Blind Eye to Innocence
"I am innocent, innocent, innocent....Something very wrong is happening here."
- Last words of Leonel Herrera, killed by the state of Texas on May 12, 1992
Far more disturbing than the murder of one person by another is the killing of the innocent by the state - the very system entrusted with public safety. Justice demands that a government that chooses capital punishment make absolutely certain that when it kills, it kills people who are indeed guilty. For Leonel Herrera, the U.S. Supreme Court scoffed at justice, refusing to act on his substantial claims of innocence and sending him back to his Texas death.
The Indifferent Court System
Ruling 6-3 in 1992, the Court claimed that Herrera's likely innocence was not reason enough to intervene, arguing that its role in granting habeas corpus relief is to "ensure individuals are not imprisoned in violation of the Constitution, not to correct errors of fact." In other words, the Supreme Court looked upon facts regarding Herrera's innocence as irrelevant. Three dissenting justices protested: "The execution of a person that can show he is innocent comes perilously close to simple murder." The high court left responsibility of granting relief with the Texas Board of Pardons and Paroles, notorious for rejecting clemency hearings on capital cases even when faced with serious questions of innocence. As expected, they denied Herrera's clemency petition. His ensuing execution is one more bleak chapter in the chronicle of our nation's blind eye to justice.
Leonel Herrera was not the only person executed in this decade despite compelling claims of innocence. Roger Coleman was convicted and sentenced to death in Virginia for the 1981 rape and murder of Wanda McCoy. His conviction rested largely on the testimony of Roger Matney, a jailhouse informant who said Coleman had confessed the crime to him. Roger Matney was serving four prison sentences himself, each of which was suspended a month before Coleman's trial. Coleman's prosecutor successfully lobbied for Matney's release. Matney later recanted his testimony against Coleman.
Although the prosecution's conduct was transparently unethical, what followed for Coleman was arguably even more egregious. His initial appeal was made to the Virginia Supreme Court just after the 30-day filing deadline had passed. The prosecution recommended that the court ignore his claims and simply dismiss his appeal as "procedurally defaulted." The court complied.
Things got even worse for Roger Coleman when he resorted to federal court, which decided that because he had filed late at the state level, he had in effect waived his federal review. The U.S. Supreme Court agreed with the decision, showing more concern for Virginia's judicial expediency than for the execution of an innocent man. Coleman v. Thompson set the dangerous precedent under which a missed deadline at the state level strips away the right to appeal at the federal level.
The fact that deadlines restricting the submission of key evidence are imposed at all is shocking. Coleman makes it even more difficult for innocent death row inmates to find justice. Consider that more than 30 death penalty states have strict deadlines and that in close to half of those states the deadline is 30 days or less. Are the courts truly interested in justice?
Murderous Legislation
Not just the courts have exhibited a blatant disregard for safeguarding the innocent. In April 1996, President Clinton signed into law the now infamous Anti-Terrorism and Effective Death Penalty Act (AEDPA). AEDPA severely diminishes the federal courts' power to review all state cases. At the same time, many states have enacted legislation aimed at shortening capital appeals.
As appeals are curtailed, executions speed up. Over the past two decades, a prisoner who proved his or her innocence spent an average of seven years on death row before being released. Meanwhile, the average time from conviction to execution was just eight years. This measly margin of one year within which to prove one's innocence before execution is likely to disappear under AEDPA and similar state legislation, making it ever more difficult for innocents to prevent their state-sponsored murder.
AEDPA also limits death row prisoners to one federal habeas corpus appeal - and it must be filed within a year of exhausting the state appeal. Additionally, with few exceptions, federal courts are now required to defer to the decisions of the state courts. A federal court may intervene only if:
Up until AEDPA, the federal courts had significant leeway in interpreting the Constitution in light of a particular capital case and could readily intervene.
Slashed Resources
For every seven persons executed since 1976, one has been released because of innocence. In November, Northwestern Law School in Chicago hosted a Conference on Wrongful Convictions and the Death Penalty. Attending were 35 of the 75 innocent men and women freed from death row since 1976. With major media present throughout the conference, national stories detailed the gross misuse of the death penalty and the lives destroyed by it.
Some say that the release of 75 innocent people is proof of working due process. Such claims no doubt ring hollow to the family and friends of Leonel Herrera and Roger Coleman and other likely innocents who were not so lucky. Further, to endure as many as 20 years in prison and have family and friends devastated, then to be released with little if any recompense is not characteristic of a working system. The vast majority of the people exonerated received legal assistance not from the system, but in spite of it.
Take the story of Joseph Green Brown, convicted in 1974 of murder, rape and robbery. The key evidence against him was the testimony of Ronald Floyd. After the trial, Floyd admitted lying on the stand to avoid being prosecuted for the crime himself, and for a lighter sentence for a crime he had committed. Still the Florida State Supreme Court refused to overturn Brown's conviction. After nearly 14 years on death row, and coming within 13 hours of his execution, Brown had his conviction reversed in federal court. His legal representation came pro-bono from NAACP's Legal Defense Fund. If not for a few good-willed lawyers taking on cases like Brown's, there would be no hope for innocents on death row.
Prior to 1995, death row inmates could seek legal assistance from Post-Conviction Defender Organizations. But the AEDPA gutted federal funding for these vital agencies, most of which have shut down for lack of funds. Recourse for death row prisoners has since diminished significantly - well over 90 percent of U.S. death row prisoners cannot afford their own attorney.
A Voice From Within
In his November opinion, People v. Bull, Justice Moses Harrison of the Illinois Supreme Court accurately captured the grave death penalty situation.
"Despite the courts' efforts to fashion a death penalty scheme that is just, fair and reliable, the system is not working. Innocent people are being sentenced to death. . . . The prognosis for wrongly accused defendants facing capital charges is not improving. To the contrary, legislatures and the courts appear to have abandoned any genuine concern with ensuring the fairness and reliability of the system. Achieving 'finality' in death cases, and doing so as expeditiously as possible, have become the dominant goals in death penalty jurisprudence. . . . It is no answer to say that we are doing the best we can. If this is the best our state can do, we have no business sending people to their deaths."
Clearly, due process is in crisis. Yet, time and time again, it is "judicial economy" and "finality" that the courts find most sacrosanct in capital cases. With its Herrera decision, the U.S. Supreme Court concluded that even if the "state (post-conviction) avenue" doesn't halt the execution of an innocent person, it can be perfectly constitutional to proceed with it. If a particular state has no mechanism at all for intervention by a governor or pardons board, the U.S. Supreme Court in its generosity will consider some relief, but such a "threshold . . . would necessarily be extraordinarily high." To paraphrase George Orwell, the function of political language is to make the absurd sound justified. These absurdities demonstrate exactly why our country desperately needs to heed the call for a moratorium on all executions.
Pope Endorses International Moratorium
Pope John Paul II welcomed a proposal from Italian legislators for an international moratorium on the death penalty in the year 2000. The pope made the remarks on November 6 during a concert held in his honor at the Vatican, sponsored by a multiparty group of Italian Parliament members.
The pope's visible opposition to the death penalty is having an impact. The courts in Missouri have rescheduled a January execution date for Darrell Mease which was to have taken place during the pope's upcoming visit.
A resolution calling for an international moratorium is expected to come before the United Nations General Assembly in late 1999. For more information, contact Hands Off Cain (see page 7) - an organization of citizens and parliamentarians, including those from Italy honoring the pope last month. For petitions aimed at the United Nations, contact Moratorium 2000.
Philly Activists Arrested for Distribution of Equal Justice USA Fliers
Seven members of Pennsylvania Abolitionist United Against the Death Penalty were arrested on October 19 outside Philadelphia's Criminal Justice Center (CJC), while distributing informational fliers about the death penalty. The "Abolitionist Seven" - Jim Cummings, Rev. Jeff Garis, Jamie Graham, Scott Lamson, Father William Pickard, C.R. Robinson and Charles Sherrouse - were charged with four misdemeanors. These charges included "obstructing the application of justice through picketing," "conspiracy" and "obstructing the highways." Equal Justice USA's brochure, How Racism Riddles the U.S. Death Penalty, was one of the pamphlets they handed out.
This official over-reaction came in a county where Blacks are 40 percent more likely to get a death sentence than other defendants. Nationwide, Philadelphia ranks third among counties in its number of pending death sentences.
PA Abolitionists' Philadelphia chapter had announced a teach-in for that Monday morning outside the CJC, the site of the city's criminal trials, including death penalty cases. The Philadelphia Sheriff's office, with jurisdiction over the CJC, had declared the area a no-protest zone, threatening to arrest anyone who protested for a second-degree misdemeanor, punishable by up to two years' imprisonment. When the abolitionists arrived on the block at 8:30 a.m., they found the street barricaded and 50 police officers and sheriff's deputies awaiting their arrival.
Within two minutes the arrests began. After arresting six leafletters, uniformed officers began arresting and threatening supportive bystanders and independent media. "I was arrested for waving," and Jim Cummings, who never distributed a single flier. A person videotaping the event was told to "get off the block or get on the (sheriff's) bus with the others." Individuals who appeared to support the activists were ordered to leave the block. Even after moving to the next block, supporters were harassed by the officers. One woman who was simply holding fliers was grabbed by a sheriff and told that she was under arrest; others nearby pulled her to safety. A man wearing a sweatshirt proclaiming, "I Oppose the Death Penalty: Don't Kill for Me," was told that he could be arrested if he wore the shirt within two blocks of the CJC.
The defendants were held for 26 hours, during eight of which they were denied food and water, refused phone calls and crammed into a single 6' by 8' cell. Their trial date is set for February 22, 1999.
"This is ridiculous," said Father Pickard, a Catholic priest from northeastern Pennsylvania. "We protest outside the courthouse in Scranton all the time - especially when there are death penalty trials taking place."
"If we were obstructing anything, it is the injustice of Philadelphia's death sentencing which disproportionately targets people of color and the poor," observed Rev. Garis, executive director of Pennsylvania Abolitionists. "In a city where the District Attorney released videotapes of prosecutors from that office being trained to strike African Americans from juries, it's ludicrous to assert that informing the public about the realities of the death penalty is obstructing justice!"
For more information on the Abolitionist Seven, contact PA Abolitionists (See page 7).
Campaign Brewing in North Carolina
In coalition with abolition, social justice and civil rights organizations and activists, North Carolina's People of Faith Against the Death Penalty (PFADP) is launching a Mobilization Against Racism and Death Penalty. The effort will kick off with a statewide rally and march on January 16, 1999, pressuring for a moratorium on executions as well as the enactment of a state racial justice act.
North Carolina originally scheduled its first execution of an African American citizen (Dawud Abdullah Mohammad) since 1961 for January 15 - Dr. Martin Luther King's 70th birthday. But without giving an official reason, the state moved Mohammad's death date to January 22 after a reporter raised questions to officials. A prayer service and vigil against the execution is planned for January 21 and 22. For details, contact PFADP (see page 7).
1998: Another Deadly Year
1998 has rivaled 1997 in the number of executions carried out. As Moratorium News! goes to print, 65 people have been put to death and four more are scheduled before year's end.
Last year marked a 40-year high when 74 people were killed, 37 in Texas alone. While Texas actually executed fewer people this year (19 with one more scheduled), other states made up the difference. Virginia executed 13 people, passing Texas in its number of executions per capita. South Carolina killed six people (plus one pending). Arizona and Florida each executed four.
Three foreign nationals were put to death this year, including Tuan Nguyen of Vietnam. Oklahoma executed Nguyen on December 10th - the 50th anniversary of the International Declaration of Human Rights. Canadian Joseph Faulder was scheduled to be killed in Texas the same day but received a stay. Like most foreign nationals facing U.S. death sentences, Faulder was never informed of his rights under the Vienna Convention to consult with the Canadian Embassy. Nor was the Canadian Embassy alerted to his arrest and capital trial.
Moratorium Organizing Contacts
| Illinois:
Nancy Bothne |
North Carolina:
Steve Dear |
Texas:
Texas Coalition to Abolish the Death Penalty, |
Equal Justice USA's Jane Henderson (above) speaks at a December moratorium rally outside the Delaware County Courthouse in Media, Pennsylvania. |
Pennslyvania
Joan Anderson |
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| Pennsylvania:
Jeff Garris |
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| International:
Magdaleno Rose-Avila |
International:
Alberta Rocca |
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Additions to this list are welcome. Contact the Equal Justice USA office.