Symposium: Toward A Model Death Penalty Code: The Massachusetts Governor\u27s Council Report

Bieber, Fredrick R.

English

bepress Legal Repository

Ethics, Science, and the Law of Capital Punishment

Indiana University Bloomington Maurer School of Law

Indiana Law JournalVolume 80 | Issue 1 Article 17Winter 2005Ethics, Science, and the Law of Capital PunishmentFredrick R. BieberHarvard Medical SchoolFollow this and additional works at: http://www.repository.law.indiana.edu/iljPart of the Courts Commons, Criminal Law Commons, Judges Commons, and the Science andTechnology Law CommonsThis Symposium is brought to you for free and open access by the LawSchool Journals at Digital Repository @ Maurer Law. It has been acceptedfor inclusion in Indiana Law Journal by an authorized administrator ofDigital Repository @ Maurer Law. For more information, please contactwattn@indiana.edu.Recommended CitationBieber, Fredrick R. (2005) "Ethics, Science, and the Law of Capital Punishment," Indiana Law Journal: Vol. 80: Iss. 1, Article 17.Available at: http://www.repository.law.indiana.edu/ilj/vol80/iss1/17Panel Three-The Role of Scientific EvidenceThe Massachusetts Governor's Council Report places unprecedented reliance onscientific evidence to help reduce the incidence of error in capital cases. Recommenda-tions six and eight address this issue.Participants: Jeannine Bell (moderator), Frederick R. Bieber, Craig M. Cooley,Jeffrey J. Pokorak, Carl M. SelavkaETHICS, SCIENCE, AND THE LAW OF CAPITAL PUNISHMENTFrederick R. BieberI'd like to speak, for the moment, on behalf of our entire Council, especially thosewho couldn't be here today. We are all very grateful for the opportunity to have thisopen discussion with students and faculty members here who are concerned with thismost important matter.When I agreed to serve on this Council, I did so principally because, while I feltthere may not be the political will in the Commonwealth of Massachusetts to enactlegislation allowing a death sentence, we have a tremendous opportunity to influencethe 38 other states, the military court system, and the federal government as they reex-amine their existing death penalty statutes with an eye towards revising them, improv-ing them, and making the important deliberations about fairness and justice and accu-racy. I think all of us involved in the criminal justice system from any vantage point arekeenly aware of them. So it was our personal goal to make recommendations that otherstates might benefit from as well.As Professor Hoffmann mentioned this morning, we were specifically asked not todeliberate and opine on the many moral, social, and philosophical arguments aboutwhether capital punishment should ever be carried out by the state or the Common-wealth of Massachusetts in this case. However we were most certainly familiar with,and mindful of, those arguments. In fact, I would argue that an awareness of thosewould be crucial to our work.In thinking about whether I could separate whatever personal views I had on capitalpunishment from the specific charge at hand, I included in my own work and study acareful reading of some older law texts. In doing so I discovered the writings ofLearned Hand, the late federal judge, who wrote in The Spirit of Liberty, (and I'll quotefrom Learned Hand) "Nothing is more commendable and more fair than that a manshould weigh aside all else and seek truth. Not to preach what he might find, and surelynot to try to make his views prevail, but to find satisfaction in the search itself." Andaccordingly, as I just said, we made no recommendation in our Report about whethercapital punishment per se should be considered or enacted in our own Commonwealthof Massachusetts. It's my own personal belief that this type of decision belongs to thecitizens of the Commonwealth and their duly elected representatives.In our deliberations, and in preparing our Report, it might be useful for the audienceto know that we relied not only on our own collective experience in the investigationand adjudication of homicides and other serious felonies, but also on the input and ad-vice of others-which was similar to some of what we've heard this morning. TheCouncil members were selected and invited to serve by the Governor's office with in-put from his legal team including Mr. Bill Meade and Mr. Peter Flaherty. Some of usINDIANA LA W JOURNALknew one another before we accepted this appointment and others did not, but togetherwe had scores of years of experience either in the prosecution or defense of felonycases, in the investigation of serious crimes either at the crime scene itself, or at theautopsy bench, or in the laboratory analyzing, interpreting, and testifying about foren-sic evidence. We also solicited and had input from medical examiners, defense attor-neys, legal scholars, and even private citizens. And we asked each of them who con-tacted us, to put their thoughts and comments formally in writing, and they became partof the official deliberations and minutes of our Council. We discussed every singlesuggestion and critique and felt really no restraint. I must say candidly, and to my de-light, we felt no restraint from the Governor's office or any political body about whereour deliberations would take us.Throughout the Council's deliberations, specifically with regard to forensic evi-dence, we were all very much aware of the sad and sorry history of erroneous jury ver-dicts based either on limitations and possible inaccuracy both of fact testimony-and ofexpert witness testimony. These cases have included false or coerced confessions, mis-taken eyewitness identifications, and perjured testimony. These three categories ac-counted for the majority of false convictions for rape and murder tabulated by Profes-sor Gross and his University of Michigan law students in their recent study, released ina prepublication version on April 19th of this year. Their report [Exonerations in theUnited States 1989 through 2003] is available online through the University ofMichi-gan [http://www.law.unmich.edu/NewsAndInfo/exonerations-in-us.pdfl. In the Michi-gan study Professor Gross and his students reported on 328 documented formal exon-erations in the United States since the first DNA-based exoneration occurred in ourcountry in 1989. Results of post-conviction DNA testing were the basis for almost halfofthese exonerations. According to the data in their report, our own Commonwealth ofMassachusetts appears to have the dubious distinction of being tied for fifth place, withfifteen exonerations since 1989 at the time of the report's publication in April. Alto-gether the 328 men in their report had spent 3,400 years in prison-that is about tenyears each on average-for offenses that they presumably did not commit. One hun-dred and ninety-nine of these exonerations were for murder convictions. It was under-standably disturbing to me to read their data tabulations. Seventy-three of these men(or 36% of the 199 murder exonerates) had actually been given a death sentence, andthankfully had not yet been executed.Our Council members also recognized that other erroneous convictions have re-sulted in the past from missing evidence, poor crime scene processing, from flawed oroutdated scientific methods, or from inept or biased interpretation of results when pre-sented before the finder of fact. Surely such processes that allow so many errorsshouldn't be allowed to continue unchanged especially in capital cases.There are many reasons to seek infallibility in the adjudication of serious crimes.Two stand out to me. The first is the basic issue ofjustice for victims, society, and de-fendants. Second, if mistaken convictions do occur because of the problems I've justeluded to, the true perpetrators not only escape justice, but they are also then poten-tially free to offend again and again.The above issues relating to fallibility were clearly in mind when the members ofthe Council turned to the scientific and forensic issues. We recommended what weconsider to be an important new array of legal safeguards and reviews for defendantscharged with capital crimes and we made other recommendations specifically regard-ing the review of physical evidence that is proper in such cases.[Vol. 80:692005] PANEL THREE-THE ROLE OF SCIENTIFIC EVIDENCE 71Among the changes that have been summarized briefly already, we recommend spe-cial instructions to the jury regarding eyewitness testimony and the absolute require-ment of finding some associative physical evidence that conclusively links a defendantto the crime, even before considering capital punishment as an option. We also rec-ommend new policies for crime-lab certification and accreditation. We also recom-mend a thorough review of the forensic evidence by a select panel of independent ex-perts, who would be appointed if a guilty verdict were rendered. This recommendationis made with the hope that problems with evidence would then be identified and re-ported prior to the final sentencing, when guilty verdicts are rendered in capital cases.We believe that this should greatly reduce the chance of a false conviction and/or acapital sentence in the very narrow set of cases that were outlined by ProfessorHoffmann and others this morning.The quality of evidence collection and analysis, whether it's human evidence, eye-witness evidence, or from laboratory analysis, has really improved dramatically in thepast fifteen years. There are now expert technical working groups that continue to re-vise and improve almost all of the practices in use now. For example, videotaping allinterviews and recorded statements by suspects and those detained under arrest; thescreening of sequential images rather than group photo arrays for eyewitness identifica-tions; improved protocols for the analysis and interpretation of complex DNA mix-tures; added requirements for storage and analysis of trace evidence that can be goneback to in time; and the added requirements for development of important quality as-surance standards, lab accreditation, and outside audits for laboratories receiving fed-eral funds.If you will again allow me to play first year law student, I found the writings of thelate Justice Learned Hand very interesting in this regard. In one of his earlier essays hespoke about the dynamic tension, as he called it, between ethics, science, and the lawand described these as being like three horses drawing the chariot of a civilized society,in which ethics and law move together rather well, but science kept racing ahead orstopping abruptly causing a very rocky ride. He further described the most essentialfeature of the law as its desire for justice. In a perfect world I suppose that this couldmean that a crime committed today would receive the same social sanction as the samecrime committed 500 years ago. Perhaps for this reason the law is intrinsically conser-vative and it may have a hard time dealing with the concept of evolving scientific orforensic technology; the law may want--or desire-bright lines, clear precedents, andpermanent distinctions.It's worth pointing out, from my own perspective as a geneticist, that people haveactually been put to death on the basis of a three-locus RFLP-typing result, which byitself would very possibly be considered inadequate for a conviction today. Whetherthere are likely to be continued developments in technology is certainly not a question.There certainly will be continued motion in this rocky ride that Justice Learned Handdescribed regarding this three-horse chariot. The significance of forensic evidence,when performed properly and interpreted reasonably is beyond dispute.To end my formal comments, I'd like to turn away briefly from the review of poten-tially capital cases to those that are not, because I think one could ask the rhetoricalquestion, "Why shouldn't many of the Council's recommendations apply whether ornot it is a capital case?" Indeed, I hope that our society would be asking those ques-tions. It is my own belief that the way in which the scientific evidence and medicalevidence is collected, stored, analyzed, processed, interpreted, and presented in courtneeds to continue to change and improve not just in these capital cases but in all crimi-INDIANA LAWJOURNALnal cases. Hopefully our Report and our Lieutenant Governor's recent Crime Commis-sion Report will help show the way to go in that direction.A SCIENTIST'S PERSPECTIVE ON FORENSIC SCIENCECarl M SelavkaMany of you are attorneys or are already in school to become attorneys. So, I wouldlike to remind everybody here, because you don't live in the world that I live in, as aforensic scientist, that the majority of what we are talking about at this conference in-volves the advocacy process: defense advocacy, prosecutorial advocacy, and civil ad-vocacy. Scientists, on the other hand, live in what we believe is an objective processthat uses physical evidence to derive probative information to help resolve crimes. Wedon't care whether it helps one side of the advocacy or the other.We do live in America, and we know, politically, how the system is designed, butwe are not trying to help anybody in particular. We are just trying to give the correctanswer for the questions that we are asked: "How does this item of evidence lead to theconclusion and resolution of this case?" No matter whom we help, we are not supposedto care.I'm going to deviate from the assigned specifics to talk about a set of fourteen ques-tions that Professor Hoffmann gave us to think about, because he thought you might beinterested in hearing about, and that I might be interested in discussing, one or more ofthese questions.The first question is: "What is conclusive scientific evidence?" That is what recom-mendations number six and eight really talk about. In the law, beyond a reasonabledoubt is a standard that goes beyond the scientific certainty that we are often able todevelop and present. Scientific certainty, in our world, is greater than or equal to a 95%confidence interval. That is the statistic that we often use to determine whether some-thing can or shouldn't be interpreted as being probative and useful.This goes beyond civil cases, where a preponderance of the evidence is all that isrequired. So, when we talk about conclusive scientific evidence, even among scientists,we are often making conclusions that are different, with the same data. Is that conclu-sive? Well, that is a legal decision. Luckily, it is not up to scientists alone. We are notadvocates for either side, but we do want to present the best quality evidence that wecan. The good thing is, as Dr. Bieber mentioned, we are the bumpy horse that is pullingalong the wagon ofjustice. Well, sorry about the bumpy ride; but the fact that sciencedoes continue to advance every year does give us the opportunity to resolve cases thathave not been resolved yet, or to reexamine cases that were previously resolved andshow that the wrong resolution was the outcome last time, and make it better now.Second question: "What kinds of scientific evidence might qualify?" There are twogeneral types; individualization evidence-things where we can say this is the sourceof that item--and then there are class characteristics-where we can say, "Well, it'sfiber, but it's a yellow fiber and there are 300 examples of that." The kind of evidencewe get is not determined by us; it is determined by how the crime was committed-how the people interacted. In the end, probative evidence is used to tie together vic-tims, suspects, and crime scenes. If it doesn't do one of those, it is not going to be pro-bative for us to examine things.[Vol. 80:69

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Ethics, Science, and the Law of Capital Punishment

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