1. Lauren Brady
Professor Comfort
English 202
4 December 2012
Capital Punishment: Executing the Innocent and Criminal Justice Injustice
Execution of the wrongfully convicted has been an issue for decades in the United States.
This can only be considered for by the states in which allow the death penalty and the system
which it is operating under. Human error is inevitable, but when dealing with a life or death
situation we should focus more on effort and the responsibility in taking the time to decide
whether someone is to be convicted of capital punishment.
We can go back to the idea from the Old Testament Law which states, “an eye for an eye,
and a tooth for a tooth” for punishment of serious crimes. This has been used for centuries,
starting in Western Europe and spilling over into the colonization of the new world. Punishments
were not so subtle and painless back then, which is how the term “capital” punishment was
formed, by the many gruesome techniques used to kill criminals. Examples of these include
beheading by axe, sword or guillotine, and boiled in oil, etc. The entire goal of capital
punishment was to inflict pain and death upon the offender and to achieve retribution and general
deterrence while made public as well. The public killing of an offender was so that citizens could
witness the severity of the punishment they would go through if they were to commit such a
crime. The purpose of this was to scare people to the point where they did not consider the
pleasure of committing a crime to outweigh the pain they would go through when punished for
it.

2. Brady2
The first recorded execution was of George Kendell in 1608. According to law professor
Victor Streib, “from these earliest days, approximately 20,000 executions have occurred . . . with
the maximum being the 199 executions which occurred in 1935” (4). The current death penalty
era started in the 1970’s, more specifically 1973, six months after the Furman v. Georgia
Supreme Court decision. This decade marks the beginning of many changes to the death penalty
system and its statutes. In this case, one African American male was convicted for murder and
two for rape in Georgia and Texas. These men were initially sentenced to death, but were granted
reviews from the Supreme Court of Georgia and Texas to affirm the death penalty decisions on
murder and rape. The court’s decision was that this case constituted cruel and unusual
punishment. A quick article from Capital Punishment in Context states the outcome and its
reasoning:
“The Court reached this conclusion based on the evidence that the application of
the penalty was unequal, often discretionary and haphazard. Some of the Justices
in the majority noted that the death sentence has been disproportionately imposed
and carried out on the poor, black, and the members of unpopular groups. The
death penalty is unusual if it discriminates defendant by reason of his race,
religion, wealth, social position, or class, or if it is imposed under a procedure that
gives room for the play of such prejudices. The judgment in each case was
therefore reversed insofar as it left undisturbed the death sentence imposed, and
the cases were remanded for further proceedings” (Furman v. Georgia).
The emphasis in the conclusion of this case is to reconsider the range of discretion
allowed by jury in capital cases, reduce discrimination of the offenders, and address all

3. Brady3
unequivocal aggravating and mitigating factors. Another important statute to come out of this
case was that “to return a verdict of death, the jury was required to find the existence of one of
the aggravating factors beyond a reasonable doubt” (Higginbotham). When the court and the jury
are looking at the aggravating factors of a case, they are focusing on how serious the offense was
such as heinous acts, weapons used, number of victims and any previous record of the defendant,
compared to the mitigating factors which are things that lessen the penalty and works in the
defendants favor by reducing any charges. By the end of 2007, 1,099 persons had been executed
in this current era by 32 states and federal government, with the continuing execution rate
varying between 50 and 70 persons per year (Streib 8).
The debate in regards to the legitimacy of the death penalty system and the execution of
the innocent is an increasing controversy. Emerging evidence of data on exonerations of the
wrongfully convicted and the actual execution of innocent people are slowly leaking out to the
public, leading states that authorize capital punishment to consider legislation pursuing a
moratorium, or an authorized suspension on executions. This objective was initiated by the
American Bar Association, a voluntary professional organization founded in 1878 (American
Bar Association).
The revision of capital punishment policies during these moratoriums is to be focused on
issues and policy implications of the death penalty system, performance of the players—jury,
prosecutors, judges, and defense counsel—play a huge role in contributing to our justice system.
Unfortunately, research has shown that the system has structural problems that constitute poor
achievement by these players. Their failure to complete simple routine jobs in the process of

4. Brady4
such difficult actions can cause an innocent person to lose years off of their life depending on
how long they sit in death row, or even worse, lose their life.
Needless to say, we have to take into consideration that there will always be human error.
Law professor and defense counsel for death row inmates Victor Streib argues that:
Any government system operated by imperfect human beings and handling
thousands of cases each year is bound to make mistakes. If the mistake was to
convict and imprison an innocent person, we can correct that mistake to some
degree by freeing that prisoner and perhaps even compensating him for his years
in prison. If we execute an innocent person, however, no form of compensation or
correction seems adequate to correct our error. (261)
It is important to consider the factors in which the players take on when dealing with a
capital case. Jurors are asked to keep in mind any lingering doubt they may have as to the
defendant’s guilt after testing that evidence is against a proof standard of beyond a
reasonable doubt. After all, executing the defendant is an irreversible step. Streib points
out that “this lingering doubt, this residual fear of sending an innocent person to death
row, can have an impact on a jury at sentencing” (267).
Jury misconduct could also occur when they are in contact with extraneous
materials and/or inadmissible evidence. Race and ethnic prejudice was very common but
has slowly decreased over the years. Occasionally jurors misunderstand their protocol by
either the judge, bailiff or the jurors themselves, although this is rare it does happen
occasionally. To remedy this misconduct, an act in 1994 by George Bush called, Justice

5. Brady5
for All Act, gave any federal inmate with a claim of innocence the right to petition the
Court for a DNA test if possible. This gave the states resources to preserve evidence
during the pretrial stage and make post-conviction DNA testing available. With this act,
more money is also given to states to appropriate better council for defendants (Holler, 4
Dec. 2012).
The police and prosecuting attorneys are under an enormous amount of pressure
from their superiors in the political office, from the media and sometimes from the
victims’ family. Working in such an environment can and sometimes will cause errors
from moving too fast. If there is overlooked evidence and unpursued witnesses by these
key players after the fact of the offender being arrested and charged, it would be
professionally embarrassing to come forth and admit that they had the wrong guy.
The amount of discretionary power police officers have usually causes them to
commit deliberate injustice. Their choice to become corrupt on the job can not only cause
innocent people to become victims but their department as a whole as well. A remedy for
police injustice is a Federal legislation called The Color of Law which states, it is a crime
for one or more persons acting under the color of law willfully to deprive or conspire to
deprive another person of any right protected by the constitution and laws of the U.S.
This includes excessive force, sexual assault, fabricating evidence and intentional false
arrest (Holler, 4 Dec. 2012). Overzealous prosecutors or police officers, false eyewitness
identification and fabrication of evidence are just few reasons why wrongful conviction
can occur.

6. Brady6
There was a study of wrongful convictions and exonerations in 2003 which
revealed that there were 328 exonerations. Out of those exonerations, 145 were from
DNA evidence and 183 from other evidence. These people spent an average of ten years
in prison and most were convicted of murder and rape because of faulty eye witness
testimony or police work.
Despite all of the pressure given to these members of the court, they are
professionals at what they do, although research seems to have proven otherwise.
Chicago Tribune journalists Armstrong and Mills found that, “at least thirty-three
defendants who were sentenced to die in Illinois were represented at trial by an attorney
who has been disbarred [expelled] or suspended—disciplinary sanctions reserved for
conducts so incompetent, unethical, or even criminal that the state believes an attorney’s
license should be taken away” (106). Not only do some states assign defendants poor
representation, there have been times when prosecutors gathered their evidence from
jailhouse informants, also known as snitches. These witnesses are untrustworthy and
jurors are instructed to treat their testimony with special skepticism. In Illinois, five of the
state’s thirteen exonerated death row inmates were convicted or condemned with the help
of jailhouse- informant testimony (Armstrong and Mills 107).
Other issues such as, lawyers who hardly spoke to their clients before trial, who
slept through a trial or showed up intoxicated, who failed to follow up on credible leads
on possible suspects because they had someone in custody already, raise serious doubts
about the accuracy of the criminal justice system. Journalists Armstrong and Mills
believe this system is, “a bureaucracy hustling people toward death row without proper

7. Brady7
concern for whether the right person has been condemned” (28). The amount of
discretion that the jury and lawyers carry can ultimately determine between life and
death. It is important to take into consideration that most people sentenced to capital
punishment cannot afford high quality lawyers, also known as indigent defendants. They
are appointed defense councils who presumably perform poor representation, which in a
life or death situation is not acceptable or fair for the defendant. It is apparent that this
sanctions’ attentiveness is less about the accuracy and legitimacy of the intense
investigation of concrete evidence, careful weighing of aggravating and mitigating
factors, and the value of constitutional values, but more of a competition to ‘win’.
A great example of the issues mentioned above is of a case that happened in the
state of Texas in 1992, where Anthony Graves was arrested and charged with the brutal
slayings of a Somerville family. A woman named Bobbie Davis, her daughter, and her
four grandchildren were stabbed multiple times before their house was set on fire. The
crime’s prime suspect and father of one of the children, Robert Carter, who only knew
Graves in passing, had pointed Graves to be the killer. Even though there was no physical
evidence linking him to the scene and three people who could place Graves at his
mothers’ house during the time of the crime, he was convicted of capital murder.
Charles Sebesta, lead prosecutor in the case and District Attorney, withheld
statements that Carter had said from the court which could have saved Graves. He also
used evidence from five jailhouse informants who claimed they overheard conversation
of Graves admitting to the murders. Only to find out later, the intercoms that these

8. Brady8
jailhouse informants stated they “overheard” Graves’ confession weren’t in the best of
shape and quite possibly may not have been working.
Sebesta also intimidated the witnesses so that they would not testify for Graves.
Dietrich Curry, his sister, and one of his alibi witnesses, was told before the trial that if
she left the county to testify that she would be arrested on outstanding traffic warrants.
Another incident where witness intimidation occurred by the prosecutor was with
Graves’ girlfriend, Yolanda Mathis, who was his most important alibi witness. Sebesta
had told the judge that she had become a suspect in the murders and asked the judge to
read her her rights before she took the stand, but, if someone has to be warned of their
rights in a criminal trial, they can’t be called to testify.
Siegler, the prosecutor who took the case after it was overturned once Sebesta let
slip that Carter had recanted his testimony of Graves right before his execution in 2000,
was told by initial investigators that Mathis had never once been a suspect in the case.
Sebesta knew how good of a witness Mathis was because he had heard her grand jury
testimony and he didn’t want the jury to hear what she had to say, which, in fact, Mathis
who became very upset, left the courthouse. He continued to act as if he had no idea
where Yolanda was when she didn’t show up in court, leaving the jury to have no clue
either.
After eighteen years of trials and intense investigations, Anthony Graves was set
free in 2010. He spent a year fighting the state to receive his compensation and on June
30, 2011, “Anthony Graves got a check for $1.45 million today from Texas Comptroller
Susan Combs, money the state owed him for keeping him behind bars nearly two decades

9. Brady9
for a crime he did not commit. In addition to today’s payment, Graves will receive
monthly annuity checks starting next year (Grissom). Many things went wrong with this
case, but mainly the wrongful conviction had to do with the prosecutorial misconduct by
Charles Sebesta. It’s a prosecutors’ responsibility to never fabricate evidence, manipulate
witnesses, or take advantage of victims. Unfortunately, what happened in Anthony
Graves’ case is all of those and most of his adult life shattered.
It is safe to say that the Criminal Justice System focuses more on getting the cases
over with then getting them right due to a rush to judgment. There are many solutions to
this problem, but only a few of them would be the most effective and reasonable. First, I
think it is important that jurisdictions with the death penalty assure that they have the
very best police officers, prosecutors, defense attorneys, and judges assigned to capital
punishment cases. This can only happen if the specific jurisdictions enhance their
qualifications.
By doing so, they should create bodies of highly trained professionals to appoint
and supervise lawyers who try death penalty cases. Trials of capital cases require more
than a skill set competent to most other criminal cases. The necessity of training court
members and judges and distinguishing more clearly the specific qualifications in capital
cases is crucial because of how vague the distinctions between the types of murders have
become. Also, I think cases that involve the death penalty should disallow the testimony
of one eyewitness to determine the inquiry of capital punishment. In addition, the use of
jailhouse (snitch) informants as testimony in a capital case should be prohibited unless

10. Brady10
the judge holds a pretrial hearing to arbitrate that the evidence can be trusted and is
reliable.
Last but not least, DNA evidence should be necessary proof to whether a
defendant is innocent or not. Although, DNA evidence is not readily available at all times
during trials, or according to Streib, a former defense council, “Only a small percentage
of death penalty cases have appreciable amounts of DNA evidence to be tested. . .” (269).
More often than not, evidence is destroyed by police and prosecutors after the trial is
over, making subsequent defense challenges almost impossible to support. Therefore,
many defendants who have been wrongfully convicted cannot prove their innocence
because states often fail to adequately preserve material and biological evidence.
The solution to this may be to propose that jurisdictions with the death penalty
warrant that all material and biological evidence during and after the investigation is
preserved and made available to convicted persons looking to constitute their innocence.
Any person convicted of a criminal offense and sentenced to death as a result of that
conviction should be able to file a motion seeking post-conviction DNA testing of
evidence relating to that specific investigation. If a case eventually is over turned due to
false eyewitness testimony, prosecutorial misconduct, etc. and the DNA evidence was
destroyed, leaving the defendant with no other way of attempting to prove his innocence.
The court should give out some sort of compensation to the defendant. Such reciprocity
should include a post-conviction trial hearing to reconsider the mitigating and
aggravating factors, and residual doubt in deciding to continue to uphold or impose the
death sentence. If states were to adopt these resolutions, and replace the emphasis on

11. Brady11
winning with an emphasis on accuracy, there would be less wrongfully convicted people
and more of a judicious death penalty system in our country.
With the help of Furman v. Georgia and a number of other capital cases, we have
moved progressively to improve the death penalty in America today. Organizations have
been formed, such as the American Bar Association, to contribute to inventing and
sustaining new policy implications that are required by states to properly forego the death
penalty. Along with a growing number of newly formed organizations, case studies on
this subject matter have been increasingly publicized over the years. The public has
begun to realize that there is a great deal of injustice in our criminal justice system, and
more people are opposing the death penalty. This should give the states more reason and
motivation to fix the issues previously mentioned in this paper.
Once our system has identified the most common factors that result in errors of
this nature, for example, training those who work on capital cases, closer attention to
cases by prosecutors and others, limiting the reliance of jailhouse informants and
eyewitnesses, and DNA that is analyzed carefully by both prosecutors and defense, they
can pursue to change the system to counteract those factors. In reality, we will never have
a perfect death penalty system. It is nearly impossible to correct human error, but with
proficient key players and extensive efforts to convict the right offender, we can be
assured that executions of the innocent will be at an all time low.

12. Brady12
Works Cited
Amercican Bar Association. Death penalty Moratorium Implementation Projection. ABA, 2007.
Web.
Armstrong, Ken, and Mills, Steve. Beyond Repair? America’s Death Penalty. Ed. Stephen P.
Garvey. Durham and London: Duke University Press, 2003. Print.
Furman v. Georgia. Capital Punishment in Context. Web. 3 Dec. 2012.
Grissom, Brandi. “Comptroller Pays Anthony Graves $1.4 Million.” The Texas Tribune. The
Texas Tribune, 30 June 201l. Web. 6 Dec. 2012.
Higginbotham, Patrick E. “A Reflection on Furman.” American Journal of Criminal Law. 34,2.
(2007): 199-205. Editorial.
Holler, Timothy. “Criminal Justice Injustice.” Indiana University of Pennsylvania. Indiana,
Pennsylvania. 4 Dec. 2012. Lecture.
Streib, Victor. Death Penalty in a Nutshell. St. Paul: Thomson/West, 2008. Print.
Unnever, James, and Francis Cullen. “Executing the Innocent and Support for Capital
Punishment: Implications for Public Policy.” Criminology & Public Policy. 4,1. (2005):
3-37. Print.