Report: Flaws risk wrong execution

The American Bar Association urged changes in the Pa. system to better guard against putting an innocent person to death

By John Shiffman and Angela Couloumbis, Philadelphia Inquirer

HARRISBURG - From crime scene to courtroom to clemency, the flaws in Pennsylvania's death-penalty system are so pervasive that the state risks executing an innocent person, the American Bar Association said in a report released yesterday.

The ABA urged changes that it said could reduce the likelihood of false confessions, crime-lab errors, witness misidentification and racial disparities. The report noted that since 1986, three inmates had been executed in Pennsylvania, but that five had been exonerated and released from death row.

"The problems found in this assessment strike at the very heart of Pennsylvania's justice system," said the ABA's president-elect, H. Thomas Wells Jr.

Still, the 324-page study's authors - five prominent Philadelphia-area lawyers, including a prosecutor and a judge - stopped short of calling for a moratorium on executions.

Instead, they asked Gov. Rendell to order a more comprehensive state study. Rendell's spokesman said the governor "will review the suggestions and take them under consideration."

The dozen changes that the ABA said would improve the accuracy and integrity of murder investigations included requiring police to videotape interrogations and witness identifications and to preserve DNA evidence indefinitely.

The ABA also urged the state to adopt uniform standards for lawyers who represent the poor, including the appointment of two qualified attorneys at every stage of the process and salaries that match those paid to prosecutors.

The ABA, the nation's largest lawyers' association, conducted similar studies in seven other states, finding flaws there as well. The ABA said it did not have an official position on capital punishment. However, since 1997 it has called for a moratorium on executions "until fairness and accuracy - due process - are assured in death-penalty cases."

Ronald Eisenberg, the Philadelphia deputy district attorney in charge of appeals, said the ABA's Pennsylvania report was tainted by a hidden bias.

"The ABA is against the death penalty, and they ought to be honest about that," he said. "I don't think there's anything new in it for people who are against the death penalty, but they have a big public-relations budget, and they've obviously spent a lot of money to get their message out. . . . This is part of a national campaign."

Gregory P. Miller, one of the five lawyers who conducted the study, said Eisenberg's characterization of a stacked panel was unfair and wrong. Miller, a former federal prosecutor, said he had not yet made up his mind on capital punishment.

"The death penalty creates grave concerns for me, but I spent most of my life as a prosecutor, so I can imagine cases where it's appropriate and where it isn't," he said. "The thing that always sort of troubled me is the trial representation. . . . The one thing we ought to be able to provide at this time in our country is a good lawyer."

The others who produced the report were Villanova University law professor Anne Bowen Poulin; Delaware County Judge Frank T. Hazel, a former district attorney; Mary MacNeil Killinger, a Montgomery County deputy district attorney; and David Rudovsky, a University of Pennsylvania law professor and noted civil-rights lawyer.

The team could not compile all the data it needed, Poulin said, because it lacked the authority to get them from certain counties and because other counties kept poor or no records.

"If the governor were to order a thorough investigation, the governor's authority would make sure there would be access," Poulin said.

Pennsylvania has 228 people on death row, but none is in immediate danger of execution. All have appeals working their way through the state and federal systems, and the U.S. Supreme Court has essentially halted executions while it considers a Kentucky case about the constitutionality of lethal injections.

All three inmates executed in Pennsylvania since capital punishment was reinstated in 1978 were volunteers.

There have been several major studies of the state's death-penalty system, including a massive 2003 study on race and gender commissioned by the state Supreme Court. That study cited racial and geographic disparities and concluded that Pennsylvania did not "operate in an even-handed manner."

The study spurred few changes, the ABA said in yesterday's report.

State Sen. Stewart Greenleaf (R., Montgomery), chair of the Judiciary Committee, said the Senate last year had created an advisory committee to report on all wrongful convictions in the state - not just in death-penalty cases - and recommend ways to prevent them.

Greenleaf also said he believed there should not be a moratorium on executions because that would "change the nature of the debate, because then we'd be talking about whether we should or should not have the death penalty in Pennsylvania."

"The question now should be: Will we be able to pass these reforms to justify the use of the death penalty?" Greenleaf said. "And if we don't, then we can revisit that issue."

Nicholas Yarris, a Philadelphian who was exonerated and released from Pennsylvania's death row in 2004, greeted the ABA report with a shrug. It won't change much, he predicted.

"We've had more exonerations in Pennsylvania than people we've executed," he said. "The biggest disappointment to me since my release is that nothing has changed. You'd think an innocent man is released from death row and there would be outrage."

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The American Bar Association Report Highlights from the report released yesterday on Pennsylvania's death penalty system:

Eyewitness errors

According to the Innocence Project, eyewitness error was a factor in 77 percent of the 208 cases nationwide in which DNA exonerated inmates. The ABA says witness identification procedures in Pennsylvania police departments lack uniform standards designed to reduce mistakes.

ABA recommendation: Standardize police lineup and photo-spread procedures using modern procedures. Videotape witness identification sessions so that jurors can see methods and measure a witness' original certainty and credibility.

False confessions

Roughly one-quarter of the people exonerated by DNA evidence falsely confessed or made deeply incriminating statements, the Innocence Project said.

ABA recommendation: Require police departments to videotape homicide interrogations. Only two departments, Whitehall and Bethlehem, do so, the ABA said, citing 2005 data.

Racial discrimination

The state has "taken some steps to explore the impact of race" but could do more. One in 10 Pennsylvanians is African American, but half the state's death-row inmates are black. A 1999 state Supreme Court study found that African Americans in Philadelphia were sentenced at a significantly higher rate than similarly situated nonblacks.

ABA recommendation: Implement some of the recommendations of the 1999 committee, including a more comprehensive study of race and the death penalty. Remind jurors at trial that race is not a factor to be considered when weighing the death penalty.

Proportionality review

The U.S. Supreme Court has said the death penalty must be implemented in a balanced manner. States must take care to avoid racial and geographic disparities for people charged with similar crimes. In 1997, Pennsylvania eliminated a tool called proportionality that other states use to compare cases to ensure that each sentence is neither excessively severe nor abhorrent.

ABA recommendation: Create a statewide database of all trials in which a defendant faced the death penalty, a system comparing similar murders that analyzes who got life and who got death.

Clemency

The governor cannot pardon or grant a commutation without the unanimous agreement of the state pardon board, but the board won't review the guilt or innocence of death-row inmates, saying responsibility lies with the courts. The rules do not permit the accused to be at the hearing, at which each side is given 30 minutes to argue. Witnesses can't testify under oath and can't be cross-examined.

ABA recommendation: The clemency process shouldn't assume the courts have considered every issue and should provide for a full public hearing. Any factor, including an inmate's mental status and conduct while incarcerated, should be relevant.