Innocence and the Death Penalty

Prevalent Causes of Wrongful Convictions in Capital Cases
The Issue of Innocence in the Gary Graham Case
The Issue of Innocence in the Anthony Porter Case
Related Links

The issue of innocence has changed the death penalty debate in this country. The importance of this issue has increased in recent years with the development of DNA technology. This science has led to the discovery of a disturbing number of mistakes in capital cases and to the release of many wrongfully convicted inmates.

Prevalent Causes of Wrongful Convictions in Capital Cases

The potential for wrongful convictions in capital cases has led many to question the reliability of the criminal justice system. Mistaken eyewitness identifications, false confessions, faulty science, and unreliable informant testimony have been identified as causes leading to the conviction of innocent people. The following section provides a brief overview of these factors and includes links to additional resources for further research.

Eyewitness Identification

In a review of the causes of wrongful convictions, Samuel Gross and Barbara O’Brien found eyewitness misidentification to have played a role in 50% of murder exonerations between 1989 and 2003.

While eyewitness testimony can be convincing to a jury or judge, decades of research has indicated that eyewitness identification is often unreliable.  The human mind does not record events exactly as one sees them nor can the mind recall events like a tape being rewound.  A review of previous eyewitness reliability studies conducted by Gary Wells and Elizabeth Olsen revealed many variables that affect the accuracy of eyewitness identification, some of which can be controlled by the criminal justice system (known as system variables) and some of which cannot (known as estimator variables).

Estimator variables include characteristics of the witness, characteristics of the event, characteristics of the testimony, and abilities of the testimony evaluators to discriminate between accurate and inaccurate witness accounts.  For example, studies have shown that a person is better able to recognize faces of his own race or ethnic group than those of other races.  Other factors that affect the accuracy of eyewitness identification include the amount of time the culprit is in view, the lighting conditions at the scene of the crime, and the presence of a weapon or other threatening stimuli.  System variables that may lead to inaccurate eyewitness identification include biased pre-lineup instructions given to the witness, the selection of nonculprit (filler) members of the lineup, and the method of presenting the lineup.

False Confessions

False confessions contributed to wrongful convictions in 15% of the exonerations examined by researchers at the University of Michigan (Gross, et al., 2005). The most common factors that contribute to defendants admitting to crimes they did not commit are directly related to the confessors’ mental state at the time of their confession.  Individuals with mental disabilities may falsely confess to accommodate or appease figures of authority.  An impaired mental capacity due to drugs, alcohol or mental illness may also lead to false confessions.

The length and intensity of interrogations are also important variables in the reliability of confessions.  In some cases, law enforcement officers detain suspects for an extended period of time or use harsh interrogation techniques with uncooperative suspects.  Research by Professor Saul Kassin of the City University of New York illustrates how false confessions can proceed undetected through the criminal justice system.  According to Kassin, law enforcement officers have trouble distinguishing real from false confessions and are more likely to trust the confession of an individual who did not actually commit the crime than they are to distrust a legitimate confession.  Trust in confessions is also exhibited in research on juries, which shows that the presence of a confession significantly increases the conviction rate, even when jurors believe the confession had been coerced.

In some cases, false confessions are obtained when investigators practice harsh interrogation techniques.  In the early 1980s, for example, allegations came to light of the systematic torture of suspected criminals by the Chicago police department.  According to reports at the time, more than 200 African-American residents of the south side of Chicago had complained to various organizations about brutality during police investigations.  In 1990, an Office of Professional Standards investigator catalogued 50 cases of alleged police torture, but the report was suppressed until a court order made it public in 1992.  Jon Burge, who was the Violent Crimes Commander of the Area 2 police station, was fired the following year by city officials who had been defending him up to that point.  In 2009, nearly 30 years after the original allegations, a federal court found Burge guilty of perjury for lying about his awareness of and participation in torture and physical abuse of persons being questioned on one or more occasions. Confessions coerced by this practice of torture resulted in a number of convictions being overturned in Illinois, including some inmates who were pardoned by Governor George Ryan or cited by him as the basis for his general commutation of the state‘s death sentences.

Faulty Science

Although DNA testing has been useful in establishing innocence and locating those who are responsible for crimes, the results of this testing are only as reliable as those who conduct the investigation. According to the Innocence Project, an organization that works to exonerate the wrongfully convicted through post-conviction DNA testing, a number of death row exonerations have involved the testimony of experts whose testing and analysis failed to meet basic standards of forensic science. These experts violated the principles of the scientific method by testifying about tests that were never conducted, suppressing evidence, falsifying results, falsifying credentials, misinterpreting test results, and exaggerating statistical probabilities during their testimony as “expert” witnesses for the state. (“Forensic Science Misconduct,” The Innocence Project).

Informant Testimony

According to the Center on Wrongful Convictions, testimony given by co-defendants or other individuals seeking special treatment or the dropping of criminal charges against them is a common factor in wrongful convictions and death sentences. A survey by the Center found that informant testimony played a key role in sending a number of innocent people to death row for crimes they did not commit.

The Issue of Innocence in the Gary Graham Case

During his appeals, Gary Graham contended that new evidence raised serious doubts about his guilt. His case highlights some of the issues surrounding wrongful convictions in death penalty cases across the country.

Eyewitness Identification

In Graham’s case, there were discrepancies in the recollections of several witnesses. The police investigation at the time of the crime identified three eyewitnesses to the murder: Daniel Grady, Wilma Amos, and Bernadine Skillern. Each gave a description of the individual they witnessed shoot Bobby Lambert.

Daniel Grady was in the Safeway parking lot at the time of the homicide. Grady saw Bobby Lambert walk out of the store and be approached by a tall, slim black man. The two then engaged in a shoving match, and the black man appeared to be attempting to remove a wallet from the white man’s pocket. During the altercation, the black man pulled out a gun and fired. The victim fell against Grady’s car hood and the gunman fled. Grady described the perpetrator as young, wearing a white sports coat, and carrying a small caliber pistol.

Wilma Amos saw both Bobby Lambert and the perpetrator inside Safeway just minutes before the murder. According to Amos, Lambert was shopping and appeared to have been followed by a young black man in a white sports coat and black pants. Amos made her purchases and exited the store. When she reached her vehicle, she heard a commotion followed by the sound of a gunshot. She looked toward the front of the store and saw the same black man that she had seen inside the store run toward her with his hands in his pockets. She then went to check on the victim, whom she had also seen inside the grocery store. Amos described the gunman as a black man in his twenties, with short dark hair, clean-shaven, wearing black slacks and a white coat.

The state’s key witness, Bernadine Skillern, who was sitting in her car in the Safeway parking lot the night of the murder, described the perpetrator as a black male, between 18 and 20 years old, between 5’10” and 6’ tall, with a slim build, a slim, clean-shaven face and a close-cut afro. He was wearing a white jacket and black slacks, and was carrying a black gun with a long barrel. She told the police that she saw the man put a pistol to Lambert’s head. When she blew her horn, the gunman turned to look at her. She heard a pop; Lambert dropped his bag of groceries, and the other man fled. She followed the suspect in her car until her screaming children made her stop. Skillern said that she got a good look at the killer for about a minute and a half through the windshield of her car, which was 20 to 30 feet away from the murder.

All three testified at Graham’s trial. Skillern testified that she got a full-face view of Graham and that she was certain he was the person she saw shoot Bobby Lambert. Neither Amos nor Grady was asked during the trial whether Graham was the gunman.

Other witnesses were questioned regarding the shooting, though they were unable to identify the killer and their statements were never presented at trial.  Two additional witnesses, Malcolm and Lorna Stephens, who were in their car in the Safeway parking lot, came forward in 1993, long after the trial. In their affidavit, Malcolm Stephens stated that the height of the perpetrator was about 5’5”. Lorna Stephens believed the offender to be shorter than her husband who was 5’7”, much shorter than Gary Graham who stood at 5’10”. To highlight the impact that the new witnesses could have had on the determination of Graham’s guilt, Graham’s postconviction attorneys presented signed affidavits from three jurors who said they would have voted not-guilty had they known about the other eyewitnesses at the time of the trial.

Graham’s attorneys also presented the reports of two psychologists who evaluated the eyewitness testimony and concluded that Skillern’s identification of Graham was likely unreliable.  According to the defense, Skillern gave a general description of the assailant before being shown a photo spread, and Graham’s photo was the only one in the spread that matched her general description. Furthermore, Graham was the only suspect in both the photo array and the actual lineup. Defense lawyers argued that Skillern was more likely to choose the person in the lineup who matched the photo that she had already chosen.  The court denied Graham relief, stating that Bernadine Skillern’s testimony was credible and was not undermined by the affidavits of two witnesses who did not see the actual shooting.

Circumstantial Evidence

Graham also attacked the circumstantial evidence against him. To support his claim that the state lacked physical evidence that tied him to the killing of Lambert, Graham pointed to the Houston Police Department’s own ballistics report. Lambert was killed by a .22 caliber bullet. Though Graham owned a .22 caliber pistol, the Houston Police Department’s firearms expert had concluded in 1981 that it was not the gun used in the killing. The jury was not given this information.

Graham contended that he had no motive to kill Bobby Lambert, whereas other suspects investigated by the Houston Police Department did. A Houston Police Department report indicated that Lambert had been facing federal drug charges in Oklahoma at the time of the murder and was carrying three shotguns and a number of false identification cards in his van. The report described three other suspects in the Lambert murder who were not investigated further following Graham’s arrest. It also indicated that there was no evidence except Skillern’s identification connecting Graham to the crime, the Safeway, or its neighborhood.

Graham claimed that these facts seriously called his guilt into question. In a supplemental petition, he claimed that because he was actually innocent, his execution would be unconstitutional, citing the Supreme Court case of Herrera v. Collins.

The State challenged Graham’s claims of actual innocence and maintained that the alibi witnesses were not credible. Graham’s criminal activity around the time of the homicide was presented as evidence that Graham’s behavior the night of the homicide was consistent with his activities during that week.

During an evidentiary hearing early in Graham's post-conviction proceedings, a state court found that the alibi witnesses were not credible and their testimony should not be taken into consideration. As to Graham’s request that the court consider new evidence, such as ballistics tests that had not been introduced at trial, to support his claim of actual innocence, the court ruled that “Graham fell far short of the showing necessary to trigger consideration of such a claim.”

Furthermore, the court concluded that the execution of an innocent person does not itself violate the Constitution, as long as the proceedings which produced this erroneous result were not marred by some other defect that deprived the person of a procedural right guaranteed by the Constitution (such as the right to counsel). As a result, Graham was not entitled to relief in state or federal court based simply on the claim that he was innocent. The Texas Court of Criminal Appeals added, as an alternative ground for denying Graham relief, that even if a claim of innocence, unaccompanied by any other claim of a constitutional violation, were to be recognized as a basis for judicial relief from a sentence of death, Graham’s own “showing of ‘innocence’ falls far short of the threshold showing which would have to be made in order to trigger its consideration and relief based thereon."

Questions for Further Analysis:

• Do you think that jurors should be allowed to hear testimony from experts on eyewitness reliability and the possibility of false confessions in cases where that type of evidence is used to prove the defendant's guilt?
• What types of reforms would increase the reliability of such evidence?
• Should there be a higher burden of proof of guilt in cases where the defendant is eligible for the death penalty (higher than “beyond a reasonable doubt” – such as “beyond all doubt” or “with no lingering doubt”)?
• Should the Constitution bar the execution of a convicted defendant who can demonstrate his innocence but can point to no specific errors in his trial except the erroneous result?  How much proof of innocence is needed?

The Issue of Innocence in the Anthony Porter Case

Anthony Porter came within 50 hours of execution and was exonerated from death row nearly 15 years after he was convicted of two counts of murder.  There was no physical evidence that linked Porter to the shootings, and he was convicted primarily on the basis of eyewitness accounts that placed Porter in the park at the time of the shooting.

False Eyewitness Account

William Taylor, the prosecution's primary witness, initially claimed that he had not seen the person who committed the shootings at Washington Park.  After further questioning, Taylor stated he saw Anthony Porter run by after the shots were fired.  After another 17 hours of interrogation, his story evolved further:  he ended by saying that he saw the shootings and could identify Anthony Porter as the person who shot the victims.

When the journalism students assigned to Porter's case returned to Washington Park to reenact the crime, they immediately found discrepancies in Taylor's testimony.  With the help of a private investigator, the journalism students later confronted Taylor with these discrepancies and Taylor recanted.  Taylor signed an affidavit saying that he did not see Anthony Porter shoot the victims or observe a gun in Porter’s possession.  Taylor explained that the reason for his story about seeing the shootings and his identification of Porter as the shooter was that the police had intimidated him into fingering Porter.

Police Failure to Investigate Alternative Suspects

Ofra Green, the mother of victim Marilyn Green, told the police she suspected Alstory Simon and Inez Jackson of the shootings.  Mrs. Green told the police that the other victim, Jerry Hillard, had drug ties to Alstory Simon and that she saw the two victims entering Washington Park with Alstory Simon on the evening of the crimes.  Years later, Ofra Green signed an affidavit saying that she believed Porter was innocent.  In her affidavit, she wrote, "I told the police about my suspicions.  I don't know if they ever investigated Inez and her boyfriend."  The police did question Inez Jackson and Alstory Simon; the police showed the two a photo of Anthony Porter and asked if they knew anything about the crime.  They replied that they were not in Washington Park on the evening of the shootings and were never questioned again.

It was again the work of journalism students that revealed the participation of other suspects.  The students located Inez Jackson, who implicated Alstory Simon in the shootings.  In a signed affidavit, Jackson revealed that she and Simon had gone to the park with Hillard and Green, and that Simon had shot the two because of a dispute over drug money.  Because of this discovery, the students were able to confront Alstory Simon about his involvement in the crime.

Had it not been for a last-minute stay of execution granted for the purpose of examining Porter’s mental competency to be executed, Professor David Protess would not have had the opportunity to assign Porter's case to his students that semester.  Through the work of the journalism students, discrepancies in the primary witness's testimony were raised and information was discovered that led to a confession from the real shooter.  It was the efforts of students from the Medill School of Journalism, and not the regular appeals process, that prevented the state of Illinois from executing an innocent man.

Questions for Further Analysis:

• If Porter had been executed and his case not assigned to a group of students, would the truth ever have been made known?
• How prevalent are abusive police tactics? How can they be controlled?  Would video or audio taping all interrogations help?
• Illinois has a moratorium on the death penalty because of innocence cases like Porter’s.  Should other states follow suit?
• What is meant by police or prosecutors having “tunnel vision” in pursuing a case?  What could cause this? Are capital crimes particularly likely to produce an atmosphere in which law-enforcement personnel develop “tunnel vision”?

Related Links

Public Opinion and the Death Penalty
Post-Conviction in Capital Cases
The Case of Gary Graham
The Case of Anthony Porter