At this point, few Americans can claim ignorance about the mounting number of wrongful convictions discovered in our justice system. There have been close to 2,500 exonerations, even more convictions overturned, and one person exonerated from death row for every nine executions carried out. Jaw-dropping.
There used to be the type of person who would attempt to push back on reality and claim that these people weren’t really innocent or that these numbers were exaggerated. Thankfully, the rise in the popularity of true crime entertainment and the age of information has mostly shut that guy down.
There are, however, still many who think these cases are remnants of a pre-DNA era. This is also incorrect, as many of these exonerations stem from trials that occurred well into the new millennium. It’s also an illusion of security. DNA evidence is available in only ten percent of cases at most, and the misapplication of forensic science has been responsible for 45 percent of wrongful convictions.
As a middle-class white American, who for most of my life had not exposure to the justice system, I once believed wrongful convictions proved the system worked. If we’re catching these cases, then the appellate process is working and will continue to ensure no one falls through the cracks, right? Definitely not.
In actuality, innocence cases are usually brought to light because of the work of outside organizations — typically working pro bono — that re-examine cases, look for new evidence, retest forensics, and push for new hearings. While these organizations, like The Innocence Project, are staffed with brilliant attorneys and armed by generous donors, they still face an almost insurmountable task. The fact is, even with these resources, it’s really hard for a wrongful conviction to work its way through the system (and the majority of defendants with innocence claims are not selected by these groups).
Take the case of James Dailey on death row in Florida. Dailey’s death warrant was recently signed, giving him an execution date of November 7. Barring action by the Governor or federal court, his execution will go forward that evening. His case, based almost exclusively on the testimony of jail house informants, has worked its way through the system for 34 years. (Jail house informants played a role in 16 percent of the discovered wrongful convictions).
One might think that more concrete evidence would be needed to send a man to his death, but unfortunately not. Many cases are secured with little more than circumstantial evidence. Dailey’s is just such a case.
He was charged alongside another man, Jack Pearcy, for the murder of Shelly Boggio. The state pursued capital charges against Pearcy, but when a jury failed to hand down a death sentence, prosecutors set their sights on Dailey.
Detectives went into the jail where Dailey was being held before trial, looking for informants. They ultimately relied on the testimony of a man who was a crooked cop (with over 20 charges for fraud and larceny) and a prolific informant, having sent four men to death row and many more to prison over the years. For his testimony, he received leniency in his own sentencing.
Other informants alleged that Pearcy admitted to carrying out the crimes alone, and at one point, Pearcy even signed an affidavit admitting guilt and absolving Dailey. None of it mattered.
Over the years, prosecutors have worked diligently to prevent Dailey from obtaining a new trial, and the courts have repeatedly upheld the guilty verdict. Most recently, the Florida State Supreme Court denied Dailey’s innocence appeal without considering the merits of the new innocence facts, but rather saying the evidence came too late.
There are numerous legal hurdles to “proving innocence” in a death penalty case. (Proving innocence is not the correct legal terminology, since the system does not prove innocence but rather finds evidence of wrongful convictions.) Procedural obstacles make it very difficult to have new evidence introduced or reviewed, especially if a defendant has less than diligent counsel. There are strict deadlines, and prosecutors often work tirelessly to discredit and/or exclude any new evidence. As was the case here, prosecutors objected to Dailey even getting a hearing in the trial court to present his new evidence. Federal courts are also highly deferential to state courts, so in order to obtain a federal review, a defendant must show not just that the state court got it wrong, but that it was so wrong that no reasonable person could disagree.
All in all, proving a wrongful conviction is an uphill battle.
Dailey has more going for him than many defendants. He has attorneys — really good ones. He has significant evidence of innocence. He was even excluded as a source of the existing forensic evidence — a hair found in the victim’s hand. He is of sound mind. And the “evidence” used to convict him is shaky at best. But will it be enough to stop the state from executing him? That remains to be seen.
Florida leads the nation with the largest number of exonerations coming from its death row. The Sunshine State sits behind only Texas and Virginia for the most executions carried out since reinstatement of the death penalty. In a month, Dailey could either be the 100th person the state kills or the 30th it admits it came very close to wrongfully executing. Neither is a distinction to be proud of.
Hannah Cox is the National Manager of Conservatives Concerned About the Death Penalty. Hannah was previously Director of Outreach for the Beacon Center of Tennessee, a free-market think tank. Prior to that, she was Director of Development for the Tennessee Firearms Association and a policy advocate for the National Alliance on Mental Illness. To read more of her reports — Click Here Now.
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