April 10, 2002

Death Is Different

Capital Punishment

Supreme Court (US)

Crime and Criminals

Krone, who spent 10 years in prison for sexual assault and murder,
including time on Arizona's death row, was freed on Monday after a
DNA test exonerated him and cast suspicion on another prisoner.
According to the Death Penalty Information Center, Mr. Krone was the
100th innocent man nearly put to death in this country since 1973.
Given the way death-penalty crimes are prosecuted, as the wrongful-
conviction scandals in Illinois a few years back showed, a certain
number of mistaken convictions are essentially built into the process.

A sad reality of the criminal justice system is that in all too many
cases, defendants are convicted of serious crimes on the flimsiest of
evidence. Juries often hang guilty verdicts on the word of a single
witness, despite numerous academic studies showing that witnesses are
frequently unreliable. Courts admit evidence of dubious quality at
trial, and send defendants to prison — or to death — on the basis of
it. The case against Mr. Krone was largely circumstantial, including
expert but apparently inaccurate testimony that his teeth matched
bite marks on the victim.

In the face of this powerful evidence that the system is broken, the
courts should be chastened — and they should be working hard to build
in protections against executing the wrongfully convicted. Sadly,
however, the Supreme Court appeared unconcerned about the fairness of
the death penalty in its ruling in a case two weeks ago involving
effective assistance of counsel.

In the case, the court ruled that the conviction of a death row
inmate, Walter Mickens Jr., did not violate the Sixth Amendment's
right to counsel even though the lawyer who was appointed to
represent Mr. Mickens had previously represented the 17-year-old boy
he was charged with killing. It is shocking that the Supreme Court
would consider that this arrangement meets the constitutional
standard of effective assistance of counsel. "A rule that allows the
State to foist a murder victim's lawyer onto his accused [killer] is
not only capricious," Justice John Paul Stevens noted in dissent, "it
poisons the integrity of our adversary system of justice."

The Supreme Court has long professed the principle that "death is
different," that in order to deprive someone of his life, the state
must be punctilious about providing him every procedural protection.

Because the court has failed to live up to that standard, it is vital
that bills currently before both houses on Capitol Hill gain the
support they need to become law. The bipartisan Innocence Protection
Act would establish national standards for the representation of
capital defendants and provide resources to meet them. The act would
also require the preservation of biological evidence that may later
prove crucial on appeal and ensure death row inmates access to DNA
testing.

This week's discomforting milestone, as calculated by the Death
Penalty Information Center, is further evidence of deep unfairness in
the death penalty system and of the urgent need for a law reducing
its inequities.

Copyright 2002 The New York Times Company