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Figuring 'I don't know' into life, death

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© St. Petersburg Times, published June 28, 2000

I asked Gerald Kogan, as he left the hotel ballroom Tuesday:

Were any of the 28 people executed in Florida while you sat on the state Supreme Court actually innocent?

Kogan paused and then replied: "I don't know."

This answer is significant because (1) in a public debate, Kogan had just finished raising the possibility of wrongful executions, and (2) he has previously alleged that, yes, it is possible Florida has killed a wrong guy or two.

"I don't know," therefore, is not an overwhelming answer.

For opponents of the death penalty, Kogan's answer is good enough -- if a former chief justice of the Florida Supreme Court does not know for sure, then how can any of us?

For supporters of capital punishment, however, Kogan's answer is not good enough. It is not enough to say, "Gee whiz, it must have happened somewhere along the line."

Kogan was in St. Petersburg to debate Bernie McCabe, the Pinellas-Pasco state attorney, in front of the Suncoast Tiger Bay Club.

McCabe went first. "The death penalty is a moral issue," he began. "You're either for it, or morally against it." Everything else -- cost, deterrence, statistics -- is really a side issue.

McCabe pointed out that only 7 percent of first-degree murderers in Florida are sentenced to death in the first place. The ultimate punishment is reserved for "the worst of the worst."

The prosecutor said that despite all the recent rhetoric, there is no proof that any person executed was actually innocent. Even a much-quoted Columbia University study, finding "flaws" in two-thirds of death sentences, was based on how many cases were reversed on appeal -- in other words, cases where the system worked just fine.

Then it was Kogan's turn. He started out by reciting his record. You gotta admit he is not exactly some liberal wimp. As a prosecutor, he sought the death penalty. As a trial judge, he imposed it. As a Supreme Court justice, he upheld it more than 200 times.

Twenty-eight Florida inmates were put to death while Kogan was a justice. Six times, while Kogan was the chief justice, he was the last guy to speak to the governor on the telephone, saying: Do it.

In all, Kogan has taken part in some 1,200 death cases, which is why he feels qualified to say: There is just too much of a chance of getting the wrong guy. Look at the cases where DNA evidence -- available only in recent years -- freed innocent men who otherwise might have been put to death.

Interestingly, during the question period, Kogan denied being a blanket opponent of capital punishment. He said that "perhaps" society has the right to take revenge for "extra-heinous" criminals: Timothy McVeigh, John Wayne Gacy, Ted Bundy.

Not many people's minds were changed Tuesday. However, I think McCabe is wrong about one thing. The debate over the death penalty is shifting slightly and is no longer purely a moral argument. This innocent man argument is a practical objection that is picking up steam, even among death penalty supporters.

Still, Kogan and others who want to change society's mind will have to meet a higher standard than just saying, "We figure it's probably happened." Either it has happened, or it has not, and if it has not, then how can they say the system does not work?

I agree with McCabe: Each case of somebody not being executed because of innocence or procedural error found on appeal is an example of the system working exactly as it is supposed to.

Death penalty opponents argue that because some inmates have been found innocent after their conviction, some of those who were executed also must have been innocent. It is equally logical to argue that none of those executed was discovered to be innocent because, geez, none of them was.

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