Going into the trial, I wasn’t
sure where I stood on the death
penalty. Today, knowing what I
know about wrongful convictions
and the kinds of problems that
result in putting innocent people’s
lives on the line, I would no longer
vote for a death sentence. . . . I
don’t think many jurors feel
comfortable playing Russian
Roulette with people’s lives. Jurors
are recognizing that life in prison is
perhaps the only responsible way to
vote.
-Kathleen Hawk Norman, founder,
Jurors for Justice

My uneasiness about the
verdict in the Amrine case has to do
with the fact that the defense
attorney [] gave us very little to
work with. . . . I got the impression
that when he was presenting the
defense case, he was meeting his
witnesses for the very first time.

BLIND
JUSTICE:
JURIES DECIDING
LIFE AND DEATH
WITH ONLY
HALF THE TRUTH
How Death Penalty Jurors are
Unfairly Selected, Manipulated,
and Kept in the Dark

-Larry Hildebrand, death penalty
juror—defendant later exonerated

To identify before the fact
those characteristics of criminal
homicides and their perpetrators
which call for the death penalty,
and to express these characteristics
in language which can be fairly
understood and applied by the
sentencing authority, appear to be
tasks which are beyond present
human ability.
-McGautha v. California, U.S.
Supreme Court, 1971

A Death Penalty Information Center Report
Written by Richard C. Dieter,
Executive Director
Washington, DC
www.deathpenaltyinfo.org

October 2005

BLIND JUSTICE:
JURIES DECIDING LIFE AND DEATH
WITH ONLY HALF THE TRUTH
Table of Contents
Executive Summary

iii

Introduction

1

I.

Skewing the Jury: Removing Jurors for Personal Beliefs

2

Graph: Prosecutors Strike Black Jurors at Higher Rates

4

Graph: Percent of U.S. Groups Opposing the Death Penalty

5

What Jurors are Not Told:
Withheld Evidence and Failures to Investigate

8

Chart: Death Row Inmates Exoneratd 2000-2005
After Official Misconduct

9

II.

Graph: Decline in Death Sentences

11

Graph: Death Penalty Jurors’ Views of Prosecution and Defense

16

III.

What Jurors are Allowed to Hear

17

IV.

Jurors’ Understanding of the Sentencing Process

22

V.

The Scope of Official Misconduct

25

Conclusions

27

Appendix: Exonerated Death Row Inmates 2003-2005 with
Findings of Official Misconduct

28

Endnotes

31

ii

BLIND JUSTICE: JURIES DECIDING LIFE AND DEATH
WITH ONLY HALF THE TRUTH
Executive Summary
[Jury selection in death penalty cases] creates an atmosphere in which jurors
are likely to assume that their primary task is to determine the penalty for a
presumptively guilty defendant.
-Justice John Paul Stevens, 2005
Blind Justice, the most recent report to be released by the Death Penalty Information Center
(DPIC), is the first to focus on the problems of the death penalty from the perspective of jurors.
While jurors have always occupied an esteemed position in the broader criminal justice system in
the United States, in capital cases the responsibility of jurors is even more critical as they decide
whether defendants should live or die. Even with this unique authority in capital cases, they are
treated less than respectfully. Frequently, they are kept in the dark regarding key information about
the case and are often barred from serving based on their beliefs or their race.
Deciding guilt beyond a reasonable doubt is not easy. But there is clarity in that task and 225
years of tradition to support it. Judging whether a person should be condemned to die is far more
daunting and the difficulty is compounded by a complex formula that even many lawyers and
judges do not understand. The modern death sentencing system was adopted by the Supreme
Court in 1976, and the results have been disturbing.
This report examines the ways in which the death penalty fails jurors and, in turn, fails as a
system of justice. It looks at the distorted way jurors are selected in capital cases. It describes how
critical information is often withheld from jurors, and how the evidence they do hear is often
unreliable. It describes how the complex rules of death sentencing procedures ensure a sense of
frustration and emotional pain as jurors are asked to make one of the most difficult choices of their
lives.
As Blind Justice discusses in detail, jurors are manipulated in capital cases in many ways:
 Their deeply held personal views on capital punishment are picked apart and used as a
litmus test of their ability to serve as member of the jury. Those adhering to beliefs
preventing a death sentence will be rejected, even though those beliefs are well within the
mainstream of public opinion.
 Jurors’ color and gender will often play a key role in whether they are chosen for a death
penalty trial. In recent Gallup Polls, far more blacks and women oppose the death penalty
than white males, making it more likely that they will be excluded from capital juries.
Similar considerations work against those with certain religious beliefs.
 Jurors in capital cases are not representative of the population as a whole. Those allowed to
serve will be more pro-prosecution and conviction-prone than those who are excluded.

iii

 Those jurors who are selected might expect a high-quality pursuit of justice on a level
playing field, but the truth will often be hidden from them: prosecutors may withhold
critical evidence and defense attorneys may fail to investigate basic facts. Junk science,
jailhouse informants and overly confident eyewitnesses will be offered as if they reliably
established the defendant’s guilt.
 Since 2000, 37 people have been freed from death row after they were exonerated. In 62
percent (23) of these cases, state misconduct in misinforming the juries played a significant
role in the wrongful convictions.
 Far beyond their traditional role of determining guilt and innocence, jurors are instructed to
weigh the terrible aspects of the crime against any redeeming qualities of the defendant.
From such an abstract comparison they are expected to arrive at a decision with life and
death consequences.
 Jurors’ emotions will be acutely played upon as the most gruesome aspects of the crime are
displayed in graphic detail, and as the victim’s family is pitted against the defendant and his
family. They will be told nothing about more heinous cases in the same jurisdiction where
the death penalty was not even sought, much less imposed.
 Once their decision is made, jurors will be largely ignored. If they have second thoughts after
learning new facts, it will be too late. In many cases, their work will be for nothing – their
decisions overturned because of errors by others beyond their control.
Slowly, jurors are beginning to react to the flagrant flaws in this system. Some have offered
affidavits to judges and governors about what they would have done had they known the whole
truth. In increasing numbers, they are voting for life sentences, given what they have seen and heard
about abuses in the system. As one juror in Louisiana said after sentencing someone to death who
was later exonerated, “I don’t think many jurors feel comfortable playing Russian Roulette with
people’s lives. Jurors are recognizing that life in prison is perhaps the only responsible way to vote.”
Death sentences have dropped by over 50 percent in the past five years in the wake of so
many inmates being exonerated of their crimes. The fundamental questions of whether the death
penalty can be made to fit within our principles of equality, the protection of the innocent, and the
appropriate limitation of governmental power are being openly raised by many judges, legislators,
and the broader public.
Yet, the system continues with many of the same problems that have plagued it in the past.
Those most likely to see the flaws in this system are the least likely to be chosen for the next capital
case. Death sentences are handed down in isolation with little chance to explore the larger issues.
Once imposed, the presumptions in favor of death become even stronger and harder to reverse.
The costs in terms of mistakes, the conviction and even execution of innocent people, are
exceedingly great. But there is also a cost to the respect afforded our system of justice. Jurors are not
the problem—rather the problem is in the failed attempt to twist a system designed to identify the
clearly guilty into a system for weighing life and death. The stakes in these cases encourage bending
the truth and the elimination of jurors who might question the process. There is much to emulate in
our tradition of citizen participation in the criminal justice system, but its application to the death
penalty has not served us well.

iv

BLIND JUSTICE, p. 1

INTRODUCTION
America puts enormous trust in its
jurors: it shoulders them with the ominous
responsibility of deciding guilt or
innocence, and then, in capital cases, asks
them to choose between life and death. We
are proud of the Constitutional protection
guaranteeing defendants the right to a jury
of their peers. The Supreme Court turns to
the wisdom of jurors to measure society’s
“evolving standards of decency.”1 We call
them the “conscience of the community,”
and many consider it both an honor and a
duty to serve.
In death cases, however, this idealized
picture of juries dissolves quickly as a “winlose” mentality takes over. Instead of a jury
of one’s peers, jurors will have to pass a
political litmus test on their capital
punishment opinions. Some will even be
stricken from serving because of their color.
Once selected, jurors in capital cases are
often not given the whole truth they need to
make their decisions. In these high-profile
cases, evidence is chronically withheld,
alternative suspects ignored, and
questionable forensic evidence is presented
as if it held scientific certainty.
Jurors are not told why their case was
chosen for the death penalty while others,
often involving more heinous crimes, take
another route. Jurors are instructed to
simply choose between life and death for
the defendant, but then are given hopelessly
complex instructions that have confused
lawyers and the courts for decades. Not
surprisingly, they often act in direct
contradiction to what the court intended in
explaining the labyrinth of death penalty
law.

The trial and sentencing proceeding will
be visually graphic and emotionally
draining, probably like nothing they have
experienced before. They can only hope that
the defense lawyer was given the resources
to conduct a thorough investigation of the
defendant’s past in order to counter-balance
the horrors of the crime. In such a serious
deliberation, jurors might expect that no
corners were cut and that they have been
presented with everything they need to
render a decision, but that is rarely the case.
After their verdict, they will be
dismissed, left to deal with the trauma of
the trial on their own. If they complain that
they were misled during the proceedings,
they will probably be ignored. Many of
their decisions will be overturned, typically
not because of any mistake on their part,
but because the prosecutors, defense
attorneys, and judges did not do their jobs
properly. Some cases will be retried, but
many will be handled by the system of plea
bargains and deals where juries and the
conscience of the community carry little
weight.
Our jury system, though never perfect,
has been a noble experiment in democracy
that has withstood the test of time for two
and a quarter centuries. But in the death
penalty area, the experiment has not fared
well.2 While most Americans never serve
on a capital jury, everyone is affected by a
system that fails to respect those who do
serve and that falls woefully short of justice.

BLIND JUSTICE, p. 2

I. SKEWING THE JURY:
REMOVING JURORS FOR PERSONAL BELIEFS
[B]ecause the prosecutor can challenge jurors with qualms about the death
penalty, the process creates a risk that a fair cross-section of the community will
not be represented on the jury.
-Justice John Paul Stevens, speech to the American Bar Association, 20053

Jurors are treated with disdain as soon
as they are seated as prospective candidates
for a death penalty trial. Although many
people are relieved when they are excused
from jury service, for most it is both a
privilege and a duty to serve. It is akin to
voting, a right we sometimes exercise
begrudgingly, but one that we would fight
dearly to preserve. Yet most jurors in
capital cases will be rejected because of their
deeply held beliefs about capital
punishment, not because they know the
defendant or the victim. It is disturbing that
in capital cases this quintessential hallmark
of American citizenship is granted only to
those whose conscience meets
governmental approval.
Catholics who have heeded their
Church’s call to end the death penalty,
believers of all stripes who find the death
penalty immoral, conservatives who hold
that the government should not be trusted
with so much power, and liberals who will
not apply capital punishment because it is
not meted out fairly--all will be eliminated
if they adhere to these views. They will not
be able to serve even in the guilt-innocence
phase of the trial, where one’s view on the
death penalty should be irrelevant. Still
others may be prevented from serving on
even more insidious grounds.

Race and Jury Selection
In death penalty cases, one juror can
mean the difference between a sentence of
life and death. In almost all states, death
sentencing determinations are made by a
jury rather than a judge.4 Constitutionally,
any juror who has serious doubts about his
or her ability to impose a death sentence

may be eliminated from the jury pool. But
additional jurors can be excluded without
any legal cause solely upon the discretion of
the prosecution or defense attorney. A
belief that members of some races, religions,
or genders might generally be less inclined
to impose a death sentence can influence the
prosecution to allow as few of these types of
jurors as possible.5
The Supreme Court has forbidden racial
and gender discrimination in jury selection.6
But the motivation behind eliminating a
particular juror is often not easily discerned.
The state may want to exclude a black juror
so as to improve its odds of getting a death
sentence, but when challenged for racial
discrimination can offer other justifications
for this exclusion, such as the juror’s
employment status. In a training session for
new prosecutors, Jack McMahon of the
Philadelphia District Attorney’s office
encouraged new recruits to eliminate young
black women from their juries. To avoid the
charge of discrimination, he urged them to
“mark things down” about the undesired
jurors so that when challenged they could
offer a reason different from race for
excluding them.7
McMahon practiced what he preached.
In a 1988 capital murder trial, he eliminated
19 potential jurors, all black. When
challenged, he claimed he struck some
blacks because of their residing with their
parents or because of their low level of
education, even though he had accepted
white jurors with similar characteristics.
The defendant, William Basemore, was
convicted and sentenced to death. In 2001,
a Philadelphia court overturned the
conviction and sentence, finding “a pattern
of discrimination.”8

BLIND JUSTICE, p. 3

In some prosecutors’ offices, at least
prior to the Supreme Court’s condemnation
of the practice, there were written manuals
about excluding classes of jurors. A 1963
training manual for prosecutors in Dallas
stated: “Do not take Jews, Negroes, Dagos,
Mexicans, or a member of any minority race
on a jury, no matter how rich or well
educated.”9 This manual was exposed in a
case that was argued recently in the U.S.
Supreme Court.10 Although the manual
was no longer the stated policy at the time
of Thomas Miller-El’s trial in 1986, veterans
of the prosecutor’s office testified that at
least some of the prosecutors continued to
follow an unwritten rule to exclude blacks
from the jury.11

“Do not take Jews,
Negroes, Dagos, Mexicans,
or a member of any minority
race on a jury, no matter
how rich or well educated.”
-Dallas prosecutors’ earlier
training manual

In its 8-1 decision in favor of
Miller-El, the Supreme Court wrote:
Even if we presume at this
stage that the prosecutors in
Miller-El’s case were not part of
this culture of discrimination,
the evidence suggests they were
likely not ignorant of it. Both
prosecutors joined the District
Attorney’s Office when assistant
district attorneys received formal
training in excluding minorities
from juries. The supposition that
race was a factor could be
reinforced by the fact that the
prosecutors marked the race of
each prospective juror on their
juror cards.12
Suspicions of a pattern of discrimination
were not just idle speculation. A Dallas
Morning News study of 100 trials near the

time of Miller-El’s trial found that
prosecutors had eliminated 92% of the
potential African-American jurors. Ten of
the eleven black potential jurors were
eliminated in Miller-El’s trial.13
Recently, the same paper repeated its
earlier study and again found systematic
exclusion of blacks from juries. In a twoyear study of over 100 felony cases in Dallas
County, blacks were dismissed from jury
service by the prosecution twice as often as
whites. Even when the paper compared
similar jurors who had expressed opinions
about the criminal justice system (a reason
that prosecutors had given for the
elimination of jurors, claiming that race was
not a factor), black jurors were cut at a
much higher rate than whites. Of jurors
who said that either they or someone close
to them had a bad experience with the
police or the courts, prosecutors struck
100% of the blacks, but only 39% of the
whites.14
Other recent accusations of biased jury
selection come from a former prosecutor
who admitted that he excluded Jews and
black women from his death penalty juries.
Jack Quatman was the prosecutor at Fred
Freeman’s capital trial in California in 1987.
He recently testified, in support of
Freeman’s request for a new trial, that the
judge in the case advised him that people of
Jewish descent would never sentence a man
to death. Quatman says he took the judge’s
advice, but that it was already common
practice in his office to exclude Jews in
capital cases.15 Quatman also passed on this
advice at a symposium for death row
prosecutors in 1993.16
“The facts are there, the statistics are
there,” he said in defending his statements
about the broader practice in Alameda
County after a California court found his
claims about the judge were not credible.
He cited an independent study that found
Jewish jurors were excluded in 93% of
California death row cases in Alameda
County and that the odds of that occurring
by chance was 1 in 5 million.17

BLIND JUSTICE, p. 4

Prosecutors Strike Black Jurors at Higher Rates
57%
60%
50%

36%

40%

27%
30%
20%
10%
0%

Blacks

Hispanics

Whites

For Dallas County, TX
-Source: Dallas Morning News, Aug. 21, 2005

Indirect Impact on Race through
Death Penalty Views of Jurors
The jury in a death penalty case can be
deprived of minority members even if no
racial bias occurs. Because political and
moral views can determine eligibility for
service on capital juries, there will be fewer
blacks and fewer women on a death penalty
jury than in a non-capital case because
blacks and women are more likely to
oppose the death penalty than the general
population.
For example, in a Gallup Poll analysis
for the years 2001-2004, 23% of men
opposed the death penalty, but 32% of
women opposed it, and fully 49% of blacks
opposed it.18 Some of these minority and
women jurors will be removed because the
court finds they oppose the death penalty.
Others whose views are less clear-cut will
be removed at the prosecutor’s discretion. A
prosecutor who only concentrated on the
death penalty views of potential jurors and
not on their race or gender, could still end

up with a jury that did not look like a crosssection of America. A jury study in
California found that while minorities
accounted for 18.5% of the people in the
jury pools, they represented 26.3% of those
excluded through the death-qualifying
process. 19 An earlier study in North
Carolina found 55% of potential black jurors
excluded during the death-qualifying
process, but only 21% of the whites.20 Of
course, more liberals and Democrats would
likely be eliminated for the same reason, as
would those belonging to certain religious
groups.

Juries Tilted Towards Guilt
A death-qualified jury is more likely to
favor the prosecution’s point of view even
beyond death sentencing. A series of
studies over many years has shown that
jurors selected to serve in capital cases are
more prone to convict than other jurors.
Research by Professor Craig Haney of the
University of California, Santa Cruz, and
others found that death qualification:

BLIND JUSTICE, p. 5

1. Compromised the
representative-ness of capital juries
because higher levels of death penalty
opposition among minorities and
women meant they were more likely to
be excluded from participation,
2. Created juries that were
composed of persons who were
“prosecution-prone” in their general
criminal justice beliefs and points of
view,

likely to have prejudiced views against
blacks.22 Such views mean that death
penalty juries will be less accurate when it
comes to determining the guilt of the
defendant.
The U.S. Supreme Court considered this
issue in 1986 in Lockhart v. McCree, a case in
which the defendant was given a life
sentence. His appeal focused not on his
sentence but on the fact that the

4. Exposed all jurors to a process of
selection that further increased their
likelihood of convicting capital
defendants by, among other things,
implicitly suggesting that the defendant
was guilty.21

prosecution’s seeking of the death penalty
enabled the prosecution to seat a jury that
was more likely to find him guilty. The
defendant offered studies that supported
his contention. The Court assumed the
validity of the studies, but nevertheless held
that there was no intention to bias the jury,
only to select a jury willing to follow the
law of the penalty trial. The alternative of
using separate juries for the guilt and
sentencing phases of the trial was not
justified by the evidence offered, according
to the Court.23

A 2004 study by sociologist Robert
Young at the University of Texas found that
death penalty supporters were more
worried about freeing the guilty than
convicting the innocent. He also found that
such supporters were about a third more

One of the criticisms of the studies
proffered in Lockhart was that they involved
mock juries, rather than jurors in actual
death penalty cases. The Capital Jury
Project, a research program funded by the
National Science Foundation, met that

3. Resulted in juries consisting of
persons who were “conviction-prone,”
or more likely to convict than nondeath-qualified juries on the basis of the
same facts and circumstances, and

Percent of U.S. Groups Opposing the Death Penalty
49%
50%
45%
40%

32%

35%
30%
25%

24%

23%

20%
15%
10%
5%
0%
Men

Women

Blacks

Gallup Poll Analysis 2001-2004

Whites

BLIND JUSTICE, p. 6

objection by interviewing actual jurors. The
Project studied more than 1,200 people in 15
states who had served on death penalty
juries. They, too, found that these jurors
were more likely to find the defendant
guilty than other jurors,24 raising important
questions about the defendant’s Sixth
Amendment right to a jury of his peers.
These recent, in-depth studies, coupled with
the rash of wrongful convictions in death
penalty cases, might some day cause the
Court to revisit this issue.
Supreme Court Justice John Paul
Stevens recently commented on this
problem in a speech before the American
Bar Association. He noted that the
emphasis on the death penalty in jury
selection creates an atmosphere in which
guilt is presumed:

Justice
John Paul
Stevens

In case after case many days
are spent conducting voir dire
examinations in which
prosecutors engage in prolonged
questioning to determine
whether the venire person has
moral or religious scruples that
would impair her ability to
impose the death penalty.
Preoccupation with that issue
creates an atmosphere in which
jurors are likely to assume that their
primary task is to determine the
penalty for a presumptively guilty
defendant. More significantly,
because the prosecutor can
challenge jurors with qualms
about the death penalty, the
process creates a risk that a fair
cross-section of the community

will not be represented on the
jury.25
The most obvious person to suffer from
this skewed jury-selection process is the
defendant. Not only will his right to live be
determined by a group that has been
purged of those most likely to spare him,
but even his guilt or innocence will be
decided by a jury more favorable to the
prosecution than if he had been tried
without being subject to a death sentence.
Beyond the defendant, the integrity of
the jury system suffers as well. Close to 50%
of the American population now believe
that life without parole is the appropriate
punishment for all first-degree murders.26
That growing segment of the public are ripe
for exclusion from jury service. A whiter,
more male-dominated jury will stand in for
the jury of one’s peers. Such a system is
unfair on its face and a slap in the face to
those who are excluded.

Excluding the Majority
A blatant example of how far the jury
selection process can be separated from its
constitutional moorings occurred recently
in Puerto Rico. The Commonwealth does
not have a death penalty law, and, in fact,
forbids it in its constitution. Nevertheless,
Puerto Rico is subject to U.S. federal law,
which does allow for capital prosecutions.
As on the mainland, those who reject
imposing the death penalty are eliminated
from the prospective jury. As an indication
of the degree of opposition on the island to
the death penalty, death penalty trials have
resulted in protest demonstrations, and the
Governor publicly condemned this federal
intrusion as contrary to the will of the
people. 27
But such oppositional views would not
be represented among the jurors chosen for
the federal trials. Moreover, only people
fluent in English are allowed to serve as
jurors in federal trials. This requirement
excludes over two-thirds of the island’s
residents.28 Despite these factors making

BLIND JUSTICE, p. 7

the juries in federal capital trials
unrepresentative of the populace, Puerto
Rico was listed as one of the top five
jurisdictions in the country in terms of U.S.
Attorney recommendations for seeking the
death penalty in a Justice Department
study.29
Similar problems arose when the federal
government sought the death penalty in
Washington, D.C., a predominantly

minority-based jurisdiction that voted 2-to-1
against the death penalty in a 1992
referendum. In the federal capital trial of
Tommy Edelin, more than 350 potential
jurors were excused, including about 175
who said they were so opposed to the death
penalty they could not impose a death
sentence.30 Edelin was eventually sentenced
to life, but whether the jury represented the
people of Washington, D.C. is questionable.

BLIND JUSTICE, p. 8

II. WHAT JURORS ARE NOT TOLD:
WITHHELD EVIDENCE AND FAILURES TO INVESTIGATE

The fact that the jury chosen in a capital
case will be more likely to find the
defendant guilty than a typical jury is
permitted under current Supreme Court
decisions. But death penalty trials continue
to be plagued by practices that the Court
has found clearly unconstitutional. Twothirds of the death penalty trials reviewed
by appellate courts between 1973 and 1995
contained serious violations of law.31 In 121
cases through 2005, the conviction itself was
thrown out, the inmate was exonerated of
all charges, and freed from death row.32 All
of those defendants lost precious years of
their lives, some were permanently disabled
by the experience, and many came
perilously close to execution. The costs of
these mistakes are incalculable.
Even when the defendant was not found
innocent, the jurors in these cases could
rightly conclude that their time was wasted.
Each of the jurors spent weeks or months
engaged in trial, perhaps sequestered from
family and work, and through no fault of
their own their effort was discarded.

The Pressures of Death Penalty
Cases
One of the root causes of mistakes in
capital cases is the high-stakes, competitive
nature of death penalty prosecutions.33
Death penalty cases involve grisly crimes.

Reputations of police chiefs and
prosecutors are on the line to make arrests,
secure convictions and harsh sentences, and
to reassure the public that order has been
restored. A case that is presented in shades
of grey, admitting the existence of
alternative suspects or theories, or allowing
uncertainty regarding the evidence
presented is feared as a potential recipe for
acquittal. Prosecutors rarely pursue a
capital case against someone they know to
be innocent deliberately. But they may
emphatically portray a defendant as clearly
guilty and deserving of death, when the
facts indicate otherwise.
Jurors cannot be expected to arrive at an
accurate verdict if vital evidence is withheld
from their view. There is an inherent
tension in death penalty prosecutions.
Lawyers are trained to be advocates in an
adversarial process. As such, they want to
win. That can affect who gets picked for the
jury, what the jury hears, and what they do
not hear. These pressures to win are in
direct competition with the obligation the
state has to seek the truth and to provide
defendants with all the information they
need to defend themselves. As one former
federal prosecutor remarked:
We must reform a system
that provides less information to
a person accused of a crime than
a party would get if sued for a
$200 bad debt in civil court. And
we must reform the notion that a
criminal prosecution is some sort
of sport that is all about winning
a conviction, rather than doing
justice.34
The temptation to hold back can be
great. Few murderers are caught in the act
by the police. Convictions have to be won
against defendants through the presentation
of circumstantial evidence and by witnesses
who may be less than certain about what

BLIND JUSTICE, p. 9

they saw or heard. Many cases are
grey—not black and white.

himself had been implicated in similar
crimes in the same area, including a
murder.35

In a case where only the Supreme
Court’s intervention stopped the execution
of an innocent man, the prosecution was
asked before trial to hand over any evidence
that might have lessened the likelihood of
the defendant’s (Curtis Kyles) guilt or
supported a sentence less than death. The
state responded that it had no such
evidence. In fact, it possessed the
following: contradictory eyewitness
statements; information about changes and
credibility gaps in an informant’s
statements; the fact that the informant
possessed the victim’s car; he identified
himself with four different names in talking
to the police, told the police where to look
for evidence incriminating Kyles—places
that he, the informant, had access to ahead
of time; and the fact that the informant

Surely a juror would want to know that
information when evaluating the credibility
of the state’s case. But none of it was made
available to the defense or to the jury.
Fortunately, this evidence was discovered
after the trial. Kyles’ conviction was
overturned by the Supreme Court, and
eventually the prosecution dropped all
charges. But as Justice Scalia indicated in
his dissent, it would be foolish for the
public to believe that the Supreme Court is
checking up on every prosecution to ensure
against such wrongful convictions and
compliance with the rules of basic fairness.36
In another capital case involving an
innocent defendant, prosecutors in North
Carolina withheld statements from

Death Row Inmates Exonerated 2000-2005
After Official Misconduct
Defendant
Derrick Jamison
Ernest Ray Willis
Dan Bright
Laurence Adams
Gordon Steidl
Alan Gell
Nicholas Yarris
Joseph Amrine
Timothy Howard
and Gary James
John Thompson
Aaron Peterson
Madison Hobley
Leroy Orange
Stanley Howard
Ray Krone
Juan Melendez
Charles Fain
Jeremy Sheets
Joaquin Martinez
Gary Drinkard
Peter Limone
Oscar Lee Morris

Exoneration

Grounds

Ohio
Texas
Louisiana
Massachusetts
Illinois
N. Carolina
Pennsylvania
Missouri
Ohio

State

2005
2004
2004
2004
2004
2004
2003
2003
2003

Withheld eyewitness statements
Faulty scientific evidence
Suppressed impeachment evidence
Unreliable witness
Faulty police work
Withheld statements
Jailhouse informant
Lying witness
Withheld evidence

Louisiana
Illinois
Illinois
Illinois
Illinois
Arizona
Florida
Idaho
Nebraska
Flordia
Alabama
Massachusetts
California

2003
2003
2003
2003
2003
2002
2002
2001
2001
2001
2001
2001
2000

Withheld evidence
Tortured confession
Tortured confession
Tortured confession
Tortured confession
Faulty scientific evidence
Withheld evidence
Faulty scientific evidence
Jailhouse informant
Improper police evidence
Improper state evidence
Lying witness
Withheld statements

BLIND JUSTICE, p. 10

witnesses who saw the victim alive after the
time the defendant supposedly committed
the murder. They also did not reveal
statements from the two key eyewitnesses
who had implicated the defendant, Alan
Gell, in which they said they had to “make
up a story.” The trial court had specifically
ordered the prosecutors to turn over such
evidence. Fortunately, the statements were
found by the new defense attorneys on
appeal. Gell’s conviction was thrown out
and he was acquitted at a re-trial. The state
attorney general called Gell’s original trial a
“travesty.”37 The original prosecutors,
despite being responsible for the near death
of an innocent man, received the lightest
possible punishment from the State Bar and
continue to practice law.38
One might hope that such egregious
behavior in the most critical cases in our
criminal justice system would be extremely
rare, but this report lists 23 cases just since
2000 where official misconduct led to
convictions and death sentences for
innocent men. (See Appendix for a longer
description of cases since 2003.) And it is
probable that there are other such cases,
given the difficulty in discovering withheld
evidence.

Jurors’ Reactions
Kathleen Hawk Norman, who served as
a juror on one of these cases, was so
frustrated with the deception that she
decided she could no longer support the
death penalty:
Going into the trial, I wasn’t
sure where I stood on the death
penalty. Today, knowing what I
know about wrongful
convictions and the kinds of
problems that result in putting
innocent people’s lives on the
line, I would no longer vote for a
death sentence. . . . I don’t think
many jurors feel comfortable
playing Russian Roulette with
people’s lives. Jurors are
recognizing that life in prison is
perhaps the only responsible
way to vote.39

Alan Gell – Exonerated from death row
in North Carolina

Norman filed an amicus brief on behalf
of Dan Bright in Louisiana, whom she had
helped to send to death row, and has
formed an organization called Jurors for
Justice.
Other jurors have also tried to undo the
wrong they felt responsible for after
learning of new evidence. Eight of the 12
jurors from the trial of Abu-Ali
Abdur’Rahman in Tennessee filed affidavits
expressing their frustration and saying they
would not have sentenced the defendant to
death had they known of exculpating
evidence not revealed at trial.40 In Indiana,
all 12 jurors from the trial of Darnell
Williams signed affidavits supporting an
order of DNA testing from the state
Supreme Court.41 Their request was denied,
but Williams was granted clemency by the
governor. Still others are simply voting for
life sentences, contributing to the 50% drop
in death sentences in the last 5 years.
Some experts believe that the problem
of jurors not receiving the facts necessary
for their informed decision-making is an
inherent flaw in the death penalty and
necessitates its exclusion as a punishment.
John Dunne served as a New York state
senator for 23 years and then as an assistant
attorney general in the U.S. Department of
Justice. He voted 12 times for death penalty
legislation in New York. But eventually he
changed his mind about capital
punishment, in part because he believed the
fallibility of the principal actors in death
penalty cases guaranteed that there would be
mistakes:

BLIND JUSTICE, p. 11

[T]he last decade taught me
that you cannot tinker with the
death penalty. . . . It is unfair to
ask jurors to choose with
certainty between life and death,
given the stress, pressure, media
clamor and confusion
surrounding their weighty
decision. We cannot expect our
police to pursue all reasonable
lines of inquiry once a suspect is
ID'd. And prosecutors are unable
to oversee the police in every
case. Judges are neither always
free of bias nor intellectually
capable in every case. These are
the issues that must be
addressed.42

distinguished the most heinous crimes and
criminals.43 Although the new structure
was challenged as one in which the risk of
arbitrariness was simply transferred from
the jury to the prosecutor, the Court found
that prosecutorial discretion has a long
history in our system and that it would be
wrong to assume that this power would be
abused. This has meant that the
prosecutor’s decision to seek the death
penalty is essentially unreviewable, despite
strong evidence that this discretion has been
used unfairly.

Geographical Disparities
Even when exercised with the best of
intentions, the prosecutor’s discretion can
lead to an unequal application of the death
penalty on both a state and national basis.
Some prosecutors never seek the death
penalty, while others, like Lynne Abraham
of Philadelphia have pursued it in almost
every eligible case.44

Other Information the
Jury is Not ToldProsecutorial Discretion
Jurors are asked to decide only one casenot to compare the defendant at trial with
other defendants who may have committed
similar or worse crimes but against whom
the death penalty was not sought. Jurors
are not told about the enormous discretion
that prosecutors have to seek the death
penalty, and about how arbitrary
factors such as geography, race
and a prosecutor’s willingness to
plea bargain are much greater
350
factors in determining who will
be sentenced to death than the
judgment of jurors. They are
300
typically misled with the oftenused closing argument, “if ever
250
there was a crime that merited
the death penalty, this is it.”

About a third of Texas’ death row comes
from Houston, which represents less than
10% of the state population. Twenty-five
percent of Ohio’s death sentences come
from the Cincinnati area, even though only
about 9% of the state’s murders occurred

Decline in Death Sentences

200

When the death penalty was
overturned in 1972, it was
because of the risk that jurors
without any guidance would
impose the death penalty in an
arbitrary and capricious manner.
The theoretical solution to this
dilemma was the creation of a
complex framework that
separated capital trials into two
jury trials, requiring the jury to
find specific factors that

150

100

50

0
1981

1984

1987

1990

1993

1996

1999

2002

BLIND JUSTICE, p. 12

there.45 Such disparities are common
throughout the country and run through
the federal death penalty as well.
Many prosecutors do not seek the death
penalty simply because their county cannot
afford the high costs of such a prosecution.
These variances occur throughout the
criminal justice system, but when the
decision is between life and death, the
resulting arbitrariness is jarring.

Racial Disparities
The darker side of prosecutorial
discretion is that it can lead to racial
disparities in the death penalty. As Justice
William Douglas said in Furman v. Georgia,
arbitrariness is “pregnant with
discrimination.”46 In the absence of careful
guidance, subconscious racial preferences
can affect the way the death penalty is
administered. This is generally not a case of
selecting a minority defendant solely
because of his race. Rather, what has
plagued the death penalty at least for the
past 30 years is that it favors white-victim
cases. A defendant who kills a white
person is much more likely to receive the
death penalty than a defendant who kills a
black person.
Prosecutors are often in contact with the
victim’s family prior to trial; they may need
members of the family to provide “victim
impact” testimony at trial. Cases that get
the attention of the media are more likely to
result in the spectacle of a death penalty
prosecution. Chief prosecutors in death
penalty jurisdictions are almost all white (a
national study published in the Cornell Law
Review found that 97.5% of such
prosecutors were white47); they are also
subject to elections. All these factors may
contribute to the fact that about 80% of
death penalty cases involve white victims,
even though whites are victims in only
about 49% of the murders committed.48
Somewhere along the line from arrest to
indictment, through trial and sentencing,
the death penalty system is selecting more
white-victim cases, and leaving more black
victim cases for lesser prosecutions.

Research indicates that racial disparities
are widest in those cases in which there is
the most discretion.49 Shocking crimes with
multiple victims will likely result in the
death penalty regardless of the race of the
victims. At the other end of the spectrum,
barroom fights will rarely result in the
death penalty. But in the vast middle
ground of cases, where the prosecutor has
wide discretion to seek either the death
penalty or a life sentence, the result is most
often the selection of white-victim cases.
Race and discretion distort the
framework of the death penalty system.
The jury and the public are led to believe
that the death penalty punishes the “worst
of the worst” offenders. But the system
does not work that way. Instead, factors
like race, costs and geography play the
major roles. Juries only get to pick from
among the cases they are offered.

Plea Bargaining
Plea bargains are prevalent throughout
the criminal justice system, but they play a
special role in capital cases. In Ohio, an
Associated Press study covering 21 years
found that nearly half of the capital cases
ended in a plea bargain.50 In New York
over eight years (1995-2003), prosecutors
designated 50 cases for capital prosecution.
Twenty-three resulted in plea bargains to
lesser sentences.51 In the federal system,
between 1995 and 2000, the Attorney
General authorized seeking the death
penalty in 159 cases. With some cases still
pending at the time of the report, 51 of
those cases ended in plea agreements.52
Plea bargaining can depend on many
factors, some proper, some arbitrary: county
budgets, the workload of the prosecutor’s
office, media attention, the prominence of
the victims, the proximity of the next
election, are just some of the considerations.
But even assuming bargains are only struck
for legitimate reasons, the process certainly
does not leave only the worst cases facing
the death penalty. Consider the following
recent cases:

BLIND JUSTICE, p. 13

 Gary Ridgway in the state of
Washington pleaded guilty to killing
48 women and was given a life
sentence.
 Stephen “The Rifleman” Flemmi
confessed in federal court to 10 mob
killings, including the murder of a
young girl, and was given a life
sentence.
 Charles Cullen, a nurse in New
Jersey, received a plea bargain for
killing at least 17 patients.
 Eric Rudolph pleaded guilty to four
bombings, including one at the
Olympics in Atlanta and another at
a doctor’s office in Alabama, in
which two people died and others
were injured, and was given a life
sentence in federal court.
 On the other hand, David Hocker
was executed in Alabama in 2004.
He suffered from bi-polar disorder
and was often suicidal. He killed his
employer. His trial lasted one day.
He refused to let his attorney put on
any mitigating evidence, and he
waived all of his appeals. Whether
he received a fair trial or whether he
was deserving of the death penalty
was never reviewed by the Alabama
Supreme Court, much less subjected
to a full review of constitutional
issues.
Perhaps to the jury that recommended a
death sentence for David Hocker, this was
the worst crime they had ever heard about.
But they were never asked to compare his
case with many other murders in Alabama
that were more heinous. Whatever the
merits of the plea bargaining system, it does
not involve the careful and rational exercise
of the conscience of the community to select
who should live and who should die.

distorted the criminal justice system and
put jurors in untenable positions. Lawyers
for capital defendants are a key component
of the justice system. They are charged with
protecting the lives of their clients. But lazy
defense lawyers, substance-abusing
lawyers, absent lawyers, and inept lawyers
hoping to launch a new career bear a direct
responsibility for disservice not only to their
clients but to the justice system as well.
Jurors in capital cases too often do not hear
the “whole truth” because defense lawyers
did not investigate it and present it at trial.
The responsibility for challenging the
credibility of vague eyewitnesses or
jailhouse informants, the exposing of “junk
science” and the presentation of all
mitigating evidence that might affect the
jury’s ultimate decision, falls primarily on
the defense. The Supreme Court has even
allowed the admission of highly speculative
testimony by “experts” at death penalty
trials that has been shown to be more often
wrong than right because it assumes
vigorous defense attorneys will expose the
truth to the jury.53 But there is often a huge
gap between the assumed ideal and lawyers
in practice.

Sleeping Lawyer Still Allowed
Despite the shock expressed about
sleeping lawyers in recent years, the
problem persists. Just recently the Texas
Court of Criminal Appeals upheld the
conviction and death sentence of George
McFarland, even while acknowledging that
his chief lawyer slept through significant

Failures of the Defense to
Present the Whole Story
No part of the legal process is immune
from the criticism that the death penalty has

George McFarland

BLIND JUSTICE, p. 14

parts of the trial.54 The Court reasoned that
there was no constitutional violation
because McFarland had a second, though
far less-seasoned, attorney who stayed
awake. But two lawyers in capital cases is
the standard of practice almost everywhere
in the country, and the second attorney is an
integral part of the team, not a substitute for
his sleeping partner.
If half of the surgical team slept during
an operation, or indeed, if half of the judges
on an appellate court slept during an
argument, no one would say that an
adequate job was done by the half that was
awake. Jurors in capital cases
overwhelmingly give stronger marks to the
preparation and presentation of the
prosecution than to the defense.55 The
state’s acquiescence to incompetent
representation can only exacerbate that
perception.

Failure to Investigate
In some cases, the lawyer’s failure
occurs before the trial ever begins. In 2003,
the U.S. Supreme Court overturned the
death sentence of Kevin Wiggins in
Maryland because:
[The court-appointed
attorneys] abandoned their
investigation of petitioner’s
background after having
acquired only rudimentary
knowledge of his history from a
narrow set of sources.
...
The mitigating evidence
counsel failed to discover and
present in this case is powerful. .
. . Wiggins experienced severe
privation and abuse in the first
six years of his life while in the
custody of his alcoholic, absentee
mother. He suffered physical
torment, sexual molestation, and
repeated rape during his
subsequent years in foster care.
The time Wiggins spent
homeless, along with his
diminished mental capacities,

further augment his mitigation
case.
...
Wiggins’ sentencing jury
heard only one significant
mitigating factor—that Wiggins
had no prior convictions. Had
the jury been able to place
petitioner’s excruciating life
history on the mitigating side of
the scale, there is a reasonable
probability that at least one juror
would have struck a different
balance.56
Clearly, the chief injustice was done to
Kevin Wiggins and that was the Court’s
main concern. But the original jury in this
trial was also poorly served. They had to
make an excruciatingly difficult decision
about his fate without knowing the most
crucial elements of his life. If Wiggins was
executed, it would have been their
responsibility.

Reaction of Jurors
Many jurors have raised just such
concerns to courts after learning new
information about the defendant revealed
only after the trial. Joseph Amrine spent 17
years on Missouri’s death row after a jury
returned a death sentence with no
reasonable doubts about his guilt. But new
evidence discovered by his appeal lawyers
pointed to his innocence. After seeing the
new information, one juror remarked:
My uneasiness about the
verdict in the Amrine case has to
do with the fact that the defense
attorney [ ] gave us very little to
work with. . . . I got the
impression that when he was
presenting the defense case, he
was meeting his witnesses for
the very first time.
...
I was surprised to see that
Poe’s (one of the state’s
witnesses) description of the
crime is completely different
from Ferguson’s. . . . This

BLIND JUSTICE, p. 15

discrepancy gives me substantial
doubts about whether Poe and
Ferguson were telling the truth.
In addition, I was not really
aware that Terry Russell
(another state witness) was
initially a suspect in Barber’s
slaying. Had I known, I would
have had no difficulty believing
that Russell implicated Joe
Amrine in order to avoid being
prosecuted for Barber’s murder.
If the defense lawyer had effectively
challenged the testimony of the three
inmates, I think Joe Amrine would
have been acquitted. The jury never
even discussed the possibility that
Amrine was innocent, or that
Terry Russell might have been
the real killer.57

Disbarred Lawyers
The issue of ineffectiveness of counsel is
an extensive one that has been dealt with
thoroughly in other publications58 and it is
not necessary to recount it here. It is
probably the most frequent claim on appeal
and one of the primary reasons that so
many cases have to be tried a second time.
Primarily, it is a problem of resources and
standards. States have not provided
effective lawyers for capital cases because
they have been unwilling to supply the
resources that such representation
demands. Instead, in state after state the
system has drawn many of its death penalty
attorneys from among the very small
percentage of lawyers who had been
disbarred in the past or would be in the
future. Consider the following studies of
representation in capital cases:
 In Washington State, one-fifth of the
84 people who have faced execution
in the past 20 years were
represented by lawyers who had
been, or were later, disbarred,
suspended or arrested. Overall, the
state’s disbarment rate for attorneys
is less than 1%.59
 In North Carolina, at least 16 death
row inmates, including 3 who were

Joseph Amrine – Exonerated from
death row in Missouri

executed, were represented by
lawyers who have been disbarred or
disciplined for unethical or criminal
conduct.60
 In Texas, about one in four death
row inmates was defended by a
lawyer who has been reprimanded,
placed on probation, suspended or
banned from practicing law by the
State Bar.61 Jose Medellin, a Mexican
citizen, was represented by a lawyer
whose license was in suspension
during the trial.62
Jurors have every right to expect that
the defense lawyers have made the best case
possible for sparing their client’s life,
especially since a single juror’s reservations
could mean the difference between life and
death . Yet in scores of cases the defense
has put on no evidence for the jury even to
consider.63

Jurors’ Views of Prosecution
and Defense
By significant majorities, most jurors
who have served in capital cases believe
that the prosecution made a better
presentation than the defense. As indicated
earlier, that can partly be due to the fact that
a death-qualified jury is more prone to
believe the prosecution. But it can also be

BLIND JUSTICE, p. 16

due to the simple fact that an unqualified
defense attorney was no match for the
skilled and experienced prosecution. The
Capital Jury Project asked almost 700 capital
jurors who had done the better job in the
trial that they served on. The results were
five to one in favor of the prosecution:
Over one-half of the jurors
(62.2%) believed that the
prosecution had the advantage
in preparing the case for trial, in
communicating with the jury
(62.3%) in commitment to
winning the case (51.0%), and in
fighting at the guilt phase of the
trial (61.6%). Moreover, most
jurors who gave the advantage
to the prosecution, said that the
prosecution’s advantage was

“great” rather than “moderate”
or “slight.”. . . One out of ten
jurors, or fewer, said the defense
had the advantage in any of
these respects.64
These stark figures are a far cry from the
level playing field presumed to exist by the
Supreme Court and depended on by the
public to uncover the truth through an
adversarial process. They also dispel the
misperception that some people have that
capital defendants have high-priced, highly
skilled lawyers who enable them to beat the
charges. Most capital defendants get far
less, and go to trial heavily out-gunned by
the prosecution.

Death Penalty Jurors' Views of Prosecution and Defense

4

Preparing the Case for Trial

3

Communicating with the Jury

2

Commitment to Winning

1

0.0%

Fighting at the Guilt Phase
10.0%

20.0%

30.0%

40.0%

50.0%

60.0%

% of Respondents Giving Advantage to Each Side
Defense

Prosecution

70.0%

BLIND JUSTICE, p. 17

III. WHAT JURORS ARE ALLOWED TO HEAR
When prosecutors withhold critical
information or when defense attorneys fail
to investigate their case, jurors hear only
part of the truth. But another source of
misinformation comes from what they are
presented as completely reliable evidence.
One such source of information is the
evidence offered by forensic experts from
the state’s crime lab. Testimony about
fingerprints, bullet markings, hair and fiber
identification, and especially DNA
evidence, carry an air of certainty, enabling
jurors to dispel their doubts about
convictions or death sentences. But such
ready reliance on the state’s evidence is
clearly misplaced.

The Gift and Curse of DNA
One of the most important discoveries
in recent times has been the understanding
of how DNA determines the characteristics
of every living thing. Recently, DNA
testing has had an enormous impact on the
criminal justice system, resulting in both
convictions in previously unsolved crimes
and exonerations of people languishing in
prison and on death row. For the public,
DNA has become the “gold standard” of
forensic evidence, spawning TV shows and
Congressional legislation to promote its
use.65
DNA evidence has been invaluable in
exposing the fallibility of other forensic
evidence that jurors often relied on as
possessing scientific certainty. Ray Krone
was sentenced to death in Arizona because
an expert said his teeth matched bite marks
on the victim. Ron Williamson went to
death row in Oklahoma because his hair
was said to match hairs found at the crime
scene. Similar hair evidence also resulted in
a death sentence for Charles Fain in Idaho.
Blood tests helped send Robert Miller to
death row in Oklahoma. All of these men
were eventually exonerated with the help of
DNA evidence that fortunately still existed
in their case.66 Still others who were
convicted on the basis of faulty eyewitness
testimony were freed because of DNA
testing.

An employee’s photograph of
conditions at the Houston Police
Department Crime Lab.

However, blind faith in DNA evidence
would be a mistake. The science of DNA
testing is only as reliable as the care of the
police who collect the evidence, the
expertise of the lab technicians who test it,
and the reliability of the experts who testify
about the results. If the evidence is
contaminated or misinterpreted, the
information the jury receives is doubly
damaging. They have been given false
information, and it comes clothed in the
mantle of scientific certainty.
For death penalty cases, the worst
scenario imaginable would be that the
jurisdiction responsible for the most
executions in the entire country has the
worst crime lab. But that is arguably the
case in Houston, Texas. The police crime
lab there has been so fraught with problems
that the data it has sent to the national
databanks has been rejected. Multiple
grand juries have been investigating the
misconduct and the Texas Rangers have

BLIND JUSTICE, p. 18

been brought in to help sort through 280
boxes of re-discovered evidence at the lab.
Rainwater leaked into the lab areas. Experts
lied about their credentials in courtroom
testimony. According to national
standards, none of the analysts who worked
at the Houston Police DNA lab were
qualified by education to do their jobs.67
Some were hired after stints at the local zoo,
with no experience in human DNA testing.
Two men have already been released
from prison after errors were discovered in
their Houston cases. The mayor and the
police chief have called for a halt to all
executions in cases from the county. Chief
of Police Harold Hurtt said, “I think it
would be very prudent for us . . . to delay
further executions until we’ve had an
opportunity to reexamine evidence that
played a particular role in the conviction of
an individual that was sentenced to
death.”68 Such entreaties have been ignored.
Last year the Houston area again led the
country in executions.69
Although errors by crime labs are
legally attributable to the prosecution,
individual prosecutors may be as
blindsided by the incompetence of
supposed “experts” as the jury. Joe
Owmby, a prosecutor in Houston,
expressed his dismay: “I could see
somebody coming back and saying, ‘The
test we told you is conclusive is now
inconclusive.’ I could see that happening.
What I did not envision, what I did not
speculate could conceivably happen, is that
they would say, ‘We could tell [now] it’s not
him.’ I did not see how that could
happen.”70

For death penalty
cases, the worst scenario
imaginable would be
that the jurisdiction
responsible for the most
executions in the entire
country has the worst
crime lab.

Broader Problems in
Forensic Labs
The problems with errors in forensic
evidence are not limited to one local crime
lab, or to DNA testing. In 2003, the Fort
Worth, Texas police crime lab stopped
conducting serology tests because of
questions raised about contaminated
evidence.71 Serious problems have been
reported in labs in Florida (DNA lab worker
admitted to falsifying DNA data), Arizona
(technicians made errors analyzing DNA
evidence in 9 criminal cases under review),
Maryland (480 criminal cases under
review), West Virginia (Fred Zain testified
in dozens of cases about forensic tests he
never conducted; he then moved to Texas
and continued his misconduct until he was
fired), Illinois (accusations of false forensic
evidence led to 4 exonerations), Oklahoma
(police chemist Joyce Gilchrist was fired for
incompetence; a death row inmate was
exonerated after allegations of Gilchrist’s
false testimony; 23 defendants were
sentenced to death in cases that she worked
on, and 11 have already been executed).72

BLIND JUSTICE, p. 19

“The 1-in-100 estimate
was without any
scientific basis. The
multiplying of
probabilities was totally
fallacious.”
Sometimes these errors are caught when
the results from one lab are reviewed by
another lab. Recently, a defendant who
spent 15 years in prison for rape was
released in Montana after the FBI checked
the work of the scientist who had been head
of the state’s crime lab. Arnold Melnikoff
had testified that the chances that either set
of hairs found at the crime scene were not
the defendant’s were 1 in 100, and because
pubic hairs look different from head hairs,
there was a “multiplying effect” making it
“1 chance in 10,000.”73 The FBI performed
DNA testing on the hairs and neither were
from the defendant. Walter Rowe, a
professor of forensic science at George
Washington University, commented on the
original testimony: “The 1-in-100 estimate
was without any scientific basis. The
multiplying of probabilities was totally
fallacious.”74
The FBI itself is not without error in this
area. A 2004 report from the National
Research Council found that the FBI’s
examiners in their court testimony
sometimes overstated the reliability of the
Bureau’s method for comparing bullets and
played down the likelihood of false
matches.75 Senator Charles Grassley of
Iowa stated that the study, “raises serious
questions about testimony given over the
last 40 years. The FBI reached farther than
the science supported.”76

Jailhouse Informants
Perhaps the next best thing to scientific
evidence “proving” a defendant’s guilt is
his own confession. Jurors bear a
tremendous burden in deciding guilt and

innocence, especially when a death sentence
may follow. To have the defendant confess
to the crime can clear their conscience and
erase their doubts. But such confessions are
not made by the defendant at trial. Instead,
they are often alleged to have been made by
the defendant while sitting in a jail cell to a
cellmate. Prisoners who give information to
the prosecution about a fellow prisoner
usually want something in return, even if
that reward is only implied. These
arrangements have been the seed of many
wrongful convictions.

A study at Northwestern
University found that
between 1972 and 2002, 97
death row inmates were
exonerated nationwide. In
16 of those cases, the men
had been wrongfully
convicted partially or
wholly on the testimony of
jailhouse informants.77

Sometimes the prosecution will
withhold information about the deal that
was made with the informant. In Walter
McMillian’s trial for murder in Alabama,
the state did not reveal the financial reward
and preferential treatment that jailhouse
informant Bill Hooks received for testifying
against McMillian. Nor did Ralph Meyers,
a convicted murderer, disclose that he had
been pressured by the police to implicate
McMillian. Fortunately, Meyers could not
live with his lies and recanted, and the
incentives that Hooks received were
exposed on a 60 Minutes broadcast. Walter
McMillian was eventually freed, but it took
one of the best lawyers in the country and
national media exposure to undo the jury’s
reliance on such flimsy testimony.78
In other instances, the prosecution
regularly uses the same informant, knowing
that he has lied repeatedly, but nevertheless

BLIND JUSTICE, p. 20

The gm

Walter McMillian (left) freed in Alabama with
Attorney Bryan Stevenson (EJI photo).

offering him as truthful to a jury that is
unfamiliar with this practice. Tommy Dye
had a 15-year criminal record with a dozen
convictions and a dozen aliases. He had
lied to judges and to grand juries. When he
offered to testify about his cellmate, Stephen
Manning, prosecutors knew his credibility
might be doubted and provided him with a
tape recorder to back up the conversations.
Dye testified that Manning twice confessed
to a murder, even though the murder
confessions were somehow not on the tape
recording. The prosecution was successful
in securing a conviction and death sentence
against Manning.
In return for testifying, Dye had his
criminal sentence cut in half and he and his
girlfriend were placed in the federal
Witness Protection Program. Manning’s
conviction was overturned for other
improprieties. An investigative report by
the Chicago Tribune exposed the dangers of
using jailhouse informants and particularly
attacked the credibility of Tommy Dye. The
state elected to dismiss all charges against
Manning, though prosecutors continued to
use Dye as an informant.79
Perhaps the most notorious jailhouse
informant was Leslie Vernon White. He
testified against a dozen California inmates,
and in one 36-day period gave evidence in
three homicide cases and one burglary, “all
arising from what he claimed were fleeting

jailhouse encounters during which inmates
[purportedly] revealed critical details
about their crimes to him.”80 He later put
on a courthouse demonstration for the Los
Angeles police of how he falsely implicated
innocent defendants. He was only given
the name of a suspect and a telephone. He
managed to learn intimate details about the
crime from various law enforcement
officers whom he called. He then made up
a confession allegedly from the suspect and
arranged to have the court bailiff bring the
suspect to the court’s holding tank so it
could be asserted that the two of them
shared the same room.81
However, jurors know little of such
skills by informants. A Chicago Tribune
investigation found that 46 inmates in
Illinois were sent to death row since 1977
in cases where prosecutors used jailhouse
informants, and in about half of those cases
the informant played a major role in the
conviction.82

Victim Impact Evidence
[T]he admissibility of victim
impact evidence that sheds absolutely
no light on either the issue of guilt or
innocence, or the moral culpability of
the defendant, serves no purpose other
than to encourage jurors to decide in
favor of death rather than life on the
basis of their emotions rather than
their reason.
-Justice John Paul Stevens, 200583
The death penalty decision-making
process is further obscured by the
introduction of powerful victim impact
evidence. In almost every state, as the
jurors are beginning to grapple with the
difficult life-and-death question before
them, the prosecution presents a series of
witnesses who are relatives of the deceased
victim. They describe the immense loss that
has occurred in their own lives as a result of
the defendant’s murdering their loved one.
For jurors torn between sparing the
defendant’s life and expressing outrage at

BLIND JUSTICE, p. 21

the crime that has been committed, victim
impact evidence can tip the balance toward
the state.
The voice of victims is an important one
in our criminal justice system. Many states
require the prosecution to keep the victim’s
family informed as their case progresses.
Frequently, the will of the family with
respect to seeking the death penalty plays a
major role in whether the case will proceed
as a capital case. But at sentencing, the
emotional impact of their testimony can be
overwhelming to the jury.84
In theory, criminal prosecutions involve
the State versus the Defendant, since crime
involves more than an individual victim, it
is a violation of the community’s norms. If,
however, death penalty cases pit the
defendant against the victim, that choice is
an easy one for most jurors. A victim
versus defendant model is a reminder of
our long-discarded vigilante justice. In
most criminal cases, the victims’ sentencing
preferences are not presented to a jury.
Sentencing proceedings are before a judge,

who is guided by minimum and maximum
punishments.
Death sentencing proceedings, on the
other hand, almost always take place before
a jury. That group of jurors is probably
hearing for the first time in their lives
graphic details about the crime, the
suffering of the victim, and how long it took
for death to occur. In such an atmosphere,
the well-articulated pleas of family
members, especially those members with
whom the jurors feel most in common, can
overwhelm the careful weighing of
aggravating and mitigating factors that is
supposed to take place. In contrast, an
obscure victim with no one to present the
emotional impact of his loss, will likely be
considered differently. Given the Supreme
Court’s approval of the use of victim impact
evidence for limited purposes85 and the
recent shift in society generally toward
victims’ rights, it is unlikely that this kind of
testimony is going to be eliminated.
Nevertheless, some states have taken
measures at least to instruct the jury about
keeping such evidence in perspective.86

BLIND JUSTICE, p. 22

IV. JURORS’ UNDERSTANDING
OF THE SENTENCING PROCESS
To identify before the fact those characteristics of criminal homicides and their
perpetrators which call for the death penalty, and to express these characteristics in
language which can be fairly understood and applied by the sentencing authority,
appear to be tasks which are beyond present human ability.
-McGautha v. California, 197187
Even if jurors were given all the
appropriate information by the prosecution
and the defense, they would have a difficult
time determining who should live and die
because it is an inherently inscrutable
process. Jurors are typically told to consider
all the aggravating evidence (i.e., those
things the prosecution believes make this
crime worse than an “ordinary” murder)
and all the mitigating evidence (i.e., those
things that the defense, assuming it has
done a thorough investigation, believes
lessen the severity of the offense). Based on
that consideration, jurors are to decide
whether the defendant lives or dies. This
unique role for juries is based on the
concept that jurors represent the
“conscience of the community” in making
life and death decisions. However, it is very
difficult for ordinary citizens to understand
the abstruse legal framework that the courts
have constructed around the death penalty.

 Approximately 50% of jurors
interviewed decided what the
penalty should be before the
sentencing phase of the trial. This is
before they have heard mitigating
evidence from the defense or
received instructions from the judge
about how to make the punishment
decision.

Craig Haney, a prominent psychologist
in California, found that even well-educated
people misunderstood the instructions to
the jury. His research indicated that:

 44% of jurors said that they believed
the death penalty was required if the
defendant's conduct was heinous,
vile or depraved. The Supreme
Court has ruled that the death
penalty cannot be required solely on
the grounds that specific
aggravating circumstances have
been established.

California’s entire penalty
instruction is very poorly
understood by upper-level
college students, that these
problems are not clarified in
actual cases through attorney
arguments, and that jurors who
had served in actual capital cases
were plagued by fundamental
misconceptions about what the
instructions meant.88
Interviews with those who served on
death penalty juries by the Capital Jury
Project found that:

 The study found that 45% of jurors
failed to understand that they were
allowed to consider any mitigating
evidence during the sentencing
phase of the trial. In addition, twothirds of jurors failed to realize that
unanimity was not required for
findings of mitigation. The law
allows that even if only one juror
finds a factor to be mitigating that
finding is relevant for the whole
jury.

 Most jurors grossly underestimated
the amount of time a defendant
would serve in prison if not
sentenced to death, and the sooner
jurors believed (wrongly) a
defendant would return to society if
not given the death penalty, the
more likely they were to vote for
death. 89

BLIND JUSTICE, p. 23

Even in states that have life-withoutparole in prison as the alternative to the
death penalty, jurors believed that the
inmates would serve only 20 years, or less,
before release. In Alabama, a life-withoutparole state, the jurors’ estimate of the
median time inmates would serve was 15
years; in California, the estimate was 20
years; and in Pennsylvania, the estimate
was only 12 years.90 In reality, life-without
parole means just what it says. In
California, for example, not a single inmate
sentenced to life without parole has been
released since the sentence was established
in 1978.91
With respect to the sentencing process,
jurors are typically told to weigh the
aggravating and mitigating circumstances
presented in the case, but they are not given
any scale to perform this task. Assuming
they understand the meaning of mitigation,
and assuming the defense attorney has
investigated the client’s background for
sympathetic facts, the jury is still faced with
a decision that is unlike any other in the
criminal justice system. The formula for
weighing these factors is not a simple
counting of how many factors of each type
are proven. (For example, 3 aggravators and
2 mitigators do not necessarily equal a
death sentence).

Jurors are told to
weigh the aggravating
and mitigating
circumstances, but they
are not given any scale
to perform this task.

A juror could certainly be excused for
thinking that this is the law. But, in fact, the
constitution requires a different
determination. At least some aggravators

(but not all) must be proven beyond a
reasonable doubt to the unanimous
satisfaction of the jury. The finding of
mitigating factors, on the other hand, need
not be found unanimously and need not be
proven beyond a reasonable doubt.
Somehow these apples and oranges must be
weighed and a proper sentence determined.
Not surprisingly, this process produces
unpredictable and arbitrary results. As
much as anything, geography and the race
of the victim are the best predictors of death
sentences, not the severity of the crime or
the record of the criminal.92

Lingering Doubt
To make matters more confusing, the
most powerful mitigating factor for jurors
who vote for a life sentence is one that most
courts tell them not to consider: lingering
doubt about the defendant’s guilt. The
Capital Jury Project found that 63% of jurors
who said it was a factor in their case
believed it was very important in making
their punishment decision, greater than the
importance of other factors like mental
retardation, youth, or childhood abuse
present in the case.93
Despite the importance of lingering
doubt, however, defendants have no
constitutional right to ask the jurors to
consider this factor when making their
sentencing decision.94 Like many of the
Court’s decisions restricting defendants’
rights in death penalty cases, this ruling
came before the advent of widespread DNA
testing and the spate of innocence cases that
have resulted. The Illinois legislature
recently considered breaking new ground
with a death penalty reform that would
forbid a death sentence unless the jury had
no doubt about the defendant’s guilt.95 Given
that much of the evidence that might lead to
acquittal is hidden, it is debatable whether
this provision would eliminate death
sentences against innocent defendants.
Nevertheless, the bill would at least allow
jurors to consider this factor, which is
already high on their list of concerns.
The Supreme Court has been
unresponsive to the issue of jury confusion

BLIND JUSTICE, p. 24

in death cases. Its assumption, as expressed
in a recent case, is that “a jury is presumed
to follow [the judge’s] instructions” and “to
understand a judge’s answer to its
question.”96 This 5-4 decision upholding a
death sentence was handed down despite
the fact that the jury requested clarification
from the trial judge about whether they
were required to sentence the defendant to
death (they weren’t). The judge refused to
enlighten them. They rendered their death
verdict in tears.97 The defendant was
executed.
Another example of how jurors’
confusion about their responsibility (as well
as the intimidating effect of race) can have
devastating results occurred prior to the
execution of William Henry Hance in
Georgia. Hance, a mentally impaired black
man was sentenced to death despite the fact
that one of the jurors said she did not vote
for death. The only black person on the jury
stated that she had voted for a life sentence
because of Hance's mental condition, but
her vote was ignored. In the courtroom, she
was intimidated against speaking out, but
she later revealed her vote and the strong
racial overtones in the jury room. Another
juror signed an affidavit confirming the
black juror's story, but Mr. Hance was
executed anyhow in 1994.98

Emotional Impact on Jurors
I couldn’t understand how people
sat in the same trial and didn’t feel
the same way. . . .It really broke my
heart.
-Susan Schriever, a juror from the
trial of Lee Boyd Malvo (Virginia)99

Perhaps because death penalty
sentencing involves excruciatingly difficult
decisions coupled with frustrating
instructions, capital trials often leave jurors
with emotional scars and resentment. For
example, one of the jurors in the sniper trial

of Lee Boyd Malvo in Virginia saw the
relationships among jurors quickly break
down during deliberations, and concluded
that “I’m not sure I ever want to see them
again.”100
Other jurors are personally
overwhelmed by the experience. Jackie
Marhalik, a juror at the trial in which D.C.area sniper, John Muhammad, was
sentenced to death, said: “During the six
weeks of the trial, I became very angry at
the prosecution, because in trying to
recreate the horror, they bombarded us with
the most gruesome and painful
photographs. The prosecutors were careful
to point out where the brain matter had
splattered on the ground. . . . I still wake up
with nightmares.”101
Alex Kotlowitz followed some of the
jurors in the case of Jeremy Gross in Indiana
for a New York Times Magazine article. As
with all such jurors, these people agreed
they could impose a death sentence in an
appropriate case. But even though there
was little doubt of the defendant’s guilt, all
voted for life. When they reached their
decision everybody in the room started
crying. They had to wait an hour before
calling the bailiff to regain their
composure.102 Many of the jurors told the
author that when they returned home
family members and co-workers chastised
them for not voting for death. One juror
sank into deep depression and missed two
months of work.103
In a national study of jurors entitled
“Through the Eyes of the Juror: A Manual
for Addressing Juror Stress,” about a third
of jurors experienced stress after their trial.
But death penalty cases produced the most
stress. “I think the majority of people come
out of it disturbed,” said Beth Bonora,
founder of the National Jury Project.104
Some courts are now having the jurors in
high profile cases debriefed by a health
professional after trial.105

BLIND JUSTICE, p. 25

V. THE SCOPE OF OFFICIAL MISCONDUCT
According to a Chicago Tribune investigation, 381 defendants
in homicide cases have had their convictions thrown out because
prosecutors either withheld critical evidence or presented evidence
they knew to be false. Sixty-seven of the defendants had been
sentenced to death.
Official misconduct in criminal cases is a
broad problem that manifests itself in many
ways. Jurors have no way of questioning
during trial whether they are being given all
the facts and whether witnesses are being
truthful. Once the trial is over, jurors’ views
count for little, even if new information
comes to light. One of the facts jurors may
not know is the extent of misconduct in
trials.
The Center for Public Integrity
conducted a study of official misconduct in
2003 and reported the practice to be
widespread. The Center studied 11,450
cases in which appellate courts reviewed
allegations of prosecutorial misconduct and
found 2,017 cases since 1970 in which courts
cited this behavior as a factor when
reversing sentences or dismissing charges.
This does not count thousands of other
cases in which the courts found
prosecutorial actions inappropriate, but
held it did not merit a reversal because the
error was deemed harmless.106 Thirty-two
of the defendants in cases where
misconduct was found were later
exonerated.
A national study of prosecutorial abuse
restricted to homicide cases was conducted
by the Chicago Tribune, revealing the
following findings:
 Since 1963 when the U.S. Supreme
Court ruled that prosecutors must
hand over relevant exculpatory
evidence to the defense, 381
defendants in homicide cases have
had their convictions thrown out
because prosecutors either withheld
such evidence or presented evidence
they knew to be false. Sixty-seven of
the defendants had been sentenced to
death.

 None of the prosecutors involved in
these cases was convicted of a crime
nor barred from practicing law.
Many subsequently became judges
or district attorneys.107

Innocence and Official
Misconduct
Official misconduct in death penalty
cases presents a particularly serious issue.
Since 2000, thirty-seven people have been
freed from death row after their convictions
and death sentences were dismissed either
by the prosecution, through an acquittal at a
re-trial, or by an absolute pardon based on
innocence from the governor. In 23 (62%) of
these cases, state misconduct played a
significant role in the faulty original trials.
These innocent defendants represent only a
small portion of the 121 defendants who
have been freed since 1973, many with
similar evidence of prosecutorial
misconduct.108 A description of the 15 cases
of defendants released since 2003 following
findings of official misconduct appears in
the Appendix.
The Supreme Court’s growing concern
with prosecutorial behavior in death
penalty cases was underscored when they
halted an execution in Texas just minutes
before it was to take place in 2003. Despite
the fact that Delma Banks’ claim that vital
evidence had been withheld by the
prosecution was rejected by Texas courts
and by the U.S. Court of Appeals for the
Fifth Circuit, the Supreme Court agreed to
hear his case and decided (7-2) that he was
entitled to a new sentencing hearing.109

BLIND JUSTICE, p. 26

“A rule thus declaring
‘prosecutor may hide,
defendant must seek,’ is
not tenable in a system
constitutionally bound
to accord defendants due
process.”
-Justice Ruth Ginsburg

In response to Texas’ assertion that it
was Banks’ responsibility to find the hidden
evidence, Justice Ruth Ginsburg, writing for
the majority, stated: “A rule thus declaring
‘prosecutor may hide, defendant must
seek,’ is not tenable in a system

constitutionally bound to accord defendants
due process.”110 Banks, a black man who
was convicted by an all-white jury in 1980,
is also appealing his underlying conviction.
In many similar cases, prosecutors’
decisions to withhold evidence will never
be challenged because the exculpatory
material never comes to light. By definition,
this evidence was not turned over to the
defense. That will remain true after the trial
and into the future unless it is
independently, and often fortuitously,
discovered. And no one takes responsibility
for this miscarriage of justice: the
prosecutor’s withholding of evidence is
termed a “judgment call,” the defense (and
the judge and the jury) will never hear
about the evidence. Perhaps a new trial
would have been granted, but no one will
ever know. Jurors should know about the
extent of this misconduct if they are to
accurately render their decisions.

BLIND JUSTICE, p. 27

CONCLUSIONS
The death penalty in America has been
rightly criticized for many problems: racial
disparities, wrongful convictions and
executions, and enormous costs, to name a
few. But it also deeply affects the jurors
who serve on capital cases. Rather than
representing a cross-section of society,
jurors are chosen because of their
willingness to impose a death sentence.
Statistically, such juries will contain fewer
minorities, fewer women, fewer
representatives of certain religious beliefs,
and more jurors who are trusting of the
state’s evidence and prone to conviction.
This cuts against the grain of our
fundamental principles that those with
minority views are no less citizens.
Those who do serve on capital juries
will find themselves part of a confusing
high-stakes battle in which justice is not

always well-served. Evidence is withheld,
the truth twisted, and emotions
manipulated all in the name of winning a
death sentence. Far too often, mistakes
outside of the jury’s control will be
revealed, negating much of their
painstaking work. Occasionally, the person
upon whom the jury was asked to
pronounce a sentence of death is later
exonerated, leaving the jurors with
enormous frustration and anger.
Our system of citizen juries and our
criminal justice system generally have
withstood the test of time and are often a
model for other countries. But the death
penalty has infected this system—its errors
are too frequent, its inequities too blatant,
its stakes too high, and its complexities too
incomprehensible—to fit well within this
tradition.

BLIND JUSTICE, p. 28

Appendix
Exonerated Death Row Inmates 2003-2005
with Findings of Official Misconduct
Although multiple reasons are often cited by courts in dismissing
charges, the most recent exonerations from 2003 to 2005 illustrate the risks posed
by overzealous prosecution in capital cases. For a description of exonerations
prior to 2003, see the Death Penalty Information Center’s Web site,
http://www.deathpenaltyinfo.org, at “Innocence.”
 In 2005, Ohio dismissed all charges against Derrick Jamison. The
prosecution had withheld critical eyewitness statements and other evidence from
the defense, resulting in the overturning of Jamison's conviction in 2002. One of
the withheld statements involved an eyewitness to the robbery. Withheld police
records showed that the eyewitness had identified two suspects, neither of which
was Jamison. All charges were dropped and Derrick Jamison was freed.
 Ernest Ray Willis was sentenced to death in Texas for the 1986 deaths of
two women who died in a house fire that was ruled arson. Seventeen years later,
Pecos County District Attorney revisited the case after a federal judge
overturned Willis' conviction. He hired an arson specialist to review the original
evidence, and the specialist concluded that there was no evidence of arson. The
prosecutor said that Willis "simply did not do the crime. ... I'm sorry this man
was on death row for so long and that there were so many lost years."
 In 2004, the Louisiana Supreme Court reversed Dan Bright’s conviction,
holding that the state suppressed material evidence regarding the criminal
history of the prosecution’s key witness. The court noted that there was no
physical evidence against Bright, and that the discredited witness’s testimony
was the only evidence that served to convict him. All charges were dismissed
and Bright was freed.
 Laurence Adams left a Massachusetts prison 30 years after his conviction
for the 1972 robbery and murder of a transit worker in Boston. Adams’
conviction was overturned in 2004 because police had withheld important
evidence. Adams had been convicted at age 19 on the testimony of two
witnesses, both of whom had unrelated charges against them dropped after their
testimony. The key witness testified that Adams had admitted to the offense in a
discussion in a private home, but it turned out that the witness was actually
incarcerated at the time that he alleged the conversation took place. Adams’
sentence had been reduced to life; otherwise he might have been executed
earlier. Instead, he was freed.
 Gordon Steidl was freed from an Illinois prison in 2004, 17 years after he
was wrongly convicted and sentenced to die for two 1986 murders. An Illinois
State Police investigation in 2000 found that local police had severely botched
their investigation, resulting in the wrongful conviction of Steidl and his codefendant.

BLIND JUSTICE, p. 29

 Alan Gell was arrested for a 1995 robbery and murder. The state’s two
key witnesses were Gell's ex-girlfriend and her best friend, both teenagers. The
girls, who were at the victim’s house and pled guilty to involvement in the
murder, testified that they saw Gell shoot Jenkins on April 3, 1995. However,
prosecutors withheld an audiotape of one of the girls saying she had to "make up
a story" about the murder. Gell was acquitted at a re-trial and the prosecutors
from the case were disciplined by the state bar.
 Nicholas Yarris was in jail in Pennsylvania on a minor charge in 1981. A
fellow inmate made a deal with the D.A. and began exchanging false information
about Yarris’ involvement in a murder for conjugal visits and a reduced
sentence. During the trial in 1982, the prosecution did not hand over 20 pages of
documents that included other physical evidence and conflicting witness
accounts. On appeal, a federal judge approved a motion by prosecutors to have
evidence from the case tested in a lab in Alabama that was later revealed to have
had no experience in DNA testing. This lab found no conclusive results to
exclude Yarris or include anyone else. The DNA evidence was finally re-tested
independently in 2000 by arrangement with the Pennsylvania Federal Defender
Office, and the results of 3 tests excluded Yarris. He was then freed.
 Joseph Amrine was sentenced to death in 1986 in Missouri for the
murder of a fellow prisoner. Amrine maintained his innocence, and
investigators never uncovered any physical evidence linking him to the crime.
He was convicted on the testimony of fellow inmates, three of whom later
recanted their testimony, admitting that they lied in exchange for protection.
Despite the state’s argument that new evidence of innocence should have no
bearing on the case, the Missouri Supreme Court found "clear and convincing
evidence of actual innocence that undermines confidence" in Amrine's
conviction. The local prosecutor then announced that he would not seek a new
trial and Amrine was released.
 Timothy Howard and Gary James were arrested in 1976 for an Ohio
bank robbery in which one of the bank guards was murdered. Both men
maintained their innocence throughout trial. With funding from Centurion
Ministries in New Jersey, Howard and James were subsequently able to uncover
new evidence not made available to their defense attorneys at the time of trial,
including conflicting witness statements and fingerprints. Charges were
dismissed and they were freed in 2003.
 John Thompson was sentenced to death in 1985 following his conviction
for a New Orleans murder. In 1999, just five weeks before his scheduled
execution, Thompson's attorney discovered crucial blood analysis from a prior
conviction of Thompson. The blood evidence, which had been improperly
withheld by the state, cleared Thompson of a robbery conviction. It was that
conviction that had kept Thompson from testifying on his own behalf at his
murder trial. If he had testified, the prosecution would likely have crossexamined him about the robbery conviction. He was granted a new trial and
acquitted in 2003.
 Before leaving office in 2003, Illinois Governor George Ryan granted four
pardons based on innocence. The men pardoned, Aaron Patterson, Madison
Hobley, Leroy Orange and Stanley Howard, were part of the "Death Row 10," a
group of Illinois death row prisoners who claimed that they were the victims of
police torture. The four pardoned men maintained that their confessions were
given only after they were beaten, had guns pointed at them, were subjected to

BLIND JUSTICE, p. 30

electric shock, or were nearly suffocated with typewriter covers placed over their
heads. In 2002, a special prosecutor was named to conduct a broad inquiry into
the allegations from more than 60 suspects who, like the Death Row 10, claimed
that they were tortured by former Chicago Police Commander Jon Burge or his
detectives at the Burnside Area Violent Crimes headquarters in Chicago during
the 1980s. Jon Burge was fired by the Chicago Police Board in 1993 for his role in
the torture of another prisoner. Governor Ryan examined the cases of all the
Illinois death row inmates and selected these four for pardons based on their
coerced confessions and other information.111
In many of the of the above cases, a judgment call was made by the
prosecutor that the evidence that was not handed over to the defense was either
not “exculpatory” (i.e., it would not have lessened the likelihood of a guilty
verdict or death sentence) or that the evidence was not “material” (i.e., the
presence of this new evidence would not have undermined confidence in the
outcome).112 Both of these criteria leave a lot of room for subjective judgment. In
the relevant cases above, a court determined that evidence should have been
turned over to the defense and that the prosecution, either intentionally or
mistakenly, made the wrong decision.

BLIND JUSTICE, p. 31

ENDNOTES
1

. See, e.g., Penry v. Lynaugh, 492 U.S. 302, 330-31 (1989) (noting the importance of juries in determining
whether a national consensus has been reached in a case about executing people with mental retardation).
2

. See generally, B. Fleury-Steiner, “Jurors’ Stories of Death: How America’s Death Penalty Invests in
Inequality,” (Univ. of Michigan Press, 2004).
3

. Associate Justice John Paul Stevens, Speech before the American Bar Association’s Thurgood Marshall
Awards Dinner, Chicago, August 6, 2005, available at
http://www.supremecourtus.gov/publicinfo/speeches/sp_08-06-05.html.
4

. See Ring v. Arizona, 536 U.S. 584, 608 n.6 (2002) (listing the states that entrust to juries the
determination of death sentences).
5

. These challenges to individual jurors are available to both sides in a capital case. From a juror’s
perspective, however, bias for being black or white, exhibited by the prosecution or the defense, are
equally disturbing. And there is no guarantee that these two wrongs will balance out to make a “right.”
6

. See Batson v. Kentucky, 476 U.S. 79 (1986) and subsequent cases.

7

. See DATV Productions, Jury Selection With Jack McMahon, transcript at 69-71 (1987) (on file with DPIC).

8

. S. Duffy, “District Attorney’s Video at Heart of New Trial in Philadelphia Murder Case,” Legal
Intelligencer, Dec. 21, 2001.
9

. Editorial, “How Large a Fig Leaf?,” Washington Post, Oct. 27, 2002, at B6.

10

. Miller-El v. Cockrell, 537 U.S. 322 (2003). The lower court had denied Miller-El the opportunity to
appeal the challenge he had raised to the jury selection process. The Supreme Court (8-1) said the appeal
should have been heard. It was heard but this time denied on its merits. The Supreme Court took the
case again, Miller-El v. Dretke, and reversed his conviction. See Miller-El v. Dretke, 2005 WL 1383365
(U.S.).
11

. See Washington Post editorial, note 9 above.

12

. Miller-El v. Cockrell, 537 U.S. at 347.

13

. See Washington Post editorial, note 9 above.

14

. S. McGonigle, et al., “A Process of Juror Elimination,” Dallas Morning News, August 21, 2005. The
cases studied were not death penalty cases.
15

. D. Murphy, “Case Stirs Fight on Jews, Juries and Execution,” N.Y. Times, Mar. 16, 2005, at A1.

16

. C. Hensleigh, “Quatman Tells His Version of California Death Row Retrial Case,” Whitefish Pilot,
April 7, 2005.
17

. Id.

18

. Gallup Poll Press Release, “Who Supports the Death Penalty?,” Nov. 16, 2004 (on file with DPIC).

19

. D. Lindorff, Salon Magazine, Jan. 2, 2001.

20

. Id.

21

. C. Haney & D. Logan, “Broken Promise: The Supreme Court’s Response to Social Science Research on
Capital Punishment,” 50 Journal of Social Issues 75, 91 (1994).

BLIND JUSTICE, p. 32

22

. R. Morin, “Bias in the Jury Box,” Washington Post, March 21, 2004, at B5.

23

. See Lockhart v. McCree, 476 U.S. 162 (1986).

24

. See W. Bowers & W. Foglia, "Still Singularly Agonizing: Law's Failure to Purge Arbitrariness from
Capital Sentencing," 39 Criminal Law Bulletin 51, 65 (2003)).
25

. Associate Justice John Paul Stevens, Speech before the American Bar Association’s Thurgood Marshall
Awards Dinner, Chicago, August 6, 2005, available at
http://www.supremecourtus.gov/publicinfo/speeches/sp_08-06-05.html (emphasis added).
26

. See, e.g., CBS Poll, April 17, 2005 (Roper Center at Univ. of Conn., May 17, 2005) (public equally split
on support for life-without-parole or death penalty as punishment for murder).
27

. See J. Dahlburg, “Anger in Puerto Rico Over Death Penalty Case,” Los Angeles Times, June 9, 2005.

28

. See A. Liptak, “Facing a Jury of (Some of) One’s Peers,” N.Y. Times, July 20, 2003.

29

. See “The Federal Death Penalty System: A Statistical Survey (1988-2000), U.S. Dept. of Justice (Sept. 12,
2000).
30

. B. Miller, “D.C. Case Has Court Struggling for a Jury,” Washington Post, April 29, 2001, at C1.

31

. J. Liebman et al., “A Broken System: Error Rates in Capital Cases, 1973-1995,” (2000).

32

. See R. Dieter, “Innocence and the Crisis in the American Death Penalty,” Death Penalty Information
Center (September 2004), with updates on DPIC’s Web site, http://www.deathpenaltyinfo.org.
33

. See, e.g., S. Gross, The Risks of Death: Why Erroneous Convictions are Common in Capital Cases, 44 Buffalo
L. Rev. 469 (1996).
34

. John P. Flannery, Op-ed, Richmond Times-Dispatch, August 20, 2005.

35

. See Kyles v. Whitley, 514 U.S. 419, 428-29 (1995).

36

. Id. at 458 (Scalia, J., dissenting).

37

. See J. Neff & M. Eisley, “N.C.’s Top Prosecutor Calls for Opening Files,” News & Observer, March 2,
2004.
38

. See Associated Press, “NC Prosecutors Reprimanded For Death Case,” Sept. 24, 2004.

39

. Press release, Death Penalty Information Center, Sept. 14, 2004 (on file with DPIC).

40

. See M. Secours, “Is Tennessee Doomed to Repeat the Shame of Wrongful Execution?” The Tennessean,
February 10, 2002.
41

. See K. Reckdahl, “Jurors Dismissed,”(Louisiana) Gambit Weekly, December 16, 2003.
. J. Dunne, “Put Death to a Vote?,” N.Y. Daily News, April 11, 2005 (arguing for an end to capital
punishment in New York).
42

43

. See Gregg v. Georgia, 428 U.S. 153 (1976).

44

. See T. Rosenberg, “The Deadliest D.A.,” N.Y. Times Magazine, July 16, 1995, at 21 (noting the wide
discretion among prosecutors in seeking the death penalty).
45

46

See R. Willing, “Geography of the Death Penalty,” USA Today, Dec. 20, 1999.
. Furman v. Georgia 408 U.S. 238, 257 (1972) (Douglas, J., concurring).

BLIND JUSTICE, p. 33

47

. J. Pokorak, “Probing the Capital Prosecutor’s Perspective: Race of the Discretionary Actors,” 83
Cornell Law Review 1811 (1998).
48

. For race of victims in death penalty cases, see NAACP Legal Defense Fund’s “Death Row USA,” July
1, 2005. For race of victims of murders in the U.S., see U.S. Dept. of Justice, Bureau of Justice Statistics
Criminal Victimization, 2003, (September 2004) (49% of the murder victims were white, 49% were black).
49

. See, e.g., D. Baldus, et al., “Racial Discrimination and the Death Penalty in the Post-Furman Era: An
Empirical and Legal Overview, with Recent Findings from Philadelphia,” 83 Cornell Law Review 1638,
1716 (1998).
50

. A. Welsh-Huggins, “Death Penalty Unequal,” Cincinnati Enquirer, May 7, 2005 (Associated Press 3part series).
51

. “Capital Punishment in New York State 1995-2003,” a report by the Capital Defender Office (August
2003).
52

. “The Federal Death Penalty System: A Statistical Survey (1988-2000), U.S. Dept. of Justice (Sept. 12,
2000).
53

. See Barefoot v. Estelle, 463 U.S. 880 (1983) (allowing psychiatrists to testify about an inmate’s “future
dangerousness” even though such predictions are usually wrong).
54

. See J. Elliott, “New Trial Is Denied Man Whose Lawyer Slept in Court,” Houston Chronicle, May 19,
2005.
55

. See W. Bowers, “The Capital Jury Project: Rationale, Design, and Preview of Early Findings,” 70
Indiana Law Journal 1043, 1100 (1995).
56

. Wiggins v. Smith, 539 U.S. 510 (2003) (citations omitted).

57

. Affidavit of Larry Hildebrand in Amrine v. Luebbers, Exhibit to Petitioner’s brief for a writ of habeas
corpus in the Missouri Supreme Court, Oct. 15, 2001 (on file with DPIC) (emphasis added).
58

. See, e.g., S. Bright, “Counsel for the Poor: The Death Sentence Not for the Worst Crime but for the
Worst Lawyer,” 103 Yale Law Journal 1835 (1994); see generally 31 Hofstra Law Review 903-1211 (2003)
(articles on guidelines for the appointment and performance of defense counsel in capital cases).
59

. See L. Olsen, Seattle Post-Intelligencer, Aug. 6-8, 2001 (3-part series on quality of representation).

60

. See L. Chandler, “Lawyers, Indadequate Defense Cited in a Third of Death Case Reversals,” Charlotte
Observer, Sept. 11, 2000, at p.1A.
61

. See D. Malone & S. McGonigle, “Defense Called Lacking for Death row Indigents,” Dallas Morning
News, Sept. 10, 2000.
62

. See L. Greenhouse, “Supreme Court to Hear Case of Mexican on Death Row,” N.Y. Times, Dec. 11,
2004 (defense lawyer’s license suspended at time of trial for ethics violations).
63

. See, e.g., R. Dieter, “With Justice for Few: The Growing Crisis in Death Penalty Representation,” (DPIC
1995), available at http://www.deathpenaltyinfo.org/article.php?scid=45&did=544.
64

. W. Bowers, “The Capital Jury Project: Rationale, Design, and Preview of Early Findings,” 70 Indiana
Law Journal 1043, 1100 (1995). Defense attorneys fared somewhat better in “fighting hard at the
punishment stage of the trial,” but even there the prosecution scored higher in the jurors’ minds.
65

. See H. Dewar, “Senate Approves Bill on Victims’ Rights,” Washington Post, Oct. 10, 2004 (noting
House’s earlier passage of similar bill including expansion of access to DNA testing).

BLIND JUSTICE, p. 34

66

. See R. Dieter, “Innocence and the Crisis in the American Death Penalty,” (DPIC report 2004), available
at http://www.deathpenaltyinfo.org.
67

. L. Olsen, “DNA Lab Analysts Unqualified,” Houston Chronicle, Sept. 8, 2003.

68

. S Moreno, “Police Lab’s Troubles Grow,” Washington Post, Oct. 2, 2004, at A3.

69

. Eight of the executions in 2004 were of defendants from Harris (Houston) County (see Texas Dept. of
Criminal Justice), not only more than any other county, but more than any other state except Texas.
70

. “Crime Lab Scandal Leaves Prosecutor Feeling Betrayed,” Houston Chronicle, Mar. 15, 2003.

71

. D. Boyd, “Doubts Increase About Crime Lab,” Fort Worth Star-Telegram, Aug. 26, 2003.

72

. T. Maier, “Inside the DNA Labs,” Insight Magazine, Washington Times, June 10-23, 2003, at 18-22.

73

. A Liptak, “2 States to Review Lab Work of Expert Who Erred on ID,” N.Y. Times, Dec. 19, 2002.

74

. Id.

75

. E. Lichtblau, “Report Questions the Reliability of an FBI Ballistics Test,” N.Y. Times, Feb. 11, 2004, at
A17.
76

. Id.

77

. “Informants Come Under Question,” Newsday, Dec. 9, 2003.

78

. See Statement of Walter McMillian to U.S. House Subcommittee on Civil and Constitutional Rights,
July 23, 1993 (on file with DPIC); see also P. Applebome, “Black Man Freed After Years on Death Row in
Alabama,” N.Y. Times, Mar. 3, 1993, at p.A1.
79

. See S. Mills & K. Armstrong, “The Inside Informant,” Chicago Tribune, Nov. 16, 1999, at p.1.

80

. B. Scheck, et al., “Actual Innocence” (Doubleday 2000), at p.128.

81

. Id. at 128-29.

82

. See Mills, note 79 above.

83

. Associate Justice John Paul Stevens, Speech before the American Bar Association’s Thurgood Marshall
Awards Dinner, Chicago, August 6, 2005, available at
http://www.supremecourtus.gov/publicinfo/speeches/sp_08-06-05.html.
84

. See, e.g., W. Logan, “Through the Past Darkly: A Survey of the Uses and Abuses of Victim Impact
Evidence in Capital Trials,” 41 Arizona Law Review 143 (1999). There has been little empirical analysis of
the impact of such evidence in capital trials. One study in South Carolina using 63 cases found no
correlation between the introduction of victim impact evidence and an increase in death sentencing,
though the authors suggested that other variables might have affected the outcome. T. Eisenberg, et al.,
“Victim Characteristics and Victim Impact Evidence in South Carolina Capital Cases,” 88 Cornell Law
Review 306, 340 (2003).
85

. See Payne v. Tennessee, 501 U.S. 808 (1991).

86

. See J. Blume, “Ten Years of Payne: Victim Impact Evidence in Capital Cases,” 88 Cornell Law Review
257, 275 (2003).
87

. McGautha v. California, 402 U.S. 183, 204 (1971).

BLIND JUSTICE, p. 35

88

. C. Haney, “Mitigation and the Study of Lives: On the Roots of Violent Criminality and the Nature of
Capital Justice,” in “America’s Experiment with Capital Punishment,” (Second Edit., edited by J. Acker, et
al. 2003), at 476.
89

. See W. Bowers & W. Foglia, "Still Singularly Agonizing: Law's Failure to Purge Arbitrariness from
Capital Sentencing," 39 Criminal Law Bulletin 51, 56, 71, 73, 82 (2003).
90

. W. Bowers & B. Steiner, “Death by Default: An Empirical Demonstration of False and Forced Choices
in Capital Sentencing,” 77 Texas Law Review 605, 647 (1999), at Table 1.
91

. See P. Blumberg, “Life, Without Parole,” San Francisco Daily Journal, Dec. 11, 2000, at p.7.

92

. See, e.g., D. Baldus, et al., “Racial Discrimination and the Death Penalty in the post-Furman Era: An
Empirical and Legal Overview, with Recent Findings from Philadelphia,” 83 Cornell Law Review 1638
(1998).
93

. W. Bowers et al., “Foreclosed Impartiality in Capital Sentencing: Jurors’ Predispositions, Guilt-Trial
Experience, and Premature Decision Making,” 83 Cornell Law Review 1476, 1534 (1998).
94

. See Franklin v. Lynaugh, 487 U.S. 164 (1988). The Supreme Court will hear Oregon v. Guzek, No. 04928 in December 2005 and consider whether a defendant may present evidence related to his possible
innocence at the sentencing phase of his capital trial.
95

. See Editorial, “Leaving No Doubt,” Chicago Tribune, Mar. 16, 2005, at p.22.

96

Weeks v. Angelone, 528 U.S. 225, 234 (2000).

97

. Id. at 248 (Stevens, J., dissenting). See also A. Berlow, “A Jury of Your Peers? Only if You’re Clueless,”
Washington Post, Aug. 12, 2002, at B01.
98

. See “Georgia Rejects Clemency for a Killer Who Says He's Retarded,” N.Y. Times, Mar. 31, 1994, at
A19.
99

. T. Jackman, “Death Penalty Deliberations Tore Malvo Jury Apart,” Washington Post, June 19, 2004, at
B5.
100

. Id. (juror James Wolfcale)

101

. J. Marhalik, “The Trial After the Trial,” N.Y. Times Magazine, Dec. 21, 2003 (juror in the trial of John
Muhammad in Virginia).
102
103

. A. Kotlowitz, “In the Face of Death,” N.Y. Times Magazine, July 6, 2003, at 32, 50.
Id. at 50.

104

A. Trafford & J. White, “For Jurors, Stress of Capital Case Can Linger,” Washington Post, Nov. 21,
2003, at A1.
105

. Id.

106

. S. Weinberg, “Breaking the Rules: Who Suffers When a Prosecutor is Cited for Misconduct,” Center
for Public Integrity, June 26, 2003 (on file with DPIC).
107

. K. Armstrong & M. Possley, “The Verdict: Dishonor,” Chicago Tribune, Jan. 8, 1999 (first in five-part
series).
108

. See R. Dieter, “Innocence and the Crisis in the American Death Penalty,” (DPIC report, September
2004) (updates on DPIC’s Web site: http://www.deathpenaltyinfo.org).

BLIND JUSTICE, p. 36

109

. See L. Greenhouse, “Prosecutorial Misconduct Leads Justices to Overturn Death Sentence in Texas,”
N.Y. Times, Feb. 25, 2004, at p.A13.
110

. Id.

111

. See S. Mills & M. Possley, “Ryan to Pardon 4 on Death Row,” Chicago Tribune, January 10, 2003.

112

. See Brady v. Maryland, 373 U.S. 83 (1963).