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About every four years, what inevitably becomes a highly emotional debate over capital punishment erupts in America. The last time, not coincidentally, was when then-Governor George W. Bush first ran for president. Over the last decade, opponents have deliberately shifted their focus from a debate on whether it is right for the state to take a life, to unqualified assertions that death row is chock full of innocents. Sister Helen Prejean, of Dead Man Walking fame, was recently quoted in the New York Times as saying “[C]an anyone argue about the justice of executing the innocent? And can anyone doubt . . . that we do it all the time.” No reasonable person would disagree with the first part of Prejean’s statement, but many, including recent book reviewers, take issue with the last claim. The New York Times‘ Adam Liptak, in his Jan. 23, 2005, review of Prejean’s new book, The Death of Innocents, writes: “Prejean and other abolitionists are stretching the facts. Few serious students of the death penalty think we execute innocent people ‘all the time.’ “ Steve Weinberg, a respected investigative journalist and an admirer of Prejean, said “[her] reportage is less compelling than her logic.” The power of ‘innocence’ Therein lies the power of words: “executing the innocent,” “condemning the exonerated.” In the practice of law, words have great power and meaning. Innocent means something very different than “not guilty.” As lawyers, particularly those of us who represent the government in trial work, we must be extremely careful about our use of words, and the same caution should apply to anyone who cares for the language of the law. There is no doubt that since the Gregg v. Georgia decision in 1976, probably 20 to 30 people out of the 8,000 sentenced to death were in fact innocent of the crime for which they were eventually freed. But while any error in the justice system, particularly in capital cases, is cause for concern, it is a sign that these problems are isolated episodes and not part of some epidemic of injustice. But that’s not what the popular culture would have Americans believe. The latest assault comes with the ballyhooed debut of the play The Exonerated on CourtTV and Sister Prejean’s new book. The Exonerated tells the story of six people, now off death row, who the makers claim were innocent, despite the fact that two of the supposed “exonerated” were found guilty of murder based on their own pleas. A third pleaded guilty to an almost identical murder in another state and wasn’t available to do publicity interviews because he’s doing a long prison stretch for that homicide. Prejean’s book details her belief that two men (Joseph O’Dell and Dobie Williams) whom she counseled on death rows in Virginia and Louisiana and who were eventually executed, were actually innocent. This belief defies DNA testing in both cases that tied the men to their horrific crimes, and repeated reviews by appellate courts, including one by the U.S. Supreme Court. But overwhelming evidence, the decisions of dozens of jurors and the opinions of scores of appeals judges really don’t matter, because as Sister Prejean says, “Innocence or guilt-it doesn’t matter to me, they have human rights.” Those charged with capital murder in the 21st century have lots of rights, far more than were ever accorded their victims, in whom the self-described abolitionists have very little interest, almost invariably even refusing to accord them the dignity of uttering their names. It is the moral imperative that words like “exonerated” carry that these opponents of the death penalty so desire. Because these words carry such force in the public debate, Sister Prejean and her allies will ignore and even distort the truth to gain that high ground. Prejean claims that the man who was convicted of murdering Sonya Merritt Knippers in 1984 was retarded despite tests and testimony that put the killer’s IQ above the level set recently by the Supreme Court in the Atkins v. Virginia decision. She confuses her earnest wish for mercy for the condemned with actual innocence. In the case of Joseph O’Dell’s murder of Helen Scharter, the famous nun ignores DNA and other forensic evidence because she so desperately wants to believe him innocent; yet even the anti-capital punishment Death Penalty Information Center won’t put O’Dell on its list of “innocents.” The words do matter-a great deal. It does a grave disservice to those who really didn’t do it to be lumped in with killers whose guilt has been tried and confirmed in forum after forum. When confronted recently on MSNBC’s Abrams Report with the fact that Sonia Jacobs (played in The Exonerated by Susan Sarandon) entered an Alford guilty plea to avoid the possibility of spending the rest of her life in prison, Barry Scheck started protesting about “prosecutorial misconduct.” In magic, this device is called misdirection. In serious legal discussion, it has no place. A subject like capital punishment deserves sober and precise language, not invective and distortion. Reasonable people can differ over the morality and efficacy of capital punishment, but at least let it be an honest intellectual debate. Joshua Marquis, the district attorney in Astoria, Ore., since 1994, is co-author of Debating the Death Penalty (Oxford University Press 2004) and co-chairman of the National District Attorneys Association Capital Litigation Committee. He has both defended and prosecuted capital murder cases.

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