From Reg Brown
Florida Governor's office

RE: Columbia Law School Death Penalty Study

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Less than 24 hours before the start of a U.S. Senate Judiciary hearing on the so-called "Innocence Protection Act," death penalty abolitionists released a new Columbia Law School "study" purporting to show massive "error rates" in the criminal justice system's treatment of capital cases.

A preliminary review, however, suggests that it may be the "study" and not the "system" that is fatally flawed. Here are just a few of the problems we have identified based on an initial review of the very limited factual data made available to-date by the "study" authors:

• The "study" uses a misleading definition of "error" to exaggerate alleged "flaws" in the capital appeals system:
  
  • The "study" defines "error" to include any issue requiring further review by a lower court, including further review required because of changes in the substantive law.
  • A common sense definition of "error" would include only those cases where an individual is convicted of a crime he or she did not commit, or is sentenced to a penalty for which he or she was ineligible at the time. It would not include cases where a higher court asks for additional fact-finding by a lower court, or cases requiring additional review because of unanticipated changes in the substantive law imposed by statute or a higher court. In such cases, no "mistake" or "error" has occurred in a sense that should properly concern the public.
  • Notwithstanding the study's overbroad definition, it is significant to note that the authors do not join in former Chief Justice Kogan's claim that any innocent individuals have been sent to death in the State of Florida.

• Using the authors' misleading definition, the "study" does, however, conclude that 64 Florida post-conviction cases were rife with "error" - even though none of these Florida cases was ultimately resolved by a "not guilty" verdict, a pardon or a dismissal of murder charges. This claim may leave readers with the false impression that Florida put the wrong individual away for an offense, when no such claim is supported by competent evidence.
• Indeed, in more than a third of the 64 cases cited by the "study," the death sentence was reimposed, while in other cases the State agreed to accept a plea of life to spare the families of victims the trauma of additional court proceedings. These cases should not be included in a true "error rate" analysis, and if factored out, would show far less "error" in post-conviction cases than the "study" suggests. Similar results appear from an analysis of the post-1995 cases identified by the "study." For instance, the "study" implies that Mauricio Beltran-Lopez was given a non-death sentence due to "errors" in his case, when in fact prosecutors agreed to a life sentence only because two surviving daughters who witnessed Beltran-Lopez kill their parents were unwilling to endure the mental anguish of a new trial.
• In addition, the underlying data used by the "study" authors may be flawed. For instance, the authors wrongly claim in Appendix C that the Thompson v. Dugger case resulted in a "sentence less than death" after further review in the lower courts. In fact, Thompson remains on death row today after ramming a chair leg and a night stick into a young woman's vagina and beating her to death with a chain belt. See Thompson v. State, 619 So.2d 261 (Fla. 1993).
•  Appendix C also includes conflicting information regarding the subsequent history of several cases, such as the Waterhouse v. State and Way v. Dugger cases, which calls into question the thoroughness of the authors' research. No analysis can be completed of the cases in the far larger direct appeal database for the "study," as that database has not yet been made available.
• Other portions of the study also include obvious mistakes, such as citation errors, misstatements about the research period covered in the study databases and gross overstatements of the cost of post-trial review in capital versus non-capital cases. In addition, the study relies heavily on newspaper articles and second-hand sources for factual assertions to an extent not ordinarily found in academic analyses. Standing alone, these mistakes and questionable research techniques might seem trivial, but the lack of attention to detail and careful scholarship may also be reflected in the critical databases that the authors have not made available for scrutiny.
• Finally, the "study" also fails to control for factors, such as judicial activism, that could dramatically skew "error rates." Thus, for instance, the nearly 40 death penalty convictions that were reversed by the California Supreme Court during the tenure of liberal activist Rose Bird, are treated as "error cases" when in fact ideological bias was arguably at work.