Death Penalty

Transcript for: 
Death Penalty

MS. DIANE REHM

10:06:57
Thanks for joining us. I'm Diane Rehm. More than 140 former death row inmates have been exonerated across the country since the Supreme Court reinstated the death penalty in 1976. The growing concern that innocent people could be put to death has lead to repeal of the death penalty in six states, the latest one being Maryland with Gov. O'Malley signing the bill into law today.

MS. DIANE REHM

10:07:31
Here with me to talk about states and the death penalty: Richard Dieter with the Death Penalty Information Center, Scott Shane of The New York Times, and Kevin Werner of Ohioans to Stop Executions, joining us by phone from Oregon, Joshua Marquis, a district attorney in Astoria, Ore. Do join us, 800-433-8850. Send us your email to drshow@wamu.org. Follow us on Facebook or Twitter. Good morning, gentlemen. Thanks for joining us.

MR. RICHARD DIETER

10:08:14
Good morning.

MR. SCOTT SHANE

10:08:14
Good morning, Diane.

MR. KEVIN WERNER

10:08:14
Good morning, Diane.

REHM

10:08:15
Good to have you all with us. Richard Dieter, I'm going to start with you. Gov. O'Malley is signing a repeal of the death penalty in Maryland today. Tell me what's going on. Why is there such activity now on reversing death penalty with six states now in the last six years?

DIETER

10:08:46
Well, with the advent of DNA testing and other exonerations in the late 1990s, the public became very skeptical of the death penalty, very aware of its risks. And since the year 2000, there's been a 75 percent drop in death sentences and over 50 percent drop in executions. And now we have six states just in the past six years saying it's no longer necessary. We don't want the death penalty. We're abolishing it. And I think there'll be more states.

REHM

10:09:19
Since 1976, when the Supreme Court reinstated the death penalty, how many prisoners on death row have been executed?

DIETER

10:09:35
There's been 1,329 executions during that time, but it is -- so it's slowing down. Last year, only nine states carried executions of the 33 states that had the death penalty.

REHM

10:09:50
And how many exonerated?

DIETER

10:09:53
There's been 142 people exonerated, you know, since 1973, people who had been convicted and sentenced to death. And then all charges were cleared, and they were freed.

REHM

10:10:05
Scott Shane of The New York Times, I know you covered the case of Kirk Bloodsworth who was going to be with us today, but he's at the signing with Gov. O'Malley in Annapolis. Tell us about his case.

SHANE

10:10:28
It's quite a remarkable case. I was a reporter for The Baltimore Sun. In 1984, when there was just terrible murder of a 9-year-old girl outside Baltimore. Her body was found in the woods. She had been sexually assaulted and murdered, strangled and hit with a rock, and it was the worst crime you can imagine. And it's, you know, understandably set off a furor on television.

SHANE

10:11:01
There was intense pressure on the police to find the person who did it. They had some witnesses who saw a little girl talking with a man who was headed off into the woods. Two of them were young boys. And based on that and some other information, they sketched out a picture of the person they thought had done it.

SHANE

10:11:23
And a neighbor of Kirk Bloodsworth called the police and said, you know, that picture that I saw on TV looks like my neighbor Kirk. And that began an unbelievable ordeal for Kirk Bloodsworth where he was charged. He was convicted and sentenced to death initially. And he ended up serving nine years before he became the first case of DNA exculpation for someone who had been on death row.

REHM

10:11:57
And how did that DNA exculpation come about? There had to have been lots of advocacy for him.

SHANE

10:12:09
Yeah. It was early in the history of DNA. And it was only partly because Kirk himself, who, in his time in prison says he read something like 3,000 books, read something about DNA in a British case and asked an attorney about it. And initially, they were told there was no biological evidence preserved in the case.

SHANE

10:12:36
Eventually, the little girl's underpants were found in a -- almost by accident, sort of stored in a closet, and one thing lead to another. And if not for that, it's probably safe to say that Bloodsworth, he probably would not have been executed because it had a second trial and was sentenced to life. But he would almost certainly still be in a Maryland prison.

REHM

10:13:01
He has become one of the leading advocates against the death penalty, has he not?

SHANE

10:13:09
Yeah. I had the privilege of catching up with him recently and writing about his case for The New York Times just because he -- it appeared that Maryland was getting ready to abolish the death penalty, and it was something he worked on for literally 20 years, the 20 years that he's been -- since he was freed from prison.

SHANE

10:13:28
And he told me then he not only felt that he was innocent and was wronged by the system but was outraged by the murder and which he'd, of course, learned a great deal about in his own trial and wanted to, you know, wanted justice for this little girl and her family. And so he worked against the death penalty for the 20 years since then. And for him, the vote of the general assembly to abolish the death penalty in Maryland was obviously a huge personal victory.

REHM

10:14:07
All right. I want to turn now to Joshua Marquis. He is district attorney for Clatsop County, Ore. He's also a board member of the National District Attorneys Association. And it's good to have you with us. I gather you see this very differently. You've said that exonerated inmates like Kirk Bloodsworth are exceptionally rare. Explain what you mean.

MR. JOSHUA MARQUIS

10:14:41
Well, the DPIC, the -- Mr. Dieter's group, lists on their website right now, which I'm looking at, about 142 people as exonerated. Now, exonerate is a very powerful word. And as I think almost everybody probably will agree that one of the driving forces in the debate about capital punishment is -- are, in fact, innocent people on death row and are they at death row at a rate that is alarming.

MR. JOSHUA MARQUIS

10:15:10
As a long-time capital prosecutor who is also a capital defense attorney once upon a time, I can tell you that death sentences are very rare in the United States. About one in 1,000 murderers actually gets the death penalty. But the standard -- I was a journalist before I was a lawyer. Many of the people listed is exonerated -- and I'm not talking about Mr. Steidl or Mr. Bloodsworth who are clearly among a relatively small group of about 30 to 35 people who are actually legally totally innocent.

MR. JOSHUA MARQUIS

10:15:43
But this DPIC lists somebody who has been acquitted, found not guilty. So under that standard, let's assume Mr. O.J. Simpson, for example, had been subjected to, you know, death sentence and then overturned. If it had been overturned or the prosecution had chosen not to pursue the case, under their standard, that's acquitted. Also, it's very important to respond to, I think, what the subject matter is on the very first question you asked about the diminishment in the death penalty in the United States.

MR. JOSHUA MARQUIS

10:16:14
That is largely not true. I think anybody involved with capital punishment, particularly on my side, in other words, someone who stands up in front of a jury and ask a jury to unanimously sentence someone to death, has got to be somewhat ambivalent about it, or you're not a thinking person. I mean, it's never clear cut, and every case should be given enormous care. I would never claim that there have never been innocent people on death row. There have been.

MR. JOSHUA MARQUIS

10:16:41
And if the argument is, if there's ever anybody on death row who's been innocent, then we can't have it, then the conversation is over rather quickly. But let's talk, for example, about two things very quickly. One is, what happened in the last 10 years of the 20th century versus the first 10 years of the 21st century? And the answer is there was a 26 percent increase in 2000 to 2009 in the number of people actually executed in the United States over the last decade from 1990 to 1999.

MR. JOSHUA MARQUIS

10:17:16
Now, that's completely counterintuitive because -- to the claims that the death penalty is dying on the vine. Now, as someone who's in the courtroom, I can tell you that jurors are very, very careful and understandably reluctant. And my experience is fairly common. Even though I prosecuted these cases for 20 years, I've only asked for the death penalty twice. And in one case, three times the juries have given it to the same individual. And in another case, they declined to give it.

MR. JOSHUA MARQUIS

10:17:43
And finally, the point I would like to make is that the states that you have mentioned -- Maryland, Delaware is, I think, been jammed up, Connecticut recently happened -- they have all been in spite of the people not because of them. In other words, the only places in America since the modern era of capital punishment, which would be 1976 as I think we'd all agree, have been Oregon and California where the voters absolutely get to decide in public initiatives.

MR. JOSHUA MARQUIS

10:18:13
And one of the most underreported stories of 2012 was the fact that the anti-death penalty forces in California that raised almost $8 million against the 300,000 raised by the proponents were defeated by a very significant margin in a very blue state. My own state of Oregon abolished the death penalty actually twice in the 20th century and reinstated it twice most recently by a 75 percent margin.

REHM

10:18:38
All right. We've got to take a short break here. Joshua Marquis, he is district attorney for Clatsop County, Ore. Short break. We'll be right back.

REHM

10:20:05
And welcome back. We're talking about the death penalty. Six states in the last six years have repealed the death penalty, have tossed it out as a way of punishing those convicted of murder or some other vicious crime. Here in the studio: Richard Dieter of the Death Penalty Information Center, Scott Shane, a reporter for The New York Times, who's written extensively about the death penalty in Maryland.

REHM

10:20:45
Kevin Werner is executive director of Ohioans to Stop Executions. That's an advocacy group in Cincinnati. On the line with us is Joshua Marquis, district attorney for Clatsop County, Ore. And if you'd like to join us, 800-433-8850. Send us an email to drshow@wamu.org. Follow us on Facebook or send us a tweet. Kevin Werner, I want to ask you about Ohioans to Stop Executions. Tell us about why you believe strongly that execution should be stopped and how your organization is proceeding.

WERNER

10:21:47
Sure. Thank you, Diane. Ohioans to Stop Executions is the state affiliate of the National Coalition to Abolish the Death Penalty. We've been around for 25 years, so we've had an opportunity to look at the system closely. And what we have found is that overwhelmingly in the last 30 years, Ohio's death penalty system has failed in every conceivable way. We have six men who've been exonerated from Ohio's death row -- excuse me -- the most recent coming in January of 2012. So it really does risk executing innocent people.

WERNER

10:22:21
We also know that the death penalty system in Ohio is very harmful to murder victims' family members. What we find is that they're re-traumatized again and again through decades of uncertainty. And so what happens is their grief is prolonged, and that's just no a way to go forward. Experts in and around the death penalty system in Ohio have concluded that it is not effective, it's not working and that it may, in fact, be inhibiting the effectiveness and fairness of the criminal justice system.

WERNER

10:22:52
Now, these are people who know. These are people like current Supreme Court Justice Paul Pfeifer, who wrote Ohio's death penalty law, former Atty. Gen. Jim Petro, who voted for the law as a state senator and two former corrections department officials, both whose job it was to carry out executions.

REHM

10:23:10
Tell me how you believe it may be inhibiting the law.

WERNER

10:23:16
Sure. Well, I think, clearly, there are limited resources to go around -- excuse me -- allergies. And so what happens is choices have to be made as to what we're going to do with our resources. Are resources going to be given to law enforcement agencies and officials to solve cold cases, or are resources going to go to murder victims' family members to help them move forward and heal? Or are resources going to go -- and often it's millions of dollars a year more than alternative sentences -- to put one person to death?

REHM

10:23:52
You know, it's interesting because a recent ABC/Washington Post poll showed that 70 percent of Americans are in favor of the death penalty for the Boston bombing suspect. Would you care to comment, Richard Dieter?

DIETER

10:24:18
Yes. I think these polls that are reactive to a particular crime are just focusing people's attention on, you know, there are horror at this -- what was committed, which is certainly justifiable. But when it comes down to the practicalities of the death penalty, when you ask people, you know, the system should be life without parole over death penalty, you get a very different result. As a matter of fact, you get more people often supporting life without parole.

REHM

10:24:44
What do you mean by the practicalities?

DIETER

10:24:46
Well, the death penalty in practice is unfair. It risks innocent lives as Mr. Marquis has said. It is randomly applied. He also indicated, you know, how rare it is. And so that death penalty people don't support. In -- philosophically, they don't have an objection to the death penalty. But the death penalty hasn't worked in practice. And that's why it's slowly disappearing from the American scene.

REHM

10:25:15
When you say it hasn't worked in practice, I'm interested. The death penalty and execution certainly has a finality. So surely, it has worked in practice.

DIETER

10:25:36
Well, some people have been executed. That's for sure. But, you know, when you consider -- if we have 14,000 murders in a country and execute 43 people, there's no relationship between murder and the death penalty. A few people are picked out, mostly those who kill white victims, those who have poor lawyers, those in a certain county.

DIETER

10:25:56
They might be in Mr. Marquis' county where he seeks the death penalty. But a whole bunch of other counties in the same state, they don't seek it. That sort of randomness, that's not a criminal justice system working well. That's a symbolic political system.

REHM

10:26:10
Scott Shane.

SHANE

10:26:12
Well, one interesting thing about Kirk Bloodsworth's case, this Maryland -- actually, he was a waterman, a crabber, who served nine years in prison for murder he didn't commit. One interesting thing about his case, when he went on death row, if I'm not mistaken, almost all of the people on Maryland's death row were from Baltimore County. Baltimore County had, you know, maybe a little more than 10 percent of the state's population.

SHANE

10:26:40
But it had top prosecutor whose policy was to seek the death penalty in every possible case that technically qualified, whereas Baltimore City next door, the adjoining jurisdiction, had far more murders and had almost nobody on death row. And that just -- that I think also entered into the debate in Maryland because it showed the somewhat random nature of the way the penalty was applied.

REHM

10:27:08
Joshua Marquis, what about that random nature?

MARQUIS

10:27:13
Well, Diane, you made a very good point about the recent poll talking about 70 percent Americans when the 9/11, or actually, when Timothy McVeigh -- I'm sorry -- was convicted, something like 89 percent of Americans believe that he should get the death penalty, including something like 65 percent of the people who identified themselves as being anti-death penalty. The point is not that this is an emotional reaction. It is that people make the distinction.

MARQUIS

10:27:43
My wife is an agnostic on the death penalty, and she will often watch cases and say, well, I really am uncomfortable with it. Then she'll hear about a murder involving a child, let's say. And by the way, those kinds, serial killings, child sex murders, the kind of cases that juries get understandably outraged, again, tend to be committed by far more by white people than black people.

MARQUIS

10:28:07
But, you know, the idea that, again, that the death penalty is going away or it's incredibly arbitrary is not true. I happen to be -- have been friends with both the Baltimore County and the Baltimore City prosecutors that your guest is talking about, and it is true. Baltimore City is sort of a donut hole. It's very urban, very high minority population. The prosecutor was an African-American woman.

MARQUIS

10:28:34
And Baltimore County, which was the donut around it, was largely white, had a woman prosecutor named Sandra O'Connor. And each of them reflected their constituencies. The people of Baltimore City generally were not supportive of the death penalty. And because the DAs are elected, one of the things that we do is we respond to what our community wants.

MARQUIS

10:28:55
So I don't necessarily agree with Ms. O'Connor's policy, which, I think, your guest correctly, which was if the case is death penalty eligible, you seek it. But the fact of the matter is what they call arbitrary, I call individual. And I think, again, as a practitioner, it is absolutely critical that each case be viewed in the nature of what is the nature of the crime...

REHM

10:29:21
All right.

MARQUIS

10:29:22
...what is the nature of the defendant's background and also what do the victims want. Now, we don't give -- we don't have Shariah law. We don't allow victims to say yea or nay. But we have to take that into account.

REHM

10:29:35
All right. I want to ask for a moment about the cost. What is the cost of execution versus life in prison, Kevin Werner?

WERNER

10:29:50
Well, I'm going to tell you what we know about Ohio, and then I would defer to Mr. Dieter, who knows much more about costs. No one in the state of Ohio can tell you with a straight face how much the state spends on the death penalty because the -- those numbers are not kept. They're not tracked. That's one of the fundamental problems with the system. And so nobody can tell you how much is spent.

WERNER

10:30:11
There are guesses. Some prosecutors say, you know, it costs us $200,000 to prosecute a capital case. Some defense lawyers say it's a minimum of $400,000. The numbers are all over the place, but the studies that I think Mr. Dieter is much more familiar with show overwhelmingly it's millions of dollars a year more.

DIETER

10:30:31
In fact, a study was done in Maryland by the Urban Institute in Washington, D.C., and they said that the cost of one death sentence was $3 million. That's through the whole life of the case, the trial and appeals and all that comes after. The cost of a life without parole case was about $1.1 million. So it's about three times as expensive, and even that is not the whole cost because Maryland only executed about one in 10 people who get the death sentence. So the cost is then multiplied by 10. It's $30 million per execution in Maryland, and they are not unusual. It's even more in many states.

REHM

10:31:10
Scott Shane, is execution a deterrent to major crime?

SHANE

10:31:21
Well, I mean, there have been many studies of that, many opinions going both ways. It's probably fair to say that most crimes of passion, you're not stopping to think, geez, you know, maybe I'm going to do this because I can only get life without parole, and I won't get the death penalty. It's hard to imagine that comes into the picture.

SHANE

10:31:46
My impression is that in Maryland, at least, these arguments about the morality, about the cost, have not had nearly as much of an impact on shifting opinion -- certainly in the legislature and, to some degree, with the public -- as the fairness question and the possibility that a guy like Kirk Bloodsworth, who has proven now that he had nothing to do with this murder, could go away and could actually be executed.

SHANE

10:32:20
It's bad enough to lock up somebody in prison who's innocent, but to execute somebody who's innocent, I think that rubs a lot of people the wrong way. There's a delegate in Maryland who I interviewed for a recent story named Barbara Frush. And she was -- she told me she was very gung ho for the death penalty, hadn't given it a lot of thought, but really was very, very strongly in favor. And she sat down with Bloodsworth, and he told his story, and she reversed her view and voted to -- against it.

REHM

10:32:54
Scott Shane of The New York Times, and you're listening to "The Diane Rehm Show." And joining us now by phone from Illinois is Randy Steidl. He's a former death row inmate. He spent 17 years in prison. He was exonerated in 2004 after Illinois State Police found he had been wrongfully imprisoned. Good morning to you, Randy. Thanks for joining us.

MR. RANDY STEIDL

10:33:30
Good morning, Diane. Pleasure to be here.

REHM

10:33:32
Tell us about your case and how you ended up on death row.

STEIDL

10:33:38
Well, I was -- Paris, Ill. is a small town. A brutal double murder happened on July 6, 1986. Three weeks before these murders took place, my co-defendant and myself had reported the prosecutor to the FBI about his criminal background and drug dealing, and we've always felt that was the motive for framing us. Dyke and Karen Rhoads was a young newlywed couple just starting their life.

STEIDL

10:34:10
It was what she saw in the parking lot at her employment is what we feel led her employer to have a contract put out on her. And this proceeded to trial with a testimony of a town drunk and a mentally ill woman, who both had charges pending on them. There was no physical or forensic evidence tying me to the crime, and I had a corroborated alibi. But yet I went from the comforts of my home to death row in 97 days.

REHM

10:34:44
And you stayed there for 17 years in prison.

STEIDL

10:34:51
Yes.

REHM

10:34:52
What was it that finally brought about your exoneration?

STEIDL

10:34:58
Well, the state appeals process for me was an exercise in futility. The powers that be -- with a corrupt prosecutor and two police officers, an organized crime in that vicinity -- lobbied heavily against me for 12 years, and I was on death row and two execution dates. And with this power, money and influence, that affected my state appeals.

STEIDL

10:35:27
Finally, I got released when I got to federal court by a Illinois state police investigator who stood up in the face of adversity and had the integrity to come forward with evidence showing that I was innocent and a federal court agreed with. And if it had not been for him, at the very least I would still be doing life without parole.

REHM

10:35:48
And I gather since your release, you've been campaigning against the death penalty...

STEIDL

10:35:56
Yes.

REHM

10:35:56
...and Illinois actually repealed it in 2011. You've also campaigned against the death penalty in other states, including Maryland. You must be very pleased that Gov. O'Malley is signing that repeal today.

STEIDL

10:36:17
Absolutely. As a board chairman of Witness to Innocence -- it's a national organization -- who represent many of these 142 exonerees, I find that lobbying against the death penalty in this country is traumatic on one hand. On the other hand, it's therapeutic because you educate people, and when it comes to the implementation of the death penalty and show where it's a failed public policy, and it continually puts innocent people on death row. So I get a lot of self-pleasure by being able to be a spoke in the wheel in this movement that...

REHM

10:36:59
But you've said it's traumatic. Spell that out.

STEIDL

10:37:04
It is when you have to tell your story again and again and again on how the system failed you when you believed in the system. It's traumatic to have to relive those 17-plus years worth of fruitless appeals and execution dates. But to finally get to the court of last resort and in front of a real judge and have my case overturned was -- it was just a monumental task in Illinois when you're dealing with corruption.

REHM

10:37:34
Randy Steidl, former death row inmate, thank you for joining us.

STEIDL

10:37:41
Thank you.

REHM

10:40:05
And it's time to open the phones as we continue our discussion on the death penalty. Today, Gov. O'Malley here in Maryland is signing a bill that repeals the death penalty in Maryland, becoming the sixth state in six years to do so. People are increasingly worried about the death penalty because, clearly, of its finality. Let's go first to Spring Hill, Fla. Good morning, Joe.

JOE

10:40:47
Good morning. Thank you for taking my call.

REHM

10:40:49
Certainly.

JOE

10:40:50
Just three quick points. I do believe death penalty brings some degree of closure to families of victims, OK? And I understand about the concern for, you know, executing some of them might be innocent. I don't understand why they can't just make -- put a higher standard of proof on the state. You know, basically don't even consider the death penalty if there's a shadow or the doubt of guilt.

REHM

10:41:16
All right. Thanks for your call. First, the idea of closure, Kevin.

WERNER

10:41:22
Sure. Well, I, myself, am not a murder victim's family member, but in the course of my work, I talk with them all the time. And what I continually hear is that there is no such thing as closure for murder victims' family members. We can't bring people back from death. And so the focus really needs to be on what are we doing to support those family members. Are we providing them the resources that they need to really move forward and to heal?

REHM

10:41:49
Joshua Marquis.

MARQUIS

10:41:51
Well, I never use the word closure. I think that's a terrible expression, and, in fact, I tell -- I deal with a lot of murder victims' families, and I maintain relationships with many of them over the decades. I have one family I made a promise to, and I've gone to trial three times in 20 years. There's no doubt about this young man's guilt. He has an IQ of about 150. Three juries have given him the death penalty, and the anguish that family have gone through is incredible.

MARQUIS

10:42:20
To answer the caller's question, though, I -- he has a point. I mean, the standard we have in all criminal cases, whether it's shoplifting or murder, is beyond the reasonable doubt. However, the Supreme Court -- one of the justices said in capital case, we're not just going to have due process, we're going to have super due process.

MARQUIS

10:42:39
And the fact of the matter is that as a practical matter, again, having tried these cases on both sides, if a jury is not really certain, both of guilt, and because we bifurcate all of these sentences -- first, the jury has to decide whether they're guilty and then they decide whether it's appropriate penalty -- that the only other standard I can imagine that I suspect the other side would probably love is a beyond-all-doubt standard which, frankly, if taken literally would probably mean that nobody gets executed.

REHM

10:43:08
All right.

MARQUIS

10:43:08
I would like to throw out a question for the three opponents for the death penalty there, if you're willing to entertain this, and that is the option that's offered is life without parole, and I've had this discussion -- this debate many times. And part of my question would be particularly to those involved in the legal part of it, would they agree that if the death penalty was overturned that they would not argue that life without parole is itself cruel and unusual punishment?

WERNER

10:43:35
Diane, I actually want to go back to an earlier point. I think it's important when we're talking about the process and the procedures and the standards. A report came out in 2007 by the American Bar Association that found the state of Ohio fails to meet 93 percent of the guidelines that are set forth to ensure fairness and accuracy in the capital system.

REHM

10:43:57
93 percent.

WERNER

10:43:58
93 percent, yes.

REHM

10:44:00
You talked about a case earlier that was over and done within 2 1/2 days.

WERNER

10:44:08
Yes.

REHM

10:44:09
Explain that case.

WERNER

10:44:10
Joseph D'Ambrosio, he was the sixth man exonerated from Ohio, and this is January 2012. In 1988, he was tried, convicted and found guilty in 2 3/4 days. Twenty-four years later, Joe was exonerated. And what happened in this case was evidence that had demonstrated that he was not guilty was in three places.

WERNER

10:44:38
It was in a coroner's file, it was in the prosecutor's file, and it was in the investigator's file. It wasn't until Joe got to federal court about 17 years after he had been on death row where discovery had been granted, had been expanded, and all of a sudden, the evidence of his innocence came pouring out.

REHM

10:44:58
So where was that evidence previously?

WERNER

10:45:03
Well, the prosecutors had not disclosed that information to the defense in the 1988-1989 trial.

REHM

10:45:10
How often, Joshua, do you believe that disculpatory evidence may be withheld by attorneys?

MARQUIS

10:45:22
Well, it's called a Brady violation, after a case called Brady versus Maryland, and it's one of the most serious misconduct a prosecutor can commit particularly in a capital case. It happens extremely rarely. Again, I was a journalist. You know, the story of man bites dog is always much bigger than the story of dog bites man.

MARQUIS

10:45:45
And when, for example, Newsweek and Time both ran front-page stories about, in one case, Roger Coleman who was on the death -- who was executed by the state of Virginia in 1992 and claimed he was innocent -- was claimed to be innocent 14 years later, and then a man named Ricky McGinn who was on the cover in 2000. Both of them -- in one case, it was post-mortem DNA testing 14 years later showed him to be absolutely guilty. And in the case of Mr. McGinn, DNA that mister -- his lawyer Barry Scheck had obtained showed him to be guilty.

MARQUIS

10:46:21
But those stories dropped like a stone because they're no longer interesting. Because when a guilty person is found -- now, any prosecutor that withholds exculpatory evidence -- and there's a case in Texas going on right now where the former prosecutor who is now a judge is being criminally charged. I have my job because my predecessor falsely accused two police officers, not of capital crimes but of crimes they didn't commit. She was arrested, convicted, jailed and disbarred.

REHM

10:46:53
Kevin.

WERNER

10:46:54
Not three weeks ago, a court ruled that an Ohio case, a Hamilton County case, found that there was Brady evidence withheld. So, you know, I like to believe that county prosecutors and district attorneys are honorable people, and they really want to do the best they can. But the bottom line is that as long as we're going to have this kind of a system, mistakes get made.

REHM

10:47:15
All right. Richard Dieter, Joshua posed a question which I do think is a good one. Isn't life without parole also considered cruel and unusual punishment?

DIETER

10:47:33
Well, you know, I teach a seminar on the death penalty at Catholic University, and there's volumes of Supreme Court decisions on the death penalty and, you know, the possible cruel and unusual aspects to it. There's almost nothing on life without parole. It's not, at all -- it's not in the same category at all...

REHM

10:47:52
As death.

DIETER

10:47:53
...as death. Death is different, as Mr. Marquis said. And I'm glad to hear that he's posing the idea that we could replace the death penalty with life without parole because that's exactly what states are doing, that's exactly what juries are doing around the country, you know, this huge drop in death sentences. These people are getting life without parole. So it's, you know, it's not for us to decide, it's the Constitution and the courts. And they don't seem to have any problem with life without parole, big problem with the death penalty bill.

REHM

10:48:21
All right. Let's go to Boston, Mass. Good morning, Chris.

CHRIS

10:48:27
Good morning, Diane. Thank you for having me. Thank you for taking my call.

REHM

10:48:30
Surely.

CHRIS

10:48:31
I'm wondering if we can talk for a moment about the role that eyewitness identification play or should play in death penalty cases. It seems to me that a fairly consistent theme amongst many of these exonerated cases its faulty eyewitness IDs, identifications, which are notoriously unreliable and to which juries lend a lot of credit.

REHM

10:48:56
Scott.

SHANE

10:48:58
Yeah. To go back to the Kirk Bloodsworth's case, the man tried and convicted in 1984 of -- from a murder of a little girl that he did not commit, that was by and large an eyewitness case, and the eyewitnesses were, first, the woman who saw a police sketch and thought it looked like him. That was the way his name came up in the first place. And then two young boys who had seen a man who they thought looked like Bloodsworth with the little girl who is murdered.

SHANE

10:49:31
And that was -- it turned out many, many years later after Bloodsworth was freed from prison by a DNA test, they finally ran the DNA from the case through the Maryland database of DNA samples and actually got a match and found the man who is already in prison who had committed the crime. He looked nothing like Bloodsworth and nothing like the police sketch and nothing like what the little boys had described. So that case was certainly an example of the hazards of eyewitness identification.

REHM

10:50:07
Scott Shane, having covered these stories for as long as you have, have you come down on one side or another? Are you for or against the death penalty? Joshua earlier said the three of you and I wanted to give you an opportunity as a reporter to recuse yourself.

SHANE

10:50:37
Yeah. Thank you, Diane. As a reporter, I don't, you know, I'm not -- they don't pay me to express my opinions on things like the death penalty. You know, what -- I guess as just a human being, I happened to have had this somewhat odd experience of having been there for Kirk Bloodsworth's original trial. And I remember going back to the prosecutor's house, covering the courts in Baltimore County. I knew the prosecutors quite well.

SHANE

10:51:06
And I remember going back as -- when the jury went out and talking to the prosecutors off the record and just saying, are you guys sure this guy did it? And I think -- and they said, oh, we're absolutely sure, and there are some things we can't present to the jury that make us sure. And I think they were sure. This is not a case of prosecutorial misconduct. But the fact is that they all later resisted doing another DNA test because they didn't want to believe they'd sent the wrong guy to prison, and that's a natural human instinct.

REHM

10:51:37
All right. To Morristown, Tenn. Hi, Ted.

TED

10:51:42
Good morning, ma'am.

REHM

10:51:43
Good morning.

TED

10:51:43
I have a view that someone had brought up, and a lot of people don't like it. But I'm a fundamentalist Christian, and I believe exactly how the scriptures say things should be done. And by scripture -- and most Christians don't like this either -- but by scripture, you know, if a person is being brought to trial on something, whether it be murder or not, then if the people like the prosecutor who was withholding evidence, police doing it and such -- you know, the Illinois governor ended up because so many of the people had been set up mostly out of Chicago by the police and the prosecutors and such, withholding evidence, just plain lying and things like this.

TED

10:52:27
If we -- if the nation did things the way scripture says to do it, is that if you lie about whether it's trying to get somebody to death penalty, life in prison or, you know, something more minor where you're going to get two years in prison, but you can be proved that you lied, you withheld evidence, then that person -- whether you're a prosecutor, a policeman, doesn't matter who, then you are going to have to serve the sentence you're trying to get that person.

REHM

10:52:56
All right. Sir, thanks for calling. It does seem a lot of people are concerned about prosecutorial misconduct. But, Joshua, I would think that you would say that happens fairly rarely.

MARQUIS

10:53:14
Yes. A group called The Center for Public Integrity did a study that was fairly anti-prosecutor called harmful error in which they examined thousands of cases they claimed around the United States. And their basic thesis was that this was common. The problem is that under the Brady Rule, let's say, I have a murder in my county. I have seven police agencies, and they're all involved in the murder.

MARQUIS

10:53:41
And one officer, junior officer, interviews somebody who appears to be a homeless lunatic who tells them some, you know, wild story about, you know, people with glowing auras coming in and that he saw it. That officer decides that he's not going to write down a report for whatever reason because he thinks the guy was crazy. I am imputed to that information, and if I don't turn that over, even if I never new it existed, that's considered a Brady violation.

REHM

10:54:07
And you're listening to "The Diane Rehm Show." Kevin, I gathered Ohio just executed someone yesterday. Why did the state Supreme Court create a commission to study capital punishment?

WERNER

10:54:28
Sure. Yeah. When the 2007 report came out, the then current chief judge Maureen O'Connor said that that report got her thinking. So there are clearly some problems with Ohio's death penalty system. So this task force was put together November 2011, and they have been looking at the entire capital punishment system since then.

WERNER

10:54:49
Now, I'll be honest, there are some genuine disagreements in the room on the way to move forward and what reforms are needed and what reforms may not be needed. But the central question that this task force has to answer is, how did we get to the point where things like race, geography, county resources play a significant role in who gets sentenced to death in Ohio and who has not?

WERNER

10:55:08
And just quick -- one quick anecdote. The Ohio Public Defender Tim Young estimates that about 60 percent of all homicides that take place in the state of Ohio are eligible for the death penalty. So when you're starting with a pool of cases that's that broad, you're bound to have mistakes and problems. So it remains to be seen what the task force is going to do. However, I do believe that big, big changes are coming to Ohio.

REHM

10:55:33
And, Richard, what about other states? What's happening in Nebraska, Kansas and Delaware?

DIETER

10:55:40
On Nebraska, I was out there for the judiciary committee hearing and testified, and the committee voted without dissent to repeal the death penalty in Nebraska. That's still a step away from the whole legislature, but that's -- that could happen in Nebraska this year. I think in Delaware, the Senate voted to repeal but the House has not, and that maybe...

REHM

10:56:03
It's stalled.

DIETER

10:56:04
Yeah. It's stalled in committee. So, you know, it seems that the trend has been one state each year from 2007 to the present. So...

REHM

10:56:12
But in Florida, the state went the other way, the Senate went the other way and approved a pro-death penalty bill.

DIETER

10:56:22
Yes. I mean, a lot of this depends on the politics of the state. And Florida is pushing for -- speeding up execution. A very dangerous bill, I'm not sure the governor will sign it. I'm not sure that the Florida Supreme Court will find it constitutional because it cuts off the appeals. It says, you know, you can't bring up anything any more about your lack of a fair trial and stuff. That's just unfair.

REHM

10:56:45
And, Scott Shane, how many states do you think will go the route of California and put it to the public as a referendum?

SHANE

10:56:58
Well, Richard would probably have the national picture more than me. But there's already an effort in Maryland to gather signatures to challenge this bill and that abolishes death penalty in Maryland and brings it to petition of the public.

REHM

10:57:14
Scott Shane, reporter for The New York Times, Richard Dieter of the Death Penalty Information Center, Kevin Werner of Ohioans to Stop Executions and Joshua Marquis, district attorney for Clatsop County, Ore. Thank you all so much.

DIETER

10:57:41
Very welcome.

SHANE

10:57:41
Thank you.

WERNER

10:57:41
Thank you.

REHM

10:57:42
And thanks for listening. I'm Diane Rehm.
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