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Prosecutors should rethink their goals

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By ROBYN E. BLUMNER

© St. Petersburg Times, published May 6, 2001


Timothy McVeigh is scheduled to die on May 16. He will be the first federal prisoner executed since 1963. There are 20 more scheduled to follow.

McVeigh has confessed his guilt, he admits to bombing the Alfred P. Murrah building in Oklahoma City six years ago in which 168 people died. But don't let this first one fool you into thinking the federal death penalty will only be imposed on clearly guilty, self-confessed mass murderers. Not even close. Because so many prosecutors today believe it's more important to obtain convictions than determine the truth, the federal death penalty will be as arbitrarily applied and as error-prone as those administered by the states.

With DNA testing, 10 people have now been released from state death rows and another 77 released from prison after being shown to be factually innocent of the crime. In nearly every instance, prosecutors attempted to block the tests, saying the prisoner had already been duly convicted.

In Florida, Frank Lee Smith died of cancer after spending 14 years on death row for raping and killing an 8-year-old. But he didn't commit the crime. A posthumous DNA test proved his innocence -- a test prosecutors vehemently fought to prevent even after the man's death.

All these near misses have to give even the most ardent death penalty proponent pause. While Americans disagree over the acceptability of the death penalty in general, we are doubtless all on the same page when it comes to executing innocent people: It's not okay.

But until there's a radical change of culture for prosecutors, the innocent will continue to be at risk.

According to Pace University law professor and former Manhattan assistant district attorney Bennett Gershman, who wrote the book Prosecutorial Misconduct, prosecutors are a significant part of the reason innocent people are sent to prison and death row. "Prosecutors have a conviction mind-set," said Gershman. "Once they have a suspect, they don't look any further. They don't consider contradictory evidence, because they already have their suspect."

Society is no safer when the innocent are convicted. Not only do we destroy the life of the person put behind bars, but the real criminal is still walking around.

To avoid this, prosecutors are required to share with the defense any exculpatory evidence or information that may militate against the defendant's guilt, such as contradictory witness statements or the names of other suspects.

But in a distressing number of instances the evidence is simply not turned over. A researcher at Columbia University recently found that between 1973 and 1995, 68 percent of death penalty cases were reversed due to constitutional error. In 20 percent of those cases it was due to prosecutors withholding exculpatory evidence.

Bolstering these disturbing findings is a 1998 series in the Pittsburgh Post-Gazette, documenting the willingness of federal prosecutors to deep-six information helpful to the defense. In the newspaper's review of 1,500 misconduct allegations over 10 years, it found "hundreds of examples of discovery violations in which prosecutors intentionally concealed evidence that might have helped prove a defendant innocent or a witness against him suspect."

The paper also found that few federal prosecutors are ever brought to account for this type of misconduct. The paper reported that in hundreds of cases, "(prosecutors and federal agents) lied, hid evidence, distorted facts, engaged in cover-ups, paid for perjury and set up innocent people in a relentless effort to win indictments, guilty pleas and convictions. Rarely were these federal officials punished for their misconduct."

According to Gershman, the situation is critical. Innocent people are being railroaded by a system that allows safeguards for defendants to be easily skirted. "It's a mess both because (prosecutors act unethically) and there is no deterrence because there are no sanctions imposed," he said.

Remember how discomforted we all were with the scorched earth approach of Independent Counsel Kenneth Starr? Starr's willingness to threaten extraneous players in the Whitewater and Lewinsky investigations and his drive to discredit any witness helpful to the Clintons, made him appear as a persecutor not a prosecutor. (So much so that he hired Charles Bakaly to help with public relations) Starr was reportedly surprised at the public's disdain. After all, he was just using the tactics all federal prosecutors use.

Starr embodied the culture that has to change.

Until prosecutors embrace a credo where the goal is not necessarily convictions but justice, the death penalty will continue to be imposed on innocent people. Before the federal government gets full-swing into the execution business, it has this matter to attend to.

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