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Capital Crimes

No fix in sight for state's flawed death penalty system

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Michael Lee McCormick and Paul House were among the lucky sentenced to die. At least police saved the biological evidence from their decades-old murder cases—hair follicles, blood samples, body fluids and the rest of the clues so important to the CSI cops on television.

DNA testing led to each prisoner's release over the past nine months, though stubborn prosecutors are insisting that House be tried again for the murder he almost certainly didn't commit.

But if there are more innocent people on Tennessee's death row, they may have lost the chance to prove it. No Tennessee law requires the preservation of biological evidence throughout an inmate's incarceration. It's an incredible oversight, given that more than 200 inmates have been exonerated around the country.

In some jurisdictions, much of this evidence is trashed at some point after the trial. As far as anyone can ascertain, whether it's preserved is up to the whims of the authorities at hand.

Tennessee executed Sedley Alley in 2006 for rape and murder even as his lawyers unsuccessfully tried to force DNA testing of evidence in his case. They contended fingernail scrapings and vaginal swabs would prove his innocence but, unfortunately for Alley, that evidence no longer existed. It spoiled in a malfunctioning police refrigerator, prosecutors reported.

"It was very frustrating," says Kelley Henry, the federal public defender who represented Alley. "They claimed they lost the evidence when the refrigerator broke in the '90s. They just threw everything away."

It's one of a long list of deficiencies in Tennessee's death penalty system. After a 2007 study, the American Bar Association called for a moratorium on executions in this state until the system is fixed. Of the ABA's 93 recommended guidelines, Tennessee complies with only seven.

Among the shortcomings: inadequate standards and heavy caseloads for defense lawyers, racial disparities in sentencing and a faulty review process for inmates' claims of innocence.

For more than a year, a legislative study committee has been meeting about the problems. But its members have fallen to bickering among themselves, and they've made no recommendations.

One committee member—Bill Redick of the anti-death penalty Tennessee Justice Project—accuses prosecutors on the panel of sabotaging the work.

"I'm real angry at the prosecutors," Redick says. "They've been categorically opposed to everything. Whenever anything is proposed, they argue why it's not a good idea. After a while, you realize that there isn't any such thing as a good idea to them. And they have no alternative suggestions about how to improve anything."

Prosecutors point out that Tennessee has executed only four men in nearly 50 years and say death penalty foes are trying to use the committee to create new delays.

"We agree with the general premise that the system is broken" but only because more killers haven't been put to death, says Al Schmutzer, the former prosecutor who represents the District Attorneys General Conference on the committee.

"Fourteen inmates have died of old age or natural causes while on death row. That's an indictment of the system itself. It's not working. The whole criminal justice system is getting a black eye because we don't do what we say we're going to do."

Refereeing the dispute is the committee's co-chair, Sen. Doug Jackson (D-Dickson). Jackson, who must feel a little like a circus rider astride two horses, insists there will be reform legislation by the end of the year.

Among the possibilities would be to require police to videotape all interrogations, which would avert claims of coerced confessions. Another idea is to set tighter rules for asking witnesses to identify criminals. The rationale is to do it right from investigation to trial, so that police are only nailing the guilty while limiting grounds for appeal.

"This committee is not about whether or not to have the death penalty," Jackson says. "I'm very pro-death penalty. There's a nut on death row right now who murdered my cousin, for God's sake. This committee is about how to make the system work. Nothing that's been discussed is going to interfere with the successful prosecution of somebody who's guilty."

The biggest argument is over whether to create an independent authority that will appoint, train and monitor lawyers representing indigents accused of murder. That would cost roughly $5 million a year. It's one of the key ABA recommendations to improve the state's system because so many death penalty cases are hung up in the courts over mistakes made by overworked or poorly trained defense lawyers.

But Schmutzer says it'll just "create more bureaucracy and delay. They want to make it so expensive and so time-consuming that at some point everybody will just throw up their hands and say we can't do this because nobody can afford it."

Whatever the committee recommends, it will need the strong support of Tennessee's district attorneys to make it through the legislature. In a state that overwhelmingly favors capital punishment, even lawmakers who recognize the need for reform are afraid to act unless prosecutors provide political cover.

A Tennessee poll paid for by the ABA, though, could help lawmakers find their backbones. While two-thirds of the public supports the death penalty, 82 percent said the fact that DNA evidence can be destroyed gives them doubts about fairness. And 77 percent said the failure of police to videotape confessions gives them doubts.

Tom Lee, a business lobbyist on the committee, says the public's confidence in the justice system is at stake. "These reforms are not crazy," he says, "and they're not unreasonable."

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