POLITICS
11/19/2013 07:30 am ET

U.S. Counties Killing The Most People Are Good At Getting Death Penalty, Not So Good At Justice

ASSOCIATED PRESS

Just 2 percent of counties in America are responsible for more than half the nation's executions, and those same counties have been responsible for a disproportionate share of high-profile prosecutorial misconduct and exonerations following wrongful convictions.

In a report released last month, the Death Penalty Information Center found that 2 percent of counties, as well as being responsible for a majority of executions, can also claim credit for 56 percent of the current death row population. What's more, just 15 percent of U.S. counties account for all of the executions since 1976, according to the DPIC.

There are lots of different ways to think about these figures. And my Huffington Post colleagues Katy Hall and Jan Diehm have broken them down with some informative graphics. Since only 32 states have the death penalty, perhaps it shouldn't be terribly surprising that such a small percentage of counties account for such a large portion of executions, particularly if most of them are counties with large populations. (And that seems to be the case, although these counties aren't all necessarily the largest in their respective states.) At the very least, it is more evidence that the death penalty is applied inconsistently.

But what, if anything, do these numbers say about justice and fairness in these counties that are populating the country's cells on death row? Here's one interpretation, from a pundit quoted last month by NBC News.

David Muhlhausen, a research fellow at the Heritage Foundation, commended the district attorneys.

"If the report is correct, these select few district attorneys are doing their job. In states where the death penalty is allowed, they should use that sentence in appropriate cases. If a defendant is arrested for crimes that fit a death penalty case and if there's good evidence, then a prosecutor is doing his or her job by bringing forth a death penalty prosecution," he said.

But even if you support the death penalty, prosecutors from the counties that top the survey should be commended "doing their jobs" only if you think that frequently winning death penalty sentences is, all by itself, a good way to measure a prosecutor's effectiveness. But of course we don't measure justice by how many people the state executes. We measure it by how well states and counties administer fair trials and due process. And the problem here is that there seems to be a strong correlation between counties that frequently send people to death row, and counties with high rates of wrongful conviction, forensics scandals and prosecutorial misconduct, as found by appeals courts.

The Death Penalty Information Center report touches on this a bit. For example, the report notes that in Orleans Parish, La., which leads the state in executions, there's a long, sordid history of prosecutorial misconduct. Orleans Parish has even been rebuked by the Supreme Court, though the Court refuses to hold the county liable. (I wrote about prosecutor misconduct in Orleans Parish earlier this year.) Four men from New Orleans who once awaited execution have since been freed. Philadelphia County, Pa., leads the state of Pennsylvania in executions, yet also ranks last in the state when it comes to paying the attorneys appointed to represent defendants in capital cases. Florida leads the country in number of people sent to death row over the last two years. The state also leads the country in number of people exonerated from death row. Incredibly, despite these figures, Florida lawmakers are still trying to limit appeals, so that executions can be carried out more quickly. That's one way to prevent exonerations before executions.

So to put the DPIC into perspective, here's a look at the performance of the prosecutors who have worked in a handful of America's most execution-eager counties:

Harris County, Texas

The county that's home to Houston is also the most execution-friendly county in America. Under former District Attorney Johnny B. Holmes and his infamous handlebar mustache, Harris County by itself sent more people to death row (more than 200) than all 49 states other than Texas. When reform-minded District Attorney Pat Lykos (a pro-death penalty Republican, by the way) took over in 2008, she set out to look for innocent people convicted under the lock-'em-up-and-throw-away-the-key approach of her predecessors. Since 2008, there have been 11 exonerations Harris County.

The county has also been beset by scandals at its crime lab. In 2002, an investigation "found cases in which lab results appeared to have been changed to bolster police testimony in criminal cases." As Houston defense attorney John T. Floyd explains, five years later ...

On June 13, 2007, former U.S. Justice Department Inspector Michael Bromwich issued a 400-page report that concluded the crime lab’s DNA and serology departments had made hundreds of “serious and pervasive” mistakes in homicide and sexual assault cases. Bromwich two-year investigation examined more than 3500 cases processed by the crime lab over the previous quarter century. 135 of those were DNA cases handled by the crime lab between 1992 and 2002, Bromwich’s investigators found “major issues” in 43 of those cases, and, even more disturbing, found “major issues” in 4 of the 18 death penalty cases it examined . . .

For more than two decades forensic analysts with the lab appear to have deliberately presented false or misleading testimony designed to satisfy the District Attorney’s Office need for a conviction. And when the analysts were not giving false testimony, they were neglecting to conduct tests that would have either exonerated the accused or cast doubt on the test findings the prosecution needed for conviction.

As late as April 2013, Harris County was investigating how a crime lab technician remained on the job for years, helping to win convictions in thousands of cases, despite "a high error rate," and "a dubious understanding of the chemistry involved in the job."

Lykos was defeated last year in her bid for reelection, in part because of her efforts to divert first-time DWI offenders, and a policy of not pressing felony charges for "trace" amounts of drugs. Former state judge Mike Anderson beat Lykos in the Republican primary with a promise to return to "the good old days," by which he presumably meant Holmes and his death penalty machine.

In a training session for his assistant district attorneys, conducted earlier this year, Anderson was captured on video giving tribute to Holmes. At one point, he celebrated how Holmes didn't press criminal charges against the Houston police officers who shot and killed Pedro Navaro in 1998. Navarro was unarmed. The police shot the 22-year-old man 21 times during a botched drug raid -- nine times in the back.

Anderson then referred to the Innocence Project -- a group that works to get innocent people out of prison and off death row -- as the "enemy" of prosecutors. He also went on to praise prosecutors who fought against DNA testing in innocence cases. Harris County was already known among prosecutors for negotiating the destruction of DNA evidence into plea bargains, meaning that innocent suspects coerced into false confessions couldn't later ask for the tests that could clear their names. The Houston Chronicle editorialized that the video confirmed critics' "worst fears" about returning to the conviction culture that we now know produced so many exonerations.

Anderson passed away in October. His widow Devon was appointed to replace him, and now serves as the Harris County DA.

Dallas County, Texas

Dallas County, presided over for decades by legendary law-and-order District Attorney Henry Wade, has had more exonerations than any county in the country. In fact, there have been more exonerations in Dallas County than in nearly every other state. That's mostly because in 2006, former defense attorney Craig Watkins was elected as the county's top prosecutor, and Watkins has since made finding and correcting wrongful convictions a high priority. Moreover, Watkins has been able find older wrongful conviction cases because of a quirk: for years, Dallas County sent crime scene evidence to a private lab, where it has been properly stored and preserved. (Such evidence is usually thrown out after a convict has exhausted his appeals.) That means Watkins and groups like the Innocence Project can go back much farther to look for find cases for which there is still testable DNA.

These two factors mean that as disturbing as the high number of exonerations in Dallas County have been, there's no reason to think the high number of wrongful convictions are an anomaly. If other counties with similar law-and-order histories also had similar histories of properly preserving evidence, and then, like Dallas County, subsequently elected reform-minded DAs, we'd likely be seeing similarly high exoneration numbers.

In an interview several years ago, Watkins talked about the culture of the DA's office during the Wade years. "[It] was a badge of honor at the time -- to knowingly convict someone that wasn’t guilty," he said. "It’s widely known among defense attorneys and prosecutors from that era."

Oklahoma County, Okla.

Oklahoma County's presence near the top of America's executioner counties is mostly due to the work of the late, longtime District Attorney Robert "Cowboy Bob" Macy. The favorite of the law-and-order crowd served as head prosecutor in the county for 20 years, from 1980 until 2000. Macy sent 54 people to death row. He once said that executing an innocent person was a risk he was willing to take.

But Macy's legacy has taken a hit in recent years. Toward the end of his career, and in the years since, appellate courts have excoriated him and his deputy prosecutors for misconduct in their pursuit of convictions. The most recent example came last June, when the state's supreme court suspended the law license of former Oklahoma County deputy District Attorney Brad Miller for 180 days, due to his "reprehensible conduct" in a 1993 death penalty case. Two justices voted to disbar him. One wrote, "The actions of the respondent take us into the dark, unseen, ugly, shocking nightmare vision of a prosecutor who loves victory more than he loves justice." But writing for the majority, Justice Yvonne Kauger found that Miller deserved some leniency, because he was just following policies set by his boss, Robert Macy. “Instances of prosecutorial misconducts from previous decades, such as withholding evidence, often were met with nothing more than a reprimand or a short suspension," Kauger wrote.

Macy's time as DA coincided almost directly with the career of disgraced Oklahoma City forensic expert witness Joyce Gilchrist. In fact, Macy used Gilchrist's testimony in nearly half of his death penalty convictions. Gilchrist's knack for matching forensic evidence to the prosecutors' preferred suspect earned her the nickname "Black Magic." Gilchrist's testimony was particularly devastating because Oklahoma judges generally did not grant indigent defendants the funds to hire their own forensic specialists to review her work. Despite her diminishing reputation in the forensics community, Macy's office continued to use her. Macy retired in 2000. In 2001, DNA testing exonerated Jeffrey Todd Pierce for a rape he had been convicted of committing in 1986. Gilchrist's testimony was the main evidence against him. She was fired the following year, and Oklahoma began reviewing over 1,500 cases in which she had testified.

There have been five exonerations in Oklahoma County, including two death penalty cases. There may well be more innocents in prison or on death row from the Gilchrist-Macy era. But if there are, Gilchrist made it more difficult to find them. From CBS News coverage of the police investigation into Gilchrist's tenure at the lab:

The report says that “missing evidence is occurring in major cases.” Some of those cases were death penalty cases. According to the report, a freezer breakdown contaminated evidence from hundreds of cases. The report also said that blood analysis files from three entire years -- 1980, 1981, and 1990 -- were missing, and that rape evidence was systematically being destroyed after only two years.

Eleven people convicted mostly or in part due to Gilchrist's testimony have been executed.

Bexar County, Texas

In 1993, the state of Texas executed Ruben Cantu for a 1984 murder and robbery. He was convicted based on the testimony of a single witness, who later recanted. A 2005 Houston Chronicle investigation cast some serious doubt that Cantu participated in either the robbery or the murder. Among those now convinced that Cantu was executed for a crime he didn't commit: Sam Millsap Jr., the prosecutor who convicted Cantu, and sent him to death row (along with quite a few others). Millsap told the Chronicle in 2007, "[A] prosecution and execution that I was responsible for may well have ... produced the execution of an innocent man."

Millsap is now an anti-death penalty activist. "I’d love to be able to tell you I am the only former elected prosecutor in the country who finds himself in the position of having to admit an error in judgment that may have led to the execution of an innocent man," he said in a 2010 TED Talk. "But I know I am not."

St. Louis County, Mo.

When more advanced DNA testing became available in the early 2000s, St. Louis County saw five exonerations for serious violent crimes in five years. Last year, George Allen was released after a court found egregious police misconduct during their investigation, including withholding evidence of his innocence. Allen had served just under 30 years for a 1982 murder. His attorneys and the Innocence Project believe there could be many more wrongful convictions. The police detective and crime lab analyst found to have committed misconduct in Allen's case also worked hundreds of others.

Many of the death sentences in St. Louis County were won by Nels Moss Jr., who served as a prosecutor there for 33 years. According to a 2009 study by the Center for Public Integrity, over the course of his career, appeals courts found that Moss had committed misconduct in 25 cases. In eight of those, the courts overturned a sentence or declared a mistrial. In one case, Moss had police add a mustache to a composite photo to make it look more like his suspect, even though the witness had already made an identification. In the Reggie Clemons death penalty case, Moss was found to have written "omit" on sections of a police report that may have hurt the credibility of his star witness. In another case, an appeals court found that Moss engaged in "a patent effort to deprive a defendant of a fair trial," and "rather than resulting from youthful zeal, the error is but one example of a consistent pattern of improper tactics reflected by other transcripts in cases tried by the same experienced prosecutor."

Missouri has also consistently elected attorneys general who have fought to preserve convictions, particularly in death penalty cases, even where there's strong evidence of innocence.

Next, I'll look at the counties that have sent the most people to death row. The list is mostly different -- because the counties happen to be in states that for political or legal reasons aren't as quick to execute, they haven't been as effective at killing people convicted of murder. But they have been effective at winning death sentences. As we'll see, they've seen plenty of problems with justice and due process as well.

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