Opinion: Moratorium needed

A Times Editorial

Moratorium needed

Florida needs a moratorium on the death penalty, not to get rid of it, but to reassess the system to make sure innocent lives are not at stake.

The movement for a moratorium on the death penalty is making impressive headway nationally among supporters as well as opponents of capital punishment because of growing awareness that the system is profoundly unreliable and unfair.

"The more I learn, the more I know, the more troubled I become," says Gov. George H. Ryan of Illinois, a lifelong advocate of capital punishment, who halted executions after 13 death row inmates had been exonerated. "There'll be no individuals executed in Illinois until we get it right."

But in Florida, Gov. Jeb Bush dismisses any similar need for reflective pause. He does not accept the idea that Florida has ever executed an innocent person. Such confidence is gravely misplaced. Other than Texas and Virginia, no state needs a moratorium more.

Retired Chief Justice Gerald Kogan, who spent 40 years dealing with some 1,200 death cases as a prosecutor, defender, sentencing judge and appellate jurist, says that if Bush believes Illinois' problems are unique, "he does not have an understanding of what is happening in the Florida system." Kogan asserts that Florida probably executed "two or three" innocent men during his 12 years on the high court, though in deference to former colleagues he will not say who he thinks they were.

Jesse Tafero most likely was one.

Tafero's electrocution on May 4, 1990, is remembered for the flames, sparks and smoke that burst from the mask covering his head. Ten years later, after several more gruesome executions, Florida has retired the electric chair in favor of lethal injection. But it has done nothing about the infinitely more horrible prospect that Tafero died for what someone else did.

Tafero, his girlfriend, Sonia Jacobs, and his prison buddy, Walter Rhodes, were charged in 1976 with the murders of a highway patrol trooper and a visiting Canadian constable who had confronted them at a highway rest stop. Rhodes was given a deal, a second-degree murder plea, in exchange for testimony that sent Tafero and Jacobs to death row. Yet gunpowder residue tests showed that Rhodes was the only one who, to a certainty, had fired a gun, and a polygraph examiner's report that hadn't been shared with Tafero's or Jacobs' defense attorneys revealed that Rhodes had changed his story -- "materially," as a federal court later put it -- between that interview and their trials. Rhodes later testified on three separate occasions that he, not Jacobs or Tafero, was the killer, though he eventually recanted those confessions, too. Rhodes was paroled in 1994 to New Mexico and absconded from supervision. There is a warrant for his arrest.

Florida's highest court never faced the question of whether Rhodes had lied to convict Tafero or Jacobs. By the time it became apparent, Tafero had exhausted his state appeals, a technicality deemed to be more important than whether he might truly be innocent.

In 1992, when Tafero had been dead nearly two years, the 11th U.S. Circuit Court of Appeals ordered a new trial for Jacobs, who went free after accepting a plea that did not require her to admit guilt. The Florida Supreme Court had commuted her death sentence 11 years earlier because her jury had recommended life, and she was a mother.

Jacobs is one of 89 death row survivors nationally who have been freed for provable or probable innocence since executions resumed in 1977. Florida leads the list with 21. Nearly three out of every four Florida death sentences have been reversed for one reason or another. Only 4 percent have been carried out.

Bush and other apologists illogically take such statistics as proof that all errors are caught in time.

There are too many political trophies at stake -- convictions for prosecutors and votes for politicians -- for responsible decision-making to take place without a moratorium. A moratorium prejudges nothing and does not in any sense presume the end of the death penalty. It is merely a time-out for thoughtful review.

Any responsible reassessment of capital punishment should, at a minimum, deal with the danger inherent in executing someone whose conviction depends solely on an uncorroborated confession or on the testimony of a single eyewitness, a jail house snitch or a co-defendant. Those factors are notoriously unreliable. The mentally retarded, who should not be executed in any case, are especially susceptible to being sold out by their partners in crime. Florida should exclude 16- and 17-year-olds as well, and desperately needs a modern threshhold for deciding who is too mentally ill to be executed. The Supreme Court and Legislature should fulfill their unkept promises to assure high competence on the part of all capital defense counsel and prosecutors. No one should die without the unanimous recommendation of a jury, which is the law in all but two other death penalty states. There needs to be a sober assessment of how race may be influencing the decisions of police, prosecutors, judges and juries. The courts must be open to new evidence of innocence whenever it turns up, and whenever DNA evidence might be dispositive, it should be tested.

To do all this is to come to face at long last with the awesome responsibility that capital punishment imposes on society. There is no greater wrong that government can commit than to take an innocent life, and to say that many people have a hand in it makes the wrong no less.