DNA, THE DEATH PENALTY AND HORRIFYING MISTAKES

BY GEORGE F. WILL

The Washington Post 4/6/2000

''Don't you worry about it,'' said the Oklahoma prosecutor to the defense lawyer. ''We're gonna needle your client. You know, lethal injection, the needle. We're going to needle Robert.''

Oklahoma almost did. Robert Miller spent nine years on death row, during six of which the state had DNA test results proving that his sperm was not that of the man who raped and killed the 92-year-old woman. The prosecutor said the tests only proved that another man had been with Mr. Miller during the crime. Finally, the weight of scientific evidence got Mr. Miller released and another man indicted.

You could fill a book with such hair-curling true stories of blighted lives and justice traduced. Three authors have filled one. It should change the argument about capital punishment and other aspects of U.S. criminal justice. Conservatives, especially, should draw this lesson from the book: Capital punishment is a government program, so skepticism is in order.

Horror, too, is a reasonable response to what Barry Scheck, Peter Neufeld and Jim Dwyer demonstrate in ''Actual Innocence: Five Days to Execution and Other Dispatches From the Wrongly Convicted.'' You will not soon read a more frightening book. It is a catalogue of appalling miscarriages of justice, some of them nearly lethal. Their cumulative weight compels the conclusion that many innocent people are in prison and some innocent people have been executed.

Mr. Scheck and Mr. Neufeld (both members of O.J. Simpson's ''dream team'' of defense lawyers) founded the pro-bono Innocence Project at the Benjamin N. Cardozo School of Law in New York to aid persons who convincingly claim to have been wrongly convicted. Mr. Dwyer, winner of two Pulitzer Prizes, is currently a columnist for the New York Daily News. Their book is a heartbreaking and infuriating compendium of stories of lives ruined by:

Mistaken identifications by eyewitnesses or victims, which contributed to 84 percent of the convictions overturned by the Innocence Project's DNA exonerations.

Criminal investigations, especially of the most heinous crimes, that become ''echo chambers'' in which, because of the normal craving for retribution, the perceptions of prosecutors and jurors are shaped by what they want to be true.

The sinister culture of jailhouse snitches, who earn reduced sentences by fabricating ''admissions'' by fellow inmates to unsolved crimes.

Incompetent defense representation.

The list of ways that the criminal justice system misfires could be extended, but some numbers tell the most serious story: In the 24 years since the resumption of executions under Supreme Court guidelines, about 620 have occurred, but 87 condemned persons - one for every seven executed - had their convictions vacated by exonerating evidence. In eight of these cases, and in many more exonerations not involving death row, DNA evidence was conclusive.

One inescapable inference from these numbers is that some of the 620 persons executed were innocent. Which is why, after the exoneration of 13 prisoners on death row in Illinois since 1987, Governor George Ryan, a Republican, has imposed a moratorium on executions.

Two powerful arguments for capital punishment are that its deterrent effect saves lives and it enhances society's valuation of life by expressing proportionate anger at murder. But that valuation is lowered by careless or corrupt administration of capital punishment, which ''Actual Innocence'' powerfully suggests is intolerably common.


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