Planet Waves | Truth Be Told by Eric Francis




Truth Be Told
Coverage of the Death Penalty Usually Cuts to the Chase
While Support for the Peculiar Institution Wears Away

By Eric Francis

With reporting by Steve Bergstein, Esq. in New York
and Eleanor McKenzie in London

Electric Chair by Andy Warhol

IN A JANUARY FIRST EDITORIAL, the Washington Post set down the public record on the capital punishment death toll for 2001, leaving little room for ambiguity about the newspaper's official position on what is officially known as state homicide. In the current journalism climate, reporting the basic facts about executions is tantamount to taking a position against them.

"The year 2001 saw the continuation of what now appears to be a dramatic decline in the use of the death penalty in America," the paper's editors began. "In 1999, 98 people were put to death. That number fell to 85 in 2000. But in the year just past, according to data from the Death Penalty Information Center, 66 people were executed.

"Texas, which has the dubious distinction of leading the nation in state-sponsored killing, cut executions by more than half (from 40 in 2000 to 17 in 2001) and lost the lead to Oklahoma, which executed 18 convicts in 2001. The top five death penalty states in 2001 -- Oklahoma, Texas, Missouri (7), North Carolina (5) and Georgia (4) -- accounted for 77 percent of executions. But no other state -- including Virginia, with its historically hyperactive death chamber -- executed more than two people."

Declining executions have paralleled decaying public support for state killing. Support for the death penalty has dipped below a majority if the question is phrased with life without parole as an option. This trend parallels an increase in conscientious, high-budget and in-depth coverage of the death penalty by papers on a variety of regions. Chicago Tribune, Seattle Post-Intelligencer, the Houston Chronicle, the Reno News Review and other papers did major series on the death penalty in recent years, establishing the public record on the present condition of the capital punishment in the United States.

The picture is not pretty. Incompetent legal counsel, gross bias against the poor and racial minorities, inconsistent application of the death sentence, and conviction of the innocent were among some of the problems reported. As Mumia Abu-Jamal reminds us, "Why do you think they call it capital punishment? Those who don't gots the capital gets the punishment."

In this light, the Washington Post's position is not exactly running the vanguard of public opinion, which now appears to be informed by an awareness of serious problems in capital cases. But compare the Post's editorial to its of a federal judge reversing the death penalty for Abu-Jamal, America's most famous death row inmate, convicted in 1982 of the killing of Philadelphia police officer Daniel Faulkner.

"While the question of Abu-Jamal's guilt and the fairness of his trial have been argued at length in court and in the streets," the article's authors Marc Kaufman and Debbie Goldberg, assert in a piece headlined 'Judge Overturns Death Sentence of Philadelphia Cop Killer', "[Federal Judge William] Yohn's decision was based on one highly technical question. He found that the instructions and verdict sheet used in Abu-Jamal's trial theoretically could have confused jurors in the death penalty phase, and may have led them to avoid consideration of mitigating circumstances."

But far from being a "highly technical question," the issue of whether mitigating circumstances were properly considered by the jury is central to the issue of fairness of the modern death penalty, reinstated by the Supreme Court in 1976.

When the court, during its years as a bulldog of civil rights, abolished the death penalty in 1972 by a 5-4 vote in the case Furman v. Georgia, it held that the penalty as then-carried out in 39 states was unconstitutional because juries could impose it without any specific guidance or limits on their discretion. Two justices held the death penalty was unconstitutional in any form, and the others in the majority found specific fault with how it was administered.

At the time, juries had wide latitude over whether a convict would be executed, and followed no consistent rules in applying it. Rape was a capital crime in some states and not others, and there was no consistency in the application of the punishment from case to case or state to state. It has been described as a condition of legal anarchy, which resulted in the court halting all executions for four years.

Then in 1976, in Gregg v. Georgia, the Supreme Court voted 7-2 to effectively reinstate the death penalty, holding that it was not per se unconstitutional, and that the new procedures used in Georgia protected against arbitrary and capricious application. Reviewing the Furman precedent, the Gregg Court reasoned:

"[F]or the determination of sentences, justice generally requires...that there be taken into account the circumstances of the offense together with the character and propensities of the offender. Otherwise, the system cannot function in a consistent and a rational manner."

As part of this consistency, there would now be separate guilt and penalty phases of each capital trial; and in the punishment phase, each jury was mandated to review aggravating and mitigating circumstances prior to sentencing a convict to death. An aggravating circumstance could be the homicide occurring during the commission of another crime; a mitigating circumstance could be the killer's having no prior criminal record, or suffering from mental illness. The mitigating circumstances are intended as a safeguard to save the life of a person who, in the interest of justice, should be protected from death by law.

Though the Post asserts that the failure of the jury to properly consider mitigating circumstances in Abu-Jamal's case is a "highly technical" issue, there are few of greater importance.

Meanwhile, the newspaper could have gone on to describe some of the hundreds of factual and issues that loom over the case, drawing the attention of world leaders and civil rights advocates around the globe. It did not, and its tabloid-like headline did not reflect the ambiguities and well-supported allegations of fraud by the defense. Neither is it mentioned that Abu-Jamal is one of a highly disproportionate number of African-Americans on death row, as if Abu-Jamal's hard-won fame somehow exempts him from being black.


BEGINNING ON FEBRUARY 5, 2001, the Houston Chronicle began a four-day front page series called A Deadly Distinction, examining the death penalty in Harris County, Texas, which has executed more prisoners than any county in the U.S. -- 61 -- and would rank third in the nation if it were a state. Harris county accounts for about 10% of all US executions since use of the death penalty was resumed in 1977.

The series, by Mike Tolson and others, was one of several in the country that appeared in major metropolitan dailies, though standing out for the tact that it was done in Texas, where nearly 500 people await execution on death row.

It portrayed Harris County as a pipeline to lethal injection, and drew its chilling strength from straightforward reporting and clear analysis, which reached into both the history of capital punishment in the state, and examined the moral assumptions involved in its use. On the first day, an eerie photograph of the prison cemetery in Huntsville, where hundreds of executed inmates lay buried, presented readers with a face-to-face look at the results of capital punishment in the heart of Texas.

"In Harris County," Tolson wrote in the first day's edition, "the difference between life and death often has little to do with the moral weight of the crime. It has everything to do with how easy a death sentence is to secure. For the last 20 years, local prosecutors have operated under a simple principle. If the facts of the case add up to capital murder and there is a good chance that a jury will return the death penalty, they go for it."

As Tolson put it, "The result is a place, legally speaking, like none other in the country." One county has been responsible for 10% of all the executions in the United States since Gary Gilmore faced the Utah firing squad in 1977.

In examining the views of recently-retired long-time prosecutor John B. Holmes, Tolson wrote, "In nudging his hometown to the vanguard of capital prosecution, Holmes happily joined those few district attorneys around the country who see the death penalty not as an occasionally necessary tool but as an instrument of almost divine retribution, something manifestly correct."

The result: "To kill within the arbitrarily drawn boundaries that define Harris County is to risk entering the most productive death row pipeline in the Western world. A handful of U.S. cities can boast similar enthusiasm for capital punishment, but none the same bottom line: 61 executed inmates, 150 more waiting their turn. And their time will come. This is Texas, another accident of geography, and that means that punishment handed down is punishment carried out."

No doubt this reporting influenced the slowing down of that death machine in 2001, as Texas reduced by half its use of the death sentence in just one year. But officials in Texas explain the decline as being about catching up with a backlog of inmates whose appeals had dragged on.

However, the newspaper succeeded in driving home the point that in Harris County, it's relatively easy to be executed for something that would get you a life sentence in a neighboring county. And the newspaper was not afraid to explain why this is dangerous.

"Most important, an aggressive mentality toward capital cases increases the odds of potential injustice. It means that borderline cases that would be negotiated to a simple murder charge or tried as non-death cases elsewhere sometimes are pursued with vigor here. These cases may have questionable witnesses, thin or cloudy evidence, dubious police conduct or a defendant with a one of a dozen potential shortcomings."

In the summer of 2001, prosecutors in Harris County ended up with not just another ordinary killing on their hands, but rather one of the most high-profile cases in the country involving Andrea Yates, a mother with a history of psychosis and depression who confessed to drowning her five children.

The DA's office sought the death penalty.

Tolson, assigned to do an in-depth piece on the fate of moms who kill their kids, wrote, "District Attorney Chuck Rosenthal's decision to ask for the death penalty may make sense in Harris County, the capital of capital punishment in the United States, but it is almost unheard of elsewhere for this type of crime. In only one instance in recent US history has a woman with a reasonable claim of mental problems been sent to death row for killing her children. She was executed in Arkansas last year."

The newspaper also reported that 57% of those surveyed said she should be sentenced to life in prison, while only 19% felt she should face lethal injection. And it has been vocal on the issue of whether the judge sitting on the case was justified in perpetuating a gag order on everyone involved, including Russell Yates, Andrea's husband and the father of the children, who has argued that he has a Constitutional right to speak up for the welfare of his wife.

Tolson, interviewed by Planet Waves in January, said that it was unfortunate that every death case could not be followed with the same scrutiny as a high-profile cases such as Yates's, but that the resources simply were not there.

"After that series, I agreed to keep track of some of our local death penalty cases that will write advances on the executions as they come up. There will be some cases that I write more about in depth, as time allows, and as news about them comes up. But in terms of having someone devoted full time to someone writing and exploring full time, there are just not the resources."

He said that, despite this, reporters on several different bureaus have agreed to track certain death penalty cases as part of their beat, "It's different when you're in Texas because there are so many cases. This isn't like Tennessee, where there is tremendous ambivalence over the death penalty historically, where one case can send the whole state into a paroxysm of doubt about their laws."


THIS GENRE OF DEATH PENALTY REPORTING has is roots in a fall 1999 series in the Chicago Tribune. Illinois, where there is currently a moratorium on the death penalty imposed by the Republican, -ro-execution governor, is a state where as many people have walked off of death row innocent, victims of faulty or apparently fraudulent prosecution, as have been executed, 13 each.

In a Nov. 14, 1999 article by Ken Armstrong and Steve Mills, Tribune readers had the scenario laid out in rather clear language: "Capital punishment in Illinois is a system so riddled with faulty evidence, unscrupulous trial tactics and legal incompetence that justice has been forsaken, a Tribune investigation has found.

"In the first comprehensive examination of all 285 death-penalty cases since capital punishment was restored in Illinois 22 years ago, the Tribune has identified numerous fault lines running through the criminal justice system, subverting the notion that when the stakes are the highest, trials should be fail-safe.

"The findings reveal a system so plagued by unprofessionalism, imprecision and bias that they have rendered the state's ultimate form of punishment its least credible." The newspaper found that, "At least 33 times, a defendant sentenced to die was represented at trial by an attorney who has been disbarred or suspended -- sanctions reserved for conduct so incompetent, unethical or even criminal the lawyer's license is taken away."

Journalism has played a large role in freeing three of the 12 innocent inmates. An undergraduate investigative journalism class at Northwestern University exists just to dig into questionable cases, which has resulted in three exculpations.

In 1999, investigative efforts by Medill School of Journalism students, freed developmentally-disabled death row inmate Anthony Porter, falsely convicted in 1982 of double murder. After some old-fashioned, feet-on-the-street, hands-in-the-documents reporting, reenacting the crime scene and putting it all together, the students discovered blatant errors in the prosecution's case, findings which were instrumental in triggering the chain of events leading to Porter's release earlier this year, as well as the arrest of a real suspect, whom the students had located in Milwaukee, and from whom they had obtained a confession.

"Anthony's lawyer stopped investigating because the family could not keep paying him," said Shawn Armbrust, one of the Medill students who helped break the case. "They sold their house to pay this man, and he just stopped investigating. I've always been opposed to the death penalty because I think it's barbaric. But I think this case taught me that morally it's still wrong, and practically, it's not working. However you feel about it, no one wants innocent people to die. No one wants poor people to be executed at a rate nine times more than everyone else. You have to think about the reality, regardless of whether you agree with the 'eye for an eye concept'."

After a similar project in 1996, Medill students, led by the same journalism professor, David Protess, solved the case of the "Fort Heights Four," a group of innocent black defendants whom city police had been picked up for a murder in 1977. Digging through government documents in an old storage room, the students found the police's "street file," which had the names of people who really committed the crime, suggesting that police knew the four men they charged were innocent. While the Fort Heights Four were languishing in prison -- two of them serving on death row for 18 years -- the real criminals had killed again.


IN SEATTLE, THE Post-Intelligencer was one of several papers around the US borrowing the Tribune's formula for death penalty coverage in recent years. Lise Olsen's page-one series last August examined, among other issues, how "theft, fraud and neglect" had cost six lawyers who had defended capital cases their licenses and now numerous prosecution mistakes had spared killers their lives.

The newspaper called for a number of reforms to the system, including toughening standards for the death penalty, requiring the use of specially qualified attorneys, and having the state take over capital defense.

Bill Miller, the series editor, was intimately familiar with the death penalty because he had witnessed two executions in the course of his journalism career. One was of Charles Campbell, the brain-damaged triple-murderer in Washington, executed by hanging in the early 1990s. Washington still has a gallows, which is an "elective" form of execution that a condemned person may choose in lieu of lethal injection. Miller, in a Planet Waves interview, described the thin screen through which the witnesses observe the hanging, to obscure the faces of the executioners from the witnesses.

"You see a ghostly silhouette. They put the hood over him and the knot around his neck, and he started fighting with them. And I thought, 'This is the state of our capital punishment system: a guy fighting on the gallows for his last breath'."

Campbell is one of just three convicted killers who was executed in Washington since the death penalty was reinstated in 1981. Death row's population is sufficiently small that the newspaper could publish photos of all of its residents, as well as those who had been executed and two who committed suicide.

Miller said that editing the series alerted the newspaper to problems with capital punishment, but since there are not many cases in his state, particularly low-profile ones. Since the series was published, only Gary Ridgway, accused of being the Green River Killer, the nation's most serious and oldest unsolved serial murder case. Because the case is so high profile, the questions that usually attend capital punishment -- poor representation and flagrantly faulty prosecution -- are not major factors, at least at the moment.

"It's on our radar," Miller said. "We are certainly alert for any manifestations of those problems."


IN SEPTEMBER 1998, the Cornell Law Review published a collection of articles produced as part of a symposium on the death penalty. It made the following conclusions, which suggest strongly that the media might have a substantial influence over the fate of the death penalty, and of individuals who face it:

1. The thesis that the death penalty is more complicated than typically presented in the media is borne out in studies collected in "Public Opinion on the Death Penalty" by Samuel R. Gross, noting that public support drops when Americans are asked about the death penalty in the context of specific facts. Also, "[i]t drops sharply in the face of each of several mitigating factors that are so prevalent that at least one is probably present in almost every death penalty case."

Gross further notes that "people's convictions run stronger when applied to a category than to a particular case," most likely because often accused murders do not fit the 'crazed' or 'cold hearted' stereotype and instead have individual traits, such as hobbies, friends and family. "Because, it is part of the murderer prototype that he is not normal or ordinary in any respect, . . . any normal, ordinary detail tends to make people think that the particular murderer they are dealing with is an exception to the rule." For this reason, the author notes, "jurors who are screened for their willingness to impose the death penalty nonetheless frequently refuse to do so . . . if the trial teaches them to view the defendant as a person."

2. A study published in the Journal of Criminal Law and Criminology in 1996 revealed that only 4.5 percent of experts surveyed believe that the death penalty has been a stronger deterrent than long prison sentences.

3. Most people and jurors do not believe that life without parole really exists when in fact it does exist in most jurisdictions. CLR cites a New York Times article from June 19, 1989 reporting that Republicans in the Statehouse refused to enact a life without parole sentence because they knew that allowing it would weaken support for the death penalty.

"Everybody believes that a person sentenced to life for murder will be walking the streets in seven years," said the late Judge Charles Weltner, Georgia Supreme Court, quoted in Savannah News-Press, Mar. 23, 1986, at 7C, (quoted in Paduano & Smith, "Deathly Errors: Juror Misperceptions Concerning Parole in the Imposition of the Death Penalty," 18 Columbia Human Rights Law Review 211, 213, n.4 [1987]).

4. A study published in 1994 by the Death Penalty Information Project concluded that the death penalty system costs considerably more than the non death penalty system. This is so not only because of the lengthy appellate process but due to the high costs of preparing for and conducting the trial where so much is at stake, and the fact that the trials consist of two separate proceedings: the guilt and penalty phases.

Many of the sentences are overturned on appeal as well as highly publicized cases where the wrong guy was convicted but set free years later when DNA and other exculpatory evidence surfaces. Indeed, according to CLR, a study published in 1994 showed that in habeas cases decided between 1976 and 1991, 47 percent of death row inmates who had lost all state proceedings obtained relief in federal habeas corpus.

5. A General Accounting Office review in 1990 of 28 empirical studies found that "[i]n 82 percent of the studies, race of victim was found to influence the likelihood of being charged with capital murder or receiving the death penalty, i.e., those who murdered whites were found to be more likely to be sentenced to death than those who murdered blacks. This finding was remarkably consistent across data sets, states, data collection methods, and analytic techniques. The finding for high, medium, and low quality studies."

One of these studies was the famous "Baldus" study, the subject of a U.S. Supreme Court decision in 1987 narrowly rejecting constitutional challenges to Warren McCleskey's sentence on the ground that studies establishing racial discrimination in death penalty cases did not provide specific evidence that any of the "decision-makers in his case acted with discriminatory purpose." The Court did note that the Baldus study established "[a]t most . . . a discrepancy that appears to correlate with race." An interesting side note is that, following his retirement, Justice Powell, who wrote the McCleskey decision, came to wish that he could change his deciding vote in the case.

The GAO study found, however, that "[t]he evidence for the influence of the race of defendant on death penalty outcomes was equivocal." A review of capital cases in Philadelphia [conducted by law professors writing for CLR] concluded that "[a]mong the unanimously decided cases, the race-of-defendant effects were substantial, consistent, and statistically significant, or nearly so, in both the overall models of jury death-sentencing and in the analyses of jury weighing decisions."

In Closed Chambers (Times Books, 1998), Edward Lazarus, a former clerk to Supreme Court Justice Harry Blackmun, was surprised to discover that the Justices never engaged in regular discussion about the death penalty despite the many stay applications which flooded the court and "seemed to magnify the human frailties of the system" as prosecutorial and police misconduct was common even where the defendant's guilt "bordered on irrefutable."

Justice Blackmun seemed to have an unusually broad perspective on the issue of capital punishment, writing, "There has been little research into the impact on jurors of deciding that a fellow human being will die. Anecdotal evidence suggests that many are traumatized by imposing a death sentence. For example, after a trial in 1998 in California, a distraught juror described recommending death as '...the hardest decision I've ever had to make in my life... no one should have to decide whether a person lives or dies'."

It was Blackmun who wrote in 1994 "Twenty years have passed since this Court declared that the death penalty must be imposed fairly, and with reasonable consistency or not at all, and despite the effort of the states and the courts to devise legal formulas and procedural rules to meet this daunting challenge, the death penalty remains fraught with arbitrariness, discrimination, caprice and mistake... I feel morally and intellectually obligated simply to concede that the death penalty experiment has failed." ++

Eric Francis is an astrologer and writer. Steve Bergstein is a New York-based civil rights attorney. Eleanor McKenzie is a London-based writer, editor and researcher. Additional assistance by Jim Naureckas and Dr. Joseph S. Coppolino.

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