From Reg Brown
Florida Governor's office
RE: Columbia Law School Death Penalty Study
Less than 24 hours before the start of a U.S. Senate Judiciary hearing on
the so-called "Innocence Protection Act," death penalty
abolitionists released a new Columbia Law School "study" purporting
to show massive "error rates" in the criminal justice system's
treatment of capital cases.
A preliminary review, however, suggests that it may be the
"study" and not the "system" that is fatally flawed. Here
are just a few of the problems we have identified based on an initial review
of the very limited factual data made available to-date by the
- The "study" uses a misleading definition of "error"
to exaggerate alleged "flaws" in the capital appeals system:
- The "study" defines "error" to include any issue
requiring further review by a lower court, including further review
required because of changes in the substantive law.
- A common sense definition of "error" would include only
those cases where an individual is convicted of a crime he or she did
not commit, or is sentenced to a penalty for which he or she was
ineligible at the time. It would not include cases where a higher
court asks for additional fact-finding by a lower court, or cases
requiring additional review because of unanticipated changes in the
substantive law imposed by statute or a higher court. In such cases,
no "mistake" or "error" has occurred in a sense
that should properly concern the public.
- Notwithstanding the study's overbroad definition, it is significant
to note that the authors do not join in former Chief Justice Kogan's
claim that any innocent individuals have been sent to death in the
State of Florida.
- Using the authors' misleading definition, the "study" does,
however, conclude that 64 Florida post-conviction cases were rife with
"error" - even though none of these Florida cases was ultimately
resolved by a "not guilty" verdict, a pardon or a dismissal of
murder charges. This claim may leave readers with the false impression
that Florida put the wrong individual away for an offense, when no such
claim is supported by competent evidence.
- Indeed, in more than a third of the 64 cases cited by the
"study," the death sentence was reimposed, while in other cases
the State agreed to accept a plea of life to spare the families of victims
the trauma of additional court proceedings. These cases should not be
included in a true "error rate" analysis, and if factored out,
would show far less "error" in post-conviction cases than the
"study" suggests. Similar results appear from an analysis of the
post-1995 cases identified by the "study." For instance, the
"study" implies that Mauricio Beltran-Lopez was given a
non-death sentence due to "errors" in his case, when in fact
prosecutors agreed to a life sentence only because two surviving daughters
who witnessed Beltran-Lopez kill their parents were unwilling to endure
the mental anguish of a new trial.
- In addition, the underlying data used by the "study" authors
may be flawed. For instance, the authors wrongly claim in Appendix C that
the Thompson v. Dugger case resulted in a "sentence less than
death" after further review in the lower courts. In fact, Thompson
remains on death row today after ramming a chair leg and a night stick
into a young woman's vagina and beating her to death with a chain belt.
See Thompson v. State, 619 So.2d 261 (Fla. 1993).
- Appendix C also includes conflicting information regarding the
subsequent history of several cases, such as the Waterhouse v. State and
Way v. Dugger cases, which calls into question the thoroughness of the
authors' research. No analysis can be completed of the cases in the far
larger direct appeal database for the "study," as that database
has not yet been made available.
- Other portions of the study also include obvious mistakes, such as
citation errors, misstatements about the research period covered in the
study databases and gross overstatements of the cost of post-trial review
in capital versus non-capital cases. In addition, the study relies heavily
on newspaper articles and second-hand sources for factual assertions to an
extent not ordinarily found in academic analyses. Standing alone, these
mistakes and questionable research techniques might seem trivial, but the
lack of attention to detail and careful scholarship may also be reflected
in the critical databases that the authors have not made available for
- Finally, the "study" also fails to control for factors, such
as judicial activism, that could dramatically skew "error
rates." Thus, for instance, the nearly 40 death penalty convictions
that were reversed by the California Supreme Court during the tenure of
liberal activist Rose Bird, are treated as "error cases" when in
fact ideological bias was arguably at work.