Massachusetts Citizens Against the Death Penalty

Detail of Bartolomeo Vanzetti and Nicola Sacco from the cartoon of a mural by Ben Shahn © Estate of Ben Shahn /Licensed by VAGA, New York, NY

Testimony of Massachusetts Citizens Against the Death Penalty
James Rooney, President MCADP
November 7, 2007

Good afternoon, my name is James P. Rooney.  I am an attorney in Boston who works for the state, but I am not here in that capacity.  Rather, I am here as the President of Massachusetts Citizens Against the Death Penalty and as a former assistant district attorney in Brooklyn, New York to comment on the distinction Representative Jones’s death penalty bill, which is identical to the bill previously filed by former Governor Romney, makes between scientific and human evidence and the way in which this distinction comports, or I would argue, does not comport with the experience of the men and women who prosecute or defend criminal cases.

The bill draws a critical distinction between scientific evidence and what it calls human evidence – eyewitness identifications and confessions, for example.  It treats scientific evidence as so highly reliable that a jury in the penalty phase of a capital trial must find that there is scientific evidence linking the defendant to the crime as a prerequisite to rendering a verdict of death.  On the other hand, a defendant may request that a jury be instructed in the guilt phase that eyewitness identification and other human evidence may be unreliable.  While Representative Jones and former Governor Romney are to be credited with paying attention to the instances in which eyewitness identifications, confessions, or the word of jailhouse informants ultimately proved to be inaccurate, the solution he proposes does not fit the real world of criminal cases in which scientific evidence and human evidence all jumble together and what evidence is reliable depends on the case.

I offer two brief examples from actual cases of the evidentiary difficulties posed by Former Governor Romney’s approach.  The first comes from an interview I did a few years ago with a man who had been released from Arizona’s death row.  His name is Paris Carriger and his case illustrates that the reliability of scientific evidence can turn on the meaning a human being attributes to it and therefore is no more reliable that human being.  The human being in Carriger’s case was a man named Robert Dunbar.  The two men had met in prison and Carriger stayed with Dunbar for a while after he was released from prison.  On March 13, 1978 Dunbar and Carriger visited a jewelry store in Phoenix to have Dunbar’s watch repaired.  That afternoon, someone robbed the store and bound and killed the store owner, Robert Shaw.  Carriger says Dunbar told him that evening that he had committed a robbery and Carriger would need a new pair of boots because he had worn Carriger’s boots during the robbery.  But the following morning, Dunbar called the police and told them that Carriger had robbed and killed Shaw.  He led the police to Carriger’s boots and other items of clothing he said he saw Carriger discard.  Carriger was convicted and sentenced to death based on Dunbar’s testimony and the physical evidence the police recovered.  Had the case been tried under the governor’s proposal, a jury could have found scientific evidence connecting Carriger to the victim because the victim was bound with tape that was Carriger’s and a fingerprint of Carriger’s was on the tape.  Carriger told me that had the clothes recovered been tested for DNA they would have confirmed that the clothes were his, which would have been a further scientific reason to connect him to the crime.

But the connection depended on believing Dunbar was telling the truth.  He admitted in court nine years later that he was not and that he, not Carriger, had committed the crime.  But he recanted his confession three weeks later and it took Carriger until 1997 to be freed from death row.  What this case illustrates is that even in a situation in which you can identify a piece of scientific evidence that connects a defendant to a crime, that does not necessarily mean that the science involved can conclusively demonstrate that the defendant is guilty.

The other illustration is from an assault case I tried in Brooklyn that shows how messy the mixture of science and human evidence can get.  This case involves two neighbors who did not get along.  One summer evening the larger neighbor was injured in a confrontation with the smaller neighbor.  The alleged victim testified that he stopped the smaller neighbor’s children from playing soccer in front of his storefront window and the smaller man came out and attacked him with a machete, cutting him on the wrist as he attempted to ward off the blow.  The smaller man agreed there had been a confrontation, but denied carrying a machete.  He said the larger man had lost his temper and tried to break into his house by smashing a small pane of glass in the door and that this is what caused his injury.  The human evidence came from the testimony of the two men and their friends and family who supported one or the other version of the story.

The scientific evidence for the prosecution came in the form of medical records from the victim’s emergency room treatment, which referred to a machete cut, and the testimony of the emergency medical technician who drove the victim to the hospital that the wound was consistent with a blow from a machete.  The defense countered with testimony from a former medical examiner that a machete is both heavy and sharp and that, as a consequence, a machete wound would have been much more severe than the cut the victim received.  Instead, the examiner concluded that the wound was caused by glass because the medical records described it as a straight cut, like one that glass could cause, not a jagged cut that a machete blow would produce.

The defense appeared to get the better of the scientific evidence, but the jury still convicted.  Why?  Because of what the police officer who responded to the scene did not see.  The officer, having been told that the defendant assaulted the victim with a machete, went into the defendant’s house through the front door to retrieve the machete.  This was the very door where the pane of glass was supposedly broken.  But the officer did not remember stepping on bloody broken glass.  The absence of the broken glass convinced the jury the defendant’s version was wrong and so they convicted him.

When the evidence in this case is looked at through the prism of the Jones/Romney bill, what is to be made of the officer’s testimony that proved key?  Is it human evidence because it is simply one person’s observations or is it scientific evidence because it was the observation of a physical fact – the absence of glass in a doorway – that disproved the defense?  As for the doctor’s testimony, this shows once again how scientific testimony can be intertwined with other evidence and its reliability turn on that evidence.  The doctor said the cut was straight, but did not see it; he relied instead on description given by an emergency room nurse whom he had never met.  And when he described the likely severe consequences of a machete blow, he assumed the victim alleged that the defendant took a good swing at him.  But in the victim’s version, because he was a larger man, when the defendant raised the machete over his head, the victim was able to reach up and interfere with its progress before it had gone very far.  Therefore the weight of the machete, which is what causes severe injuries, did not come into play, explaining why he received only a slight wound.

Scientific evidence can in some cases play a decisive role in demonstrating that a criminal defendant is guilty or not guilty.  But I hope the two cases I have presented to you illustrate that scientific evidence cannot be treated in isolation from human evidence, as the bill does.  If you acknowledge that scientific and human evidence are intertwined, then the idea that scientific evidence is a uniquely reliable way to determine that a defendant is guilty of murder disappears.  Since the reliability of scientific evidence is the premise on which the bill is structured, if that premise is not valid, the you must reject the bill.

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