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Legal experts debate death penalty


© St. Petersburg Times, published June 28, 2000

ST. PETERSBURG -- Pinellas-Pasco State Attorney Bernie McCabe and former Florida Supreme Court Justice Gerald Kogan agree about one thing involving the death penalty:

Nobody wants to see an innocent person executed.

Beyond that common ground, the two men approached the death penalty from markedly different points of view during a debate of the death penalty Tuesday at a Suncoast Tiger Bay Club luncheon.

McCabe said he remains unconvinced that Florida has ever executed an innocent person since the resumption of the death penalty.

To McCabe, the death penalty is a necessity in a civilized society. The system works, he said, even if it sometimes takes years to execute a sentence.

By imposing death, McCabe said, "You're saying human life is sacred. That may sound oxymoronic. ... We are elevating human life. We're saying that when someone takes a human life, they must pay the ultimate price for the most heinous crimes."

Kogan, however, said he worries that innocent lives have been taken. Kogan retired in 1998, ending a 40-year career during which he presided over 1,200 capital cases as a prosecutor and a judge.

"Our criminal justice system is not perfect," Kogan said. "We know it's operated by human beings who are certainly far from perfect."

Humans attempt to obtain a perfect result. But Kogan said, "I tell you that is not a possibility."

He referred to five inmates on Illinois' death row who were proven innocent through DNA testing. The men were freed.

Absent the DNA test, "what would have happened to those five individuals sitting on death row in Illinois? You know exactly what would have happened to them. They would have been executed," Kogan said.

Too often, inmates in some states are procedurally barred from using the DNA test because their lawyers raise the issue too late in the appeal process, Kogan said.

McCabe said no inmate in Pinellas has raised a DNA issue on a capital case. But he said he knew how he would react if a request were made by an inmate attempting to exonerate himself.

"We'll do it in a heartbeat if it solves a problem," McCabe said. "We don't have a Texas system. We have a system that allows people to prove their innocence all the way to the end."

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