Massachusetts Citizens Against the Death Penalty

The Demise of the Scientific Death Penalty

by James P. Rooney

Massachusetts Governor Mitt Romney, who would like nothing better than to become President Romney in 2008, has tried to distinguish himself from his fellow contenders for the Republican party nomination by doing something no one else has dreamed of -- perfecting the death penalty. When he first broached the idea of an error-free capital punishment system, it gained sufficient notoriety that the New York Times Magazine included it in its annual collection of original ideas. But his high-flying dream came crashing to earth on November 1 when the Massachusetts House of Representatives rejected his death penalty bill by a margin of nearly 2-1. This is a striking loss in a state that, in 1997, came within one vote of reenacting capital punishment. Instead of inaugurating a bright new day for the death penalty, the Governor has proven what should have been evident all along: no capital punishment scheme can ever guarantee that an innocent person will never be executed.

The presence of innocents on death row was not so long ago a matter of no great interest to policymakers. But in the last ten years, well-publicized exonerations of one death row inmate after another -- the Death Penalty Information Center's website lists the current number at 122 since 1973 -- have changed the political landscape. The fear that an innocent person might be executed has already precipitated moratoriums on executions in Illinois and Maryland, and, as well, a persistent decline in public support for capital punishment.

The nagging question of innocence also brought a new moral calculus to the old death penalty debate, one expressed in Massachusetts by recently retired House Speaker Thomas Finneran. A one-time death penalty supporter, this conservative Democrat now believes that, in taking the life of a wrongfully convicted person, society would be killing a person as innocent as the murder victim whose death had occasioned society's revenge.

This philosophy can brook no error. The only human construct that offers the hope of such certainty is science (at least in the opinion of non-scientists), so it is to science that Governor Romney turned. In the fall of 2003, Governor Romney appointed a panel of experts, including a Harvard Medical School pathologist and Dr. Henry Lee, the forensic scientist of O. J. Simpson trial fame, to craft a scientifically valid death penalty. He held out high hopes for this venture, proclaiming, "Just as science can be used to free the innocent, it can be used to identify the guilty."

When this Council on Capital Punishment issued its report in May 2004, it claimed to have succeeded in creating a capital punishment system "as infallible as humanly possible." The Governor agreed, declaring,"I would be happy to stake my own life on the outcome" of the process it proposed.

No one else should be quite so eager. The centerpiece of the bill generated by the Council’s report was a requirement that a jury find "conclusive scientific … evidence” that “connects the defendant to either the location of the crime scene, the murder weapon, or the victim's body, and that strongly corroborates the defendant's guilt of capital murder" before it sentences a defendant to death. You might think that conclusive scientific evidence would be limited to DNA or some other high-tech evidence of the sort presented routinely on televised crime scene investigation dramas. But the bill was more generous. It would have allowed consideration of "photographs, video and audiotapes, fingerprints, … footwear impressions, tire impressions, tool marks, firearm-related impressions, and other physical pattern matches."

How did the impression left by a size 10 workboot come to warrant consideration equal to DNA evidence in the search for proof conclusive enough to condemn a man to death without error? A hint comes from the statistic quoted earlier from the Death Penalty Information Center. Only 15 of the 122 death row inmates were exonerated by DNA evidence. Unless a murderer leaves hair, blood, or semen at the crime scene, there will be no DNA to evaluate. In a drive-by-shooting, for example, the chances of recovering any of the killer's DNA at the scene are exceedingly slim. Because of this, the bill had to cast a broader evidentiary net in order to snare more than handful of potential death penalty candidates.

Yet, the Council on Capital Punishment acknowledged that even when DNA evidence or other high quality scientific evidence is available, it is not always conclusive. If the defendant and the victim are spouses or close intimates, the Council conceded that a connection between the defendant and the victim's body will be virtually inevitable and a death sentence cannot be justified absent a more direct link to the murder weapon or the murder scene that would "strongly corroborate" guilt.

Even then, "strongly corroborate" does not sound like either the absolute certainty former Speaker Finneran would require or the near infallibility the Council promised. What gives? There simply are limits on how much scientific evidence can prove. It may be able to put the defendant at the scene of the crime or even put the murder weapon in his hand, but it cannot read his mind. If a homicide victim is stabbed but resists fiercely and only two types of DNA are found in the blood by the body -- the victim's and the defendant's -- that will likely be enough to prove the defendant was the killer, but it will not necessarily prove he is a murderer. If he claims self-defense, DNA will not help at all to show who was the aggressor.

What then has the Governor wrought? Nothing new really. Putting aside instances in which the evidence against a murder suspect is from an eyewitness, a jailhouse snitch, or the suspect himself , the run-of-the-mill homicide case has always depended on some form of physical evidence because the victim, being dead, cannot testify. The bill did not eliminate from consideration any of the types of physical evidence on which prosecutions are currently based and it would be up to the jury, as it is now, to figure out whether the physical evidence sufficiently corroborates guilt. The only difference would be a new line on the jury form requiring the jury to declare that there is scientific proof of guilt.

In the introduction to its report, the Council stated that in attempting to craft a perfect death penalty in Massachusetts, it was "not constrained ... by any existing death penalty laws." Instead, it was "free to consider any idea that might constitute a `best practice' for a possible death penalty statute." Yet, even with this lack of constraint, the best Governor Romney could come up with is the present system with a few additional bells and whistles. This is leagues short of a scientific guarantee that the death penalty will not claim an innocent person's life.

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