Matter of life or death

Argument against capital punishment is heating up in lieu of DNA testing

Published: Wednesday, Sept. 21 2005 11:59 a.m. MDT

But there are other reasons, too, he says. For religions, he says, there is the matter of forgiveness. And capital cases, with their parade of high-paid experts and the inevitable round of appeals, are five to seven times as expensive as keeping an inmate in prison for life, he says. And, too, there is conservative skepticism of big government, including the court system.

"If the government can't build highways or fill in potholes in highways," this arguments goes, "then we have to be skeptical about the ability of government to make God-like life or death decisions" about a person's innocence, he says.

Radelet helped orchestrate a study of capital punishment for then-governor George Ryan of Illinois, who called for a moratorium on the death penalty in his state when DNA analysis proved the innocence of 13 people on death row. "Our study revealed massive regional and racial variations" in death penalty sentences, he says. "You were more likely to get death if the homicide victim was white."

Since 1989, says University of Utah law professor Daniel S. Medwed, 162 defendants nationally have been exonerated by DNA testing. "So the foundation on which the criminal justice system rests has been rocked."

And DNA is only the tip of the wrongful convictions iceberg, says Medwed, who will participate in the UVSC symposium. Only 10 percent to 20 percent of criminal cases have any biological evidence at all, he says.

"I think it's created a sea change in the way a lot of people have viewed the death penalty," he says. The death penalty, after all, is irrevocable. Find out later the person is innocent, after you've already administered a lethal injection, and there's no way to rectify the mistake.

Wrongful convictions have forced lawyers and academics to look at what sometimes goes wrong. The culprits include mistaken eye-witness identifications, false confessions, jailhouse informants, ineffective defense counsel, police misconduct, forensic fraud and junk science, Medwed says.

Typically, eyewitnesses are asked to look at a six-person lineup or a series of six photos. "If you look at a group of six and you're not told the perpetrator may not be there, you often make a relative judgment and pick the person who most closely resembles the person you saw," he says. "So one reform is to abandon that approach."

Instead, witnesses would be asked to look at one photo or one person at a time, and to decide yes or no, making an absolute judgment each time. Studies, he says, suggest that this can minimize misidentifications by as much as 50 percent, although some in the law enforcement community have taken issue with those studies.

Videotaping investigations could help eliminate false confessions like the one police claimed Gary Gauger gave after the murder of his elderly parents in 1993, Medwed says. And increasing sanctions against police and prosecutors who are found guilty of misconduct would also help.

Gauger blames police misconduct for his arrest and conviction in his parents' slayings. "The police perjured themselves about 150 times at my trial," Gauger said recently in a phone interview from the Illinois organic farm where he grows heirloom tomatoes. "The police tend to take the easiest way out. They focus on a primary suspect, and they actively discourage and ignore other leads." He accuses the police of making up details about his involvement and his "confession."

And, too, there's the case of David Wong, a New York prisoner who spent 10 extra years in prison after being convicted of a jail yard murder he didn't commit. Medwed will discuss Wong in a presentation called "Anatomy of a Wrongful Conviction."

"There are cases like Gary Gauger's, where you look at him and your heart just breaks," says Medwed. "But oftentimes the folks who have been wrongfully convicted have a criminal record. So one obstacle a lot of us in the reform movement want to overcome is that many of these stories have a catch." But just because an innocent person may have a sketchy past, he says, "doesn't means they deserve less protection. It's a slippery slope between those kinds of cases and Gary Gauger."

Death Penalty Symposium

Utah Valley State College

Faculty Seminar Room (LC 243)


• Gary Gauger, former death row inmate, Monday, 10 a.m.

• Michael Radelet, conservative opposition to the death penalty, 11 a.m.

• Daniel S. Medwed, "Anatomy of a Wrongful Conviction," noon.

• Panel discussion, post-conviction litigation in Utah, 1 p.m.

• Panel discussion, personal and academic perspectives on capital punishment, 7 p.m.


• Panel discussion, death penalty and public policy, 10 a.m.

E-mail: jarvik@desnews.com

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