Pennsylvania and the death penalty

A few weeks ago, the Philadelphia Inquirer reported yet another egregious example of prosecutorial misconduct in a capital trial. I say “misconduct,” but the proper word is criminality.

What Philadelphia prosecutors did to James Dennis was the worst kind of crime. They railroaded a man and put him on Death Row. To put it more plainly, they tried to kill someone by perverting the instruments of justice that protect us all. Is there a greater crime?

The circumstances of the case are depressingly— or infuriatingly— familiar to anyone who has followed a number of similar trials stemming from the Philadelphia District Attorney’s Office in the 1980s and ’90s, when the death penalty was sought with a vengeance.

Cherry-picked witnesses

James Dennis was an aspiring singer from West Oak Lane who was riding a SEPTA bus when someone else, miles away, killed Chedell Ray Williams for a pair of earrings. The police never recovered the murder weapon or the earrings.

Dennis was targeted on the basis of neighborhood rumors, but no forensic evidence was sought to link him to the crime. Instead the police cherry-picked three witnesses who identified Dennis as the shooter, ignoring others who described a man of taller and heavier build.

The case was a slam-dunk for the jury, particularly with a defense lawyer who did what the appellate judge, Anita Brody, no doubt charitably described as “the bare minimum” to represent his client.

Lost testimony

So far, we have a case of hasty and slipshod work by police under pressure to solve a high-profile crime (the city was then suffering an epidemic of shootings over sneakers and jewelry). But the police also withheld exculpatory evidence from the defense and ignored other leads, including a purported confession by another man.

Judge Brody characterized this conduct as “underhanded and illegal.” The cops had concocted their case, and no inconvenient fact or lead was going to get in the way of a conviction. They “lost” testimony by a witness who had seen Dennis on his bus ride, miles from the crime scene. The defense was never made aware of that testimony.

Assistant District Attorney Roger King took the case, and, like other eager beavers in Lynne Abraham’s office, ran with it.

Comatose defense lawyer

James Dennis has now spent 21 years— half of his life— on Death Row. He will owe his freedom, when it comes, to a pair of Canadian activists, a Washington law firm that took his appeal case pro bono, and people in 15 countries who kept his story alive. That’s a lot of people, almost all of them outside Pennsylvania.

Lynne Abraham’s successor as district attorney, Seth Williams, made his customary response when confronted with yet another miscarriage of justice by the office he now leads. He denounced Judge Brody’s “acceptance of slanted factual allegations” and “a newly concocted alibi defense” that he calls a lie. Roger King, the original prosecutor, declined to comment.

There is more than enough blame to go around in this wretched story. Dennis’s lawyer, Lee Mandell, put on a thoroughly comatose performance. The trial judge let the circus proceed. Appellate judges were satisfied with the trial record.

No apology

Dennis’s case was not exceptional but routine. The police and prosecution got away with judicial murder because the bar of justice in capital cases is so low and the system so unaccountable that they have no incentive to hold themselves to any higher standard than the quickest and most expedient conviction they can secure, by fair means or foul.

The rules say that both sides in the game of adversarial justice must seek the truth. But there’s no penalty for willfully concealing or misrepresenting it. A tongue-lashing from a principled and conscientious judge more than 20 years after the fact is the worst the state’s agents can expect.

Who will give James Dennis back half his life? Who will compensate him for the lost years, even monetarily? From whom will he get even a simple apology?

High failure rate

Last year, I wrote several articles about the case of another Philadelphian, Terry Williams, who came within three hours of execution in a case of even more blatant prosecutorial criminality. (Click here.) Williams continues to languish on Death Row while the Pennsylvania Supreme Court takes its sweet time responding to the vacation of his death sentence issued by another courageous judge, Theresa Sarmina. By all rights he ought to be a free man.

There have been 1,348 executions in the U.S. since the death penalty resumed in 1976. In that time 144 innocent prisoners have been freed from Death Row, most of them in the past decade since Barry Scheck’s Innocence Project began to uncover case after case of wrongful conviction.

A failure rate of more than 10% in a capital justice system ought to shut it down as surely as such a rate in salmonella poisoning would shut down the food supply. Even Justice Antonin Scalia might stop patronizing a supermarket where one in ten items could be lethal.

Dragging out the process

Pennsylvania’s numbers are actually much worse. Three prisoners have been executed since the state’s current capital statute took effect in 1982. James Dennis is Pennsylvania’s seventh Death Row exoneree in that time. That’s a failure rate of 70%.

Pennsylvania has a current Death Row population of 195, still the fourth largest in the country. That’s down about 50 from its high point a few years ago. The reason for the decline is that appellate courts nationwide throw out 68% of all death sentences. This means that more than two-thirds of capital trials fail to meet minimum constitutional standards for fairness or adequacy of representation— and that minimum is a very low threshold indeed.

The actual number of such trials may be far higher, and the process of review can drag on for decades. It took 21 years to free James Dennis as the appellate system repeatedly failed him, and were it not for persons of conscience who kept his case alive, the execution warrant signed in 2011 by Governor Tom Corbett might have been carried out long ago.

By contrast, Pennsylvania’s neighbors

How many more James Dennises, not only sentenced without minimum due process but factually innocent, does Pennsylvania’s Death Row harbor? A dozen? Two dozen? That’s not, perhaps, an exaggerated guess.

When Governor George Ryan of Illinois discovered 13 innocent men had been sent to Death Row, and 12 executed, since Ilinois reinstated the death penalty— this in a state with a Death Row population of 167 when Ryan took office— he suspended executions. Illinois has now abolished the death penalty. Pennsylvania’s Death Row was nearly half again larger than Illinois’ when Ryan acted. Pennsylvania’ proportion of innocents may well be the same, or more.

Pennsylvania’s neighbors to the south and east— New York, New Jersey and Maryland— have all abolished the death penalty in recent years. Delaware, which has had the nation’s highest per capita execution rate, is seriously considering abolition. Soon, Pennsylvania— a commonwealth founded by advocates of nonviolence— may be the only northeastern state to retain the death penalty. Why?

Principled conservatives

It’s not simply a matter of conservative politics. For years, a principled upstate Republican, Edward Helfrick, introduced an abolition bill annually in the General Assembly. His place as an advocate has now been taken by my own suburban Senator, Daylin Leach. Stewart Greenleaf, the chair of the Senate Judiciary Committee, is an honorable man deeply troubled by the state of Pennsylvania’s criminal justice system.

But politicians respond to public concern, and Pennsylvania abolitionists— myself among them— have failed despite decades of effort to mobilize the leaders of the legal, medical and religious communities whose professional conscience is most directly challenged by the death penalty to raise a united voice against it. This is our task.♦


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