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A system too flawed for executions

It was the governor of Illinois, not Florida, who said Monday, "There is no margin for error when it comes to putting a person to death," and who promised that none would be "until I can be sure that everyone sentenced to death . . . is truly guilty."

Illinois has enormous problems. Thirteen death row inmates have been freed and exonerated since 1977, one more than the state has succeeded in executing. Half of its death sentences have been sent back for new trials or sentencing hearings.

Florida's situation, though, is worse: Here, at least 20 death row inmates have been released as surely or probably innocent, and the state Supreme Court reversal rate on new cases hit 70 percent last year. Florida appears more competent than Illinois in only one respect: We've managed to execute more than twice as many people (44) as we have had to set free. That should be no comfort, however, because of the unlikelihood that all 44 were guilty.

But as Illinois Gov. George Ryan answers his conscience by declaring a moratorium on executions, Florida Gov. Jeb Bush follows a different drummer. He exults in a new law that will choke off appeals and speed more inmates to their doom.

I recently came across something that former Gov. LeRoy Collins wrote in 1978 when it appeared that executions would soon resume:

"It won't be the governor who is killing these people," Collins said. "This concept would be too convenient. It will be all of us individually who together make up our state. What is done by the state is our deed. There is no place to hide from this ultimate responsibility in a democratic society."

Collins opposed the death penalty, out of religious conviction, no matter what the circumstances.

Even those who support it should have scruples, however, about executing the innocent. Shamefully, few were evident when the Legislature passed Bush's kill-'em-quicker bill in only 2{ days of a three-day special session last month. Bush and his legislative allies brushed off the innocence question with an amendment they said would allow new evidence of innocence to be heard after other appeals have been cut off. But they refused to permit stays of execution while the petitions are prepared, which could have results more appropriate to a Kafka novel than to American jurisprudence.

Moreover, the amendment itself may be a diabolical Catch-22. In the first test case, attorneys for some 60 death row inmates argue that the language requires proof of "constitutional error" in addition to new evidence of innocence. It is not necessarily constitutional error when witnesses, or prosecutors, simply get their facts wrong.

Innocent people rarely go to death row because someone meant to frame them. They go because police officers and prosecutors, eager to solve horrible crimes, sometimes jump to what seem like obvious conclusions. They make up their minds and then shut them.

That's what happened to James Richardson, the fruit picker wrongfully convicted of poisoning his seven children at Arcadia; to Freddie Pitts and Wilbert Lee, wrongfully convicted of two murders at Port St. Joe; and to Dave R. Keaton Jr., wrongfully convicted of a holdup murder in Tallahassee's notorious "Quincy 5" case.

Richardson was condemned on the word of jail-house snitches who were lying to help themselves. Pitts, Lee and Keaton were sweated into false confessions by a polygraph examiner who left a nationwide trail of bad cases.

On the eve of the special session, the American Bar Association's president, William G. Paul, and its president-elect, Martha Barnett (a Tallahassee attorney), appealed to Bush and legislative leaders not to rush into such radical legislation. In passing, they noted Richardson, Pitts, Lee, Keaton and 16 other death row inmates who had been set free.

Bush's office replied all too glibly that all but one of the cases would have been unaffected by the terms of the bill. In fact, Richardson, Pitts and Lee might well have been put to death but for the undeclared moratorium that preceded the U.S. Supreme Court's 1972 Furman decision upsetting capital punishment nationwide. Gov. Reubin Askew pardoned Pitts and Lee in 1975, but it wasn't until 1989, 21 years after his conviction, that Richardson won a new trial and the state dropped the charges.

Until Florida fixes the systemic flaws that allow so many innocent people to be convicted, we shouldn't be executing anyone, let alone clubbing the Legislature to do it faster. We should expect our governor to be at least as wise, if not as courageous, as the governor of Illinois.

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