Tuesday, March 19, 2013

The "Innocent", the "Exonerated" & Death Row

An Open Fraud in the Death Penalty Debate: How Death Penalty Opponents Lie

The "Exonerated", the "Innocent" and the "Wrongfully Convicted",
as defined by the Death Penalty Information Center (DPIC)
Dudley Sharp

Richard Dieter, head of the DPIC, participates in a lengthly discussion of the "exonerated innocents" removed from death row on the Dallas Morning News Death Penalty Blog.

This is a look at how well destroyed the "EXONERATED" and/or "INNOCENTS" list is and how it has been so deceptively used by the anti death penalty movement.

This is distributed throughout the world's media, with the hope that some journalists will actually fact check the anti death penalty exonerated claims and accurately report the reality to the public. as to the actual innocents confirmed as sentenced to death row within the US.


Posted by Kent Scheidegger @ 12:02 PM Fri, Apr 09, 2010

In Senate Hearing 107-907, June 12, 2002, Senator Russell Feingold said, citing this (Exoneration) list, "They are real people, innocent men who suffered for years under the very real possibility of being put to death for crimes that they did not commit."

No hedging, no qualification. He stated flat out, as a fact, that the people on the list did not commit the crimes.

No, I am not overstating the use by the opponents. I have debated the death penalty dozens of times, and almost every time someone cites this list as a list of people who really did not commit the crimes.

Perhaps this newspaper has been careful, as you say, but most opponents have not.

The notorious "innocence" list includes guilty murderers who have gotten away with it. Now we finally have that as an adjudicated fact, proved beyond a reasonable doubt.

The first thing opponents should do is simply stop calling it the innocence list. It is nothing of the sort.

Posted by Aaron @ 2:19 PM Fri, Apr 09, 2010

snip I have read over and over and over again leaders of the dozens of anti-capital punishment groups, anti-death penalty lawyers, state and federal judges, state governors, state and federal legislators and various liberal activists cite the given numbers of the DPIC's Innocence List. That's been the DPIC's goal all along. If you repeat lies often enough and long enough they become "truths." snip The DPIC has a right to be opposed to the death penalty, but they have no right to deceive members of the public, media and government.

Posted by Kent Scheidegger @ 7:55 AM Sat, Apr 10, 2010

The list was previously designated the innocence list on the DPIC website, although it appears they have now scrubbed that term. That is progress, however small, I suppose.

As noted in the press release and my original comment, the list is regularly and wrongly cited by others as a list of people who actually were innocent, and that is the point.

Posted by Dudley Sharp @ 9:31 AM Sat, Apr 10, 2010

All of the releasees, acording to DPIC "have been released from death row with evidence of their innocence."

They also describe them throughout their site as exonerated, which means "proven to be innocent".

It is all a matter of intended deception

Anyone who remotely defends DPIC on this issue has not concern for the truth or clarity.

Posted by Dudley Sharp @ 11:27 PM Sun, Apr 11, 2010


The "innocence" discussion in the death penalty debate is about the probability of executing an actually innocent person, not a legally innocent person.

It is impossible to execute a legally innocent person.

The 138-139 "innocence" deception by DPIC is particularly despicable.

For the past 11-12 years, all the media had to do was fact check the DPIC claims to show how false they were. With very rare exception, the media refused to do so and, often, still does refuse.

It would have been timely for the DMN to have warned us about the exoneration claims in 1999-2000.

I discovered this deception in 1998 or 1999 and published an op/ed about it in 2000 in the Fort Worth Star Telegram.

All it takes for anti death penalty deceptions to be effective and important, is for the media to pass the anti death penalty deceptions along to their audience, without change.

In reality, about 25 actual innocents have been discovered and removed from death row since 1973.

The evidence appears solid that innocents are more at risk without the death penalty.

"The Death Penalty: More Protection for Innocents"

Posted by Richard Dieter @ 3:34 PM Mon, Apr 12, 2010

With respect to DPIC's list of exonerated individuals, we use very strict and objective criteria for inclusion of cases on this list. Basically, the list is determined by the decisions of courts and prosecutor offices, not by our subjective judgment. As we state in a number of places on our Web site and in our reports, the criteria for inclusion on the list is:

Defendants must have been convicted, sentenced to death and subsequently either- a) their conviction was overturned AND
i) they were acquitted at re-trial or
ii) all charges were dropped
b) or they were given an absolute pardon by the governor based on new evidence of innocence.

The list includes cases where the release occurred in 1973 or later, which was the time that states resumed sentencing people to death after the U.S. Supreme Court had struck down the death penalty.

The list originated from a request from Congress asking us to identify the risks that innocent people might be executed. The original list that we prepared was published as a Staff Report of the House

Subcommittee on Civil and Constitutional Rights. The list has been favorably referred to by Justices of the U.S. Supreme Court and other federal courts, as well as by many public officials around the country.

We believe the term "exonerated" is entirely appropriate to refer to the individuals on this list, which now numbers 138 individuals. Exonerate means to clear, as of an accusation, and seems to come from the Latin "ex" and "onus" meaning to unburden. That is precisely what has occurred in these cases. The defendants were convicted, given a burden of guilt, and then that burden was lifted when they were acquitted at a re-trial or the prosecution dropped all charges after the conviction was reversed. These are not individuals who received a lesser sentence or who remained guilty of a lesser charge related to the same set of circumstances. All guilt was lifted by the same system that had imposed it in the first place.

Our justice system is the only objective source for making such a determination.

This notion of innocence, that an individual is innocent unless proven guilty, is a bedrock principle of our constitution and our societal protection against abusive state power. One does not lose the status of innocence merely because a prosecutor or other individuals retain a suspicion of guilt. Of course, it is true that this list makes no god-like determination of knowing exactly what happened in the original crime.

Such perfect knowledge of past events is impossible, either to absolutely prove that a person did or did not do an act. We do not try to make a subjective judgment of what we think happened in the crime.

We are merely reporting that in a great many cases the justice system convicted an individual and sentenced them to death, but when the process that arrived at that conclusion was reviewed, the conviction and sentence were completely thrown out. Surely, that should be a cause of concern in applying the death penalty.

If, as happened in the Hennis case, this same justice system later convicts a person again, that person's status changes to guilty. DPIC's list is a straight-forward and objective collection of these judicial exonerations.

Posted by Kent Scheidegger @ 7:20 PM Mon, Apr 12, 2010

"This notion of innocence, that an individual is innocent unless proven guilty, is a bedrock principle of our constitution and our societal protection against abusive state power."

Not only is that not "bedrock," it is not correct.

For the purpose of instructing juries how to approach their decision, we say that a person is presumed innocent until proven guilty. But the presumption is limited to that purpose. Being presumed innocent is not the same as being innocent. A person who commits a crime is guilty from the moment he commits it, regardless of what happens in the legal proceedings thereafter.

The presumption of innocence, the requirement of proof beyond a reasonable doubt, and the double jeopardy limitation are all limits on the power of the state to punish people. But they are most definitely not criteria for whether a person is actually innocent or actually guilty.

For purposes other than punishment by the state, a person who got away with murder via an acquittal can still be treated as guilty. The best known example is O.J. Simpson. His acquittal did not preclude a civil suit for damages, and the civil jury found by clear and convincing evidence that he really did it.

For the purpose of public policy discussion, the relevant question is whether a person is actually innocent or actually guilty, not the separate question of whether the government can legally punish him.

Given the criteria for DPIC's list, it has little relevance to the discussion. It is dangerous because it is so often misunderstood or misrepresented as something it is not: a list of people who really did not commit the crimes of which they were convicted.

"Exonerated" is an improvement over "innocent," I suppose, but the potential to mislead is still there.

Perhaps the list should have a "black box" warning, similar to what the FDA requires on the drugs with the worst side effects. Something like this:


Posted by Dudley Sharp @ 9:43 PM Mon, Apr 12, 2010


What total nonsense, as usual.

"Innocent until proven guilty" has NOTHING TO DO WITH YOUR LIST and you know it.

"Innocent until proven guilty" is a legal standard which only applies to the fact finders in a criminal case, be that the judge of jury.

It has no relevance to your DPIC exonerated or innocence list, which has been a source of intended deception for a decade.

Richard, how about being straight forward?

1) How many anti death penalty sites and how many media articles do you have documented evidence that you had them correct the perception that the DPIC "Innocence List" was dealing with actual innocents?

Zero, I suspect. If I am wrong, prove it.

2) How many of the cases "thrown out" had evidence thrown out which proved the defendant guilty, beyond a reasonable doubt, in the prior trial?

4) Instead of your perverse definition of exonerated, have you noticed the real definition? It is
1 : to relieve of a responsibility
2 : to clear from accusation or blame

How many of the 138-139 were relieved of responsibility, accusation or blame, as opposed to a legal standard?


5) Try the same thing with your "Innocence List". Again, how many had zero connection to the murder, as opposed to your own definition of "innocence"?

Posted by Bill Otis @ 9:48 PM Mon, Apr 12, 2010

The moral engine of the innocence-based argument for abolishing the death penalty is that we risk executing a person who DIDN'T DO IT. The question our citizens are interested in is factual guilt, not legalism: Do we have the right guy or not?

The notion that one needs to be God to know whether we have the right guy is preposterous. One need not be God, for example, to know that McVeigh did it. One need only pay minimal attention to the evidence. Mr. Dieter certainly knows this.

Of course there is a chance that we COULD execute an innocent person, since we are human beings.
There is also a chance that someone we could legally have executed but didn't will take another innocent life, or several of them. Indeed, that latter prospect in not merely a possibility; it has happened.

The two best known examples are Kenneth McDuff and Clarence Ray Allen. At least a half dozen innocent people died because McDuff and Allen remained alive. Did those people not also have rights?

Let's cut through the fancy dance. To say that a person has been "exonerated" of mureder will be taken, and is intended to be taken (whatever the fine print disclaimer may be), as a statement that the person didn't do it. As Mr. Dieter meanderingly acknowledges through the fog of carefully chosen words, no such thing is true.

It has been 34 years and more than 1100 executions since the Supreme Court restored the death penalty, and NOT ONE SINGLE TIME has anyone proved in court, or come close to proving, that an innocent person has been executed. That being the case, it is a confession of weakness rather than a declaration of strength to continue to make these de facto claims of innocence.

Posted by Ward @ 2:32 AM Tue, Apr 13, 2010

Other comments have already shown how the DPIC’s so-called “strict and objective” criteria do not produce helpful or relevant results in terms of assessing the capital punishment system. To the extent that the public is concerned whether the prosecution has charged the actual perpetrator, the List is overly inclusive. A person is not “exonerated” or “innocent” because a jury has found that the prosecution did not prove the perpetrator was guilty beyond a reasonable doubt. This is why the jury’s verdict is “not guilty” rather than “innocent “ or “exonerated”. The terms “exoneration” and “innocence” are never applied to such cases. However, the DPIC’s most recent comprehensive report states the following: “The failure to acknowledge the innocence of those who have been exonerated retards the search for the real perpetrator.” Thus, DPIC has promoted a misapprehension about the true meaning of these concepts and distorted the results of many of the cases on its List. For instance, the List continues to include “Jay C. Smith” who was freed after his triple murder conviction because of prosecutorial misconduct even though the courts have continued to express confidence in his guilt.

Also, the DPIC List and its methodology have been a subject of judicial controversy. Chief Justice Rehnquist cited the criticisms of the list in Herrera v. Collins. Justice Scalia expanded on that criticism in his recent concurring opinion in Kansas v. Marsh. Even a federal district court that was generously inclined toward the DPIC’s List found that many of the so-called exonerees were not “actually innocent.”

Mr. Dieter states: “We are merely reporting that in a great many cases the justice system convicted an individual and sentenced them to death, but when the process that arrived at that conclusion was reviewed, the conviction and sentence were completely thrown out. Surely, that should be a cause of concern in applying the death penalty.” Of course, it is a great concern when an innocent person is convicted and sentenced. No honest prosecutor would ever represent that this has not happened.

However, it is not a “cause of concern” that the legal process has done its work of reviewing judgments and reversing them for legal error. In those cases, the system has worked as it has intended. It is hardly a revelation that trials and juries are fallible. However, the public has supported capital punishment with full knowledge of that inherent risk.

Also, it is an exaggeration to state that “in great many cases” the conviction and sentence were “completely thrown out.” To begin with, the List includes cases in which the defendant was convicted and sentenced under old, defunct statutes that are not pertinent to examining our system today. However, there have been approximately 8,380 death judgments since 1973. A questionable list of 138 names during that 37 time span hardly represents a “great many cases.”

Posted by Dudley Sharp @ 10:16 AM Tue, Apr 13, 2010

Michael Landauer:

You write: "Why 'exonerated' needs to be used sparingly".

No, Michael. There is no need to use it sparingly.

There is a need to use it clearly and precisely, as opposed to being intentionally deceptive and nebulous.

For those of us, who have been active in the death penalty debate for a long time, it cannot be overstated how often and to what effect the DPIC "Innocence List" has been used by the media, government officials and anti death penalty folks and how this blatant deception has effected this debate.

Had the media done its job, this deception would have been stopped a decade ago, but it was impossible to get the media to do its job. They refused, with very rare exception.

Posted by Dudley Sharp @ 1:19 PM Tue, Apr 13, 2010

There is no question what Dieter, the DPIC and virtually all anti death penalty folks/groups wanted the media and the public to accept and believe. It's been a successful deception for, at least 17 years.

Time to end it.

(LATER NOTE - Words in Capitalization are for my emphasis, dudley)

Innocence and the Death Penalty, 1993, DPIC

"V. CONCLUSION It is an inescapable fact of our criminal justice system that INNOCENT PEOPLE are too often convicted of crimes. Sometimes only many years later, in the course of a defendant's appeals, or as a result of extra-legal developments, new evidence will emerge which clearly demonstrates that the WRONG PERSON was prosecuted and convicted of a crime.

Americans are justifiably concerned ABOUT THE POSSIBILITY THAT AN INNOCENT PERSON MAY BE EXECUTED. Capital punishment in the United States today provides no reliable safeguards against this danger. Errors can and have been made repeatedly in the trial of death penalty cases because of poor representation, racial prejudice, prosecutorial misconduct, or simply the presentation of erroneous evidence. Once convicted, a death row inmate faces serious obstacles in convincing any tribunal that he is innocent."

"The cases discussed in this report are the ones in which INNOCENCE was uncovered before execution. "
NOTE FROM SHARP - there is no question but that DPIC is discussing actually innocent people, here, because it is impossible to execute a legally innocent person. WRONG PERSON is no legal standard. WRONG PERSON is equivalent to actually innocent person.
1997, DPIC, Part I: The Danger of Mistaken Executions: Pace of Innocent Cases Increases

"In the twenty-one-year span of the first report, there was an average of 2.5 releases of innocent defendants per year from 1973 to 1993. The 17 releases over the past three and a half years represents a pace of 4.8 releases per year, almost twice the pace of the previous report."

"For the original 48 cases, it took an average of approximately six and a half years between conviction and eventual release. With the 21 additional cases included in this report, the average time spent on death row before release is now about seven years. This length of time is important because both state and federal legislation in recent years will shorten the length of time death row inmates have before their execution. Currently, the average time between sentencing and execution is eight years5."


NOTE FROM SHARP - there is no question but that DPIC is discussing actually innocent people, here, because it is impossible to execute a legally innocent person.
Executive Summary

"Ultimately, the issue of innocence, grounded in reports such as this, represents a crisis for the death penalty in America. The public’s tolerance for SACRIFICING INNOCENT LIVES for the sake of maintaining a demonstrably unfair government program with questionable benefit to society is noticeably ebbing. New voices are emerging to challenge the death penalty: judges, law enforcement officials, conservative commentators, and some legislators are discarding the former polarization of the issue as one between criminals and victims. Instead, people are noting that the injustices are often perpetrated by those mantled with the public trust, and that the victims are sometimes those condemned to death."


NOTE FROM SHARP - SACRIFICING INNOCENT LIVES can only mean executing the actually innocent, because it is impossible to execute a legally innocent person.
1) I copied this because it was so important. The comments went away when the Dallas Morning News went to a Facebook only comments. I re- added them, as they, now, appear, just as they appeared, originally, with non relevant posts, removed. I separated some of the comments by paragraph breaks, for clarity and separated the comments by a double hash line ======.


The Innocent Frauds: Standard Anti Death Penalty Strategy