Killer States: In the Land of the Free Judicial Murder is Commonplace

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The United States of America is the last industrialised country to employ the death penalty.  Though its continuation enjoys majority support, the Death Penalty Information Center's annual report, A Watershed Year of Change, shows a sharp decline in public support for capital punishment over the past year. The Center attributes this to a string of releases from death row, news reports on the unfairness of the death penalty process, and governmental action to limit or halt the death penalty. At least two men who might have been executed if ‘justice’ had taken a swifter course were shown during last year, by newly-developed DNA tests, to have been innocent.

According to the report, public support for the death penalty has dropped to its lowest level in 19 years - 66 percent of Americans favour capital punishment, 14 percentage points lower than it was in 1994. Support declines even further when respondents are given the option to choose life without parole as an alternative sentence. Also, many states abolished the death penalty long ago, and never brought it back. Michigan did so 150 years ago, when in most of the rest of the world you could be executed for ‘crimes’ which would not even carry custodial sentences today.

A major study released in 2000 entitled A Broken System: Error Rates in Capital Cases, demonstrated that the death penalty in the US is "persistently and systematically fraught with serious error." The study, conducted by Professor James S. Liebman of the Columbia Law School, examines every capital conviction and appeal in the US between 1973 and 1995.

Liebman found that nationally, courts uncovered serious error in nearly seven of every ten capital sentences that were fully reviewed from 1973 to 1995.  After state courts threw out nearly half of all death sentences due to serious flaws, a later federal review found "serious error" in 40% of the remaining sentences.

Another study entitled, A State of Denial: Texas Justice and the Death Penalty, by the Texas Defender Service, a non-profit legal aid group, showed that the Texas death penalty process is "thoroughly flawed" and riddled with "racial bias, incompetent counsel, and misconduct.” 

The Texas Defender Service, which provides assistance to death row inmates, analysed hundreds of capital trials and appeals, including every published death penalty decision handed down by the Texas Court of Criminal Appeals since 1976. Their conclusion was that the process "lacks the integrity to reliably identify the guilty or meaningfully distinguish those among them who deserves a sentence of death." The authors of the report also added that they "have assembled an unprecedented volume of objective evidence that raised profound questions about the fairness of how and when the death penalty is applied."

Under Gov. George W. Bush's tenure, Texas consistently led the nation in executions, putting 232 people to death since 1982, over half of those during the five-and-a-half years he was in office. The Texas Defender Service found that in 84 capital cases the prosecutor or police "deliberately presented false of misleading testimony, concealed exculpatory evidence or used notoriously unreliable evidence from a jailhouse snitch, despite the obvious risk that inmates may fabricate testimony to curry favor with authorities”; in 42% of the 103 appeals studied, defence lawyers appeared to conduct no investigations, although up to $25,000 is earmarked for their fees to undertake a complete review of the evidence; of the appeals examined, in 79% of cases the judge never held an actual hearing but instead relied on documents filed with the court; in 83% percent of first-stage appeals, the judges'  findings "were identical or virtually identical" to those proposed by the prosecution, and in nearly all the cases the same findings were later adopted by higher state and federal appellate courts; poor capital defendants are often represented at trial and during appeals by underpaid, court-appointed lawyers who are inexperienced, inept or uninterested. Many of these lawyers got the job by contributing support or money to a judge's election campaign. In the worst cases, defence attorneys slept in court, drank heavily, or used illegal drugs during a death penalty case.

Texas Defender Service also found a "clear pattern of disparity in the punishment meted out to those convicted of killing whites as compared to those convicted of killing non-whites, despite the fact that black males are the most likely murder victims." Although one in four murder victims in Texas is a black male, only 0.4 percent of those put to death have been executed for murdering black victims: "The overall picture that emerges of the Texas death penalty is stark,” the report adds: “Non-whites are for the most part excluded from the process of assessing a punishment that is disproportionately visited upon them. African-American Texans are least likely to serve on capital juries but the most likely to be condemned to die."

In 121 cases, prosecutors relied on questionable psychiatric testimony ­ or "junk science" ­ during the sentencing phase of trial to convince jurors that a defendant would be a future danger to society if he were not executed, a key determinant in Texas' sentencing rules. The report noted that these witnesses often did not conduct careful interviews with the defendant before arriving at their conclusions. It cited the cases involving Dr. James Grigson, a psychiatrist who was expelled by the American Psychiatric Association in 1995 "for arriving at psychiatric diagnosis without first having examined the individuals in question." Grigson has testified in almost 400 Texas capital cases, including one in August.

State officials "intentionally distorted the truth-seeking process" in at least 43 % of cases, including changing theories or presenting false evidence to attain convictions; in many murder cases in which two or more co-defendants were put on trial separately, prosecutors offered "irreconcilably inconsistent theories of the same crime" to different juries, arguing in each trial that the defendant in the courtroom was the killer; three dozen cases used unqualified witnesses to testify on topics such as forensic hair analysis, bite mark comparisons, and predictors of future behaviour. Several of these so-called "experts" have been disciplined by their peers or prosecuted for giving false testimony.

The Texas Defender Service report followed a separate study by a committee of the State Bar of Texas which described the state's system of providing legal representation to the poor as a "national embarrassment." According to the Death Penalty Information Center, investigations like this one from the Texas Defender Service are in progress in Arizona, Maryland, North Carolina, Illinois, Indiana, and Nebraska. A third study, by the US Department of Justice, identified racial disparities in the application of the federal death penalty. The study found that 80% of the cases submitted for federal death penalty prosecution involved defendants from ethnic minorities, whilst the same proportion of the federal death row was also made up of minority defendants.

There are some promising signs that change, though it will certainly be slow in coming, may be on the way. On January 31, 2000, Illinois Governor George Ryan ordered an 18-month halt to all executions in the state. The order was triggered after a number of investigations proved the innocence of some of Illinois' death row inmates. The governor also appointed a commission to study death penalty issues. Most surprisingly, perhaps, a committee of the Texas Senate has now recommended a moratorium on executions until September, 2003.

The number of executions in the whole country 2000 declined from 98 to 85 - a decrease of 13% from 1999.

Executions were carried out in the following states: Texas (40), Oklahoma (11),Virginia (8), Florida (6), Missouri (5), Alabama (4), Arizona (3),  Arkansas (2), Tennessee (1),* South Carolina (1), North Carolina (1), Louisiana (1), Delaware (1), California (1). In 2000, the State of Texas set the record for the most executions by a single state in a year.

A few years ago Manon van den Berg, a child care consultant who lives in Rotterdam in the Netherlands, found out about a scheme to exchange letters with prisoners awaiting execution in the United States, the last industrialised country still to practice this barbaric rite. She began to exchange letters with a young Texan prisoner, Jessy Carlos San Miguel, exécuté le 29/06/00, who was eventually, after many years on death row, executed. Spectre spoke to her about her experiences and her feelings about capital punishment.

Spectre: How did you first become involved in campaigning against capital punishment?

Manon van den Berg: I had read about the possibility of writing to death row prisoners and contacted Amnesty International.  I found out what to do but I didn’t immediately start writing because I felt that if I started I would become committed and I couldn’t just back off once I’d started writing. I took a couple of months to think about it, then I wrote – it was February 1994. I received this astonishing letter from Jessy, who was on death row in Texas. It talked about what it was like on death row, what it was like as a young man. As we exchanged letters, we really felt this click, like when you meet someone. I decided to go and visit him.

At the end of November the same year I was sitting there in front of him. When we sat face to face he was like ‘ok now I can see that you are a trustful person, now I can tell you, now I can open up. He told me the court’s attorneys, appointed by the state authorities, don’t always work all that hard and he told me that in his case, for some time, the lawyer had never come down to see him, had never sent him any information to update him or whatever.

So, that’s how I started being more involved in his case and that’s how we started knowing each other because I called everyone I could think of in Texas at that time to make sure that people were aware of the fact that Jessy’s lawyer didn’t do a thing. I got in touch with the Texas Defenders, a group of lawyers working against the death penalty. At first they said, ‘ well, better leave it up to her because she’s a ex-prosecutor so she should know what she’s doing.’ But in the end one of my friends from the Netherlands - he was working for Artsen Zonder Grenzen (Doctors Without Frontiers) - wrote a letter to Jessy’s lawyer complaining about his treatment and contrasting it with what would happen in the Netherlands. The lawyer she got so upset she wrote a letter to him. The contents of the letter convinced Jim Martin and the others at Texas Defenders that Jessy’s lawyer was not really working for him..

Spectre: One of the terrible things about the way the death penalty is used in the US is that it appears to be an instrument of racism.

MvdB: Well, yes. Of course we have to oppose the death penalty whatever the colour of the victim, but it is a fact that a disproportionate number of people executed are black or Mexican-American. There was another  case at the time of Jessy’s execution. The lawyers managed to get a stay of execution because they argued just that, that the death penalty was being used in a racist way. Texas Defenders hoped to use the same argument in Jessy’s case, but it didn’t work out. Of course  there are also many innocent people on death row, people of all races.

Spectre: Is it also the case that the US executes people who are for example, miners ?

I think that the US is the only developed country at least that executes people. China and  Saudi Arabia are the only other countries I know of which execute people regardless of whether they are mentally competent, or whilst they are still legally children.

Spectre: How many times have you been to the US in connection with this campaign?

 

MvdB: Fourteen  times in seven years.

Spectre: You must have spoken to many people, both opponents and supporters of the death penalty, during that time.

MvdB: Well, I didn’t talk to that many people who are in favour of the death penalty - of course you meet them sometimes. I used to travel to Texas by Greyhound bus and that’s when you talk to people going south. It feels like most of the people in Texas are in favour but I’d say that in reality there is so little that they know about it. They will tell you that keeping someone in prison for life costs far more than executing them, but this cynical argument isn’t even true. Execution is an expensive business. And they’ll tell you that the death penalty is an effective deterrent, for which there is no evidence.  But one thing I learnt from Amnesty International is not to get into an argument about deterrence. The evidence one way or another depends on how and when you measure the figures. All I do is tell people that they should look at us in the Netherlands – we don’t have the death penalty and yet we have the lowest crime figures in all of Europe. That should tell you something.

Spectre: So what arguments do you use – for example is you meet a really convinced supporter of the death penalty?

MvdB: Simply, Thou shalt not Kill. If you tell this person that he’s been wrong for killing a person, then how can you justify what the state is doing, when it’s exactly the same.?

Spectre: Why do you think, alone amongst developed countries, the US still uses the death penalty?

MvdB: Well, of course it’s very  conservative and still has something of a frontier mentality.

Spectre: What can we do, what can Spectre’s readers do to try to change this, to try to persuade the United States to abandon capital punishment?

MvdB: Well, with my campaign for Jessy I focussed on just one individual and of course that was very important for people to see that the death penalty has a human face. Jessy is a human being, he’s a young boy and he’s got emotions. In the short term I’d say that there should the more attention paid to the good work that the lawyers at Texas Defenders are doing - and what they need is money. They don’t always work directly on cases of people who have already been sentenced to death  - they also have this project where they give training to other lawyers, so that they can prepare themselves better for when they go to court and prevent their clients from being sentenced to death. So I think if we want to do something about it that is one thing that should be supported.  They have a website: http://www.texasdefender.com

On their website they did some research on several cases and the outcome is pretty shocking.. There was an interview with one of the prosecutors or a District Attorney, I’m not sure, but this case was also shown on TV. They did tests on DNA  and the results showed clearly that the man who had been convicted could not have committed the crime but the DA said “I don’t care” and when asked whether they were still going to execute this man he replied, “Well, yes, I don’t care”.

Manon van den Berg spoke to Steve McGiffen and Marjorie Tonge.