Executive Times
		2005 Book Reviews
		The Death Penalty on Trial: Crisis in American Justice by Bill Kurtis
		Rating: ••• (Recommended)
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	Fragility Bill Kurtis presents two death penalty cases in his new book, The Death Penalty on Trial: Crisis in American Justice. Each case described an original trial and a reversal, and makes any informed reader conclude that the justice system isn’t working. The author’s own three-decade support of the death penalty collapsed after he began to examine cases that were rife with errors. Here’s an excerpt, from the beginning of Chapter 4, “How Could This Have Happened?” pp. 103-109: Ray Krone’s trial suffered from at least three of the errors most common to death penalty exoneration cases: prosecutors who suppress evidence that the defendant may be innocent; ineffective defense lawyers; and bad science used as evidence. Let’s take a closer look at all three. It is tempting to try to explain away all the mistakes in Ray Krone’s trial by blaming Dr. Rawson’s video, which so overwhelmed the juries in the two separate trials. Two defense lawyers, prosecutors, and two judges failed to catch its faulty production. Looking back, however, there were at least two opportunities to correct the mistake if only the rules provided by the criminal justice system had been followed. First, the judge should have followed the discovery rules and not admitted the videotape at such a late date without giving the defense time to study it and prepare an answer. The appellate court said as much. We can only speculate, but the search for an expert to answer the tape might have led defense attorney Jones to the discovery that other forensic scientists disagreed with Rawson’s opinion. Second, something fishy was afoot in the prosecution’s camp. Dr. Piakis learned early on that a highly respected forensic scientist and bite mark expert (his mentor Dr. Sperber) thought there was no match between Ray’s bite mark and the one found on the breast of Kim Ancona. He knew at an early stage that it wasn’t an open-and-shut case against Ray Krone. We can believe one of a couple of scenarios: 1) Dr. Piakis naively chose to ignore Dr. Sperber’s opinion because it didn’t help the prosecution’s case, 2) Dr. Piakis “forgot” to tell the prosecutor, Noel Levy, or 3) Dr. Piakis told Levy, who chose to keep the information quiet, knowing it would severely weaken his case. Any of these choices was not only a mistake, but an ethical breach. How does Mr. Levy explain what happened? He has chosen not to comment. Maricopa County is being sued by Ray Krone for wrongful incarceration and any admission of intentional suppression of evidence would clearly affect that lawsuit. However, in the interest of answering our question—How could this have happened?—let’s explore some likely scenarios. Clearly, the prosecution should have revealed its discovery of Dr. Sperber’s opinion to the Court because it might have cleared the defendant. It’s called exculpatory evidence and it should have been included in the list of every witness, every expert, every piece of evidence developed during the course of the Krone investigation. As we have discussed before, exculpatory evidence must be turned over to the other side during the process of discovery. Why? To avoid exactly what happened in the case of Ray Krone. Krone’s case could have been resolved before it even went to trial—no million-dollar-plus cost to Maricopa County; no ten years in jail for Ray Krone. All they had to do was follow the rules. Detective Gregory would have been sent back to the CBS Lounge to keep searching for a different suspect and might have prevented the sexual assault by Kenneth Phillips a month after Kim Ancona was murdered. Instead, bad decisions set in motion a chain of errors from which there was no escape. Let’s put ourselves in the position of Noel Levy, the prosecutor. The pressure is intense. A young woman is murdered. The victim’s family is in constant touch with his office, demanding vengeance. Reporters wait outside his office for a daily progress report. The community concern is broadcast on every newscast. The prosecutor’s office takes on a boiler room atmosphere as the pressure rises to find the killer. The public may still perceive the case as Kim Ancona’s. But inside the prosecutor’s office, it has become the case against Ray Krone. And the goal is to prove that Ray killed Kim. Some prosecutors put the victim’s picture on their desk or on the wall to remind their team of why they are working so hard. Many prosecutors see themselves as champions of the victim and reflect it in their aggressive trial performance and investigative conduct. They want to win for the victim, the community, and themselves. Careers are not built on noble decisions to decline prosecution because of a lack of evidence. Imagine, then, a moment when a prosecution team member—it could be Dr. Piakis—mentions that one of the most respected forensic bite mark experts in the country doesn’t think Ray Krone’s teeth match the bite on Kim’s breast. Shock and dismay. They must then decide whether to start all over again or whether to continue forward. The case is 90 percent complete and the team is so convinced that Krone committed the murder, it’s almost impossible to even consider an alternative. Is Levy going to stop the investigation at the suggestion Krone didn’t commit the crime and start looking for another suspect? In our imaginary scenario, I think the best guess is that he starts looking for another bite mark expert and keeps quiet, hoping the defense counsel doesn’t find Dr. Sperber. His reasoning is simple: Finding an expert to support the defense is their problem. Why should Levy do Jeffrey Jones’s job for him? Besides, Dr. Rawson may well be right, and Dr. Sperber wrong. Investigative reporter Steve Weinberg, writing for the Center for Public Integrity, reports that, since 1970, there have been more than 2,000 cases of prosecutorial misconduct in the United States that resulted in dismissed charges, reversed convictions, or reduced sentences. Weinberg writes, “Most of the nation’s approximately 30,000 local trial prosecutors strive to balance their understandable desire to win—a desire supported by the vast majority of the citizenry—with their duty to ensure justice. There are some prosecutors, however, who have exalted winning and ignored the other half of the equation’* Typical is the case of Gary Nelson, convicted of sodomizing and killing a six-year-old girl. Nelson was convicted in 1980 and sentenced to death. In addition to having an incompetent defense lawyer, Nelson faced a prosecutor who kept evidence hidden that would have freed him. The critical item of evidence was a hair found on the victim’s body. The state’s expert witness testified that the hair could have come from Nelson in addition to about 120 people in the entire Savannah area. Unknown to the defense, the hair sample had been examined not just by the state’s expert but also by the FBI crime laboratory. The FBI concluded that the state’s hair sample “is not suitable for significant comparison purposes?’ The FBI supervisor explained in a habeas corpus proceeding that limb hairs, in contrast to head hairs and pubic hairs, “lack sufficient individual microscopic characteristics to be used for significant comparison purposes and are so fine and small that they are unsuitable either to include or exclude a particular individual as the source of the hair?” The prosecution not only knew about the FBI report but did not disclose it to the defense. The prosecution argued that the FBI reports established not that the state’s expert was incorrect but simply that the two experts disagreed. That not-so-little mistake sent an innocent man to death row. The Georgia prosecutor should have known better. In 1963, the U.S. Supreme Court established in Brady v. Maryland the “Brady violation,” which stipulated that the failure of a prosecutor to turn over possibly exculpatory information to the defense would be considered reversible error. In 1991 the Georgia Supreme Court overturned Nelson’s conviction and the state chose not to retry him due to lack of evidence and witnesses. I often think about the moment in Ray Krone’s case when the jury declared their verdict of guilty. As they celebrated their “win,” someone in that courtroom besides Krone must have known it was the wrong decision. I wonder if they ever convinced themselves that Dr. Sperber’s opinion really wouldn’t have made much difference. Fresh young prosecutors should read the Supreme Court’s opinion in a similar fact situation in the 1935 case of Burger V. United States, which stated, “It is as much the duty of the prosecuting attorney to refrain from improper methods calculated to bring about a wrongful conviction as it is to use every legitimate means to bring about a just one ... a prosecutor’s proper interest is not that he shall win a case, but that justice shall be done.” *Steven Weinberg, Harmful Error: Investigating America’s Local Prosecutors (Washington, D.C.: Center for Public Integrity, 2003). Two cases will not be enough to convince diehard death penalty supporters that the system isn’t working, and some may say that the fact that these two cases were reversed proves that the system works. The Death Penalty on Trial adds to the debate on the fragility of the criminal justice system and its processes. It’s worth an informed citizen’s time to read this short book to think about this important issue. Steve Hopkins, February 25, 2005
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