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Can we reform the death penalty to prevent the ultimate horror, the execution of the innocent? No system is foolproof, but a few steps could make ours a lot better. The question is not trivial. The nation has executed more than 1,000 condemned prisoners since 1977. In the same period, more than 100 men have been released from death row because of substantial evidence of innocence. Some of these releases were near misses with innocence discovered only through sheer luck or uncomfortably close to scheduled executions. Worse still, some prisoners have been put to death despite significant questions about their guilt. Some might believe that our capital procedures already provide adequate safeguards against the execution of the innocent. Unfortunately, this assumption does not stand up to close scrutiny. Our system is procedurally rigorous, to be sure — findings of guilt “beyond a reasonable doubt,” a separate mini-trial for sentencing, and post-conviction review lasting on average some 10 years. This procedural rigor leads us to the comforting belief that all this process will catch any errors. Would a jury in our bifurcated capital trials convict a defendant and sentence him to death if there was any doubt? Would all the reviewing courts fail to catch and correct mistakes? Could all the successive layers of state and federal review still get it wrong? FATAL ERROR Unfortunately, these protections can provide an all-too-thin barrier against fatal error. Judges routinely inform jurors that reasonable doubt does not mean no doubt. This is appropriate. A criminal justice system that encouraged jurors to acquit on the basis of wild or unreasonable doubts would fail in its primary task of protecting the public. But reasonable doubt actually translates into very thin protection when jury verdicts are scrutinized by appellate courts. In post-conviction review of capital cases, courts apply the standard of review typically used in appellate cases. That is, they do not review factual decisions made by juries. Instead, they examine legal errors made by trial court judges, such as admission of illegally obtained evidence, incorrect jury instructions, or failure to remove incompetent counsel. It is rare for an appellate court to set aside a jury’s verdict based on factual error. Appellate courts will do so only if a jury’s verdict was so clearly erroneous that no rational juror could have found the defendant guilty. The standard is stringent and rightfully so. Jurors have sat through the case. They have heard and seen the witnesses. They can judge their demeanor and reliability. Appellate courts cannot retry cases. Society has legitimate interests in finality and punishment. But we know that instructions on reasonable doubt and our deferential standard of review leaves considerable room for factual error. The development of DNA testing has highlighted this. The exoneration of long-imprisoned convicts through DNA evidence has become a routine event, leaving the nagging question: How many miscarriages of justice have we failed to catch simply because no DNA evidence is available? So, how can we better prevent fatal error in capital cases? The first step would be to require a higher evidentiary standard for death sentences than for convictions. The law has long recognized that different stakes demand different levels of proof. Civil trials, for example, require lower evidentiary thresholds than criminal trials. We permit this because defendants in civil cases have less at stake — the loss of money, not of life or liberty. This principle of having different levels of evidence depending upon the consequences should be extended to capital cases. In particular, juries should have to determine that no lingering doubts exist in cases where the ultimate punishment is at stake. LINGERING DOUBT Lingering or residual doubt is an old concept. Judges and juries have long withheld death sentences in cases where they had nagging doubts about their own guilty verdicts. The drafters of the Model Penal Code suggested that lingering doubt should be recognized as a reason not to impose the death penalty. Governors occasionally commute death sentences in cases where guilt is likely but doubts persist. But little has been done to formalize this concept. California formally recognizes residual doubt as a potential mitigating factor in the sentencing phase of capital cases. Other states permit lawyers or defendants to raise the issue, but typically accord little weight to the argument. It is a hard concept to formalize. Lingering doubt asks for trial judges and juries to approach their own verdicts with a humility that we often find hard to achieve after investing effort in a difficult decision. It would be hard, perhaps impossible, to specify an exact formula defining lingering doubt, but we could develop procedures that would give the idea room to develop. Defense attorneys should be allowed to present arguments concerning lingering doubt in the sentencing phase. Judges should instruct juries to consider the issue. These instructions might include two important points. First, a defendant’s continued insistence on innocence after a conviction is not necessarily a sign of an absence of remorse, but might be based on actual innocence. Second, consideration of lingering doubt is not a criticism of the jury’s conscientious efforts in determining guilt, but instead a recognition of the possibility of error even after the best of efforts. Death sentences should be precluded when convictions rest on highly problematic evidence. We have long known that eyewitness identification is highly prone to error. Witnesses are not lying. They are honestly mistaken. We have trouble identifying strangers seen for only a short time in stressful situations. Even rape victims with every reason to identify and punish the rapist have identified innocent men only to be proved wrong following DNA testing conducted years after incarceration. Quite reasonably jurors believe solid citizens who identify defendants, particularly defendants with extensive criminal backgrounds. What jurors are buying is the relative credibility of the parties, not necessarily the accuracy of identifications. In an imperfect world, we may have to convict based on stranger identification, but to execute on such evidence is unconscionable. Similarly, we know that evidence from criminals who have been offered deals in exchange for testimony is often unreliable. We shouldn’t be naive here. Often the best evidence in criminal cases will come from other criminals: Criminals who will testify for a deal. Police and prosecutors have to use such evidence. But we also know criminals will lie in exchange for deals. Again, we need to recognize that evidence strong enough for a conviction can still fall far below the level of certainty that we should want for an execution. We need to ask if a conviction could be sustained without the testimony of a criminal testifying in exchange for leniency. This poses the real risk that some of the worst criminals (such as mob hitmen or gang enforcers) might escape the death penalty under this standard. But it also ensures that a highly problematic kind of evidence will not be the basis for the ultimate sanction. Even scientific evidence can be problematic if only one side has had the chance to examine it. In recent years, we have had evidence of misconduct and outright fraud in crime labs run by the FBI and by a number of states. This is especially disturbing because of the faith that juries place in scientific evidence and experts. We can reduce possible miscarriages of justice by precluding the death penalty in cases where the defense does not have the opportunity to verify the government’s scientific findings. This should occur if the government has lost or destroyed the material evidence or if it does not provide defendants the financial resources to hire their own scientific experts. A NEW STANDARD Finally, we need a new standard of post-conviction review in capital cases. Appellate and habeas corpus proceedings too often become a battle over technical errors, rather than an inquiry into whether doubt still persists. If some judges occasionally stretch a point and find technical errors in questionable cases, they do so on somewhat thin legal ice. Here again, a separate standard for conviction and capital sentencing is needed. The traditional appellate standard — asking if a rational fact-finder could have found a defendant guilty — makes sense in reviewing an ordinary conviction. In deciding to sustain a death sentence, however, courts should rethink that standard. In capital cases, reviewing courts need to reverse the question and ask if a rational juror could have found reasonable doubt. These kinds of reform measures should be examined for implementation in both state statutes and federal habeas corpus procedure. Congress needs to lead the way with habeas corpus reform that allows federal courts to examine the issue of lingering doubt. Congress also needs to use federal funding to prod state legislatures to make such considerations an integral part of capital sentencing in state statutes. Our standards need to be made much higher in death penalty cases. If not, we may find that in a number of cases we were simply wrong. Dead wrong.
Robert J. Cottrol is the Harold Paul Green research professor of law and professor of history and sociology at George Washington University. He teaches criminal law.

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