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The policy-making body of the New York State Bar Association will be asked in March to adopt a proposal from the Criminal Justice Section and urge New York Gov. George Pataki to declare a moratorium on the death penalty. Vincent E. Doyle III, chairman of the Criminal Justice Section, last week presented to the Executive Committee a resolution that his section adopted in September. The resolution, which requests a moratorium on capital punishment in light of recent cases where condemned prisoners in other states have been exonerated, was passed along to the New York House of Delegates for a vote in March. Doyle, of Buffalo, N.Y., said the Criminal Justice Section is seeking to invoke the full influence of the largest voluntary state bar association in the nation in its effort to put a hold on executions pending further study of the death penalty’s fairness and reliability. The American Bar Association was the first of the organized bars to call for a moratorium when it did so in 1997. Doyle thinks the New York Bar should be next. If Pataki were to declare a moratorium, he would join another Republican, pro-death-penalty Gov. George Ryan of Illinois. Ryan imposed a moratorium on the death penalty in his state after 13 death row inmates were freed. The Illinois governor expressed “grave concerns about [Illinois'] shameful record of convicting innocent people and putting them on death row.” However, even with the support of the House of Delegates — which is by no means certain — it will take more than a resolution to convince the New York governor to declare a moratorium. Pataki has shown no support for a moratorium, and has insisted that the statute he shepherded through the Legislature shortly after taking office in 1995 was so carefully crafted as to virtually eliminate the possibility of error. But “virtually” does not cut it for Professor Lawrence C. Marshall of Northwestern University School of Law. CALL FOR REFORM Marshall, who has made national headlines for his successful efforts on behalf of death row inmates later proven innocent, was the featured speaker on Thursday at the Criminal Justice Section’s annual awards luncheon. Although to a large extent he was preaching to the choir, Marshall called for an immediate, nationwide moratorium on the death penalty, followed by universal acceptance of several principles: that a single witness identification should never be enough for capital punishment; that a conviction resting on an unrecorded confession or a jailhouse snitch should eliminate the death penalty option; and that jurors, judges and appellate courts should be required to certify that they have no lingering doubts about a convict’s guilt before an execution can be carried out. Recent evidence, much of it resulting from DNA technology, suggests that there are far more wrongful convictions in death penalty cases than many advocates were previously willing to believe. Last June, a watershed report by James S. Lieberman, Jeffery Fagan and Valerie West, “A Broken System: Error Rates in Capital Cases 1973-1995,” found that nationally, the reversible error rate in capital sentences was 68 percent. Additionally, the “Lieberman Report,” as it is called, discovered that seven percent of capital convicts were acquitted at retrial. DNA EVIDENCE Marshall, who runs the Center on Wrongful Convictions at Northwestern, said the DNA evidence is troubling on two counts. First, he said, it is unnerving that people have been on the brink of execution when they were saved only because of DNA technology. Secondly, he said, it suggests that other cases, where DNA evidence was not available, resulted in the conviction of an innocent person. For instance, in one case on which Marshall worked, a man was sentenced to die for raping and murdering a little girl. DNA eventually proved he was not the man who had raped the girl and he was exonerated. However, if the girl had just been murdered and not raped and DNA proof was not available, the defendant would have died, Marshall said. “Once upon a time when someone was exonerated, you could still have some doubt about [whether the defendant was truly innocent],” Marshall said. “But with the advent of DNA, we have exonerations where everyone involved in the process is forced to acknowledge [innocence].” Meanwhile, New York’s death penalty statute has yet to be fully tested. The Court of Appeals has dealt with aspects of the statute, such as plea bargaining, but it has not yet addressed the core constitutional issues. That may occur sometime this year or next.

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