Prefece to Latze and Cauthen article by Ronald Eisenberg Deputy District Attorney Philadelphia
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Preface to Latzer and Cauthen article by
Ronald Eisenberg
Deputy District Attorney

"The Prosecutor," vol. 35 no. 1, January-February 2001, page 16

When 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 collected it.

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] penalty's use."

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.

Second, 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 cases.

If 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.