather than all at once; in addition, the police administrator of the test does not know who the “correct” suspect is.

Illinois tried this in a pilot study, but the Chicago Police Department questioned its accuracy in a March 2006 report. The department's methodology was strongly criticized, and the National Association of Criminal Defense Lawyers, in conjunction with Northwestern University's School of Law, has filed a lawsuit seeking access to the data used in compiling the report.

Meanwhile, Sullivan continues to support the innovative, sequential, double-blind approach—and a growing number of municipalities, counties and states are adopting it. “It results in far fewer picks of nonperpetrators because the relative judgment is removed,” says Sullivan.

He also advocates a system to conduct pre-trial reviews of prosecutors' decisions to seek the death penalty “to bring much-needed rationality and consistency” to the process, since whether or not a defendant is sentenced to death for a crime often depends on the county in which the trial takes place.

Reformers will have to grapple with all of these issues over and over again because the death penalty is chiefly a matter of state law, he says: “There are 50 states, and it's a struggle in every state.”

It's an especially tough struggle in Texas, far and away the state with the most per-capita executions. Texas garnered international headlines in 2005 after significant evidence emerged that the state may have executed an innocent man— Ruben Cantu—in 1993. Among other developments, the sole eyewitness in the case recanted his testimony, claiming that the police pressured him to identify Cantu; and Samuel Millsap Jr., the former county district attorney who successfully prosecuted the case back in 1985, has declared publicly that Cantu “was probably innocent.” At this writing, officials were still investigating the claims.

Texas also earned prominent public and media attention last year after the Chicago Tribune published a threepart series casting doubt on the guilt of another man, Carlos DeLuna, executed by the state in 1989.

Mishandled evidence has been one of the biggest controversies in Texas, where serious problems were documented in evidence-processing work done in the crime laboratory of the Houston Police Department, which consequently shut down its DNA division in 2002. It wasn't until June 2006 that a national forensic association gave the DNA operation the accreditation it needed to reopen. The state legislature created a commission to oversee state forensic testing and investigate allegations of misconduct or other failures in crime labs, but the commission is still awaiting full operating funding to carry out its work.

Adequate legal representation for poor defendants eligible for the death penalty has also been a major issue in Texas. In 2005, Governor Rick Perry created an advisory commission to look at the state's criminal justice system. The Education Fund and The Justice Project, Inc., are working with several organizations in Texas to analyze problems in how the state administers the death penalty and assigns lawyers to indigent defendants, including those accused of capital crimes, and to make that information available to the commission, the public and the media.

One of the Education Fund's partners, the Texas Defender Service, last year issued a study recommending that the governor's panel look at the findings of the original Ryan commission in Illinois as it examines Texas's issues. Meanwhile, in April 2006, the State Bar of Texas became the first state bar association in the country to adopt any form of the American Bar Association's Standards for Death Penalty Representation, which the U.S. Supreme Court has cited as an appropriate performance standard for defense counsel in capital cases.

Concerns about Texas's system of legal representation in capital cases are not limited to what deatheligible defendants receive at trial. Last fall, a series by the Austin American-Statesman raised troubling questions about “shoddy legal work” by court-appointed lawyers responsible for handling critical habeas appeals by death row inmates, and criticized Texas's highest criminal court for failing to ensure that the inmates receive competent legal help. Following the coverage, the court adopted new rules to identify substandard lawyers and remove them from the court's list of eligible habeas attorneys. Now it is waiting for additional recommendations for reform from a task force created by the State Bar of Texas to study the habeas representation system.

The Education Fund has also targeted particular problems in Tennessee and Georgia. The effort in Tennessee has focused on the need for better-trained and qualified lawyers to represent indigent defendants, including those accused of crimes eligible for the death penalty, and the taping of murder interrogations and confessions. Through nonpartisan research and analysis and a joint public and policy-maker education effort with the Tennessee Bar Association on the issue of capable lawyers, and by bringing in Sullivan to talk to law enforcement officials about taping, the organization's prospects for seeing change are encouraging.

The Education Fund, partnering with other nonprofit groups such as the Innocence Project, also sought to raise public and media awareness of the case of Paul House, who has spent 20 years on Tennessee's death row for a 1985 murder he claims he did not commit. Last year, in a closely watched decision, the U.S. Supreme Court ruled that House was entitled to a new hearing in federal court because new DNA and other evidence not available at his trial raised sufficient doubt about who committed the crime. As The New York Times noted, it was the first case “in which the Supreme Court has factored the result of modern DNA testing into the equation in re-examining a death sentence.”

Perhaps no state better reflects the shifting and difficult landscape of death penalty reform than Georgia. In 2004, Georgia lawmakers enthusiastically approved a new statewide, state-funded system for providing and monitoring lawyers who represent indigent defendants, including those facing potential death sentences. The Education Fund collaborated with a highly regarded, Atlanta-based nonprofit organization, the Southern Center for Human Rights, to educate lawmakers, the media and the public about the importance of effective and well-supported legal representation.

Today, however, the agency that oversees the state's public defenders is facing a funding crisis, and some lawmakers are calling for an overhaul of the system. A hot-button issue is the soaring price-tag—at least $1.4 million—of legal counsel for Brian Nichols, facing the death penalty for allegedly killing a judge and three others in 2005.

The Education Fund, the Southern Center and other partners are working to educate Georgia policy makers and the public about the need for other key reforms, including electronic recording of interrogations and improved eyewitness-identification procedures. Last fall, the Education Fund collaborated with the Atlanta Bar Association and the Georgia Innocence Project to convene prosecutors, judges, chiefs of police and other leaders around the state to discuss best practices for conducting eyewitness lineups.

The Education Fund continually emphasizes the need to find common ground with a wide range of leaders and organizations that share the conviction that fairness and accuracy in the administration of the death penalty benefits everyone. Few bring greater credibility to the cause than William S. Sessions, director of the FBI from 1987 to 1993 and a former federal judge.

Like Beth Wilkinson, Sessions is a member of the Constitution Project's bipartisan commission, where he, too, is a death-penalty supporter who advocates reform.

As a U.S. district court judge in Texas, Sessions ruled in 2002 that the federal death-penalty statute was unconstitutional because rules of evidence and the rights of confrontation and cross-examination that a defendant had at trial did not apply at the sentencing proceeding. (That ruling was later overturned.)

Sessions also played an influential role in a 2004 Supreme Court decision overturning the death sentence of a Texas inmate because of prosecutorial misconduct. He joined several other former judges on an amicus brief arguing that the sentence “implicates the integrity of the death penalty in this country.”

Now in private law practice, Sessions continues to crusade for death-penalty reform and for the use of DNA evidence, which was the subject of a pioneering study he ordered the FBI to conduct during his tenure as its director. That investigation, he says, first demonstrated that DNA was “an overwhelming weapon that could be used by both the government and defense counsel”—just as it was in the case of Kirk Bloodsworth, who emerged as a defendant and a victim of the system.

Bloodsworth does not believe in the death penalty—even for Kimberly Shay Ruffner, the man eventually found guilty of the crime for which Bloodsworth originally was convicted, sentenced to die and wasted eight years of his life in prison. But in his work for the Education Fund, he puts his personal feelings aside and stresses the need for reforms so “there's never another Kirk Bloodsworth.”

“My goal is not to end the death penalty necessarily,” he says. “The advent of DNA has shown we have a problem. It's obvious things need to be changed.”

The Justice Project Education Fund can be found on the Web at www.thejusticeproject.org.