National Journal, May 30, 1998
JACKSONVILLE, FLA.—The corner of Sixth and Davis Streets is a kind of cemetery without graves. Nothing remains here but vacant lots and wild grass that ripples in Florida's gray spring wind. You have to use your imagination to see this place as it was in 1981, when there were shabby tenement houses, and a bar, and a store, and a great deal of violence. This was Jacksonville's teeming drug ghetto then, full of guns and fear that spilled over from the housing projects nearby. The police came here often.
At 1 A.M. in the early morning of May 23, 1981, three police cars drove in caravan to the stop sign at Sixth and Davis, all of them leaving the scene of a domestic disturbance. The first two turned left without incident. Then came two or three loud reports. A sniper's bullet pierced the windshield of the third car, struck metal inside and broke into fragments, which ricocheted into the driver's skull. The first policeman to reach the car found Officer Thomas J. Szafranski seized up against the steering wheel in unconscious convulsions, his hair and blood splattering the inside of the car. Szafranski died the next day. He was only 29.
Within minutes the place was swarming with cops. But where had the shot come from? Some people thought it came from a vacant lot across Davis Street, others pointed to a run-down duplex house and drug den just beside the vacant lot. One of the police officers driving ahead of Szafranski, on hearing the first shot, had turned quickly enough to see muzzle fire from the house as more shots were fired, lighting up the front porch like flash bulbs. Several officers stormed the house. Inside one of its four apartments they found Leo Alexander Jones, who was a 31-year-old drug dealer with two prior felony convictions, and his cousin, a man named Bobby Hammonds. The two resisted arrest and there was a violent scuffle, the police said. Under Jones's bed were two Winchester .30-.30 caliber Marlin rifles, each containing a single spent shell. One rifle had Jones's fingerprint on the breech. The bullet that had killed Szafranski was too badly damaged to be traced to any particular weapon. But it had come from a Winchester .30-.30 Marlin.
After several hours of police interrogation, Jones signed a confession written out by a detective. It said: ''I, Leo Jones, on 23 May 81 took a rifle out of the front room of my apartment and went down the back stairs and walked to the front empty apartment and shot the policeman through the front window of the apartment. I then ran back upstairs and hid the gun or rifle and then the police came.''
DEATH AND POLITICS
LAST YEAR, America executed 74 people. ''This is the most executions in a single year since the 76 inmates executed in 1955,'' notes the federal Bureau of Justice Statistics. Judging from the rate through April, this year's count will exceed last year's. The death row population has tripled since 1982. (See charts, pp. 1226-27.)
In the past 10 years, three states--New York, Kansas and New Hampshire--have added the death penalty; none has abolished it. In the 1994 crime bill, Congress created several dozen new death penalty crimes, including death for certain drug offenses. The courts have ruled that capital punishment is unconstitutionally harsh for crimes in which a life isn't taken, but that doesn't seem to be giving politicians much pause. In 1995, House Speaker Newt Gingrich of Georgia demanded death for drug smugglers, and suggested that mass executions, ''27 or 30 or 35 people at one time,'' might make an excellent deterrent. Al Checchi, a Democrat who is running for governor in California, demands the death penalty for serial rapists and repeat child molesters, who, he says, ''kill the spirit of a woman or a child.''
Unfortunately, that is about as deep as the current political argument over the death penalty usually goes. Given that the power to kill is the most fearful and potent weapon the state possesses, it seems peculiar that Washington spends vastly more time and energy debating capital gains than capital punishment. It is also peculiar that people who do talk about the death penalty, whether they support or oppose it, pay so little attention to the question of wrongful execution, which goes to the very core of a liberal government's legitimacy.
* * *
AT JONES'S trial, the state made a compelling case. The shots had come from Jones's building, the prosecution's witnesses said. Bobby Hammonds testified that he saw Jones leave his apartment with a rifle, heard the gunshots, and then saw Jones return with the rifle. A police officer testified that, in a car- search incident a week earlier, Jones had said he was tired of being hassled by police and ''he was going to shoot him a motherfucking pig.'' There was also the confession, and the rifle.
Jones denied threatening to kill a cop. The defense produced witnesses saying that the shots had come not from Jones's house but from the field beside it. And if there were two or three shots, where were the missing shells? The rifles, Jones maintained, belonged to a friend of his, one Glen Schofield. As for Bobby Hammonds, he kept changing his story. When the police interrogated him, he implicated Jones, but then, in a sworn statement, he recanted; at the trial, he implicated Jones again; after the trial, he recanted a second time, claiming police coercion. Jones, too, claimed coercion. He said the police had beaten the confession out of him, that he was half-senseless and in fear for his life when he initialed it.
Nonsense, said the state. Jones had been taken to the hospital after his arrest and was found to have only superficial injuries, from the scuffle. For the six hours before he confessed, he had not been touched, as he himself acknowledged. The jury returned the sentence of death by electrocution.
DEATH AND JUSTICE
TIMOTHY McVEIGH now waits on death row in a maximum- security federal prison in Florence, Colo. In the bombing of the Alfred P. Murrah Federal Building in Oklahoma City in 1995, 168 people died, all of them innocent and 19 of them children. Assuming McVeigh really did this thing, you can imagine two civilized responses. One says that society shows its esteem for life by refusing to kill. In that case, executing McVeigh would do nothing more than add a 169th body to the pile. The other response says that any punishment less severe than death mocks the value of those 168 lives.
The European Union forbids capital punishment. Europeans never tire of expressing high-minded outrage over America's barbarous love of the electric chair and the poison needle. In fact, however, what a liberal society prizes above all is not life--not, for example, Pol Pot's life, or Saddam Hussein's--but innocent life, a distinction that the Europeans skirt. In America, death can never be an automatic or mandatory sentence; it can be handed down only after various aggravating and mitigating factors are weighed in each particular case. Only about 3 per cent of all convicted murderers draw the black straw. Death is meant not as a routine punishment but as a way for a civilized people to express inexpressible revulsion and anger.
In 1868, John Stuart Mill rose in Parliament to make the case for death as eloquently as human words permit. ''Does fining a criminal show want of respect for property, or imprisoning him, for personal freedom? Just as unreasonable is it to think that to take the life of a man who has taken that of another is to show want of regard for human life. We show, on the contrary, most emphatically our regard for it, by the adoption of a rule that he who violates that right in another forfeits it for himself, and that while no other crime that he can commit deprives him of his right to live, this shall.''
Three-fourths of the American public shares Mill's moral intuition; and, for what it's worth, I share it, too. The picture of Timothy McVeigh living to a ripe old age, watching television every night and smelling the new-mown grass every spring, makes me cringe. The prospect of McVeigh assuring us in 20 years that he deeply regrets the error of his youth strikes me as revolting, when I think of the 168 people whose moral journeys he ended.
However--the big however. Mill recognized ''one argument against capital punishment, even in extreme cases, which I cannot deny to have weight. . . . It is this--that if by an error of justice an innocent person is put to death, the mistake can never be corrected; all compensation, all reparation for the wrong is impossible.''
If you think that executing McVeigh, or anybody else, is unjust, then you know what you think about capital punishment. But if you believe, along with me and Mill and the American majority, that capital punishment is just, at least for heinous killers, you must still advance to the next question. What if we kill the wrong person?
* * *
"WHERE IS Glen Schofield?'' asked Jones's defense lawyer at the trial in 1981. It was a question that would be asked often. Schofield was a drug-dealing crony of Jones's, a violent man on parole for manslaughter. Some hours before the murder, he had turned up in Jones's apartment with a pistol. The police knew him all too well, and considered him a suspect. But they found no trace of him in the neighborhood at the time of the murder, and no evidence tying him to the crime.
Schofield had an alibi. In fact, he had a couple of them. In one, he was with one of his girlfriends on the night of the murder. (Apparently, no one checked this story with her.) Later, after the trial, he claimed to have been with a woman friend named ''Marilyn Manning'' and a man he knew only as ''Shorty.''
In 1984, Jones got a new and more energetic lawyer. The lawyer's investigator turned up Schofield's friend Marion Manning, and she said that on the night of the murder, not long after the shots were fired, Shorty had flagged her down and asked her to pick up Schofield, who told her to ''get the hell out of here'' because Jones had just shot a guy. Schofield admitted that he had been dancing with her that night, but he denied the rest.
During the 1980s, the Jones case dragged on in fits and starts through its various stages of appeal. Meanwhile, other things happened:
In the mid-1980s, the policeman who arrested Jones, and whom Jones accused of beating him, was forced out of uniform under an ethical cloud. So, separately, was one of the detectives who took Jones's confession. In 1985 came another tidbit. A state convict named Paul Marr, in prison with Schofield (who by then had landed in jail for various felonies), told Jones's lawyers that Schofield had boasted of the Jacksonville killing.
In 1991, yet another set of public defense lawyers took over Jones's case. A tip led them to Denise Reed and her boyfriend Daniel Cole, who both said that on the night of the murder, as they walked home from a movie, they saw Glen Schofield running from the direction of the crime with a rifle. Reed's mother confirmed that her daughter had told her the story that same night. Both of the young people said they had kept mum out of fear of Schofield and his friends.
Then the investigators checked with Schofield's (by-now- former) girlfriend, Patricia Owens Farrel, whom he had given as his original alibi. She told them Schofield was not with her that night, and that when she did see him he told her, ''Pat, if anybody wants to know where I was, tell them I was with you.''
Meanwhile, another in a series of death warrants was signed for Jones. This generated publicity, and now more prison inmates--three or four--came forward to report that Schofield had bragged of killing the cop in Jacksonville. One of them reported, ''He said (Szafranski) kept hassling him on the streets about dealing drugs.''
Armed with this new information, the defense received a stay of execution and a hearing on its motion to vacate Jones's conviction. The appeal ground on, and in 1996 the defense lost before the Florida Supreme Court. Early in 1997, another warrant was signed for Jones's execution.
DEATH AND INNOCENCE
HOW MANY innocent people, if any, have been executed? One might imagine the answer would be nothing more complicated than a number: one, 10, 100; 1 per cent, 10 per cent. But there is no number.
We can figure your chances of dying on the highway, or getting cancer from cigarettes, because we know how many people drive and die in cars, and how many smoke and get cancer. But we can't say anything about the prevalence of wrongful execution without knowing whether any particular execution was wrongful. Unfortunately, the only way to decide whether an execution was wrongful is to examine the case carefully and decide whether justice was done. That, of course, is exactly what the original process tried to do, except that we must do it afterward, when the evidence is stale, the trail is cold and the defense's key witness lies in his grave.
In 1987, Hugo Adam Bedau, a philosopher at Tufts University, and Michael L. Radelet, a sociologist at the University of Florida, published a paper identifying what they said were 23 wrongful executions since 1905. Only one of those, however, was recent. In any case, the authors' method was mainly to examine the record, from which they concluded that the defense seemed right. They were immediately attacked by Stephen J. Markman and Paul G. Cassell, two officials in the Reagan Administration's Justice Department, who examined a dozen of the same 23 cases and concluded that each defendant was in fact guilty. Their method was also to examine the record, from which they concluded that the state was right. Both sides concede that nothing was resolved, and there has been no subsequent systematic research.
Cassell, who is now a law professor at the University of Utah, argues that the very absence of evidence is itself evidence. ''My view is that there is no documented case of an innocent person that has been executed in this century,'' he says. If it had happened, surely by now capital punishment's many opponents would be able to produce a case. ''I'm confident that the system is operating at close to the 100 per cent level of accuracy,'' he says.
But the absence of direct evidence may suggest nothing at all. When the defendant dies, his story dies with him, and the defense lawyers, many of them pro bono or state-appointed, move on to other cases. ''Given that everyone's so strapped and there are so many cases,'' says Stephen B. Bright, the director of the Southern Center for Human Rights, an Atlanta-based aid group for poor defendants, ''once they're dead, nobody's got time to spend on it.'' The original records and exhibits are destroyed or lost. Witnesses die or vanish, memories fade.
So we turn to indirect evidence. According to the Death Penalty Information Center, a group in Washington that opposes capital punishment, over the past 25 years 75 people have been released from death row and cleared of capital charges, out of about 6,000 who have been sentenced to die. Some won retrials and were acquitted; others were freed when new evidence turned up. Thus about 1 per cent of capital convictions turned out to be wrong.
The problem is that wrongful convictions tell us nothing about wrongful executions. Friends of the death penalty argue that the 75 releases show only that the system works. After all, the mistakes were corrected in time. Opponents argue that, human nature being what it is, there must be other mistakes that we didn't catch. In some cases, mistakes are found by mere chance. In 1996, two men on death row in Illinois were cleared after some journalism students looked into their case for a class assignment.
Knowing the imperfection of all human institutions, a reasonable guess is that we catch many wrongful capital convictions, but not all of them. That, though, is just a guess-- again, nothing solid. So we step back to look at the process itself. And here we find that it is quite careful, and that forensic technology--notably DNA testing--gets more precise all the time. On the other hand, most mistakes still flow from human error. Honest witnesses misremember, dishonest ones exchange false testimony for lenience, police or prosecutors make mistakes or become overzealous, appearances deceive.
In the legal process itself, moreover, any number of things can go wrong. For example, the law entitles the accused to a lawyer, but not a good one. Some jurisdictions simply contract out defense work to low-bidding attorneys, who spend as little time on each case as possible. Mississippi pays lawyers $ 1,000 plus expenses to represent capital defendants. Alabama pays defense lawyers $ 20 an hour, up to a limit of $ 2,000, to prepare capital cases, a job that can take hundreds of hours to do thoroughly. (Corporate lawyers receive as much as $ 500 an hour for their work in civil cases.) ''Lawyers paid so little cannot afford to spend the time required to conduct interviews, investigations and negotiations,'' writes Bright.
In Georgia, a death row convict with an IQ of less than 80 was sent through the appeals process with no lawyer at all (his case is now before the state Supreme Court). Here is the beginning of his 1996 evidentiary hearing, in which he squared off against an assistant attorney general:
The Court: OK, Mr. Gibson, do you want to proceed?
Defendant: I don't have an attorney.
The Court: I understand that.
Defendant: I am not waiving my rights.
The Court: I understand that. Do you have any evidence you want to put up?
Defendant: I don't know what to plead.
The Court: Huh?
Defendant: I don't know what to plead.
The Court: I am not asking you to plead anything. I am just asking you if you have anything you want to put up, anything you want to introduce to this court.
Defendant: But I don't have an attorney.
In Texas, a man was executed even though his lawyer's entire closing argument at sentencing was: ''You are an extremely intelligent jury. You've got that man's life in your hands. You can take it or not. That's all I have to say.'' In Alabama, a man was executed in 1992 even though his lawyer filed a one-page appellate brief and did not bother to show up for the oral arguments. In Houston, at least three capital sentences have been upheld in recent years (and one has been carried out) even though the defendants' court-appointed lawyers slept through large portions of the trials. ''His mouth kept falling open and his head lolled back on his shoulders,'' reported the Houston Chronicle of the lawyer in one such case. ''Every time he opened his eyes, a different prosecution witness was on the stand.''
If you doubt that legal help matters, Bright points to a case in which two co-defendants, a man and a woman, were sentenced to death by unconstitutionally composed juries in Georgia. Her lawyers challenged the jury composition; his were unaware that they could do so. She got a retrial and a life sentence; he was executed in 1976.
As that case suggests, another sort of mistake may be fairly common, if less disturbing: A guilty person may be executed even though the jury would have voted for a milder sentence if it had had all the facts. We can be sure that this happens, because ex-jurors have come forward and said so. Or consider the extraordinary case of Jesse Dewayne Jacobs in Texas.
In 1987, Jacobs got death for his part in a plot to kidnap a woman named Etta Ann Urdiales and either terrorize her or kill her, depending on whom you believed. Urdiales ended up dead. Jacobs confessed to the murder but then recanted at trial, saying that he had been covering for his accomplice (and sister), Bobbie Hogan, who was the actual killer. The prosecutor wasn't buying it. He told the jury, ''The simple fact of the matter is that Jesse Jacobs and Jesse Jacobs alone killed Etta Ann Urdiales.'' At Bobbie Hogan's trial a few months later, however, another prosecutor announced that the state had changed its mind, and that Hogan, not Jacobs, was the killer. Hogan, as it turned out, managed to convince the jury that the gun went off accidentally, and got 10 years for manslaughter. But meanwhile Jacobs appealed, arguing that if his jury had been told he was not the killer, it would have spared his life.
Texas, which accounts for almost half the country's executions, gave no ground. It argued that, under the state's murder law, a conspirator can get the death penalty even if he doesn't actually pull the trigger. The district attorney said, ''This man was a sinister evil being who stalked this woman for two days, then broke into her house and beat the hell out of her. Even if he didn't do it himself, he knew a killing was going to take place.'' The Supreme Court declined Jacobs's appeal, and he died by lethal injection in 1995, protesting tearfully that he was innocent of the crime for which he would die. ''There is not going to be an execution,'' he said. ''This is premeditated murder.''
If the original jury had heard the state say that Jacobs was not the killer, would it have given him life instead of death? We can only guess. Obviously, Jacobs was not a nice person. Most death row inmates are not nice people. Two-thirds have prior felony convictions, and about one in 12 has a prior murder conviction. Nonetheless, if justice means anything, it is that even bad people should not be executed unless their crime warrants the ultimate penalty.
When you peel back the layers of procedure and law and anecdote and hunch, you find you can say no more than this: Usually, probably almost always, we kill the right person, but sometimes, probably quite rarely, we kill someone who does not deserve to die.
* * *
IN 1997, LEO JONES'S defense lawyers got a couple of breaks--the sort of things that happen on TV. First, an investigator checked in with Schofield's friend Marion Manning, who mentioned that she had recently bumped into Shorty-- Schofield's alibi witness--in jail. At last, a name surfaced: Roy Williams. In April, the defense lawyers talked to Shorty Williams, and he said that he was indeed with Schofield that night--and that he saw Schofield shoot Tom Szafranski. They had been driving in Manning's rental car. They both got out, and a little while later Williams saw Schofield fire at the police car from the bushes in the field across from Sixth and Davis.
Then, last fall, something else happened. A recently retired Jacksonville police officer named Cleveland Smith, reading about Jones's claim that he had been beaten to confess, came to the defense lawyers with an ugly story. The officer who arrested Jones that night (and who was later pushed off the force) was known as an ''enforcer,'' said Smith, ''like a hit man on the police department.'' Smith had seen the officer make up charges and torture a suspect with a pair of vise-grip pliers applied to the genitals. And, Smith recalled, this officer had told him of kicking down Jones's door on the fateful night intending ''to kill somebody,'' and then badly beating a man. Finally, Smith reported that, at a roll call one day before the shooting, police officers were told that a man called ''Mr. Jones'' had fought with police. ''We were told to do everything in our power to put Leo Jones in jail.''
By this time--December 1997--no fewer than 10 prison inmates had reported hearing Glen Schofield boast of the killing. Six witnesses, four of them eyewitnesses, placed Schofield near the scene of the crime. Several said they had seen him with a rifle.
The defense was granted another evidentiary hearing, but in December a trial judge found against Jones. In March of 1998, for the fifth and last time, the Florida Supreme Court took up the case.
DEATH AND DOUBT
IF WE CANNOT say with any certainty which or how many people are wrongfully executed, perhaps we can at least find the right way to think about the problem. Begin with a question: Morally speaking, what sort of event is a mistaken execution?
At one extreme, maybe a wrongful execution is morally no better than a simple murder: the premeditated and wrongful killing of a person who does not deserve to die. But that can't be quite right. Murderers intend to take life wrongfully. That is precisely what we intend not to do, and take many precautions to avoid.
Perhaps, then, a wrongful execution is no more than an unfortunate but statistically inevitable accident, like a plane crash or a car wreck, and therefore a tragedy but not an injustice. After all, sometimes innocent civilians are killed in police chases, but we still chase criminals because, on balance, law enforcement is just and saves lives.
But that can't be right, either. The innocent bystander killed in the police chase is not supposed to die, whereas the man wrongly executed was marched to the electric chair and destroyed on purpose. What was accidental in the latter case was not the killing but, so to speak, the innocence. Although many government policies are spoken of in terms of lives saved or lost, those are mathematical calculations that weigh statistical lives. For a liberal government, trading real people's lives for statistical ones is a treacherous game, even a wicked one. We kill statistical people every time we raise the speed limit, but that hardly entitles us to say, ''In order to pass the bill reducing the speed limit and thus saving hundreds of lives, we will have to shoot three or four of the bill's opponents.''
So wrongful execution lies somewhere between murder and mere accident. But where? Plainly, killing someone wrongfully is unjust, terribly so. Probably, however, most of us would say that if it happens only one time in a million--so we can execute a thousand people a year for a thousand years before making a mistake--then we should go ahead and punish the guilty. On the other hand, we would probably also say that if we killed one innocent man for every five guilty ones, that is too often.
But that sort of thinking is not helpful at all. First, it gives us no principled place to draw the line. How many wrongful deaths is too many--one in five? One in 20? One in 100? One in 1000? What possible moral grounds are there to support any number? The deeper problem, of course, is that in any case we have no idea what the number is, and we never will know.
Nowhere in American public policy is our ignorance so profound, so intractable. We cannot do the math, because there are no numbers. We cannot consult some morally similar case, because there is none. Somehow, we must decide without knowledge.
Perhaps the best we can hope for is some clarity about the sort of decision we face, and on that score it helps to get away from abstractions and statistics. Imagine a very crowded death row prison cell. Inside of it, by some miracle, are the 450 men and women who have been tried, condemned to death and executed since capital punishment was re-legalized 1976. You are the governor, and you are standing outside the cell. You must execute them all or commute their sentences to life in prison. You know only two things.
First, most of the people in the cell, almost certainly the vast majority, are guilty of capital murder. They deserve to die.
Second, some of the people in the cell are innocent, meaning either that they did not commit the crime or do not deserve to die. You have no idea how many are innocent, or which ones they are, but your best guess is that the number is greater than zero but not huge.
To make the experiment a little more realistic, add some stipulations. As a nod to advocates of capital punishment, assume that by executing the people in this cell you will probably deter some future murders, although how many you have no idea. As a nod to the opponents of capital punishment, assume that the commuted sentence for all these people will be life without parole; none will ever walk the streets again (though some might kill in prison).
That is all you know or can know. Now you have a choice. If you pull the lever, someone innocent will die. If you fail to pull the lever, many murderers will live. What do you do?
It is not a trick question. There is no right answer, and any easy answer is wrong by definition. There is only the crowded cell, the uncertainty, and your moral intuition.
* * *
WHILE THE DEFENSE was busy in the Jones case, the state of Florida did not roll over and play dead. The prosecution investigated Jones's new witnesses and poked holes in their stories. The inmates to whom Schofield had allegedly confessed were hardly model citizens (one was serving 360 years for murder). The reported confessions were vague, bereft of telling detail. Boasting emptily of killing a cop is the sort of thing that a status-craving hood might well do in prison, especially if he knows that he can't actually be linked with the crime. In any case, the stuff was hearsay, of little or no use in court against Schofield's own denials.
As for the witnesses who reported seeing Schofield fleeing the scene with a rifle, some of them had records, too, and some were friends of Jones's, and Schofield's ex-girlfriend may have had a gripe with Schofield. And why had these people waited as long as 16 years to come forward? One of them had given an earlier affidavit without saying a thing about seeing Schofield.
Roy (Shorty) Williams was no perfect witness, either. In the affidavit he gave to Jones's defense counsel, he had described witnessing the crime as it actually occurred. But when the prosecutors took him to the crime scene (granted, this was 16 years after the shooting), he gave a different account, one that included fanciful details that didn't match the actual crime. He claimed Szafranski had parked his car in a place it couldn't have been, and that the deadly bullet entered through the car's side window rather than the front. In fact, Williams gave varying accounts, the only point of consistency being his insistence that he saw Schofield shoot from the field.
The alleged police brutality and forced confession were still just that, alleged. On the night when Jones was supposedly beaten, the doctor had found bruises and cuts but no serious injury. If these dreadful charges of police misconduct were true, why did Cleveland Smith wait so long to speak up? In any case, Smith's recollections were a long way from direct evidence that Jones's confession--produced hours after the alleged ''enforcer'' had left the scene--was coerced.
The state Supreme Court considered the issues from both substantive and legal points of view. Legally, a convicted man is presumed guilty. To protect the integrity of the original jury's decision, the law requires him to show, not merely that he might be innocent, but that his claims are new and haven't already been considered in court; that they would have been admissible as evidence at trial; and, not least, that if the jury had heard these claims, it would probably have acquitted.
Two of the court's seven justices said they would order a new trial for Jones. ''Jones would probably be acquitted on retrial . . . in light of Officer Smith's testimony and the copious testimony implicating Schofield in the killing,'' said one. The other found that ''the overwhelming volume'' of the evidence implicating Schofield outweighed the inconsistencies between particular pieces.
The court's majority was not persuaded. It agreed with the state, and with the trial court, that the various items on Jones's roster of new evidence each failed one or more tests of substantive credibility or legal admissibility. For instance, the eyewitness testimony placing Schofield at the scene ''probably would not have acquitted Jones'' if it had been presented to the original jury. Even taking together all the testimony and Schofield's many alleged jailhouse confessions, ''the only consistency over the years is the bare allegation of Schofield's involvement.''
The court ruled: ''No motion for rehearing will be heard.''
DEATH AND A MAN
WHAT DO we know, really know, in the Jones case? We know that everyone involved with it knows what he, or she, believes. Angela B. Corey, the Florida assistant state attorney on the case, tells me that she needs no lectures on the importance of sparing innocent life. I ask about some of the framed pictures of children that clutter her Jacksonville office. Many are murder victims. ''There was no one on our side of this that ever had one second's doubt that Leo Jones was guilty,'' she says, her eyes fierce. ''Trust me, there is no one here who would have let Leo Jones die if we had thought there was any possibility he was innocent.''
To visit Jones's defense lawyer, amid stacks of file boxes in a spartan office, is to enter another world. Martin J. McClain, of Florida's Capital Collateral Regional Counsel, the state agency that represents death row convicts on appeal, speaks wearily, with notes of resignation and despair. ''I know that Leo Jones was innocent,'' he says, ''and I know that either the system didn't work or I failed him.''
The rest of us occupy yet a third world, a twilit place of doubt, where the only certainty is uncertainty. In the Jones case, the legal process worked as it was supposed to. Jones got a fair trial, he got competent lawyers, the prosecution cut square corners, the appeals were plentiful. Yet at the end of the day, fairness and knowledge are not the same thing. We do not know what happened at the corner of Sixth and Davis on the morning of May 23, 1981. We will never know.
Very few people both defend capital punishment and take really seriously the problem of wrongful execution. John Stuart Mill was one of the few who did, and who understood knowledge's limits. The answer he proposed in 1868 may well have been the right one, or anyway as close to right as imperfect beings get. Here is what he said:
''In order that the possibility of correction may be kept open wherever the chance of this sad contingency is more than infinitesimal, it is quite right that the judge should recommend to the crown a commutation of the sentence, not solely when the proof of guilt is open to the smallest suspicion, but whenever there remains anything unexplained and mysterious in the case, raising a desire for more light, or making it likely that further information may at some future time be obtained.''
Mill spoke in the Britain of 1868, a place where the murder rate was a tiny fraction of America's rate today, where there were few guns to make killing at a distance easy, and where few murders were committed randomly by unknown assailants. Today there are not many cases in which nothing remains ''unexplained and mysterious,'' or where it is unlikely that ''further information may at some future time be obtained.'' In today's America, Mill's formula would mean that most death sentences would be commuted to life in prison. That sort of death penalty would not do much to deter, and it would allow many guilty men and women to live. But it would allow us to execute the ones of whom no rational doubt is possible, while greatly reducing the odds of executing wrongly. We could probably execute the man in Florida who carjacked a college student, robbed him of $40 and killed him while the boy pleaded, ''Oh Jesus, oh Jesus, please don't kill me, I just want to finish college.'' We know this happened because the killer's girlfriend fingered him, at which point he told the story and led police to the victim's body, obscured under palmetto bushes in the wilderness.
But here is something else we know: Death row clemency, once quite common, now is a political death sentence for governors. According to Richard C. Dieter of the Death Penalty Information Center in Washington, in the 1990s clemency has been granted in about one case a year.
We also know that in capital cases there is an inherent tradeoff between meticulous thoroughness and reasonable speed, and that the public's patience with long-delayed executions reached its limits a few years ago and is now bouncing back, hard. Recent Supreme Court decisions have limited some lines of appeal, and the 1996 Anti-Terrorism and Effective Death Penalty Act went the Supreme Court one better, imposing many new restrictions on death row inmates' access to federal courts. In recent years, the average time between sentencing and execution has been almost nine years; Dieter thinks new federal and state laws may reduce the wait to three or four years. Moreover, one of the first things the new Republican Congress did in 1995 was end federal funding to help pay for death row inmates' legal appeals. Thus in Alabama today, according to Bryan A. Stevenson of the Equal Justice Initiative, a legal-aid group in Montgomery, 18 death row convicts have no lawyers at all--and, under the 1996 law, the clock is ticking on their one-year deadline to file appeals. ''Right now we have no leads on counsel for any of these folks,'' Stevenson said. ''Each week becomes more desperate.'' Plainly, the public is not in the mood for greater caution or more clemency.
Another possibility, of course, is abolition. That approach simply says: There is one sort of mistake that a liberal government forswears the right to make. This answer cuts the knot of wrongful execution, but it means that justice will not be done for many killers. It means living with Timothy McVeigh, a young man who, if he is spared, will probably outlive most people reading this article.
Either course is imperfect, but both are more defensible than doing as we do now: plunging deeper into the fog, hoping that mistakes don't happen, and preferring not to think too hard about the whole problem. True, we always make public choices in the face of uncertainty, even in matters of life and death. But when we launch a military operation, we acknowledge frankly that some good and innocent people will be killed. And if we push on with more death sentences and fewer lines of appeal, we must likewise say frankly: ''Yes, in this country we sometimes execute innocent citizens, and in fact we are removing rather than adding safeguards; but you have to break a few eggs to make an omelet.'' Few Americans are willing to be quite so frank. They prefer to assume that the convicted are guilty, so get on with it.
What to do? Again there is no right answer, and any easy answer is wrong by definition. But another thought experiment, a cell again. This time, however, the cell is not crowded; there is only one occupant, this time not a statistic but a person, a story. The man's name is Leo Alexander Jones--or, if you prefer, he is named something else, but the mystery is equivalent.
Do you pull the switch?
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ON MARCH 24, 1998, Leo Alexander Jones said an Islamic prayer and died in the electric chair. He was the 15th person to be executed this year. Glen Schofield remains in prison in Florida.