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Criminal Justice Legal Foundation

Release Date:  June 19, 2000
Contact:  Michael Rushford, President (916) 446-0345

 

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.

Archaic Data.

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.

Expansive Protections

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.

Bottom Line

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 punishment.