Preface to Latzer and Cauthen article by
Deputy District Attorney
"The Prosecutor," vol. 35 no. 1,
January-February 2001, page 16
the so-called Liebman study was released last year, claiming that more than
two thirds of all death penalties are overturned as a result of appellate
review, the press reported it with great fanfare and as established fact.
There has been little or no media effort to explore the flaws and
exaggerations in Liebman’s assertions.
The following article by Professors Latzer and Cauthen opens
a more objective examination of the Liebman study.
Upon examining Liebman’s statistics, the authors conclude that he
actually overstated his death penalty reversal rate by 25 percentage points
– a huge discrepancy that dramatically alters the terms of the public debate
Liebman hoped to generate.
It is important to note that Latzer and Cauthen discovered
this statistical error even while assuming the accuracy of Liebman’s basic
data: that is, whether he accurately counted the number of reversals -- not
just the percentage, but the raw numbers.
Indeed the authors point out that they could not have checked Liebman's
numbers, because he refused to give them the underlying data.
But we now have specific reason to doubt that Liebman counted
accurately. Reports from Florida
and Utah prove that he mislabeled cases as reversals when they were not, and
anecdotal evidence from other states suggests additional problems.
Thus, the factual basis for the Liebman study is suspect, not just in
the manner in which he analyzed the data, but in the manner in which he
The refusal to share underlying data with researchers is
particularly troubling in light of the media misrepresentation of Liebman as a
neutral professor heading a Columbia University study.
In truth, Liebman maintains an active criminal defense practice, and
has been litigating against the death penalty since long before he became a
professor. His study was funded
in large part by a grant from the anti-capital punishment Soros Foundation,
with the stated purpose of "find[ing] effective ways to curb the [death]
Even aside from these other problems, however, the analysis
by Professors Latzer and Cauthen is of great significance.
Working with Liebman’s own numbers, they calculate a death penalty
reversal rate of 43% rather than Liebman’s 68%. While the new figure is still higher than the reversal rate
for non-capital cases, the number is unsurprising given the consideration
shown by courts to capital appellants.
That special attention comes in
two forms. First, every capital
case is really two full trials in one: one trial to determine guilt or
non-guilt, and a separate trial to decide on a death sentence or a life
sentence. This dual procedure is unique to capital litigation, and it
automatically doubles the universe of potential legal claims that can be
raised on appeal. Indeed, Latzer
and Cauthen observe that most of the errors counted by Liebman concerned
sentencing issues, not guilt and innocence.
even when the same claims are raised by murder defendants who received the
death penalty and murder defendants who did not – that is, guilt-phase
claims -- it appears that the death penalty defendants are more successful on
appeal. But potential capital
murder cases are tried by the same prosecutors and defense lawyers and judges
whether they ultimately wind up with a capital verdict or not.
It’s only at the end that we find out from the jury what the sentence
will be. So if capital
convictions are reversed at a higher rate, it is not because they have more
errors; it is because judges are more willing to reverse in death penalty
the Liebman study means anything, then, it means this: that the courts are
already quite sensitive to appeals by capital murderers.
For years we have been hearing from capital punishment opponents that
judges were politically motivated to ignore death penalty errors, and that
restrictions on habeas corpus would eliminate any chance for successful
appeals. The Liebman study is
actually an indication that those claims were untrue.