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News
Is 'the innocence list' an appropriate name?


TIMES-DISPATCH STAFF WRITER


"The innocence list," a listing of 102 former inmates taken off of death rows across the country, may be the most powerful weapon fielded by opponents of capital punishment.

In 1998, a gathering of 28 of the once-condemned men and women in Chicago drew worldwide attention and cast doubt on the accuracy of state justice systems that impose death sentences.

Usually called the "exonerated," but sometimes the "innocent," the list was cited repeatedly by death-penalty opponents after then-Illinois Gov. George Ryan's decision last weekend to commute the death sentences of all 167 condemned inmates in the state.

But are all 102 truly innocent?

Many of those on the list, while removed from death row, clearly committed the crimes for which they faced execution, say some officials and capital-punishment supporters who have examined some or all of the cases.

The list, "Innocence: Freed From Death Row," is maintained by the Death Penalty Information Center in Washington. The organization opposes capital punishment as it is now practiced, said Richard Dieter, the director.

Dieter strongly defends the accuracy and validity of the list. While acknowledging that some on the list could have committed the crimes, they are all legally innocent, he said.

The most persistent critic of the list is Dudley Sharp of the Houston-based Justice for All, a victim-advocacy organization.

"No one disputes that innocents are found guilty, within all countries," Sharp conceded. But he said of the list of 102: "That number is a fraud."

Sharp said opponents have combined the factually innocent, such as those cleared by DNA, with those released because of legal errors, "thereby fraudulently raising the 'innocent' numbers."

Others on the list were prosecuted before the 1972 U.S. Supreme Court decision that forced a four-year halt on the death penalty, Sharp said. Those cases, he said, have no relevance to a discussion of innocence within the modern death-penalty framework.

To buttress his contentions, Sharp cites, among other studies, one performed last year by the Florida Commission on Capital Cases.

It looked at the 24 cases from Florida on the center's list and concluded that just "four of those 24 might be innocent - an 84 percent error rate in death-penalty opponents' claims."

Sharp argues that "if that error rate is consistent nationally, that would indicate that 17 of the alleged 102 innocents might be actually innocent." That would translate to a 0.2 percent error rate for the 7,300 people sentenced to death in the United States since 1973. "None were executed," he noted.

What the list proves, said Sharp, is that the system is good at weeding out the innocent.

John J. Kinsella, a prosecutor in the DuPage County, Ill., state's attorney's office, wrote in a report about Illinois cases on the list that "the true difficulty in the term 'exonerate' is that, despite its technical correctness ['to clear from accusation or blame'], its use may cause individuals to reach the conclusion that the underlying prosecution was 'wrongful' because the accused was in fact innocent.

"Such specious reasoning suggests that an acquittal or dismissal, under any circumstances, means the prosecution was somehow corrupt and flawed from its inception and the evidence did not warrant prosecution. Following the logic of this argument, anyone ever acquitted for any reason was in fact innocent and wrongfully prosecuted. This, of course, is not true," Kinsella wrote.

Here are some of the examples from the list and why Sharp takes issue with them:

  • Delbert Tibbs - "The Florida Supreme Court candidly conceded that it should not have reversed Tibbs' conviction since the evidence was legally sufficient."
  • Jerry Bigelow- His "conviction and death sentence were reversed for reasons unrelated to his guilt."
  • John C. Skelton - "The court majority explained: 'The evidence against appellant leads to a strong suspicion or probability that appellant committed the capital offense.'"
  • Dale Johnston - "Prior to retrial, the court excluded incriminating statements Johnston made during his initial interrogation as well as incriminating evidence seized due to the interrogation. The prosecution then dismissed the case."
  • Jay C. Smith - "The appeals court explained, 'Our confidence in Smith's convictions for the murder of Susan Reinert and her two children is not the least bit diminished - if anything, the courts have repeatedly reaffirmed their conclusion that Smith was 'actually guilty.'"

    Dieter, who helps manage the list, strongly disagrees with Sharp.

    "He's got a lot of different objections . . . and some of that stuff is simply wrong," Dieter said. "The basic disagreement is, he makes a personal judgment whether people might be guilty or innocent. We don't.

    "We use an objective criteria, the same criteria that our system of justice has used for 225 years: If you are not proven guilty in a court of law, you're innocent."

    The people on the list at one time were convicted and sentenced to death, but they were restored to the status of innocent for reasons such as a retrial, pardon or appeals-court action.

    "These are not things we're trying to make subjective decisions about," Dieter said. True guilt or innocence is "an unknowable fact - someone's absolute innocence . . . I don't think anybody can know about a person's absolute innocence

    "They are certainly innocent in the eyes of the law, and I think that's the only system that we have for determining innocence."

    They are more than just legally innocent, Dieter added. "It's the bedrock of our system that you cannot be impugned by someone's suspicion of your guilt.

    "The prosecutor, perhaps, or Dudley Sharp, perhaps, thinks they're still guilty because there was evidence of their guilt, but that's a subjective judgment."

    Dieter said others are free to make such judgments. "But our legal system . . . has used a very different criteria. . . . It's not infallible. There may be guilty persons among the innocents, but that includes all of us."


    Contact Frank Green at (804) 649-6340 or fgreen@timesdispatch.com

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