We must be certain about convictions

A community can’t know with any certainty that they have the right answer if it doesn’t allow challenges to decisions it makes.

The United States Supreme court has opened the door to allow some forced DNA testing of evidence in Skinner v Switzer out of Texas. This is a very complex case that involves a lot of legal issues. With that in mind, only a brief explanation will be offered here. (For more on this issue, please visit http://www.supremecourt.gov/ )

In 1993, Hank Skinner was convicted of killing his girlfriend and two sons. He claims he was asleep on a coach in an alcohol and cocaine induced haze when the killings took place. At the trial, the result of DNA testing on some of the evidence at the crime scene was presented, but not all the evidence was tested. Mr. Skinner’s attorney, concerned that the results from testing all of the evidence would prove to be injurious to his client’s defense, decline to request all the evidence be tested. After his conviction Mr. Skinner requested that the remaining testing be done. The district attorney refused on the grounds that it is merely a post conviction time and resource waster.

Of course, Mr. Skinner sued.

Then, in 2001 Texas passed a law that allowed post conviction testing of DNA. But, prosecutors and the lower courts all decided against Skinner. All deciding that it was pointless since no other evidence conclusively proved that Skinner did not commit the crime.

The Supreme Court decided that in very limited cases, courts must grant a post conviction request to be sure that state law allowed him due process. But, Justice Ruth Bader Ginsburg, writing for the majority, emphasized in strong terms that this was a very narrow ruling. Only in very particular circumstances could someone sue in the way Skinner did.

So many convicted prisoners claim their innocence that the joke is that the prisons are full of innocent people. This may be just more of the same. In our court system, with all the Constitutional protections, it is difficult to believe that there is a lot of error. Death Penalty Paper, a pro-death penalty web site, reports that 69 innocent death row convictions have been over turned since 1973. Based just on that number, it seems that the proverbial “99.9%” of all convictions have not been overturned and presumed rightfully convicted.

But, this case is more about two other issues than the innocence of Skinner. The first issue is our advancement in science. As science advances, more certainty about evidence can be presented in the courts. As more post conviction challenges are made based on the advancement of science, a responsible community can’t deny a person’s rights based solely on the fact that he was already convicted. Within narrow guidelines, as the recently Supreme Court ruling said, a state can’t deny someone’s basic due process.

The bigger issue here is certainty. The United States has built a criminal justice system that we can have confidence in, not that it is without errors. The way those errors can be reduced and abuse can be prevented is to allow challenges to the system to be given due process. When advances are made in science, there is no reason that a responsible community shouldn’t allow them to be applied to post conviction cases within reason.

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The death penalty should be put to death

It can’t be said that we as humans are perfect. So why do we occasionally take action that is based on being perfect?
The death penalty assumes that we have the absolutely correct answer. That we are certain about the crime, the evidence and the person who committed it. Yet, as humans, we know we can be mistaken.

It has been demonstrated many times over that our justice system is not perfect. After the trial and the appeal process ends, many groups from around the country examine the evidence, the process, the lawyers, prosecutors and witnesses only to find different results. The convicted is freed from a crime that everyone was certain he committed.

Even after evidence is found and presented that may prove the innocence of the convicted person, prosecutors continue to fight the new evidence. Sometimes technology has advanced since the crime was tried. It can then be used to demonstrate the innocence of the convicted. Sometimes it is witnesses that changed their story. Other times, it is the lawyer that was at fault.  Even here in the state of Michigan, Kym Worthy, the prosecutor of Wayne County, is asking the state courts to stop appeals after one year.

Kym Worthy is asking the courts to stop considering appeals after one year at the same time that Dwayne Provience contested his own conviction and won his freedom. He was convicted in 2001 of killing Rene Hunter on a crowded intersection in northwest Detroit. There were plenty of witnesses at the time of the shooting. One of the witnesses was even an off duty police officer. None of the witnesses were called by Provience’s lawyer, who has since been disbarred. A memo in police files that pointed to a drug gang as the likely killers wasn’t discovered until 8 years later, then only by accident.

It is likely, that if we had the death penalty in this state, Provience would have been put to death. If the evidence had surfaced after his death, what chance would we have to make restitution to this man?

A community needs certainty in its justice system. The kind of certainty that comes not from the blind belief that we are correct, which, if we know anything, we can’t always be. We need the certainty that comes from doing the very best we can to balance the need to keep our community safe by removing those that intend to do harm and rectify it if we are wrong.

The death penalty should be, well, in a phrase, put to death.

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