The Original Think Magazine (Published since 1996)
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The Death Penalty is a Mistake

In the last twenty years at least forty-two men have been removed from death row after having been wrongly convicted.


death row inmatesDespite the fact that the same safeguards, the same legal procedures and criteria, are applied in each and every instance. In one case a brutal killer is sentenced to death; in another an innocent man is sent to the executioner.

Let me emphasize that: The same legal procedures, coupled with a jury's determination that the defendant is guilty beyond a reasonable doubt, are applied in each and every case. Yet they result in sending the innocent as well as the guilty to death row.

• It took thirteen years to prove that Freddie Lee Gains was not guilty of murder. Thirteen years before an innocent man was freed. Keep that in mind the next time you hear someone demand that we shorten the appeals' process.

Years after his trial, conviction and death sentence in Birmingham, Alabama, one of the actual perpetrators, who was arrested for another crime in Florida, confessed. Gains, who had insisted all along that he was innocent, would be dead now if the advocates of shorting the appeals' process had had their way.

• In the summer of 1984 a nine year old girl was tortured, sodomized, and murdered near her home in Baltimore County, Maryland. Based only on circumstantial evidence, twenty-three year old Kurt Bloodsworth was convicted and sentenced to death. Bloodsworth spent two years on death row awaiting execution before an appeal on a technicality resulted in a new trial. Once again he was convicted. This time, however, he received a life sentence. That sentence was literally a life-saver for Bloodsworth. Nine years after his first trial, conviction, and death sentence, DNA analysis of the child's garments proved that he could not possibly have been the man they were after. The wrong man had been sentenced to death.


Unknown to Bloodsworth, three days after his 1st conviction police and prosecutors learned about David Rehill. Hours after the girl's murder Rehill showed up at a mental health clinic with fresh scratches on his face and told one of the therapists that he was "in trouble with a little girl".

Rehill resembled the police composite, and not unsurprisingly looked remarkably like Bloodsworth. But then Bloodsworth was already behind bars. Six months passed before the lead was investigated. While Rehill was eventually interviewed, police records indicate that his alibi was never checked. Nor was he ever placed in a lineup.

Despite the fact that the state had known about Rehill for two years prior to Bloodsworth's second trial, that information was withheld from the defense until just days before the second trial. (His attorneys did not have time to investigate and failed to ask for a postponement. The second jury never learned that there was another potential suspect.)

CBS correspondent Edie Magnus covered the Bloodsworth case for a segment of "Eye To Eye" which was broadcast on October 28th, 1993. Asked to respond "to the criticism that the system closed in on one guy with some evidence, and that everybody just stooped looking at other things that didn't fit", lead prosecutor Robert Lazzero stated:

"I would say that unfortunately that is not all that rare of an occurrence in our criminal justice system. " Magnus added that the Bloodsworth case demonstrated that "it is eerily easy with a weak case to convict an innocent man. " "Yes," said Lazzero thoughtfully, "in retrospect it is."

• You might want to talk to Matthew Conner who was convicted of the rape, murder and brutal mutilation of a twelve-year old girl. Conner spent twelve and a half years in prison for a crime he didn't commit. Eventually, boxes of concealed evidence were discovered in the possession of the District Attorney - evidence which, had it not been denied to his lawyer at the time of his trial, would have established that he was not guilty.

• For 13 years Fred Zain was employed as a medical examiner and forensic expert by the West Virginia State Police. In 1989 he moved to San Antonio, Texas where he served for the next 3 years as its crime laboratory's chief serologist. Over the years Zain was involved in thousands of criminal cases. His expert testimony was responsible for sending hundreds of defendants to prison. There's only one problem.

According to a report prepared for the West Virginia Supreme Court by the American Society of Crime Laboratory Directors and released by the court in November 1993, Fred Zain "fabricated or falsified evidence in just about every case he touched." And that included at least 133 murder and rape cases. His actions, stated the report, were the "result of systematic practice rather than an occasional inadvertent error."

As a result of that report the court ruled that, "Any testimony or documentary evidence offered by Zain, at any time, in any criminal prosecution, should be deemed invalid, unreliable and inadmissible." But by then Fred Zain had moved on to a new state, Texas, and a new job, chief serologist for San Antonio.

In 1989 Jack Davis was arrested for the sexual assault, murder and mutilation of Kathie Balonis, a New Braunfels, Texas woman. At the time Davis had been employed as a maintenance man at the victim's apartment complex. During Davis' trial, Fred Zain testified that blood specimens found under the victim's body belonged to Davis who'd cut his hand prior to the murder.

Zain's testimony was extremely influential as there were no witnesses to the crime. Davis was convicted of murder and his jury came within a single vote of sentencing him to death. Fortunately for Davis, he was sentenced to life in prison. For in 1992 a hearing was convened to investigate prosecutorial misconduct in the Davis case.

According to Davis' defense attorney, Stanley Schneider, Zain had originally testified that "his testing had proven that blood found under the woman's body came from Davis. Now it comes out that he [Zain] never did the testing. So Davis was convicted on Zain's lies." Indeed, in a deposition taped about a year after the trial Zain reversed himself and stated that the blood samples in question actually belonged to the victim and not to Davis.

When subsequently questioned under oath about his conflicting statements, Zain refused to answer and invoked his 5th Amendment protection against self-incrimination. Judge Charles Ramsey was outraged and said that Zain's conduct was "intentional and outrageous" adding that it "shocked the conscience of the court." Today, after serving 4 years of his life sentence, Jack Davis is a free man.

Zain was dismissed from his Texas job in June of 1993 when evidence vital to the prosecution of a San Antonio murder case suddenly went missing. Subsequently, Bexar County Medical Examiner Vincent DiMaio hired Irving Stone of the Institute of Forensic Science in Dallas to conduct an extensive review of Zain's work during his period of employment with San Antonio. Stone and his team of specialists conducted an in-depth examination of at least 180 cases in which Zain had been involved. Quoting from an article in the San Francisco Examiner, Stone's team discovered "reports from tests that were never done, negative results that would have cleared a suspect reported as positive and inconclusive results described as conclusive".

Said Stone: "Everything that Fred Zain did, whether it was in West Virginia or Texas, has to be suspect, and it worries me to the point that (the tests) ought to be repeated." Estimates of the total number of cases in which Zain was involved vary from 1,200 to 4,500 (the latter is Stone's).

• You might want to talk to Clarence Brandley who was sentenced to death on the basis of deliberately suppressed evidence. He received his first stay 5 days from his scheduled execution. His second stay was granted 13 days from his final walk. Brandley was wrongly convicted in 1980 and spent 9 1/2 years in while appealing his conviction.

• And then there's the case of Randall Dale Adams. Adams was found guilty beyond a reasonable doubt of killing a police officer. Sentenced to death, his appeals were rejected. Just seventy-two hours from execution, by a stroke of good fortune, it was established that the wrong man was about to be put to death.

• Recently, a defense attorney I know was defending a man of a capital crime. During the trial he discovered, and was able to establish under cross examination, that the police officer testifying under oath against his client had falsified the evidence.

• Finally, there are the two California black men who recently received a public apology from the judge when they were released. In an unusual move the Los Angeles DA joined with their defense attorney in the motion for their release; the Los Angeles District Attorney publicly stated that the two men had not received a fair trial and were wrongfully convicted. Benny Powell and Clarence Chance spent 17 years in prison for the murder of a Sheriff's Deputy - a murder which they never committed. It took 17 years to release two innocent men.

Yet there are all too many who want to shorten the appeals process. It must be stressed that these men were subjected to the exact same procedure as the Bundys. They too were found guilty beyond a reasonable doubt. But they were innocent.

They are not someone's hypotheticals; they are real flesh and blood human beings who were wrongly convicted and sentenced to death. And least I be misunderstood, let me make it clear that I have no compassion whatsoever for the brutal killers. It is myself, my family, and my friends who concern me - as they should you.

The same procedures which produced a verdict of guilty beyond a reasonable doubt convicted two men: Bundy and Adams. Yet one of them was innocent. Since there is no way to ensure that the procedure itself will not err or be abused, since there is no way to give a man back his life should you discover that a horrible mistake was made, and since there is another alternative, we must discard the death penalty.

We must abandon the death penalty because of the potential for error and abuse which is, of necessity, inherent in the system. As the stories of the men above make all to clear, this is not some vague hypothetical theory. It is all too frighteningly real. Shorten the appeals' process, and many of those innocent men mentioned above would long since have been executed. We must repeal the death penalty and substitute life without parole for our own protection; protection from abuse of the system and for our own safety's sake. Not from some long-past abuse, but from abuse or error which occurs today and will occur tomorrow so long as human beings administer a criminal justice system.

It is to protect each and every one of us from racial prejudice, or ambitious prosecutors who have forgotten why they are there, or incompetent defense attorneys, or innocent error that we must prohibit the one penalty which can not be reversed should we subsequently discover our mistake.

We must never forget that prosecutors, judges, expert witnesses and jurors are no more immune to prejudice, blind ambition, or error than the rest of us. For the 'convenient' thing about the death penalty is that it allows the state to bury its mistakes leaving the guilty to walk free. And it is unlikely that anyone is going to investigate a case once an innocent man has been executed. If we truly believe in Justice we must abolish the death penalty.