DEATH PENALTY "ERROR" STUDY
HAS ERRORS OF ITS OWN
A study announced today by anti-death penalty activists claiming to
show that American capital sentences are "fraught with error"
is itself riddled with unjustified assumptions and false statements,
according to the Sacramento-based Criminal Justice Legal Foundation.
The study's main fact, that a large portion of capital sentences are
reversed, is not even news, according to CJLF. That has been known for
years. The reasons for that rate are far more complex than simplistic
assertions that trials are unreliable.
The study goes back to 1973 to gather its data. A great many cases
were reversed in the 1970's because the Supreme Court was creating a new
set of rules for capital punishment and applying them retroactively. For
example, the Court strongly implied in 1972 that mandatory sentencing
was required. Congress and the legislatures of 20 states, including
California and New York, duly enacted such laws. Four years later, the
high court threw out these laws and all sentences rendered under them.
The study counts such cases as "error," but the error is not
in the trial process. It is in the past turmoil in the law.
A study by CJLF in 1995 showed that reversal rates in federal court
have declined sharply with time as the law has settled.
Serious Error in Defining "Serious Error"
The study announced today claims to count only "serious"
errors but makes a blatantly false statement regarding how that was
determined. The study counts as "serious error" any case in
which relief was granted. The study claims that only errors shown by the
defendant to be prejudicial or of a kind that is almost always
prejudicial warrant reversal. That is a false statement of the law. The
general constitutional standard on appeal is that the prosecution must
prove any error harmless beyond a reasonable doubt, or else it results
in reversal. This includes claims that have nothing whatever to do with
the reliability of the verdict, such as Miranda claims and
unlawful search claims. It was also the standard for most claims in
federal court for all but the last two years of the study period.
The study's claim that all of the reversals it counts involved
unreliable verdicts is simply false.
Erroneous Reversals Ignored
The study simply accepts a reversal as proof that the trial was
erroneous and ignores the possibility the reversing court may be wrong.
In the mid-1980's, the California Supreme Court reversed 18 sentences
for "error" in an instruction we now know was correct. The
study would count these cases as erroneous trials, when in reality they
are erroneous reversals.
The study counts as "error" every case in which the state
supreme court and the lower federal courts disagree on a question not
yet resolved by the U.S. Supreme Court. Yet the lower federal courts are
often wrong. A 1995 study by CJLF showed that, out of 13 such
disagreements in the Ninth Circuit, spanning the Far West, the Supreme
Court eventually decided state courts were right in 12. The
"errors" supposedly found by the lower federal courts were not
errors at all.
The study's ominous tones of "serious error" disregard how
expansive the protections afforded criminal defendants generally, and
capital defendants in particular, really are. Since 1961, the Supreme
Court has created a vast array of rules for the protection of defendants
going far beyond what the Constitution or fundamental fairness actually
requires. The Miranda rule, for example, excludes confessions
which are in fact completely voluntary. "Serious error," as
the study uses the term, may involve a rule with little or no connection
to the reliability of the result.
Second-Guessing the Trial Lawyer
The study counts as "egregiously incompetent defense lawyering"
every case in which relief was granted for "ineffective assistance
of counsel." It cites as an example the case of Melvin Wade in
California. A closer look at the Wade case illustrates why such
assertions should not be taken at face value.
Wade beat his 10-year-old stepdaughter to death. He punched her with
his fists, beat her with a board, put her in a duffel bag in an attic
crawl space for several hours, threw her against the wall, beat her
again, and attempted to hang her. For the very difficult defense of such
a case, he was appointed a lawyer the trial judge called "one of
the top ten criminal defense attorneys in the country."
The study claims, echoing two federal appellate judges, that the
defense lawyer failed to present significant evidence of Wade's own
abuse as a child. However, the federal district judge and the dissenting
judge in the federal Court of Appeals found that the child abuse
evidence was before the jury, and the lawyer made a reasonable, tactical
decision not to call shaky witnesses. The same judges and the California
Supreme Court (6-1) also found that counsel's argument on Wade's mental
illness was a reasonable tactic in the context of the case.
Wade is a case where two judges opposed to capital
punishment overruled the decisions of eight other judges who had
rejected the same claims. Second-guessing the tactical decisions of the
defense lawyer is all too easy. Far from showing "egregiously
incompetent lawyering," this case shows egregiously intrusive
judging. The study's misuse of this case as an example puts its
credibility in grave doubt.
The study released today is a political document, timed to impact
Congressional hearings. It tells us little that was not already well
known. It does not show an unreliable or "broken" system. It
shows a system successfully obstructed by the opponents of capital