Note: Brandon Garrett, a professor at the University of Virginia School of Law, is the author of the forthcoming book, “End of Its Rope: How Killing the Death Penalty Can Revive Criminal Justice.” Here are his thoughts on the developments of last week.
By Brandon L. Garrett
The American death penalty has a big innocence problem, and it is not going away. The events of last week show why.
On Wednesday, Missouri planned to execute Marcellus Williams. The problem was that he may be innocent. Governor Eric Greitens wisely put that execution on hold while a panel investigates further. On Thursday, Florida did execute Mark Asay. We may never fully know whether he actually deserved the death penalty.
In the Williams case, although the courts said that the execution could go forward, the courts disregarded new DNA tests that show Williams’ DNA was not on the weapon that killed Lisha Gayle at her home in 1998. The DNA of another unidentified man was on the weapon. The victim was stabbed 43 times, and it stands to reason that the male DNA on the weapon is that of the actual culprit.
The state of Missouri said that the other evidence in the case is still strong. Yet that evidence consisted of the testimony of informants, both drug addicts, who received financial incentives to testify against him. The footprint at the crime scene and the hair samples from the crime scene do not match Williams either.
[Missouri governor stays execution of Marcellus Williams, says officials will probe DNA evidence in the case]
To be sure, Williams had a number of items belonging to the victim and sold a laptop belonging to the victim’s husband. That is strong circumstantial evidence. Then again, those items were found by one of the cooperating informants, Williams’ girlfriend at the time. The case was built around the informants. Both had hoped to get a $10,000 reward.
The jury that convicted Williams never heard about the DNA evidence, and it is hard to imagine that if he was tried today that he would get a death sentence, given the new doubts about guilt. That DNA evidence has never been presented in court.
Compare the Asay case. He fully admitted that he shot one of the victims, but in a fight over money, and not the type of murder that would likely qualify as so egregious that it deserves the ultimate punishment. The evidence that put his case in the category of a death penalty case was testimony that he uttered a racial epithet when killing the victim and had white supremacist motives. However, he denies ever having such views, and that evidence came from the same type of unreliable source as in the Williams case: a jailhouse informant.
[Using a new drug, Florida executes a death-row inmate for the first time in a year-and-a-half]
It may surprise many people that such unreliable evidence is still used even in the most serious death penalty cases. Today, there is much more awareness about wrongful convictions, including those due to false informant testimony. Polls show that more people are concerned about wrongful convictions and executions. Twenty people have been exonerated from death row based on DNA testing. Most of those individuals had allegedly made confessions, which we now know to be false, to police or to jailhouse informants.
Yet, that awareness has not stopped states from trying to execute people whose convictions are based on such flimsy evidence. Indeed, the more death sentences in a state, the more death row exonerations, as I describe in my new book, “End of Its Rope[hup.harvard.edu].” Florida, where Asay was just executed, leads the country in exonerations[deathpenaltyinfo.org] in death penalty cases.
Today, death sentences and executions are fading fast and one might think that we could limit the death penalty to the cases where we are sure that the person actually did it, with “it” being a murder serious enough to warrant the death penalty. Only 20 people were executed in 2016 and only 31 people were sentenced to death. Yet serious claims of innocence and unreliable evidence persist.
The evidence in death penalty cases is not always very strong. After all, in many murders, there are no surviving witnesses. Unfortunately, as a result, police sometimes cut corners to try to solve high-profile homicides, by relying on unreliable jailhouse informants or by coercing confessions from mentally ill individuals.
While we may desire speedy justice, new evidence of innocence may not surface until a decade or more after trial. One reason is that at the time of trial, the defense often has inadequate resources to investigate innocence or possible defenses. In Williams’ case, the defense lawyer admitted he was nowhere close to ready for trial and asked for more time to prepare, but the judge denied the request. I have found that the states with the most death sentences are the ones without law offices to handle the defense in death penalty cases.
The problem of innocence is inevitable and constant in death penalty cases. In April, Gov. Terry McAuliffe granted clemency to one of the few people left on Virginia’s death row, due to persistent doubts about his guilt. In contrast, Ledell Lee was executed in Arkansas earlier this year, despite strong claims of innocence.
And last week, the California Supreme Court decided to reject an interpretation of a new law that might have limited appeals to just five years, in favor of giving judges adequate time to carefully review death penalty cases. After all, it takes much more time than that to properly investigate claims of innocence.
This will not be the first time that we have executed a man despite real doubts about the case. So long as we have the death penalty, it will not be the last.
One of the best things about writing Slate’s crime blog has been the opportunity to become familiar with the work of North America’s best crime reporters. There are a lot of great ones out there working the crime beat, and I asked a few to name their favorite stories of 2013. Here are their responses:
Doug Brown, Cleveland Scene. Locally, my story "Inside the Biggest Heroin Bust in Northeast Ohio" was meaningful to me because it showed the interconnectedness of action locally and nationally: how heroin gets shipped to Cleveland based on other routes in the country getting shut off by the feds; the wiretapped conversations (understanding how dealers talk); the use of paid criminal informants and undercover officers and how they built trust with suppliers; the psychology of high-level drug dealers who boast about their dealing on social media despite their anger about “snitches”; and how the feds posed as a documentary film crew to bust one target who refused to talk to cops but was known to boast for the cameras. It means more to me than the average reader because it took so much to do, and I developed as a reporter working on it.
Nationally, the best crime story, I think, is "Two Gunshots on a Summer Night" by Walt Bogdanich and Glenn Silber in the New York Times, about the suspicious death of the girlfriend of a sheriff's deputy in St. Augustine, Fla. The reporting is so thorough, the online presentation is so crisp and clean, the themes highlight such important but underreported topics, and the story as a whole exemplifies the kind of public service work that can be done when states have (relatively) open public records laws and so many documents can be analyzed by reporters. It's one of those stories that took such a long time to do, and you can just appreciate the trust the paper had in those two reporters to spend so much time and resources working on a single story. They got it right, and I just appreciate everything involved in making that happen in every level of the organization: the reporters, the editors, the designers, the people who sign off on the expense reports.
Justin George, Baltimore Sun. I wish I read more than I do, but here are the stories that stuck out to me:
1. Baltimore Sun: “Faces of Summer Violence.” Justin Fenton and I tried to capture the toll a violent summer left on Baltimore by looking for anecdotes that reached across all spectrums of the population so everyone could feel the magnitude of lives lost. I think it turned out better than we hoped.
2. Baltimore Sun: “Stick-up boys.” My colleague Justin Fenton delves deep into a murder mystery that exposes a small, deadly niche of Baltimore's chaotic and thriving drug trade.
3. Kansas City Star: “Nightmare in Maryville.” This story should win a Pulitzer. Exacting reporting that uncovered a sleeping giant of a story.
4. Boston Globe: “Carjack victim recounts his harrowing night.” Just a great job done on deadline getting a story the WORLD was after.
Sadie Gurman, Denver Post. I've decided it's the murder of Colorado prisons chief Tom Clements by Evan Ebel, a member of the white supremacist 211 prison gang. This story was full of intrigue at every turn. It cast light on the prison gang roiling behind bars, revealed huge flaws in the parole system and involved so many interesting characters, from Ebel himself, to the gun purchaser who wanted so badly to be loved by him, to the Saudi inmate who may or may not have had a role in the killing, and to Clements himself.
Jennifer Mann, St. Louis Post-Dispatch. The Kansas City Star on the Maryville rape case. This Kansas City Star article helped propel this small-town story to a national stage, and, as a result of the pressure and publicity, a special prosecutor has been assigned to investigate the handling of the case. There is an amazing amount of detail in the article and I really like how it is constructed—starting at the end, with the alleged victim's house burning to the ground. That scene really set the tone for the rest of the story.
Overall, the Boston Globe did an amazing job with its coverage of the Boston Marathon bombings. Boston.com was constantly buzzing with live updates and there were some really great full-length articles that captured the fear and heroism that pervaded the city throughout that week—from the initial bombings to the manhunt that followed. Then, there were powerful stories about recovery. But I was particularly impressed by this piece by Eric Moskowitz, who obtained an exclusive interview with a man who endured a harrowing ride with the bombing suspects after a carjacking. You couldn't help but sit on the edge of your seat while reading it. It was packed with detail and the first glimpse at the personalities of the two suspects. In managing to outsmart the Tsarnaev brothers, Danny was an unexpected bright spot in the horror of the week.
Amanda Milkovits, Providence Journal. The Boston Globe's masterful coverage of the Boston Marathon bombing, including the recent "Fall of the House of Tsarnaev," was in a class by itself. I just feel like I have to single out the newspaper for its amazing work on terrorist attack at the marathon, on what's historically been one of the most joyful events in the city.
But as a good, old-fashioned crime story, I really loved this one: "Fear on the Family Farm," by crime reporter Jana G. Pruden at the Edmonton Journal, in Alberta. I just started following Pruden's work earlier this year, and I find a lot to admire. She's a terrific writer, with a novelistic style to her longform stories. This story is about a man who murders his brutish father. I thought it was compelling. She brings you into the lives of this family and gives such a sense of foreboding and tragedy. What's it like to live in a family gripped by domestic violence? Here's your example. Plus, I loved the sense of place, the descriptions of the beautiful and windswept prairie. I've never been, but the writing took me there. This is what we should aspire to do as crime reporters—tell what happened and put it into a context that helps you relate to the people in the story.
David Ovalle, Miami Herald. The story that most intrigued me this year was the case of South Miami Facebook killer Derek Medina, who shot his wife and immediately posted a photo of her dead body and a confession to the social media website. Domestic murders are not unusual in Miami, but Medina's act of uploading the photo said something deeper about our look-at-me culture of instant gratification. For years, Medina published his own e-books, uploaded video after video to YouTube, and posted incessantly to Facebook—but got little notice until that fateful morning. And to top it off, there's a "stand your ground" angle: Medina admits to the shooting, claiming he killed his unarmed wife inside their home because he thought she might fatally strike him in the temple. Here's the story on his version of events, and on his lawyers laying out their defense, and the first-day story.
Jana G. Pruden, Edmonton Journal. It was hard to pick a favorite crime story of 2013. There was so much fascinating and thought-provoking crime writing this year, and so many stories that resonate with me still for a variety of reasons. In the end, I settled on Eli Saslow’s Washington Post piece about one family’s “lonely quiet” in the wake of the Newtown shootings. The piece is so beautifully and elegantly written, and shows in such a quiet and devastating way the reality of living with this horrific and tragic loss.
Joel Rubin, Los Angeles Times. After scrolling though crime clips in search of something odd, absurd, idiotic, I've decided to play it straight and offer up the recent series we ran on Christopher Dorner, the disgraced LAPD cop who was fired and then resurfaced earlier this year with a vendetta. We covered the surreal story best we could as it unfolded and, when it was over, five of us set off to fill in as many of the blanks as possible. 400-plus interviews later, the result, I think, is a pretty compelling story that ran in five parts. A colleague, Chris Goffard, who wrote it, deserves much of the credit.