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Not Dead Yet

By Nat Hentoff

Saturday, October 31, 1998; Page A17

Michael Kelly, a journalist I respect, began a recent column ["Punishing 'Hate Crimes,' " Oct. 14] with these words: "As one who wholeheartedly supports capital punishment"). His enthusiasm for the death penalty might be somewhat tempered if he -- and other champions of the ultimate sentence -- choose to attend a most unusual gathering of resurrected inmates of Death Row.

They will assemble during a National Conference on Wrongful Convictions and the Death Penalty to be held Nov. 13-15 at Northwestern University School of Law in Chicago. Also present will be forensic scientists, investigators, attorneys for the condemned and journalists who are not wholeheartedly devoted to the death penalty.

Previous conferences have been held on the death penalty, but what makes this one singular will be the presence of at least 31 of the 74 men who have been sentenced to die since the return of capital punishment in 1976 and have been freed because they were wrongfully convicted.

One of them, Walter "Johnny D" McMillian, was convicted in 1988. He notes: "I was sentenced to die in the electric chair and spent nearly six years on Death Row in Alabama awaiting execution for a murder that I did not commit, a murder that I knew nothing about, a murder that I had nothing to do with."

At last, the Alabama Court of Appeals released McMillian. Three witnesses had recanted their testimony, and the prosecutors finally agreed that the case had been -- to use a euphemism -- "mishandled."

The late Henry Schwarz- schild, who spent much of his life writing and witnessing against capital punishment, used to say plainly: "The death penalty ought to be eliminated because human beings are fallible."

Supreme Court Justice Harry Blackmun finally decided that -- so long as he was on the court -- he would "no longer tinker with the machinery of death" because the extensive record showed how randomly due process comes into play in death penalty cases.

"Just as an execution without safeguards is unacceptable," Blackmun emphasized, "so too is an execution when the condemned prisoner can prove that he is innocent. The execution of a person who can show that he is innocent comes perilously close to simple murder."

Since the president and Congress have -- with few exceptions -- limited an inmate of death row to a single year to find a federal court to review his conviction or sentence, these simple murders will increase.

The Conference on Wrongful Convictions and the Death Penalty will hardly be limited to stories by the Lazaruses of our time. The 30 concurrent sessions and three plenary sessions will include specific ways to rescue more victims of a system in which race and class go a very long way to determine who is killed by the state.

What particularly interests me is the session on "new initiatives" -- such as "A network of law schools throughout the state that will work on behalf of the wrongfully convicted."

As more states -- and the federal government -- send more people to await their executions, some of them count their remaining days without access to lawyers. At present,35 men on death row in Alabama will soon be filing their habeas corpus appeals without legal representation.

The conference also intends to increase the number of lawsuits brought to secure media access to inmates -- access that is becoming harder to get. Prison officials prefer that the faces and histories of the condemned not be widely known. Capital punishment functions best when it becomes routine and hardly anyone knows the names of the departed.

There is also a project "to create a centralized database to record allegations of official misconduct." I expect that will include not only prosecutors who withhold exculpatory evidence but also other officers of the court -- inept, indifferent defense attorneys who also fail to present essential evidence in defense of their clients.

There used to be resource centers around the country where experienced death penalty lawyers had sometimes been able to prevent the state from murdering innocent people. Congress took away the federal funds for those centers, a move spurred by legislators wholeheartedly in favor of the death penalty.

It will be interesting to see what television coverage, if any, there will be of the conference of the innocents.

© Copyright 1998 The Washington Post Company

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