Problems in the Criminal Justice System

Evolving Technology

The human understanding of science improves virtually everyday – and some conclusions that seemed a certainty yesterday are disproved today by new and improved scientific methods. The same has happened with forensic science. Every year we have access to better and updated information than we had the year before.

The finality of the death penalty negates the evolution of human and scientific understanding of cases. The result? Innocent people can and will be executed.

Former FBI Director William S. Sessions (under Reagan, Bush, and Clinton) recently talked to “The Jurist” about how the impact of newly discovered DNA evidence on investigations into convictions by the FBI in 1988. Sessions said:

“The results of those first 100 tests astonished me. In thirty percent of cases the DNA gathered during the investigation did not match the DNA of the suspect. In three out of ten cases not only did we have the wrong person, but the guilty person was still at large. In capital cases the stakes were unnervingly high: the prospect of executing an innocent person was only slightly more appalling than the prospect of murderers and rapists walking free, unidentified and dangerous.”

DNA technology was a major break-through in science. It proves that better and more accurate science may be just around the corner – science that may help exonerate those who are wrongfully convicted of crimes. However, DNA evidence is rarely available and is subsequently used in less than 15% of capital murder trials.

Inaccurate Forensic Science

Advances in technology, such as DNA, supersede old and outdated science – science which is believed accurate at the time when it is presented. It helps disprove unintentional scientific errors or intentional false scientific (“expert”) testimony.

Several recent cases of innocent men convicted in Montana (and later found to be innocent) were cases involving “junk science” — science or expert testimony thought to be accurate at the time and later proved to be erroneous, misleading, or flat-out wrong.

Executions preclude any scientific advances. The preclude any new evidence, any new understanding, and any possibility of correcting false or misleading scientific information in the case – information that may lead to the execution of an innocent person.

The Appeals Process

Appeals often focus on the process of what occurred during the trial, not on the question of the man’s guilt or innocence. In some death penalty cases, significant evidence of innocence has arisen late in the process – yet the court, in some cases, is barred from hearing it!

Some individuals have expressed frustration with the criminal justice system – that the process should be sped up and that executions should be faster. But given that mistakes are already occurring (given at least 124 innocent men have been convicted of capital crimes and later exonerated), it is certain that the percentage of error will go up and more – not less – innocent people will be convicted and executed in the United States if appeals are shortened and executions are sped up. Are you willing to accept even more innocent people being put to death on your behalf?

Police Abuse

Although we hope our Police use their power judiciously, misconduct can occur. Police misconduct can be as subtle as an implied threat for failing to cooperate or as overt as the beating of Rodney King. Often, the police are under great pressure to act quickly, especially when the murder victim is white, prominent, a child or a police officer.

Often, the police develop a theory of the crime and then search out evidence–and suspects–that support that theory. Then, when they arrest someone, they proceed as if the suspect is already guilty. “The mentality and the pressure are to not let the guilty guy go free,” Chief of Police Friel, of Bensalem, Pennsylvania, explains. “You block out anything that doesn’t fit… You feel you have no obligation to bring up evidence pointing to others. Why cloud the issue?”

Sometimes, the scenario is not so benign. “Two men who claimed to have been the only witnesses to the 1978 San Bernardino murder of a police officer’s son now say they actually saw nothing, but were pressured by police into giving false testimony that has kept an innocent man in prison for 13 years,” begins a recent article in the Los Angeles Times. The fact that the victim was the son of a police officer greatly increases the likelihood of such misconduct. According to the article, one of the witnesses gave the police what they wanted only after being handcuffed to a motel room bed during 24 hours of questioning. Before trial he recanted, but the district attorney allegedly covered it up so the defense never learned of the recantation.


Racism is often the motive for official misconduct.

In January, 1990, Clarence Brandley was released after spending nearly a decade on Texas’ death row for a crime he did not commit. The misconduct in that case involved every level of government, from the police who threatened witnesses to prevent them from testifying for Brandley, to the trial judge and the prosecutor who held secret meetings to rehearse objections and rulings, to the state attorney general who lied about the results of a lie detector test. What enabled Texas’ officials to pursue Mr. Brandley with such single-minded disregard for facts, fairness and basic justice was that the victim in the case was a white school girl who had been raped and murdered. The likely suspects were the school’s janitors, one of whom–Clarence Brandley–is black.

In 1987, U.S. District Court Judge Perry D. Pickett held that Brandley “did not receive a fair trial, was denied the most basic fundamental rights of due process of law, and did not commit the crime for which he now resides on death row… The court unequivocally concludes that the color of Clarence Brandley’s skin was a substantial factor which pervades all aspects of the State’s capital prosecution… In the 30 years this court has presided over matters in the judicial system, no case has presented a more shocking scenario of the effects of racial prejudice, perjured testimony, witness intimidation, an investigation the outcome of which was predetermined, and public officials who, for whatever motives, lost sight of what is right and just.”

Jailhouse Snitches

Many death penalty cases involve the testimony of jailhouse informants or snitches–inmates who swear in court that the defendant confessed to them. For people in prison or jail, such testimony can be a powerful bargaining chip: in exchange for it, the state will often reduce the time they are serving or dismiss charges pending against them. Because the possibility of leniency is a strong inducement to lie, the prosecutor is required to tell the defense–who, in turn, will tell the jury–when such deals are made. With that knowledge the jury can weigh the credibility of the testimony. Misconduct occurs when such deals are kept secret.

The unreliability of this kind of testimony was dramatically brought home when jailhouse informant Leslie White showed how a prisoner with intelligence and a telephone can learn enough details about a pending case to sound convincing even if he has never met the person he testifies against. His admission to reporters in Los Angeles that he had fabricated a dozen confessions of others in exchange for lenient treatment led the Los Angeles County Grand Jury to investigate.

Deals with the Devil

A deadly variation of the undisclosed deal involves the use of co-defendants. Here, instead of jailhouse informants providing the testimony essential for a conviction or a death sentence, it is provided by someone else implicated in the crime. It is a common practice for prosecutors to promise leniency to–or threaten more serious punishment for–one defendant in exchange for testimony against another.

On the eve of Thanksgiving, 1991, Texas’ officials were gearing up to execute Justin Lee May on the basis of just such testimony. At May’s trial, co-defendant Richard Miles testified that it was May who pulled the trigger. May was found guilty and sentenced to death. In exchange for his testimony, Miles was allowed to plead guilty to a non-capital offense. Just four days before the execution, overcome by a guilty conscience, Miles recanted his damning testimony.

In his affidavit, Miles stated: “While I was present, and was an eyewitness to the offense, Justin Lee May was not present, nor did he participate in the offense in any manner. All of my testimony concerning his involvement in this crime was untrue… (The police) told me that I could be executed if I didn’t cooperate, so I decided to cooperate with the police and tell them what they seemed to be after… Before the trial I was afraid that if I didn’t point the finger at May, they would pin me on capital murder and I would be executed… Even now, I am afraid the police will come after me and find some way to have me locked up again. But my conscience is eating at me, and it’s time to tell the truth regardless of what may happen to me.”

May is lucky. Not only did his accuser come forward to clear his conscience, the Fifth Circuit Court of Appeals stayed the execution, providing time to examine the new evidence. Others have not been as lucky.

Jim McCloskey, director of Centurion Ministries, spends all his time investigating claims of wrongful convictions by the imprisoned. He estimates that half the cases he sees involve alleged confessions by one defendant to another that later prove to be false. When he first came across this aspect of homicide cases, he could not understand what prompted an individual to lie about someone confessing to murder. It was explained to him quite simply by a defendant who, like Richard Miles in the case of Justin Lee May, had falsely testified about such a confession and later recanted. “It’s a matter of survival. Either I go away or your guy goes away. And I ain’t going away.”

Covering Up Mistakes

There is another motive for a form of misconduct that all of us engage in from time to time. When we make mistakes, even inadvertent, it is often difficult to own up. But when those mistakes lead to a sentence of death, covering them up adds another layer of misconduct, deadly and deliberate.

In the U.S. government’s non-capital prosecution of Leonard Peltier for the murder of two FBI agents in 1975, the case rests largely on the testimony of a mentally ill woman, Myrtle Poor Bear, who swore she saw Peltier kill the agents in cold blood. Later, she recanted the testimony, claiming the FBI threatened to take her daughter from her if she did not testify. But when she came forward to speak the truth, the judge ruled her incompetent, and refused to take her testimony.

When asked about the use of the coerced testimony by “60 Minutes” reporter Steve Kroft, Assistant U.S. Attorney Lynn Crooks, who prepared the government’s case against Peltier, said, “It doesn’t bother my conscience one bit… He got convicted on fair evidence. Doesn’t bother my conscience one whit. I don’t agree that there’s anything wrong with that, and I can tell you, it don’t bother my conscience if we did.”

Unfortunately, this willingness to defend the indefensible is all too common in capital cases.

Working Inside the System

It is telling that often those who must work daily within the system (and hence those that often see its flaws) become death penalty abolitionists – including prosecutors, judges, and defense attorneys. Above, see two former Montana Supreme Court Justices who became death penalty opponents during their time on the bench discuss their opposition to the death penalty.

Much of the text on this page was adapted from “Killing Justice: Government Misconduct and the Death Penalty,” by Michael Kroll, former Executive Director, Death Penalty Information Center. The full article with end notes and examples can be found here.

Former Montana Supreme Court Justice Bill Hunt Former Montana Supreme Court Justice John C. Sheehy