Director's Notes:  The Demon of Error


In 1972 The United States Supreme Court ordered the halt of the death penalty, for the first and only time in American history.  The case was Furman v. the State of Georgia. William Henry Furman had argued that his death sentence was arbitrarily issued by the jury simply because he was African-American, and was therefore in violation of his constitutional right of equal protection under the law.   Furman was released, but the repeal was short lived.  In time 37 states would pass new statutes to overcome the court's concerns about arbitrary imposition of the death penalty.  America was left with the feeling that all had been corrected.


By the late ‘90’s new evidence of error began to impugn the credibility of our criminal justice system.  Professor James S. Liebman of Columbia University had published his study, A Broken System:  Error Rates in Capital Cases 1973-1995.  His report revealed that serious error has reached epidemic proportions in capital cases and that more than two out of every three capital judgments reviewed were seriously flawed.  Moreover, The Innocence Project, established in 1992 by civil rights attorneys Barry Scheck and Peter Neufeld, showed to the country the human face of personal suffering caused by judicial error.  Using the new science of DNA testing they helped exonerate numerous wrongfully convicted men and women.


With the first presidential run of George W. Bush media coverage of the issue was at its peak.  The candidate had been governor of Texas for six years, and had allowed the execution of 131 prisoners- far more than any other state.   "I'm confident,” he stated, "that every person that has been put to death in Texas under my watch has been guilty of the crime charged, and has had full access to the courts." 


In 2002, The Exonerated began its award winning run in NYC.  Since then, the Supreme Court has struck down the death penalty for juveniles (Roper v. Simmons 2005) and defendants with mental retardation (Atkins v. Virginia 2002.)   And in 2003 Republican Governor George Ryan of Illinois commuted the sentences of all 167 inmates on death row stating, “Our capital system is haunted by the demon of error- error in determining the guilty, and error in determining who among the guilty deserves to die.” 


Many criminal justice issues need to be address for successful reform, including: Eyewitness misidentification; improper forensic science; coerced confessions; prosecutorial misconduct; incentives to informants; inadequate public defense for the poor.  However, those seeking reform must all say vigilant.  For example, “the exclusionary rule”- the principle that evidence obtained by police misconduct cannot be used against a defendant- is under fire in the Supreme Court.


In January 2009, Chief Justice John G. Roberts Jr., writing for the majority in Herring v. United States, held that unlawful police conduct should not require the suppression of evidence if all that was involved was isolated carelessness.  Kent Scheidegger, the general counsel of the Criminal Justice Legal Foundation, a victims’ rights group, stated “I think Herring may be setting the stage for the Holy Grail,” referring to the wish of many on the right to strike down the 1961 Supreme Court ruling applying the exclusionary rule to all states.  Many see the exclusionary rule as a strong firewall against police misconduct, whether willful or through negligence.


Those who have been exonerated of crimes they did not commit want and need change.  Perhaps their suffering can be a beacon to lead the way- so that we who have been safe may help direct our country to committed course of justice, for all.