The Innocent Executed
By William Kreuter
"The criminal justice system can and does fail to distinguish the innocent from the guilty, and the implications for capital punishment are ghastly." -- from a discussion on the Internet in January, 1997.
Justice: Denied unconditionally opposes capital punishment. Although our primary focus is to free the wrongly convicted, the death penalty is an important allied focus. As we noted in our editorial in Issue 10, one leading reason for our stance is the astonishing number -- now well over eighty and rising rapidly -- of prisoners who in the past quarter century were sentenced to death but were released from prison because of the likelihood of their innocence. A frequent rebuttal to this argument is that no innocent person has actually been executed. In this article we examine the weakness of that claim.
The rebuttal is fatuous partly because of its circular logic. There is no judicial mechanism for review of guilt or pronouncement of innocence after an execution. The courts are done with it. Therefore, it should go without saying that no court has announced that an executed person was innocent, since American courts by definition do not make such findings.
Here, however, we will explore some of what we believe to be at least a few dozen instances when prisoners who most likely were innocent nevertheless were executed. (Not all the prisoners with the strongest claims of innocence are mentioned in this article.) In many of these cases, evidence of innocence was available to judges or governors who could have prevented the execution.
The reasons they didn't do so include maintaining a public image, pretense of fairness, and narrow-minded dedication to procedure even when a life is at stake. (The unavailability of governors' commutations as a safety valve for innocence is a whole subject in itself.) In some cases, notably Wayne Felker's, dissenting judges noted the gross miscarriage of justice, while Pedro Medina lost by just one vote in Florida's highest court the right to a hearing of evidence of his innocence. But the fact that the executions took place does not at all weaken the evidence of innocence in any of these cases.
Elsewhere in this issue, we discuss the recent news of the moratorium on executions in Illinois proclaimed this past January. Governor Ryan took that action because more prisoners have left that state's death row on account of innocence than by execution. One of those released, Anthony Porter, was only two days from lethal injection when his execution was stayed. What's lost in the news about the Illinois moratorium is that had Porter been executed, he simply would have been regarded as guilty by definition and there would have been no hand-wringing over executing the innocent.
An example of exactly that situation was Girvies Davis, also mentioned elsewhere in this issue. Davis was likely an innocent victim of a coerced confession who was executed in Illinois in 1995. Prior to that execution, a widespread campaign sought to publicize his innocence, yet Davis is now a forgotten prisoner never mentioned in any of the media coverage of the Illinois moratorium.
Issue 10 of J:D examined Odell Barnes, Freddie Lee Wright and Philip Workman, who are all probable victims of manufactured evidence and corrupt proceedings. Barnes was executed on March 1st in Texas, and Wright's execution was on March 3rd in Alabama. Workman is scheduled to be killed April 6 in Tennessee.
Among cases mentioned in previous issues of J:D is David Wayne Spence, executed by the state of Texas on April 3, 1997 despite the conclusion of the police lieutenant who supervised the case that "I do not think David Spence committed this crime." The homicide detective on the case added, "My opinion is that David Spence was innocent. Nothing from the investigation ever led us to any evidence that he was involved." One of the inmates who testified in Spence's trial, Robert Snelson, said, "We all fabricated our accounts of Spence confessing in order to try to get a break from the state on our cases."
The reader should also bear in mind that many, perhaps most, of the 85-plus freed death-row prisoners surely would have been executed if the appeals rules and US Supreme Court makeup of the present day had been in effect when the state hoped to kill them. Randall Adams, the subject of the documentary The Thin Blue Line, is a well-known example of a freed prisoner who wouldn't have survived had his frame-up occurred twenty years later than it did in the mid-70s.
The pioneering academic study of innocent prisoners convicted of capital crimes was an article in the November, 1987 Stanford Law Review by Professors Hugo Bedau and Michael Radelet. They found that 23 innocent prisoners, from the beginning of the century through the publication date of the study, had been executed. Bedau and Radelet later expanded and updated their research, notably in a book we highly recommend to J:D readers, In Spite Of Innocence.
In Bedau and Radelet's view, since 1987 the executed prisoner most likely to have been innocent was Jesse Tafero who, along with Pedro Medina (described later in this article), also has the distinction of having been set on fire by Florida's now-abandoned electric chair "Old Sparky." Bedau and Radelet write in the preface to the 1994 edition of In Spite Of Innocence:
In Florida, Sonia Jacobs and Jesse Tafero were convicted of murdering a state trooper and his companion in 1976 and were sentenced to death. The chief evidence against them was supplied by the third person at the scene of the crime, an ex-convict named Walter Rhodes. In exchange for his testimony, Rhodes pleaded guilty to second-degree murder and received a life sentence.
In 1981 Jacobs' death sentence was reduced to life imprisonment. But in 1990 Tafero -- despite his protestations of innocence -- was executed. Micki Dickoff, a childhood friend of Jacobs', read about Tafero's execution and reestablished contact with Jacobs. Thanks to Dickoff's unflagging efforts, federal courts threw out Jacobs' conviction; in 1992 she was released when the state admitted not having the evidence to retry her. It now appears Jacobs was completely innocent. Why is the Jacobs-Tafero case so significant?
If Jacobs was innocent, then the execution of Tafero was probably the execution of an innocent man, because the same evidence (later shown to be insufficient) used to convict Jacobs had also been used to convict Tafero.
The information that freed her would have freed him -- if he had not already been executed.
"The judge characterized the police handling of the case as a 'Kafkaesque nightmare,' and said that [defendant Neil] Ferber's 1982 criminal trial was a 'malevolent charade.'" -- from a Philadelphia Inquirer editorial, August 16, 1996, on the settlement of a wrongful-imprisonment suit by a prisoner released from death row.
Another probable frame-up victim was also subjected to a Kafkaesque nightmare, but didn't end up as fortunate as Neil Ferber. On November 15, 1996, Ellis Wayne Felker was executed by the state of Georgia.
Wayne Felker was accused of the 1981 rape and murder of Joy Ludlam, an acquaintance. Felker was the main suspect and was put under police surveillance within hours of her disappearance, which occurred fourteen days before the discovery of her body in a creek. An autopsy then put her death within the previous five days. However, when police realized this would have ruled Felker out as a suspect because he had been under police surveillance for the previous two weeks, the findings of the autopsy were changed.
An unqualified lab technician with no medical training conducted the autopsy. Attorneys representing Felker during the appeals process showed notes and photographs of Ludlam's body to pathologists who unanimously concluded that she could not have been dead for longer than three days. In spite of this, the appeal courts upheld Felker's conviction.
Felker received a stay of execution in June, 1996, when his case became a test of the provisions of the 1996 Anti-Terrorism and Effective Death Penalty Act that limited federal habeas appeals. The Supreme Court accepted the Act's limitation on such appeals.
Another execution date was not set until after the 1996 Olympic Games in Atlanta, which had brought international attention to the state's death-penalty record. Felker received another stay in September, 1996, minutes before he was to be electrocuted and after he had been shaved for the electrodes, and just after several boxes of evidence concerning the murder of Joy Ludlum were discovered in the offices of the district attorney and sheriff responsible for the case. Under Georgia's Open Records Act, the evidence should have been made available years earlier to the defense attorneys representing Felker in his post-conviction appeals. The September stay was only for forty days, prompting one of his attorneys to state, "There are numerous possible leads which we have had no time to investigate. The stack of new paperwork is more than two feet thick."
The boxes contained a signed confession from another suspect in the crime. Forensic samples from Joy Ludlum's body and from the crime scene, which might have proven Felker innocent if they had been subjected to DNA testing, were also among this previously withheld evidence.
Michael Bowers, Georgia's attorney general, denied the possibility that anyone on death row was innocent. When asked about Felker, Bowers said, "I've talked to the cops who investigated him, and I asked them, 'Guys, is there any doubt about his guilt?' And they told me, 'Bullshit.'"
Felker's final appeal to the Georgia Supreme Court drew a strong dissent from Presiding Judge Norman Fletcher, who condemned the prosecution's behavior and said that the state had "repeatedly misrepresented its entire file."
According to the opinion, the district attorney in charge of the case had even denied under oath that the new evidence existed, and "the State's repeated failure to comply with well-settled constitutional principles deprived Felker of a fair trial."
A final stay of execution was granted by the Supreme Court on November 14, 1996, again minutes before the scheduled execution and after Felker had been shaved for the electrodes. The unanimous decision denying the appeal was issued late the next day because the judges had had a long, "leisurely" lunch. The seven-minute electrocution was conducted a few hours later.
Warren McCleskey, denying that he killed a policeman during a robbery that McCleskey admitted participating in, was executed by Georgia in September, 1991, after losing two important Supreme Court cases in four years. His case was marked by brazen government misconduct. The only solid evidence that McCleskey was the triggerman was a fellow inmate's claim that McCleskey had confessed; through tortuous legal work years after the trial, it was discovered that this inmate was a planted informant promised leniency in return for his cooperation. The state deliberately concealed this evidence and continually lied about the concealment for years. The US Supreme Court ruled that despite the state's successful cover-up, defense attorneys should have known they were being lied to and couldn't later raise the issue.
McCleskey's previous appeal culminated in the 1987 Supreme Court decision which accepted the Baldus study demonstrating that race, rather than factors such as brutality of the crime or lack of remorse of the perpetrator, was the most important factor that determined who was sentenced to death.
Nevertheless, the Court ruled, this fact alone did not warrant setting aside death sentences.
On March 25, 1997, Pedro Medina was killed in a botched execution in Florida's "Old Sparky." Medina's head was set on fire and thick smoke filled the execution chamber. But the rare media attention prompted by this spectacle almost entirely ignored substantial questions of Medina's sanity as well as his guilt.
Pedro Medina came to the United States in the Mariel boatlift of 1980, when the Castro administration sent to the US thousands of Cubans, including many criminals and mentally ill people, whom the Cuban government found undesirable. Medina was then a teenager with a lengthy history of psychiatric disorders and disastrous scholastic performance who had just been released from a Cuban mental hospital.
Two years later he was arrested for the Orlando murder of Dorothy James. Two state-appointed psychiatrists ruled Medina competent to stand trial although he spoke of God sitting bodily beside him. He was sentenced to death in spite of having no prior convictions.
The prosecution only obtained such a result because of Medina's mentally troubled state. The fact is that there was very little physical evidence to link him to the crime scene. His fingerprints were not found in the victim's apartment, and there was no blood in the car in which he allegedly left the scene. Nor was there blood on the knife that the prosecution touted as the murder weapon. Indeed, there is no question that the state's case against Medina was weak until he bolstered it with his own behavior during trial.
Medina displayed wildly unpredictable mood swings during his pretrial confinement, and was once placed under a suicide watch. In court, Medina maintained a steady stream of distracting outbursts and expressed frequent confusion at the proceedings. On the last day of trial, he disregarded counsel's advice and took the stand himself. In spite of this behavior, Medina's lawyer never presented his client's history of mental illness as a mitigating factor during sentencing. Subsequent evaluations by mental health professionals revealed paranoid schizophrenia, psychosis and depression, leading one doctor to observe, "It appears that though this individual had a factual understanding of the charges against him, he lacked a rational ability to aid counsel in his defense.... There is a substantial probability that this individual was incompetent to stand trial at the time his trial was held." For purely procedural reasons, the matter was never considered on appeal.
On February 10, 1997, the Florida Supreme Court ruled 6-1 that Medina should receive an evidentiary hearing to decide his sanity. However, a minority of three of the judges also wanted for the hearing to include considering claims that the evidence pointed to another killer.
Justice Harry Anstead said the court should have noted Medina's long history of mental illness and the fact that the case against him was based on circumstantial evidence; the judge pointed out that daughters of the victim testified that they do not believe that Medina killed their mother. The justice added that the "most troubling" aspect of Medina's appeal was the claim that the state failed to disclose evidence suggesting that someone else killed Dorothy James.
On March 24, 1997, the Florida court system quickly refused to consider new evidence. The original trial jury convicted Medina of stabbing James, his former neighbor, after the jury heard, among other things, that he was found in North Florida with her Cadillac a few days later. A knife believed to be the murder weapon was found in the car.
At this proceeding, Medina's lawyers said they never knew that a knife was taken from the victim's home and tested by a medical examiner. They claim that knife, which had no links to Medina, could have been the murder weapon.
One of Dorothy James' daughters, Lindi James, was often outspoken in opposition to the state's wishes. She said, "There was never to my satisfaction an investigation done that supported executing someone." She also said, "I really feel strongly against the execution of Medina, but at this point I'm just really tired of it all being brought back up over and over and over and over again." Lindi James always believed that too many questions were left unanswered about her mother's murder, and she gave Medina's lawyers an affidavit to that effect.
"I have never believed Pedro killed my mother," Ms. James said in the affidavit. According to her daughter's affidavit, Mrs. James liked Medina and tried to help him adjust to life in the United States.
"I do not want my mother's memory to be used as an excuse for executing Pedro Medina," Ms. James said. In addition to the ignored wishes of the victim's family, Medina's case prompted appeals for clemency from Pope John Paul II and a church in New Jersey; for a while after arriving from Cuba, Medina lived in Cape May, N.J., where a member of the First Presbyterian Church sponsored him.
Shortly before Coleman Gray's execution in Virginia on February 26, 1997, several witnesses admitted falsely testifying that Gray told them he killed store manager Richard McClelland.
McClelland was forced off the road shortly after he left work one night in May 1985. He was taken back to the store where his two abductors robbed his business, then driven to a community college and shot six times in the head.
Some of the witnesses who said they lied about hearing Gray admit to killing McClelland also said in the affidavits that they lied about hearing Gray claim he committed two unrelated murders.
No one has ever been charged in the unrelated slayings, those of a Chesapeake woman and her daughter in 1984. But prosecutors compared evidence from those killings to McClelland's murder in seeking the death penalty during Gray's sentencing.
One of the trial witnesses against Gray was his codefendant, Melvin Tucker, who avoided the death penalty by testifying that it was Gray who shot McClelland. Tucker got a life sentence.
A judge threw out Gray's death sentence in an earlier appeal, but the Fourth US Circuit Court of Appeals, well known for being substantially to the right of the US Supreme Court, reinstated it. The appeals court again upheld a death sentence after the US Supreme Court ordered a review of Gray's case.Gray's attorney said that "this case has raised very serious concerns among federal judges about the fairness of Coleman Gray's trial. The new evidence demonstrates that this case is shot through with perjured testimony and that Coleman Gray's conviction and sentence are completely unreliable."
Leo Jones, convicted of killing policeman Thomas J. Szafranski on May 23, 1981, was executed in Florida on March 24, 1998. Jones' conviction was based on the testimony of a police interrogator who had been forced out in 1988 after being identified by a fellow officer as a torturer. In upholding Jones' conviction and sentence, Florida's appellate system refused to take into consideration the following.
First, at the time of the shooting, witnesses reported seeing another man running down an alley near the crime scene with a rifle in his hands. These witnesses did not immediately tell the police what they saw, fearing the rifleman's reputation for violence.
On the day after the shooting, the man with the rifle asked his girlfriend to lie to police and provide him with an alibi for the previous night. Neither the testimony of the eyewitnesses nor that of the rifleman's girlfriend was presented at Jones' trial.
Very soon after the killing took place, police searched Jones' apartment, finding him and a friend with some rifles that could have fired the shots that killed Officer Szafranski. Feeling that they needed more evidence to connect Jones and his friend to this crime, the arresting officers proceeded to beat them continually. They beat Jones and threatened to kill him until he gave them a two-line confession. They beat Jones' friend to the extent that he was "barely recognizable." He too gave the confession that the police wanted. They were then taken to a hospital.
The man who was seen running with the rifle later openly admitted to family members, friends, and fellow inmates that he killed Officer Szafranski.
In a candid interview with the British newspaper The Observer, Howard Marsellus, chairman of the Louisiana Board of Pardons and Parole from 1984 to 1986, admitted that political pressure influenced decisions on clemency.
Marsellus remains deeply troubled that he may have allowed an innocent man to be put to death in the case of Timothy Baldwin, executed in 1984. Marsellus believes his actions were totally wrong, saying, "I lacked the courage to vote on the basis of how I felt or what I believed. I gave in to the prestige and power, the things that went with my job. I knew what the Governor, the man who had appointed me, wanted: no recommendation for clemency in any death case."
Baldwin was convicted of the murder of an elderly woman in 1978. After the trial his lawyers found a hotel receipt proving he was hundreds of miles away in another state on the night of the murder. The prosecution promptly claimed that he had driven to the hotel in order to establish an alibi and then returned to Louisiana to commit the murder.
The main prosecution witness against Baldwin was his girlfriend Marilyn Hampton, who received a life sentence, rather than the death penalty, for her part in the murder. The prosecution claimed that Hampton waited outside in a car while Baldwin committed the murder.
The governor of Louisiana visited Hampton in prison before signing a death warrant for Baldwin's execution. Marsellus believes the purpose of the visit was to induce Hampton to maintain her original testimony. Baldwin was executed shortly afterwards. Two months later the Board of Pardons and Paroles received Hampton's file marked "expedite." Seven years into a life sentence for first-degree murder Hampton was freed.
Marsellus witnessed Baldwin's execution and remembers the night clearly. Baldwin "looked into my face and said, 'You are murdering an innocent man.' That's what I did."
Brian Baldwin (no relation to Timothy Baldwin) died in Alabama's electric chair on June 18, 1999. National black leaders, the Pope, the archbishop of Mobile and former President Carter had joined his attorneys in unsuccessfully arguing that he was a victim of racism.
Baldwin was convicted by an all-white jury. Prosecutors excluded Black jurors, and black residents of the county said that the white population was committed to Baldwin's conviction before the trial was held. The judge, the prosecutor and Baldwin's own court-appointed attorney used racially derogatory language during the trial. A man who was a sheriff's deputy at the time swore in a statement shortly before the execution that Baldwin had been beaten and tortured into a confession by white officers. Prosecutors shifted their theory of the murder. Baldwin's codefendant, executed for the crime in 1996, stated that Baldwin wasn't present at, nor had any knowledge of, the murder. This statement was corroborated by physical evidence. The trial transcript was defective, inhibiting Baldwin's appeals. The trial defense was not granted funding for investigation.
In an unrelated earlier case of railroading by the same judge and prosecutor, Walter McMillian was released from death row on the basis of innocence. In McMillian's case, a state appeals court said that the judge and prosecutor had intentionally discriminated racially against McMillian. But challenges to this same judge's rulings that Baldwin's trial had been free of prejudice were never reviewed.
Alabama Governor Siegelman said he was "deeply troubled" by the case; nevertheless, he would not grant clemency. The execution was the first during Siegelman's term. In response to a grant of clemency last January by his predecessor upon leaving office, Siegelman had promised he would show no compassion.
David Junior Brown (Dawud Mohammed)
David Junior Brown was executed in North Carolina on November 19, 1999. Brown, known on death row as Dawud Abdullah Mohammed, was convicted by an all-white jury of killing two white people. Successive courts refused his appeals although they consistently acknowledged the faults in his trial. For example, one judge concluded that the conduct of the prosecutor, in obstructing the defense, was "inexcusable," "based on personal animosity" towards the defense attorney and that the prosecutor's gamesmanship was "especially abhorrent when a person's life is at stake." Despite this, the courts all ruled that the prosecutorial misconduct had not prejudiced the outcome of the trial. Governor Hunt ignored widespread appeals requesting a commutation. Amnesty International noted inconsistencies in witness accounts and an incomplete investigation, in addition to the prosecutors' misconduct.
A spokesman said that Brown, as a black man in a service industry catering to wealthy whites, became the chief suspect "in spite of the facts. ... What Dawud [Mohammed] brought to this case was his race and proximity to the crime scene and its victims."
On December 10, 1999, James Beathard was executed in Texas. Courts and the governor ignored the recantation and confession of the only important witness against Beathard, a conflict of interest by the defense attorney, and the prosecution's willful misrepresentation of the case against Beathard, including presenting two contradictory versions in two different trials.
Virginia authorities continue to try to prevent state-of-the-art testing of DNA evidence in the case of Joseph O'Dell, who was executed on July 23, 1997.
Early DNA tests gave inconclusive results, and O'Dell argued that improved tests would demonstrate his innocence. Virginia courts refused to allow the testing. Since his execution, prosecutors have attempted to have the evidence destroyed. Commonwealth's Attorney Robert Humphries, interviewed on a PBS "Frontline" program broadcast in January, 2000 on the subject of legal obstacles to DNA testing, declared frankly, "Is there any doubt ... that if this sample was analyzed ... and it turned out that it was inconclusive, it was not Joseph O'Dell's blood type or DNA or [the victim] Helen Schartner's DNA, that there wouldn't be a press conference held announcing to the world that the Commonwealth of Virginia had executed a completely innocent man?
There's no doubt in my mind of that." Humphries said that "closure" for himself and Helen Schartner's survivors were his concern. His advice to O'Dell's supporters was, "Joseph O'Dell got what he deserved. He got what the law required. It's over. And if people can't bring that to closure, that isn't my problem, it's their problem."
A number of factors cause innocent defendants to be sent to death row, and some to be executed. Stephen Manning in Illinois, who survived, and Warren McCleskey in Georgia, who didn't, both were framed by jailhouse snitches; the use of snitches is no different from bribery and can produce any result a prosecutor desires, irrespective of truth.
Anthony Porter in Illinois, who survived, and Pedro Medina in Florida, who didn't, both had the sort of severe mental deficiencies that are not uncommon among those accused of felonies. Medina was typical of a defendant whose mental illness made him difficult to defend, while the defense of many retarded defendants also may be hampered because their attorneys must explain and re-explain simple concepts to the defendant. Retarded defendants also are particularly prone to false convictions because they often can be manipulated into cooperating with authority figures and falsely confessing.
Aside from prosecutors' ambition, institutional factors exist which make presumption of innocence a hollow promise. One of the most obvious of these (and one that greatly increases the cost of capital punishment before any appeals occur) is the requirement that abolitionist jurors who won't consider a death sentence are screened from the jury pool and forbidden from serving.
This creates a jury that is pre-selected to be inclined at least in the abstract towards death sentences. In practice juries in death-penalty trials tend to favor conviction and to disbelieve the defense.
The work of Bedau and Radelet was mentioned at the beginning of this article. Clearly, execution of the innocent is one issue that makes the typical American pause and reevaluate his or her support for capital punishment. This was demonstrated when a Reagan Administration official, fearing the impact of Bedau and Radelet's article, tried to suppress it before it was printed in the Yale Law Review. Americans' moral good sense on this issue, so feared by politicians who count on the death penalty as a risk-free tool for gaining office, was echoed by the late Supreme Court Justice Harry Blackmun. Blackmun's final death-penalty dissent before retiring in 1994 mentioned "the inevitability of factual, legal, and moral error" in capital punishment cases, "a system we know must wrongly kill some defendants."
Blackmun's view has been recently joined by the former chief justice of the Florida Supreme Court, Gerald Kogan, who publicly declared several times in recent months that some of those executed in his state were not guilty of the crimes for which they died. Bedau and Radelet reflect, "How many such errors must we commit before we say, 'Enough'?"
Sources for this article include "USA Death Penalty Developments in 1996" by Amnesty International, and Execution Alerts from the National Coalition to Abolish the Death Penalty.
William Kreuter is Washington State Death Penalty Abolition Coordinator for Amnesty International, and he serves on the steering committee of the Washington Coalition to Abolish the Death Penalty.Opinions and conclusions are Kreuter's and not necessarily those of Amnesty International or WCADP.