PENALTY

Antiterrorism and Effective Death Penalty Act, which now restricts
the availability of federal habeas review. 7
What is still more troubling, though, is that others were convicted
again at multiple trials, until ultimately DNA evidence set them free.
Rolando Cruz and Alejandro Hernandez each had two convictions
reversed and three criminal trials before they were exonerated. Kirk
Bloodsworth, Ray Krone, Curtis McCarty and Dennis Williams each
had two trials before they were exonerated by post-conviction DNA
testing. Innocent people can be wrongly convicted not only once but
several times, including in capital cases.
Bloodsworth was the first person exonerated from death row in the
United States based on post-conviction DNA testing. He had been
sentenced to death for the Maryland rape and murder of a 9-year-old
girl in 1984. Five eyewitnesses had incorrectly placed him near the
crime scene. Maryland recently abolished the death penalty, in part in
response to Bloodsworth’s case.
Compare that case to the nationally and internationally well-known
Troy Davis case, a death penalty case that similarly involved a group
of eyewitnesses who had each identified Davis following eyewitness
identification procedures. Although the US Supreme Court, in a rare
move, granted a habeas petition filed directly with the Court and
asked a judge to look into the new evidence of Davis’s innocence, the
Georgia Board of Pardons denied clemency, and Davis was executed
in September 2011. We will never know for sure if he was innocent—there
was no DNA evidence to test, or any other real forensic
evidence in the case. 8
Other prisoners have fared better, but not to the point of full exoneration:
They have pled guilty in exchange for having their sentence
7 For a discussion of the reversal rate in capital DNA exonerations, see Brandon L. Garrett,
“Judging innocence”, Columbia Law Review, vol. 108 (2008), pp. 55 ff., 99-100 (reporting a
58 per cent reversal rate, or 7 out of 12 capital DNA exonerees with written decisions). Since
that article was written, of the four additional capital DNA exonerees, Curtis McCarty received
reversals, Kennedy Brewer did not, and Michael Blair and Damon Thibodeaux did not have
reported decisions.
8 Brandon L. Garrett, “Eyes on an execution”, Slate, September 20, 2011. For an example of an
execution that received very little attention at the time, but regarding which grave doubts have
since been raised, see James Liebman and others, “The Wrong Carlos: Anatomy of a Wrongful
Execution” (Columbia U. Press: New York, NY 2014).
reduced to time served or have received partial clemency after errors
came to light in their cases. This has occurred in high-profile cases
like those of the West Memphis Three in Arkansas, the Norfolk
Four in Virginia and Edward Lee Elmore in South Carolina. 9 There
are many more exonerations that do not involve DNA testing; very
few death penalty cases—or murder cases generally—have testable
DNA evidence.
DEBATE AND REFORM
Exonerations in capital cases have had a broad impact on the public
and policymakers and have contributed to a “new death penalty
debate.” 10 Revelations that innocent people were sent to death row
have permanently altered the debate, regardless of whether one
believes that the death penalty is justified in some circumstances.
For example, in Baze v. Rees, US Supreme Court Justice Stevens
announced his opposition to the death penalty, citing evidence from
DNA exonerations:
Given the real risk of error in this class of cases, the irrevocable
nature of the consequences is of decisive importance to
me. Whether or not any innocent defendants have actually
been executed, abundant evidence accumulated in recent
years has resulted in the exoneration of an unacceptable
number of defendants found guilty of capital offenses. 11
Justice John Paul Stevens, writing for the US Supreme Court in
Atkins v. Virginia, noted that “a disturbing number of inmates on
death row have been exonerated.” 12 In contrast, Justice Antonin
Scalia has argued that known exonerations represent an “insignificant
9 See “Kaine’s full statement on ‘Norfolk Four’ case”, Washington Post, 6 August 2009, available
from http://voices.washingtonpost.com/virginiapolitics/2009/08/kaines_full_statement_on_
norfo.html?sidST2009080602217; Tom Wells and Richard A. Leo, The Wrong Guys: Murder,
False Confessions, and the Norfolk Four (New York, W. W. Norton, 2008); Raymond Bonner,
Anatomy of Injustice: A Murder Case Gone Wrong (New York, Alfred A. Knopf, 2012).
10 James Liebman, “The new death penalty debate”, Columbia Human Rights Law Review, vol.
33 (2002), pp. 527 ff.; Colin Starger, “Death and harmless error: A rhetorical response to judging
innocence”, Columbia Law Review Sidebar, vol. 108 (February 2008), pp. 1 ff.
11 Baze v. Rees, 553 U.S. 35, 85-86 (2008) (Stevens, J. dissenting).
12 Atkins v. Virginia, 536 U.S. 304, 320 n.25 (2002).
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