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John Grisham's The Innocent Man and The Death Penalty
We Really Need to Think This Through.
Yet another article on the Capital Punishment, but I think this information is worth considering. At one time, I would have considered the death penalty to be an acceptable form of punishment for certain heinous crimes. I would not have considered that punishment to be cruel and unusual regardless of the methods used and thought that people deserve what they get when they do something that is against society that is so terrible it cannot be forgiven. Honestly, I would have gone so far as to say that if the death penalty was used more often, crime would be at a minimum. Growing up in the 1970s and 1980s, I was of the generation that saw the crime rate rise dramatically. That crime rise was not “of necessity” as crimes in times past could generally be considered; it consisted of senseless, brutal crimes. It made perfect sense to me to scare people into submission. If I was fearful of them, they could be fearful of me, an upstanding citizen. Except, in actuality, I was not an upstanding citizen. But many of us can justify our actions as being of less consequence than someone else’s. As I grew and saw more of the world, I realized that the death penalty issue was not so cut-and-dry. There were many reasons and circumstances why people do what they do. This provided me with a wishy-washy attitude towards the death penalty, which was to let the powers-that-be handle it. That was an easy way to view the issue and lead me towards my years of apathy regarding the death penalty. Finally, there came a day when I knew I would have to make up my mind. This was not an easy task. On one hand, I wanted the grace and mercy of God to prevail; and on the other hand, I wanted justice and vengeance for the victims and their families. Weighing the consequences of the death penalty both religiously and Constitutionally, I have come to a firm belief that the death penalty is wrong.
At first this belief was based on simple ideas, such as “we all have a right to life” or “God wants to give everyone a chance at repentance”. It even made me sad that these people on death row were going to die. I so wish their lives had been better. Setting aside the emotional and religious aspects of the death penalty, I made an honest attempt to look into the justice system and realized that there is a very fundamental moral principal that prevails in our nation, which if for no other reason, is the reason that the death penalty should end in the United States. That is, it is better for one guilty man to go free than for one innocent man to be found guilty. I clung onto this “knowledge”, insisting that it was the truth, even though I continued to struggle with my desire for immediate vengeance. After reading John Grisham’s book The Innocent Man , I now know “without a shadow of a doubt” that this very fundamental moral principal must continue. If it does not, we become barbarians. The simple fact is that barring any other argument, the judicial system is made up of human flaw. Death is permanent and I am not willing to base permanency on a flawed system. Setting any other argument for or against the death penalty aside, this is the main reason that the death penalty should be abolished.
Grisham does a great job laying out the story line of two separate murders and the charges and convictions of the accused, which in the end are all innocent. While reading The Innocent Man , one cannot help but believe that there is no way this story could be a true story. It is amazing to the reader to come across actual photographs in the book and once the faces of these characters are seen, one cannot help but feel empathetic towards these wrongly accused people and angry towards a corrupt and failing system of justice. It is especially sobering to realize the magnitude of problem of innocent people being sent to death row. Grisham uses case law throughout his book to make his point. And while he may be just retelling a tale, there is no doubt that he has an agenda. That agenda is to get the reader to rethink the death penalty on the basis of the convictions of innocent people.
There are seven basic reasons why it is possible for an innocent person to be convicted and receive the death penalty. Those are false confessions; unreliable/limited forensics; forensic misconduct; government misconduct; eyewitness misidentification; informants/jailhouse snitches and bad lawyering.[i] Grisham finds in writing Innocent Man that there are times when all of these possibilities apply.
A false confession, which falls under self-incrimination, is perhaps the most damaging of the above reasons that a person can be falsely convicted. It is naturally assumed that if someone confesses, they must have “done it”. If not, why would they confess? Barring the fact that many confessions are coerced, there are mental instabilities that cause a person to confess to a crime he did not commit. The Fifth Amendment protects against self-incrimination just for these reasons. In Hopt v. Utah , the Supreme Court ruled that a confession is not admissible in court if the “hopes or fears” of the accused have been played upon to obtain that confession.[ii] This was reiterated by the Supreme Court in Braun v. United States, in 1897 which ruled that a statement must be free and voluntary not by threat, violence or promise.[iii] Finally, in 1960 the Supreme Court laid out specific factors in determining coercion: “(1) the length of the interrogation, (2) whether it was prolonged in nature, (3) when it took place, day or night, with a strong suspicion around nighttime confessions, and (4) the psychological makeup---intelligence, sophistication, education, and so on---of the suspect.”[iv] Clearly, coerced confession is a common occurrence, particularly given the social and political pressure that law enforcement may be under to solve particular cases. In the case of Williamson, who shared a dream with the police, and the police used that as confession, there was not only coercion to admit that the dream was true, but the police literally used the dream as a confession. They turned a pretend, unreal thing from a mentally ill man into reality.
Related to false confession is the issue of convicting a mentally incompetent person which is laid out in Bishop v. United States, 1956. Such conviction denies that person of his due process.[v] This was upheld in Ake v. Oklahoma , when the Supreme Court in this landmark case decided that Ake had been denied due process when he was denied access to a mental health expert.[vi]
Unreliable science and also forensic misconduct are two things to consider when reviewing the death penalty. The Innocent Man uses an example of each. The first was the unreliable science of hair samples. Grisham points out that there is a high rate of error in hair analysis, yet this evidence was used because many times it was the only evidence at a crime scene. [vii] According to Grisham, hair analysis has become so controversial and a special crime lab proficiency program was created in 1978 and after study, it found hair samples to be inaccurate four out of five times.[viii] Yet, prosecutors continued to use that unreliable science to gain convictions. In the case of forensic misconduct, Grisham uses the example of digging up the grave of one of the victims because the forensic scientist may have made a mistake on the blood sample. The new test gave completely different results - results which benefited prosecution. Even with the advances of DNA accuracy, there is the risk, and probability, that further advance in the field of DNA will be made and we will find our current scientific knowledge lacking.
Government misconduct is evident in The Innocent Man and in cities across America. This misconduct can be from law enforcement, prosecutors and judges. There is no limit to the ways that this can take place. Grisham’s most surprising example is the misconduct of the trial judge when the judge refused to hear a Brady motion by the defendant.[ix] In the case of Williamson, he was tape-recorded denying his involvement in the murder of Debbie Carter. But the case being built against him was an admissions case. Prosecution failed to turn this tape over to the defense for four years. The Brady Motion is a term used to define the 1963 Supreme Court decision in Brady v. Maryland wherein “the suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution.”[x] What is incredible in this situation was not only the lack of cooperation on the part of the prosecution, but the Judge’s overrule of mistrial and his refusal to hear the Brady Motion until after the trial. The Judge finally rules that the suppression of the tape was not a Brady violation and in the end, Williamson is sent to death row.[xi] While in this story, the Judge is obviously corrupt, this is not an uncommon occurrence even for honest judges, given the heavy caseload they bear.
Eyewitness misidentification is probably the most common of these unreliable methods of determining guilt. There are studies that indicate that, amazing as it may be, eyewitness accounts are inaccurate. People really do not remember the details of a person’s face when trying to remember all the other details of an incident. And people are easily swayed to remember what someone else wants them to remember. While eyewitness accounts are helpful, more evidence has to be used to determine the accuracy of and uphold the eyewitness account. Of course, while most eyewitnesses are probably honorable in their intentions, it does not preclude the eyewitnesses who have ulterior motives for “seeing” the perpetrator.
Informants/snitches are related to eyewitness misidentification in that they are riddled in ulterior motives. Whether it is a jailhouse snitch or an informant on the street, their testimony is unreliable simply because there is something to be gained. This hardly constitutes accuracy of testimony. Much of their testimony is completely false or taken out of context and always for the benefit of prosecution.
Finally, there is the issue of bad lawyering. There is obviously an issue of unethical attorney misconduct and there is the Bar Association to help control that misconduct. However, many times that is hard to prove. In the case of Barney, Williamson’s attorney in The Innocent Man , he was a public defender who was burnt out and not getting paid enough to properly defend this case. Either money would have to come out of his own pocket or discovery would end when the money ended. He had the additional burden of not being able to see and the court did not assign him new co-counsel to help in the defense matter. As much as we would like to believe that all attorneys are honorable and work towards the defense of their client, the truths is that many are burnt out, underpaid and assume the guilt of their client.
I have not put as much emphasis on eyewitness accounts, informant/snitches and bad lawyering as I have on the other issues because they have complicated variables and the issues demand papers of their own. In fact, the first four, false confessions, unreliable forensics, forensic misconduct, and government misconduct, are categorized separately because they are the essence of prosecuting a fair trial. It is the burden of the prosecution to show without a shadow of a doubt that the accused is guilty. Thus, those issues should be held to a higher standard than eyewitnesses, informant/snitches and bad lawyering. Though it could be argued that bad lawyering fits the essence of the legal system, even though held to a high standard, it does not. The accused should not have to have the burden of defending any unethical blows of prosecution. That burden in itself could create or promote bad lawyering of the defense.
In 2009, the Supreme Court ruled in a case in Alaska (I was unable to locate the case name at this time) that the State had the right to deny a death row inmate retro-DNA testing to prove his innocence based on more accurate current DNA testing methods. (Alaska is one of three states that deny this retro-testing.) He was originally DNA tested at the time of his trial, but that testing was as accurate as the hair sample testing. DNA science has advanced. He offered to pay for the testing himself. It was Alaska’s contention that it would be an undue burden for the state to allow at random all of the death penalty cases to redo the DNA to prove innocence. Alaska believes that all death row inmates would want to retest and that in most cases it is unnecessary. While I just briefly learned of this case and admittedly, have not studied it further at this time, the first thing that comes to my mind is, so? I think it is well worth any burden a State may have to make sure that there are no innocent people sitting on death row. As a matter of fact, the existence of a State is to absorb the burdens of its citizens.
The bottom line is that the legal system is made of human greatness and human error, whether that error is through mistake or deliberate misconduct. At this point, the United States federally and each of its separate States have a flawed system in guaranteeing that human error will not be a factor in determining the life or death of the accused. There is no way to completely eradicate that human error. As a nation which prides itself on fairness and human rights, it cannot afford to take the death penalty issue so lightly. Doing so only suggests that we believe we have an infallible system. Not only is that untrue, it is dangerously close to allowing the government complete control of our popular sovereignty. I am not willing to do that. I am also not willing to allow one innocent man to die.
[i] Innocentproject.org last visited 5/25/09; [ii] Grisham, J. The Innocent Man , (NY, Bennington Press 2006) p. 99;[iii] P. 99;[iv] P. 99;[v] P. 147;[vi] P. 284;[vii] P. 178;[viii] P. 178;[ix] P. 195;[x] P. 195; [xi] P. 212.