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Aaron Patterson, a former death-row inmate, applauded as an Illinois House committee voted in March 2003 to abolish the death penalty in response to flaws in the state’s capital punishment system. (AP file photo)

How can we better prevent fatal error in capital cases?

ASK THIS | March 30, 2006

George Washington law professor and author Robert Cottrol walks reporters through questions they need to ask in covering capital trials, and raises the issue of how juries and jurists should deal with ‘lingering doubt.’

By Robert Cottrol

Q. Does defense counsel have adequate resources to mount a suitable defense in both the trial and sentencing phase of a capital case?

Q. Does the defense have sufficient resources for expert witnesses and scientific testing?

Q. What do cases of the wrongly convicted indicate about our legal system?

Q. How can the legal system be reformed in a way that will mitigate the damage done by notoriously unreliable evidence like eye witnesses?

The possibility of executing the innocent is always the largest question that the death penalty presents. If you look at the actual record of how capital trials are carried out, and how the appellate process is carried out, it doesn't give one great confidence that we've developed procedures to ensure against the possibility of killing a person who is innocent.

In the trial process, we don't ensure that capital defendants get the best possible defense. This would include an experienced criminal trial attorney with sufficient time and resources to conduct an independent investigation. This attorney should also
have the assistance of another attorney and paralegal staff to handle legal research. There are too many examples of cases being tried by attorneys who do not meet that standard.

In capital cases, there are essentially two trials: one for the guilt or innocence phase and another for the penalty phase. If the penalty phase is done correctly, it is a second full-scale trial. The resources available to defense in both those phases is critical.

In the penalty phase, for example, a defense counsel would first presumably want to have psychiatric or psychological experts who would be able to testify to any psychological condition that might have impacted on the defendant's behavior. Presumably, the insanity defense has been exhausted by this point. But all sorts of other mental conditions short of insanity can influence a sentencing jury or judge to give a lesser sentence—a history of being an abused child or a history of addiction, for example.

So, you want to line up your experts examine the defendant, which is a time-consuming and expensive process. And you want to comb through the defendant's life history, both for people who can speak well of the defendant, and also who may offer evidence of psychological abnormalities. All of this is intensive and expensive. If the defense counsel does not have an investigative team or the funds to fly in outside witnesses, for example, they may have to decide to either focus on the guilt or innocence phase or the penalty phase. The question becomes: Do I concentrate on the guilt or innocence phase and let the penalty phase slide until it happens or do I gamble that my client is likely to be convicted and work primarily on the penalty phase?

Money and a fair trial

Inequities in the system are often an issue of a lack of resources. There have been examples of errors and falsifications in forensic evidence in the past, but does the counsel for an indigent client have the resources to investigate the state's case?

There are differences also between a court-appointed attorney and a public defender. Public defenders’ offices are often funded far better and can provide their clients with a more extensive defense than could a court appointed attorney. Bureaucracies like public defenders’ offices often have money to hire investigators and co-counsel—so one attorney can focus on the trial phase, while the other can focus on the penalty phase. Depending on the jurisdiction, defense counsel will have a specified amount of money to spend on the case, whether it goes to the second penalty phase or not.

DNA has contributed to the release of numerous people who have been convicted of capital and non-capital offenses. But all of these cases have not brought us to the next level, which is admitting that we need to be a lot more skeptical about our procedures. Are people who have been released by DNA evidence isolated cases, or are they indicative of a system that has serious flaws? We need to review the cases of these exonerated people and find out exactly where the system went wrong and what can be done to correct the problem.

Unreliable eye witnesses

One of the other major questions in capital cases is how to deal with eyewitness testimony. We have had a number of cases where rape convictions have been overturned by DNA evidence, directly contradicting the testimony of an eyewitness, often the victim. Stranger identification is simply not reliable. The same situation arises in cases of co-defendants or jailhouse snitches. Our legal system has not done much to resolve these systemic problems beyond dealing with them on an ad hoc basis.

One way to help resolve some of these problems is the strengthening of a concept called "lingering" or "residual doubt." This is a topic I explore more thoroughly in an article in the February 26th, 2006, issue of Legal Times.

Lingering doubt asks 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. In the article, I argue that defense attorneys should be allowed to present arguments concerning lingering doubt in the sentencing phase and that judges should instruct juries to consider the issue.

There are two essential aspects of these instructions. 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, that considering lingering doubt is not a reflection of the quality of the jury's verdict, rather an acknowledgement that there is a possibility for error even after the best of efforts.

Here are some additional questions reporters should ask when covering capital cases:

 - How much does the state spend on court appointed counsel for indigent clients?

- How much has the state allocated for each phase of the capital trial?

- How do these funds compare with the average resources used by private defense counsel?

- What is the case load of the defense counsel?

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