Sunday, December 3, 2006



Suppose someone you love was brutally murdered, an innocent life taken in vain. You might want an eye for an eye, a life for a life. But the very system designed to deliver justice for such unspeakable acts has perpetrated acts of its own.

The United States is the only Western civilization that imposes the death penalty. A landmark 1972 U.S. Supreme Court ruling declared capital punishment unconstitutional but was overturned for many states in 1976.

Today capital punishment exists in 38 states, including Florida.

The number of wrongfully accused death row inmates who have been released, sometimes moments away from execution, continues to climb well past 100. At 24, Florida is the nation’s leader in high-stakes mistaken identity. The advent of DNA testing has revealed just how imperfect our “better-than-most” judicial system is, prompting states like Illinois and Maryland to impose a moratorium on executions while they launch massive investigations.

“DNA is not the magic bullet,” says School of Law professor Jonathan Simon, “it is the beam of light that shows us the faults in the system.” Simon is quoting Barry Scheck, professor at the Benjamin N. Cardozo School of Law at Yeshiva University and pioneer of the Innocence Project, a nonprofit student legal clinic established there in 1992 to assist inmates trying to prove their innocence.

The project has blossomed into the Innocence Network, a national contingent of law schools, journalism schools, and public defender offices. Simon and his colleague Terence Anderson are rallying to bring the Innocence Project to the University of Miami, starting with a first-ever Wrongful Convictions course this semester in which students investigate actual cases funneled to the School of Law through an agreement with Nova Southeastern University and the Innocence Network.

“DNA is hitting the forefront of American law, but at the same time, people are languishing in jail based on the conviction of an uncertain eyewitness, prosecutorial misconduct, false confessions, or junk science,” says second-year UM law student Jessica Gabel. Recipient of the Miami Scholars Program scholarship, Gabel is spearheading the student initiative for a wrongful convictions clinic at the University.

“I don’t think people often associate law students with idealism or a high level of social consciousness,” Simon remarks, “but I had 30 students volunteering to devote time over the summer to investigate claims of innocence. As a legal educator, I never miss an opportunity to take advantage of the real idealism that wells up from our students. They’re truly seeking justice.”

The student population is a formidable force. After journalism students at Northwestern University uncovered a file withheld by police and prosecutors from the defense, ultimately exonerating a group of men convicted of a 1978 double murder, Illinois Governor George Ryan declared a moratorium on the death penalty and ordered an investigation. The final report proposed 85 radical changes to the state’s use of capital punishment. Other reports are beginning to dissect the complex spate of problems that plague the death penalty.

Most-often quoted is A Broken System, Part II: Why There Is So Much Error in Capital Cases, and What Can Be Done About It, published this year by Columbia Law School’s James S. Liebman and colleagues. “Over decades and across dozens of states, large numbers and proportions of capital verdicts have been reversed because of serious error,” states the report, a follow-up to a June 2000 study. “The capital system is collapsing under the weight of that error, and the risk of executing the innocent is high.”

“It’s a superb piece of social science work,” says Simon, one of a national panel of scholars the researchers selected to comment on the report. He notes that it pinpoints states such as Florida, “where the political culture has developed a market for capital punishment. There really are career rewards for people aggressively seeking the death penalty.”

Traditionally, public support for the death penalty has pressured prosecutors to aggressively seek it. Though recent polls show a dip in support, Simon describes a persistent domino effect that begins with police interrogation of the suspect, often a powerful session of lies and trickery aimed at extracting a confession. This is what happened to Frank Lee Smith, a man proven innocent by DNA evidence ten months after he died of cancer, alone and emaciated on Florida’s death row, where he spent 14 years for the rape and murder of an eight-year-old girl.

Smith was convicted in 1986 based on a police-alleged involuntary confession and testimony from an eyewitness who later said she was pressured into identifying him despite strong doubts. When a defense team investigator four years later showed the witness a picture of Eddie Lee Mosley, the real killer, the witness recanted her testimony against Smith. But the Broward Sheriff’s Office never investigated Mosley. They had locked in on Smith, a “usual suspect” due to a previous conviction. All along, the state had denied numerous requests for DNA testing. A PBS Frontline report recently depicted the tragedy of Frank Lee Smith, featuring expert opinion from Simon and fellow University of Miami School of Law professor Donald Jones.

From the police to overzealous prosecutors, who Simon asserts often subscribe to “a certain amount of willful ignorance,” it seems the odds are stacked against the accused. Hard-line DNA data is debunking hair comparisons, tool mark analysis, fingerprint matching, and other forms of “junk science” frequently used to convict. False confessions, unreliable eyewitnesses, and jailhouse snitches who clear their names by incriminating others are still very much a part of the machinery, as are inept defense lawyers. Consider the case of Jesse Tafero, electrocuted in 1990 for the murder of a Florida highway patrolman based on snitch testimony. As well, Tafero’s court-appointed defense attorney failed to call two witnesses who saw Tafero being restrained by an officer when the shots were fired; the attorney was later charged with narcotics conspiracy and bribing a jury in another case. Tafero gained even more notoriety with a botched electrocution that exhibited the brutality of the electric chair, now rarely used.

Competency of counsel, a Sixth Amendment right, is one of the most common issues tackled by attorneys at the Capital Collateral Regional Counsel (CCRC), a unique system initiated in 1985 by the State of Florida to ensure that death penalty defendants have adequate representation in post-conviction appeal.

“Each case gets two lawyers and one investigator,” explains Todd Scher (J.D. ’91), former litigation director for the CCRC’s Southern region and co-instructor for the Wrongful Convictions course. Scher details the painstaking and costly procedures designed to unveil any grounds for acquittal. “The problem in what we do is that the person has already been convicted and sentenced. We need to put the focus back at the trial level to ensure that the attorney of someone facing the death penalty isn’t on drugs or sleeping or really just a warm body.”

“People are beginning to wake up,” says Gerald Kogan (B.B.A. ’55, J.D. ’55), former chief justice of the Florida Supreme Court and a frequent lecturer at the School of Law. “If you can’t have a perfect system, you ought not to be messing around with the death penalty.”

Kogan is cochair of the Death Penalty Initiative of the Constitution Project, a bipartisan Washington D.C.-based organization that published a list of 18 recommendations for alleviating the high risk of wrongful executions. Having practiced law in Florida for 47 years—a defense attorney, chief prosecutor for Dade County, and a trial judge prior to his term as chief justice—

Kogan estimates that he has participated in roughly 10,000 cases, 1,200 of which were capital. On the Florida Supreme Court, he saw the execution of 28 people. Today he has no doubt that some of them were innocent. Kogan, “the first Supreme Court justice to be this vocal about the problem,” is joined by a growing number of people asking what they can do to effect change.

“My main goal,” says Jessica Gabel, “is that by the time I leave the School of Law, wrongful convictions will be a cause near and dear to the University’s heart. These issues are going to be on the cusp of every election in the state, and I truly hope that some of our work gets noticed by the people responsible for making changes.”

Meredith Danton is the editor of Miami magazine. Illustration by Stuart Bradford. Photography by John Zillioux.

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