Sunday, July 26, 2015

The staggering number of wrongful convictions in America

The following opinion by Samuel R. Gross was published on July 24, 2015 by the Washington Post.  Samuel R. Gross, a law professor at the University of Michigan, is the editor of the National Registry of Exonerations.

I edit the National Registry of Exonerations, which compiles stories and data about people who were convicted of crimes in the United States and later exonerated. The cases are fascinating and important, but they wear on me: So many of them are stories of destruction and defeat.

Consider, for example, Rafael Suarez . In 1997 in Tucson, Suarez was convicted of a vicious felony assault for which another man had already pleaded guilty. Suarez’s lawyer interviewed the woman who called 911 to report the incident as well as a second eyewitness. Both said that Suarez did not attack the victim and, in fact, had attempted to stop the assault. A third witness told the lawyer that he heard the victim say that he would lie in court to get Suarez convicted. None of these witnesses were called to testify at trial. Suarez was convicted and sentenced to five years.

After these facts came to light in 2000, Suarez was released. He had lost his house and his job, and his plan to become a paralegal had been derailed. His wife had divorced him, and he had lost parental rights to their three children, including one born while he was locked up. Suarez sued his former lawyer, who by then had been disbarred. He got a $1 million judgment, but the lawyer had no assets and filed for bankruptcy. Barring a miracle, Suarez will never see a penny of that judgment.

The most depressing thing about Suarez’s case is how comparatively lucky he was. He was exonerated, against all odds, because his otherwise irresponsible lawyer had actually talked to the critical witnesses and recorded those interviews despite failing later to call them at trial.

Suarez served three years in prison for a crime he didn’t commit. The average time served for the 1,625 exonerated individuals in the registry is more than nine years. Last year, three innocent murder defendants in Cleveland were exonerated 39 years after they were convicted — they spent their entire adult lives in prison — and even they were lucky: We know without doubt that the vast majority of innocent defendants who are convicted of crimes are never identified and cleared.

The registry receives four or five letters a week from prisoners who claim to be innocent. They’re heartbreaking. Most of the writers are probably guilty, but some undoubtedly are not. We tell them that we can’t help; we are a research project only, we don’t represent clients or investigate claims of innocence. Fair enough, I guess, but some innocent prisoners who have been exonerated wrote hundreds of these letters before anybody took notice. How many innocent defendants have I ignored?

Innocence projects do handle these cases, or at least some of them. They receive many times more letters than we do. I’ve spoken with lawyers who do this work, and who have successfully exonerated dozens of defendants. Most of them have clients who remain in prison despite powerful evidence of their innocence that no court will consider. And they all know that there are countless innocent defendants hidden in the piles of pleas for help that they will never have time to investigate.

How many people are convicted of crimes they did not commit? Last year, a study I co-authored on the issue was published in the Proceedings of the National Academy of Sciences. It shows that 4.1 percent of defendants who are sentenced to death in the United States are later shown to be innocent: 1 in 25.

Death sentences are uniquely well-documented. We don’t know nearly enough about other kinds of criminal cases to estimate the rate of wrongful convictions for those. The rate could be lower than for capital murders, or it could be higher. Of course, in a country with millions of criminal convictions a year and more than 2 million people behind bars, even 1 percent amounts to tens of thousands of tragic errors.

The problem may be worst at the low end of the spectrum, in misdemeanor courts where almost everybody pleads guilty. For example, in July 2014 Wassillie Gregory was charged with “harassment” of a police officer in Bethel, Alaska. The officer wrote in his report that Gregory was “clearly intoxicated” and that “I kindly tried to assist Gregory into my cruiser for protective custody when he pulled away and clawed at me with his hand.”

The next step in the case would normally be the last: Gregory pleaded guilty, without the benefit of a defense lawyer. But Gregory was exonerated a year later after a surveillance video surfaced showing the officer handcuffing him and then repeatedly slamming him onto the pavement.

Why then did they plead guilty? As best we can tell, most were held in jail because they couldn’t make bail. When they were brought to court for the first time, they were given a take-it-or-leave-it, for-today-only offer: Plead guilty and get probation or weeks to months in jail. If they refused, they’d wait in jail for months, if not a year or more, before they got to trial, and risk additional years in prison if they were convicted. That’s a high price to pay for a chance to prove one’s innocence.

Police officers are supposed to be suspicious and proactive, to stop, question and arrest people who might have committed crimes, or who might be about to do so. Most officers are honest, and, I am sure, they are usually right. But “most” and “usually right” are not good enough for criminal convictions. Courts — judges, prosecutors, defense attorneys, sometime juries — are supposed to decide criminal cases. Instead, most misdemeanor courts outsource deciding guilt or innocence to the police. It’s cheaper, but you get what you pay for.

We can do better, of course — for misdemeanors, for death penalty cases and for everything in between — if we’re willing to foot the bill. It’ll cost money to achieve the quality of justice we claim to provide: to do more careful investigations, to take fewer quick guilty pleas and conduct more trials, and to make sure those trials are well done. But first we have to recognize that what we do now is not good enough.

Friday, July 24, 2015

Taxing Wrongful Conviction Money Is Wrong

The following opinion by Robert Wood was published in Forbes on July 21, 2015.

Our justice system is complex, and sometimes gross injustices occur. Undoing them does not always happen, and even when it does, it takes time. Few of us can imagine what it would be like to be convicted and imprisoned for crimes we did not commit. And while taxes seem far removed from this topic, they are not.

A few years ago, Congressmen Sam Johnson (R-TX) and John Larson (D-CT) tried to get legislative tax relief for innocent people who are wrongfully convicted. Their bill failed but they haven’t given up. Now, they have re-introduced the Wrongful Convictions Tax Relief Act. The bill would amend the tax code to say that:

“In the case of any wrongfully incarcerated individual, gross income shall not include any civil damages, restitution, or other monetary award (including compensatory or statutory damages and restitution imposed in a criminal matter) relating to the incarceration of such individual for the covered offense for which such individual was convicted.”

They correctly point out that there is a gap in the tax law. Fortunately, one can read feel-good stories about wrongfully convicted people who are subsequently freed. But what happens then? Sometimes they seek financial redress in one of a number of different ways. Sometimes they get it, but how is it taxed? It depends.

The tax issues have been surprisingly cloudy. In the 1950s and 1960s, the IRS ruled prisoners of war, civilian internees and holocaust survivors received tax-free money for their loss of liberty. In 2007, the IRS “obsoleted” these rulings suggesting the landscape had changed. The IRS now asks whether a wrongfully jailed person was physically injured/sick while unlawfully jailed.

If so, the damages are tax free, just like more garden variety personal physical injury recoveries. What if an exoneree isn’t physically injured? In IRS Chief Counsel Advice 201045023, the IRS said a recovery was exempt, but the IRS sidestepped whether being unlawfully incarcerated is itself tax-free. The Tax Court and Sixth Circuit in Stadnyk suggest that persons who aren’t physically injured may be taxed. That’s why the Stadnyk case is a lemon.

There are usually significant physical injuries and sickness but not always. Besides, what about the money just for being locked up? What if an exoneree gets $50,000 for physical injuries and $450,000 for being unlawfully behind bars?

It may be difficult or even impossible to separate out all of the multiple levels of horror, all the losses that can never be made up. But in many cases, the loss of physical freedom and civil rights is at the root of the need for reparations.

The loss of physical freedom should be tax-free in its own right. Many exonerated individuals experience severe hardship acclimating to society, finding jobs, housing and reconnecting with family. The Wrongful Convictions Tax Relief Act proposes to allow exonerees to keep their awards tax-free.
The debate over these recoveries has focused (probably incorrectly) on the factual question whether the wrongfully jailed person experienced physical injuries or physical sickness while unlawfully incarcerated. If so, the damages are tax free, just like more garden variety personal physical injury recoveries. If not, taxable.

More and more prisoners are being exonerated based on DNA or other evidence. Under statute, by lawsuit or even by legislative grant, exonerees may receive compensation for their years behind bars. In fact, are you ready for some shocking figures?

Since the first DNA exoneration in 1989, wrongfully convicted persons have served thousands of years in prisons before being exonerated. The average exoneree has served more than ten years in prison. Although a few get lucky and get out quickly, some spend multiple decades behind bars. Whether you look at an individual case or at the averages, the numbers are astounding.


Sunday, July 12, 2015

Editorial: Case with 'undetermined' cause of death needs careful look

The following editorial was published by the Chicago Sun-Times on July 9, 2015.

A former day care worker is serving 31 years in prison for what the Lake County coroner now says might not even have been a crime. Authorities need to pull out all stops to get to the bottom of this case.

Melissa Calusinski, 28, was convicted in 2011 of killing a 16-month-old toddler by throwing him to the floor of a Lincolnshire day care center. She’s been behind bars for six years.

But now Coroner Thomas Rudd says X-rays unearthed last month showed no skull fractures. An independent forensic pathologist reviewing the new evidence concluded the toddler had cerebral swelling from earlier concussions. Rudd now says the cause of death is “undetermined,” not homicide, the original finding.

This is not the first case in which doubt has been raised over a conviction of a day care worker. When toddlers die, there’s a demand for someone to be convicted. Often, that’s the last person known to have been with the child. Often, there are no witnesses. Too often, the medical theory used to prove that person’s guilt is suspect.

We can’t say that’s what happened here. But the original pathologist in this case already has admitted he missed the evidence of an earlier injury, although he isn’t revising his overall conclusion.

In the long history of wrongful convictions, authorities have with troubling frequency refused to look at new evidence or consider re-opening cases. So we commend Rudd for his willingness to reclassify the cause of death based on the new evidence.

We also commend Lake County State’s Attorney Michael Nerheim for the work he has done since taking office in 2012 to untangle a series of wrongful convictions in high-profile cases that he inherited from his controversial predecessor.

After taking office, Nerheim set up a volunteer wrongful-conviction panel to take an extra look at cases. Most recently, Jason Strong was cleared in May after 15 years in prison on a murder charge. He was freed partly on the basis of new medical evidence.

Like Calusinski, Strong had confessed. But a growing body of research has showed false confessions are more common than once thought. Calusinski’s videotaped confession came after six hours of interrogation.

Nerheim, who already reviewed the Calusinski case shortly after assuming office, says his office is reviewing the documents in the case again. We trust he will give the evidence a thorough and impartial look.

The case is scheduled to go before a judge on Sept 21. We hope by then — if not sooner — clearer answers will emerge.

Wednesday, July 08, 2015

Time for a change in ‘shaken baby’ investigations

The following editorial was published by the Mat-Su Valley Frontiersman (Alaska) on July 6, 2015.

From the abundant offerings of TV crime dramas it is obvious that the law enforcement community has benefited from the advancements in modern science, such as DNA evidence.

But in at least one area, law enforcement and the rest of the justice system seem to be lagging.

Introduced as a theory in the 1960s, for decades shaken-baby deaths were identified by a triad of symptoms — hemorrhaging in the eyes, subdural hematoma and a swollen brain — that were viewed as iron-clad medical evidence a child died of abuse.

But by 2006, medical experts around the world began questioning the symptoms as conclusive. Defendants began appealing guilty verdicts and winning based on flawed forensic findings.

Child forensic pathology expert Dr. Janice Ophoven has testified in several Alaska trials where people were accused of the shaking death of a child.

Failing to use board-certified forensic pathologists to review the forensic evidence, and failing to recognize that other medical conditions also present this trio of symptoms is causing innocent Alaskans to be tried, convicted and receive long prison sentences, she says.

“This is one of the worst miscarriage of justice cases I’ve had, but it is not the only case like it in Alaska,” Ophoven said of the Clayton Allison trial and conviction in his daughter’s death. Allison is set for sentencing Wednesday.

According to a review of shaken-baby cases by Deborah Tuerkheimer, a DePaul University law professor and author of the just-published book, “Flawed Convictions: “Shaken Baby Syndrome and the Inertia of Injustice,” 95 percent of people charged in shaken-baby deaths are convicted, and of those, 90 percent receive life sentences.

The prosecution is seeking a 40-year sentence — 30 to serve and 10 years of probation — for Clayton Allison. An appeal is planned, but that process will likely take years.

On Sept. 24, 2008, Clayton told police his daughter, Jocelynn, accidentally tumbled down eight carpeted steps, then struck her head on a chair with a file-box on top. She died of her injuries a few hours later at Providence Alaska Medical Center in Anchorage.

But the jury in the Allison case never heard about the significance of the chair or the heavy box of files on top of it. Jurors heard about the child’s medical condition. They knew the baby was diagnosed with hypermobility.

But the judge ruled no one could tell jurors that Jocelynn’s mother had been diagnosed with a connective tissue disease — Ehlers-Danlos Syndrome — after her death, and that it could have a direct effect on the injuries she sustained.

Shaken-baby cases often rely on medical evidence to establish a crime occurred. But in Alaska, no one involved in the collection of evidence in shaken-baby cases is trained as a neuroscientist or a pathologist. Some involved are medical doctors with years of family medicine or pediatric experience.

But that’s not the equivalent to completing the rigorous training required to become a board-certified forensic pathologist. That matters because at the end of the day, their review of the evidence will be used in legal proceedings that could send innocent Alaskans to prison for decades.

Once a shaken-baby investigation begins, it’s very hard to derail, Ophoven said.

“Their findings carry enormous weight within the criminal justice system,” she said of doctors like Dr. Cathy Baldwin-Johnson of The Children’s Place in Wasilla.

Baldwin-Johnson testified during Allison’s five-week trial that when she sees no other medical explanation for the injuries, child abuse is the answer she turns to.

But Ophoven, a pathologist, noted that falls are the No. 1 cause of child deaths, and that Jocelynn’s fall that September could have resulted in her death, especially given her existing medical diagnosis.

The Allison family says they plan to appeal Clayton’s conviction. But that will take years.

For Alaskans, this is an opportunity to call for reform to the process law enforcement and prosecutors use to investigate possible shaken-baby deaths.

Only board-certified forensic pathologists should be used to review medical evidence in these cases, which depend largely on forensic evidence to prove a crime occurred. There is too much at stake to do less.

Monday, June 29, 2015

Innocence, Inc.

The following was posted by Scott Greenfield on his blog, Simple Justice, on June 16, 2015.

When Jeff Blackburn, a founder of the Innocence Project of Texas and its chief counsel, tendered his resignation, it raised a storm of controversy. Jeff was gracious toward his organization, but it wasn’t his way to go quietly into the night.  He didn’t quit without reason, and yet he didn’t seek to tank the organization he built that had accomplished extraordinary things.  It’s not that the legal system in Texas is so much worse than anywhere else, but that they like killing people down there.

But then came an “announcement” that was more than he could take.  It hit the fan from three sides, the IPTX website, the Houston Chronicle and a blog, Grits for Breakfast.  Aside from Jeff, the other person who ran the show was the IPTX executive director, Nick Vilbas.  Together, they made an underfunded, overworked organization do things that no one would have believed possible. They exonerated the innocent.

While Nick remains, as far as he knows, Executive Director, having made a promise to stay on long enough to facilitate the transition to “new management,” and honoring his promise to do so, because honorable guys do that, the announcement hit hard.  There was a new Executive Director. Not just new, but one who had worked at IPTX before, but was “let go” as he just wasn’t worth keeping on.
He wasn’t a lawyer. He lacked a firm grasp of what lawyers do, grossly overestimating his knowledge of law and the legal system. He didn’t even like lawyers and had little respect for their efforts.  That didn’t stop him from promoting his own views, often na├»ve and puny, always self-aggrandizing, but not always with high regard for the truth.

Yet, there it was, in black and white, a new Executive Director was named, and he was going to lead the Innocence Project of Texas to a “new era.”  This was more than Jeff Blackburn could stomach.  I asked Jeff what all this meant, and in an email Jeff let loose.
Hey Scott,
Thanks for asking me to comment on Scott Henson’s post about his becoming the new Executive Director of the Innocence Project of Texas (IPTX), and, more generally, about what is going on down here.
To the casual reader of “Grits for Breakfast,” everything must seem just peachy in Texas: we learn that there has been a “significant bout of staff turnover” at IPTX and that Scott, my “longtime friend,” has agreed to step in and become the new leader. In a gushy article in the Houston Chronicle, it is even suggested that his ascension will usher in some sort of “new era” of reforms at a “crucial” time.
That’s ok so far as it goes, I guess. The problem is that it doesn’t go anywhere at all. This post, like the IPTX’s official line on why I left, fails to explain why these events have happened, what is happening to the “innocence movement” in Texas and around the country, and what it means for criminal defense lawyers.
That’s a mistake. Big changes are going on in criminal defense and criminal justice reform right now, and what is happening in IPTX is only a small example. We need to discuss these changes freely and out in the open. Your blog is about the only place that can be done, and I sincerely thank you for that.
Here’s my contribution to that discussion:
Ten years ago, we created IPTX to be a fighting organization of criminal defense lawyers that could win cases, then use those victories to get statutes passed. We had a very clear, lawyer-driven, guerilla strategy. After a fair number of setbacks and missteps over the years, it worked- we got a lot of people out of prison, got some good stuff passed in the legislature, and managed to take our long-shot victory in the Tim Cole case all the way to getting a statue built in his honor and, now, an official commission named after him.
As lawyers, we knew what mattered to criminal defendants and what did not. We did all of this without getting co-opted into the state government even though we got a $100,000.00 per year payment from it through our Texas Tech clinic. We also avoided getting suckered into advocating minor, inoffensive reforms and calling them big just so we could say we had done something- a standard practice in Texas and one that Scott (Henson) is intimately familiar with. We picked, we chose, and overall we did pretty well. Of course, we were broke all the time and it required loads of unpaid effort, but who the hell was counting hours or money? It was the right thing to do and it made us feel fully alive.
While we were doing that some big changes happened. These changes put our ideas about IPTX on a collision course with the reality of power and money. Eventually, they would blow the whole project apart.
Three things happened:
1. The New York-based Innocence Project transformed itself into a multi-million dollar-a- year business replete with professional fundraisers, plaques for lawyers from Goldman Sachs, and $100,000.00 per table galas. These people began to do things that were solely designed to get publicity and make them money. They overstated the nature and extent of problems in forensic science. They exaggerated the number of wrongful death penalty convictions. They tried to kill good legislation.
Some of this behavior, all of which was done arrogantly and without ever even consulting us, messed up relationships we had formed with law enforcement officials. All of it messed up our ability to raise money for our work in this state. Finally, the New York people changed the structure of the national “Innocence Network” to allow them to be in full control. Do they still have good lawyers who do good work? Absolutely. Has that part of their operation been eclipsed by their United Way-level need to keep getting more and more money and please donors? Totally. Is there an innocence “movement” anymore? Not really. There’s just Goldman Sachs and business, baby, business.
2. Even bigger changes occurred during this period within the criminal defense bar as a whole. As a result of major sociological changes, criminal defense lawyers are now either fabulously-well-to-do lawyers that represent fabulously-well-to-do defendants, clowns with overblown websites who aspire to be fabulously-well-to-do lawyers, or incompetent, faceless drabs doing court appointments for a few hundred bucks a throw. There are plenty of us in the middle, of course- good lawyers who do good work because we believe in it- but our voices are increasingly drowned out. The big, top-down outfits like NACDL and our state group in Texas, TCDLA, reflect this shift- the seminars are slicker and more expensive, the big shots are praised more lavishly, and the efforts to get money from people like the Koch brothers or the government are more strenuous and frequently successful. So what’s wrong with all that?
Everything: criminal defense lawyers, whether we get it or not, are the canaries in the coal mine of this country’s government. Our calling and purpose is to sound the alarm against repression, organize resistance to it, and defend the interests of the poor slobs who don’t know any better out there. Are our national and state organizations doing that? Not really. Are we doing it on our own in our towns and cities? Not really, and damn sure not enough.
3. While facing these pressures, there was something even more insidious: the drive of the government in Texas to co-opt innocence work and housebreak the IPTX. The most recent example of this is the creation of the Tim Cole Exoneration Review Commission, a move being heralded as some sort of breakthrough in criminal justice reform. IPTX will be given a rotating token slot on this “Can’t-And-Won’t Do” commission, which will undoubtedly declare before long that the “problem” of wrongful convictions is “solved”. Does anyone want to bet that this commission will come within forty miles of dealing with the real reason people get wrongfully convicted in this state- our lack of a public defender system?
IPTX was faced with a choice in the face of these pressures- either go along and get along or change direction and break free of the hypocrisy. Nick Vilbas, the just-replaced Executive Director of IPTX and I wanted us to change direction. We wanted to break from the big-money phoniness of both the New York people and the leadership of the criminal defense organizations. We wanted to find a way back to the heart and soul of the criminal defense lawyers we are and believe in being. We chose to resist, even to the point of refusing money for the law school operation, getting co-opted by the government in Texas.
We lost that vote. The others won. I quit over it, and Nick will be out soon enough.
The folks who chose to stay in IPTX are good, well-intentioned lawyers. Scott Henson is indeed my old friend, and I wish him well with his “new era”.
My idea of a “new era” is a lot different than his, however.
My idea of a “new era” is one in which criminal defense lawyers start organizing at the local level for political change- change that can politicize the criminal justice system by demanding better indigent defense, citizen’s oversight of cops, bail reform, and a host of other things that can bring this repressive system to heel.
My idea of a “new era” is one in which criminal defense lawyers can reclaim their roles, their value to the community they live in, and their personal and professional worth.
My idea of a “new era” is one in which we truly are liberty’s first, and last, champions.
Is that era at hand? No. But it is damn sure worth fighting for.
Thanks for asking me about my thoughts, and thanks for your time and attention .
Sincerely,
Jeff Blackburn
June 16, 2015
This was the “polite” version of what Jeff had to say. I’ve printed it in full, without interim commentary, so that my words or thoughts don’t impair his message.  There will be time for that later.

Thursday, June 18, 2015

One miscarriage of justice wasn't quite enough?

The following editorial was published by the Ledger-Enquirer (Columbus, GA) on June 15, 2015.

The particular case at hand happened in Texas, but this isn't really about Texas. It's about justice. (Abundant evidence to the contrary, the two are not mutually exclusive.)

As reported over the weekend, a former prosecutor named Charles Sebesta, who spent 25 years as a district attorney in a couple of mostly rural Texas counties about 100 miles from Houston, had to forfeit his law license after a State Bar of Texas review panel concluded he was guilty of professional misconduct.

Lest that sound too dully bureaucratic -- like maybe he fudged on some paperwork -- Sebesta's "misconduct" consisted of withholding evidence and using false testimony (that's called "perjury" in some legal circles) to win a capital murder conviction against a suspect named Anthony Graves for the 1992 killings of six people. A federal appeals court overturned Graves' conviction in 2006, and four years later a special prosecutor concluded he was innocent of the crime and should be freed.

All told, Anthony Graves spent a dozen years on death row, including four after a federal court overturned his original conviction.

The egregiousness of the prosecutorial misconduct in this case boggles the mind. The ultimate outcome, had not the appeals process (and a few strokes of good luck) worked in Graves' favor, should sicken every American whose conscience isn't in need of defibrillation.

The actual murderer, a man named Robert Earl Carter, testified at trial that Graves was his accomplice. Sebesta knew Carter had testified before a grand jury that he acted alone, yet the prosecutor let Carter and another witness give false testimony to win a conviction against Graves. (Carter repeatedly recanted his implication of Graves, including in the final moments before his execution in 2000.)

Had the sheer corruption of Graves' prosecution and sentencing not been uncovered, an innocent man would have been murdered -- however the law might define it, there is no other adequate practical term for it -- in the name of The People.

Any argument that justice has ultimately prevailed in this case would be feeble to the point of moral obscenity. An innocent man lost 12 years of his life, and almost his life itself. A guilty one lost his law license.

The question that hangs over this particular case is obvious: Why is Charles Sebesta himself not headed for prison? In what universe of justice is willful judicial fraud, with consequences so catastrophic, punishable by nothing worse than losing one's job?

A larger question hangs over the larger issue: Why aren't there more and better investigative, prosecutorial and judicial review processes in place for when criminal justice has gone so horribly wrong? News stories about innocent people being freed after years behind bars have become appallingly familiar. And while very few of them involve this kind of horrific prosecutorial misconduct, they still result in wrongs that can never really be righted.

Monday, June 15, 2015

Open letter to Justice Antonin Scalia on the death penalty

The following open letter, written by Leonard Pitts, Jr., was published by the Miami Herald Syndicate on June 14, 2015.

To the Honorable Antonin G. Scalia, Associate Justice of the Supreme Court of the United States:

Dear Sir:

Twenty-one years ago, your then-colleague, the late Justice Harry Blackmun, wrote what became a famous dissent to a Supreme Court decision not to review a Texas death penalty conviction. In it, Blackmun declared that he had become convinced "the death penalty experiment has failed" and said he considered capital punishment irretrievably unconstitutional.

The death penalty, he wrote, "remains fraught with arbitrariness, discrimination ... and mistake. ... From this day forward, I no longer shall tinker with the machinery of death."

You mocked him for this stance in an opinion concurring with the majority, invoking as justification for capital punishment the horrific 1983 case of an 11-year-old girl who was raped then killed by having her panties stuffed down her throat. "How enviable a quiet death by lethal injection," you wrote, "compared with that!"

A few months later, the very case you had referenced came before the court. Henry Lee McCollum, a mentally disabled man who was on death row in North Carolina after having been convicted of that rape and murder, applied to the court for a review of his case. You were part of the majority that rejected the request without comment.

The demagoguery of your response to Justice Blackmun is pretty standard for proponents of state-sanctioned death. Rather than contend with the many logical and irrefutable arguments against capital punishment, they use a brute-force appeal to emotion. Certain crimes, they say, are so awful, heinous and vile that they cry out for the ultimate sanction. For you, Sabrina Buie's rape and murder was one of those, a symbol of why we need the death penalty.

As you have doubtless heard, it now turns out McCollum was innocent of that crime. Last year, he and his also mentally disabled half-brother, Leon Brown (who had been serving a life sentence), were exonerated by DNA evidence and set free. A few days ago, McCollum was pardoned by North Carolina Gov. Pat McCrory.

The case against him was never what you'd call ironclad. No physical evidence tied him to the crime. The centerpiece of the prosecution's case was a confession McCollum, then a 19-year-old said to have the mentality of a child 10 years younger, gave with no lawyer present after five hours of questioning.

"I had never been under this much pressure," he told the News & Observer newspaper in a videotaped death-row interview, "with a person hollering at me and threatening me. ... I just made up a false story so they could let me go home."

But he didn't go home for more than 30 years. You and your colleagues had a chance to intervene in that injustice and chose not to. Not incidentally, the real culprit avoided accountability all that time.

The argument against the death penalty will never have the visceral, immediate emotionalism of the argument in favor. It does not satisfy that instinctive human need to make somebody pay - now! - when something bad has been done. Rather, it turns on quieter concerns, issues of inherent racial, class, geographic and gender bias, issues of corner-cutting cops and ineffective counsel, and issues of irrevocability, the fact that, once imposed, death cannot be undone.

Those issues were easy for you to ignore in mocking Blackmun. They are always easy to ignore, right up until the moment they are not. This is one of those moments, sir, and it raises a simple and obvious question to which one would hope you feel honor bound to respond. In 1994, you used this case as a symbol of why we need the death penalty.

What do you think it symbolizes now?

Leonard Pitts Jr. is a syndicated columnist. Readers may write to him at lpitts@miamiherald.com or the Miami Herald, 1 Herald Plaza, Miami, FL 33132.