Two months ago, in what it called “a matter of very great public concern,” an appeals court in England ordered the exhumation of the body of a man hanged in 1962 so that DNA tests could be conducted on his corpse.
In the annals of crime and punishment, the reopening of a case and a coffin that were closed 38 years ago would seem an extraordinary development.
But in England, where capital punishment was abolished 30 years ago, the case is wholly in keeping with a dramatic shift in how the criminal justice system is viewed.
Although English courts and commentators once considered their justice system infallible, the nation now recognizes the system’s proclivity for error. It has gone so far as to create an investigative agency whose mission includes rooting through old cases and confronting the criminal justice system’s greatest nightmare–the execution of an innocent person.
While the United States inherited its legal tradition from England, it is not yet ready to take such a step, despite abundant evidence that wrongful convictions occur here. Instead, the authorities who carry out the ultimate penalty insist they do so without error.
As 2000 comes to a close, a total of 683 people have been executed here since capital punishment was reinstated in 1976.
During roughly that same period, 90 people sent to the nation’s death rows have been exonerated. Still, outside of a moratorium on executions declared earlier this year in Illinois, the engines of execution show no sign of slowing in 2001.
While polls continue to show rising opposition to capital punishment, some would question whether policy on the death penalty would change even in the face of proof that an innocent person has been executed. Prosecutors insist the criminal justice system weeds out the wrongly convicted.
This is an attitude forged on the anvil of judicial pronouncement.
In 1923, one of America’s most esteemed jurists, Learned Hand, declared: “Our procedure has always been haunted by the ghost of the innocent man convicted. It is an unreal dream.”
Hand should have known better. Five years before those words were written, convicted murderer Bill Wilson had been granted a full pardon by Alabama’s governor because Wilson’s victim turned out to be alive in Indiana. The woman had simply become a Hoosier, not a corpse.
Now, nearly eight decades later, as DNA tests unravel one wrongful conviction after another, Hand’s words seem anachronistically naive.
Still, death penalty supporters, from President-elect George W. Bush to prosecutors around the country, insist that the system has made no mistakes, that no innocent person ever has been put to death. The justice system’s elaborate appeals process, they say, catches miscarriages.
The other side of the debate is not immune to such hyperbole.
Earlier this year, the American Civil Liberties Union took out full-page advertisements seeking support for a national moratorium on executions. In large, bold type that ran atop a picture of a man hooded and strapped into an electric chair, the advertisement declared, “Thanks to Modern Politics 23 Innocent People Have Been Removed From the Living.”
The ACLU based its claim on the research of Hugo Adam Bedeau and Michael Radelet, two scholars who have catalogued hundreds of cases that they believe to be miscarriages of justice.
Neither claim–not Bush’s nor the ACLU’s–is based upon the kind of in-depth investigation required to get to the truth of crimes committed decades ago, though both sides would seem to wrestle certainty from the same body of cases.
The contrast between Britain and the U.S. should not come as a surprise. For much of the world–more than 100 countries have banned executions–the U.S., when viewed through the prism of capital punishment, is a human-rights violator.
On Dec. 18, United Nations Secretary General Kofi Annan gave his support to a worldwide moratorium on the death penalty as he was presented a petition signed by 3.2 million people seeking to end state-sponsored executions.
“Can the state, which represents the whole of society and has the duty of protecting society, fulfill that duty by lowering itself to the level of the murderer, and treating him as he treated others?” Annan asked.
Many European leaders and citizens repeatedly express outrage over U.S. use of the death penalty–something sure to be highlighted as Bush, who presided over more executions than any modern governor, takes office as president. Some European officials have traveled to the U.S. to meet with Death Row inmates.
The United States, since reinstating capital punishment, is fast approaching the more than 750 people England executed after 1900. Oklahoma alone is planning eight of the 14 executions scheduled for January. And though no one has been executed in England since Parliament suspended the death penalty in 1965, England now is revisiting that era in an attempt to isolate and correct its mistakes.
In 1996, the Criminal Cases Review Commission began its work, with subpoena powers and access to police confidential informant files.
Two years later, in one of its first cases, it exonerated a Somali seaman who was hanged in 1952. Three appellate justices quashed Mahmoud Hussein Mattan’s conviction after his case was referred to the court by the CCRC as a probable miscarriage of justice.
Mattan had been convicted of slashing a female shopkeeper’s throat almost exclusively on the word of a man who testified that he saw Mattan leaving the shop around the time the woman was killed.
But while reinvestigating the case, the CCRC turned up stunning evidence that had not previously been disclosed to Mattan’s attorneys or to the public.
Not only had the prosecution’s star witness provided police with an earlier statement that was inconsistent with his trial testimony, but according to one police inspector’s notes, the witness had even specifically identified the man leaving the shop as Tahir Gass, not Mattan.
Gass, who was allegedly prone to violence against women and obsessed by knives, was tried for a separate murder two years after Mattan’s execution only to be acquitted by reason of insanity.
In quashing Mattan’s conviction, the Court of Appeal’s Lord Justice Rose said the case demonstrated that capital punishment was “not perhaps a prudent culmination for a criminal justice system which is human and therefore fallible.”
Rose’s comment illustrated just how dramatically the prevailing position of English courts and public officials has shifted in the debate over the death penalty.
Addressing parliament in the 1860s, John Stuart Mill, one of history’s great moral philosophers, adamantly opposed the abolition of capital punishment. Mill conceded that the execution of an innocent person would constitute an “invincible” objection to the death penalty, but he firmly discounted that possibility.
“[W]e all know that the defects of our procedure are the very opposite,” Mill said. “Our rules of evidence are even too favorable to the prisoner.”
The case that ultimately moved the English to abolish the death penalty began unfolding in 1949, when Timothy John Evans’ wife and 14-month-old daughter were found strangled in a privy at 10 Rillington Place, the west London residence where Evans and his family lived on the top floor.
Evans, who had an IQ of 68 and could neither read nor write, confessed to the murders but then recanted. He blamed the slayings on John Reginald Halliday Christie, who lived in a ground-floor flat below Evans. Christie denied being the strangler and became the prosecution’s main witness against Evans, who was convicted and hanged just three months after the bodies were found.
But then, in 1953, four more bodies–also strangled–were found at 10 Rillington Place. One was Christie’s wife. This time, Christie confessed. At trial, he testified that he had killed seven women in all. That total, he said, included Evans’ wife. Christie continued to deny killing Evans’ daughter.
The shocking similarity between the crimes, along with Christie’s confession to killing Evans’ wife, fueled cries for a reinvestigation of the case. In 1965, Parliament agreed to suspend the death penalty for five years, and the next year Queen Elizabeth II issued an unconditional, posthumous pardon to Evans, declaring him innocent. In 1969, Parliament abolished capital punishment.
Last January, Illinois Gov. George Ryan declared a moratorium on executions, citing a Tribune series that exposed serious flaws in the administration of the death penalty. He said there would be no executions “until I can be sure” that everyone sentenced to death was truly guilty.
To that end, he appointed a commission of experts to study the capital system’s flaws and make recommendations on changes. That committee has held hearings in the past year and is expected to release its findings soon.
But this angst over the operation of the machinery of death does not go beyond prospective changes as authorities have resisted efforts to revisit old cases and to allow DNA testing that might exonerate someone already executed.
Only once in the United States has DNA testing been ordered in an effort to determine whether an executed person was innocent. A Georgia judge issued that order in July in the case of Ellis Wayne Felker, who was executed in 1996 for the rape and murder of a college student. But the laboratory subsequently reported that it could not find the assailant’s DNA when examining slides prepared when the victim was autopsied, so no conclusion could be reached.
With the sole exception of the Felker case, authorities in the United States have rejected appeals for DNA testing in cases in which a person already had been executed. In one case, Virginia officials incinerated the DNA evidence rather than test it.
Has an innocent person been executed in the U.S. since capital punishment’s reinstatement?
The question lingers and, for now, it remains a mystery.
