Wrongful Conviction and the Death Penalty: The Inevitability of Error?

What are the sources of wrongful convictions in capital cases? Are retentionist countries abiding with international procedural safeguards put in place to prevent them? How are lawyers, investigators, governmental officers, campaigners, and journalists dealing with the issue? Can their combined efforts contribute to the wider cause of total abolition? Is it possible to create a ‘perfect’ system that eliminates the risk of wrongful convictions? Or do we need to accept the inevitability of human error while capital punishment is retained?

These and other important questions were discussed on 5 November 2014, when academics, students, and professionals working in the field of capital punishment, gathered at the University of Oxford for a one-day knowledge exchange seminar titled ‘Wrongful Conviction and the Death Penalty: the Inevitability of Error?’ organised by the Oxford Centre for Criminology.

The seminar opened with a session assessing recent research findings on wrongful convictions and the death penalty, and was chaired by Professor Roger Hood. Speakers such as Professor Carolyn Hoyle, Dr Mai Sato, Dr Sarah Lucy Cooper and Saul Lehrfreund, shared their insights on the topic.

Professor Carolyn Hoyle opened with a worldwide overview on the main sources of wrongful convictions in capital cases. She reviewed the international procedural safeguards put in place to ensure due process and the minimization of error, and assessed the level of compliance these protections have achieved amongst retentionist countries, globally. She stressed the wide gap still existing between the aspirations of international procedural law and actual practices, particularly in many Asian, Middle Eastern, and African countries. The only way to reform the death penalty and decrease the number of wrongful convictions, she argued, is to narrow this gap. However, while bringing obvious benefits, due process reforms also risk to give the impression of a ‘civilized’ process, legitimizing the death penalty in the eyes of the public. If we aim to achieve total abolition, the innocent frame therefore needs to be completed by a principled human rights framework.

Dr Mai Sato presented her research findings on public attitudes to wrongful convictions in Japan, and possible public reactions to the case of Iwao Hakamada, a 78 years-old man sentenced to death in 1968 and released in 2014 in light of fresh DNA evidence. Her research on public attitudes includes an experimental pre-survey and a deliberative consultation. It shows that 66% of Japanese respondents believe that convicting an innocent person is the worst mistake a justice system can make. Further, even when presented with cases of miscarriages of justice, Japanese respondents tend to have high levels of trust in courts compared to their European counterparts. This can represent a double-edged sword in wrongful conviction cases, with the public hardly questioning the procedural fairness of the court, even in light of striking due process violations.

Dr Sarah Lucy Cooper shared her experience as a fellow at the Arizona Justice Project, an NGO dealing with a wide range of capital cases. She argues that in the United States the challenge is to overcome deeply held beliefs amongst criminal justice professionals, such as the idea that precedent and/or pardon will provide a remedy for the conviction of the innocent, or the opinion that innocence claims can be presented diligently. These central assumptions, she argues, undermine defence lawyers’ ability to successfully carry out innocence claims, which in turn has negative impact on delivering justice in these cases.

Saul Lehrfreund discussed the ‘inevitability of error’ in capital cases and sketched the impact of international procedural safeguards on the handling of death penalty cases across the world. He argued that despite a heightened sense of scrutiny, even countries embracing a ‘superdue process’ such as the United States, often fail to comply with the minimum requirements, supporting current views on the ‘inevitability of error’ in capital cases.

The second session shifted the angle of the discussion to campaigns, investigations and activism, and was chaired by Dr Jon Yorke. Journalists, activists, and lawyers such as David Rose, Oluwatosin Popoola, and Hannah Gorman, shared their professional perspective on the death penalty issues.

David Rose, for instance, recounted his experience as an investigative journalist in the case of Carlton Gary, an Afro-American man sentenced to death for the killing of eight elderly women in 1986 in Columbus, Georgia. Carlton Gary is still detained on death row, but was granted an extraordinary motion for a new trial thanks to freshly discovered evidence. Rose showed how the apparently strong evidence provided by the prosecution dissolved following more thorough investigations. Indeed, he found that the bite cast of the killer, that showed a clear mismatch with Gary’s teeth, had been deliberately hidden from the trial; a footprint taken from a victim’s home - and believed to be the killer’s – was five sizes smaller than Gary’s feet; and Gary’s semen – that he managed to smuggle out from death row – did not match that of the killer. This case shows how meticulous investigations can uncover striking miscarriages of justice. But can this and similar cases really make a difference in terms of future abolition? Rose believes that thanks to extensive media coverage, investigative reporting of cases of wrongful convictions can have an impact, even in the American south.

Oluwatosin Popoola provided an overview of death penalty exonerations across the world, and joined the other speakers in stressing Amnesty International’s opposition to the death penalty in all cases, as a fundamental human rights violation.

Hannah Gorman presented Reprieve’s EC Project. The project provides legal defence to foreign nationals facing the death penalty across the world, and investigates violations of EU standards in cases involving vulnerable defendants. Reprieve currently assists 87 foreign nationals and work in several jurisdictions across the United States, South East Asia, the Middle East and North Africa. The EC project has led to positive results: 24 European nationals have avoided their death sentences since the beginning of the project, the practices have improved, and lawyers are better educated on foreign nationality issues.

The third session turned to the role of soft power and litigation in influencing death penalty policies and increasing due process standards in foreign retentionist countries. It included presentations by Christopher Layden and Parvais Jabbar, who discussed the difficulties encountered when operating in former Commonwealth countries.

Christopher Layden illustrated the strategies followed by the Foreign Commonwealth Office to shape death penalty policies in former British colonies that still retain capital punishment. He argued that trying to force change in countries with a long history of colonial domination is not an effective approach to the problem. For this reason, the government is pursuing a softer strategy, aimed at influencing change by showing the attractiveness of the British ‘way of life’, providing legal aid, and organizing international visits by members of the British parliament.

Parvais Jabbar closed the session by sharing his experience as a defence lawyer litigating capital cases at the Judicial Committee of the Privy Council. He highlighted how under the influence of international human rights law, the Privy Council has recently moved from a hands-off policy to a more interventionist approach. This has led to the discovery of repeated procedural violations in countries following under its jurisdiction, often resulting from the inadequate provision of legal aid that increases the risk of wrongful convictions.

The conference closed with a panel discussion chaired by Baroness Helena Kennedy, principal of Oxford Mansfield College. The panel examined the extent to which current innocence debates might influence the wider discussion about the legitimacy of capital punishment. Further, it discussed the possibility of future abolition.

Overall, the speakers argued that the innocence movement is significantly contributing to the reform of due process standards, and partially even to abolition around the world. However, further efforts are required to really make a difference. Political actors need to be involved in order to influence change. And while Prof Hood took an optimistic view highlighting the striking decrease in the number of executing countries around the world, David Rose warned against excessively positive expectations, citing the opposite pattern followed by many Islamic nations in recent years. The wider implications of the innocence movement for future abolition still need to be fully gauged. In the meantime, perhaps we can join Rose in suggesting that ‘the battle for justice and due process in individual cases is a worthy end in itself’.

Throughout the day, students were given the possibility to meet the speakers and discuss internship opportunities at the UK Foreign and Commonwealth Office, Death Penalty Project, Reprieve, and the International Commission.

The conference was generously supported by the Oxford Law Faculty Research Support Fund and the Death Penalty Project.