New safeguards aim to save a flawed system

What would a foolproof death penalty look like? A Massachusetts Governor's Council thinks it knows. This week, after seven months of debate, an 11-member panel convened by Gov. Mitt Romney released recommendations they say could give the nation a capital punishment statute "as narrowly tailored, and as infallible, as humanly possible."

At a press conference Monday in Boston's State House, panel members offered a proposal that departs from many US death penalty statutes by requiring DNA evidence, demanding good legal representation for defendants, and raising prosecutors' burden of proof. Members said they hoped it would be adopted as a model by the federal government, the military, and 38 states that now practice capital punishment, many of which are reconsidering their laws.

Fred Bieber, council cochair and pathology professor at Harvard Medical School, told reporters that if the panel's suggested reforms help keep innocent people off America's death rows, "we would be proud to have changed our world in this way."

In a December 2003 Harris poll, 95 percent of respondents said US courts sometimes convict innocent people of murder; of these, 51 percent opposed the death penalty. Public confidence in the practice has waned in the past decade as new evidence has helped exonerate 60 death row inmates in 20 states.

Capital punishment is illegal in Massachusetts, which has not performed an execution in nearly 60 years. Last fall, Governor Romney, a Republican elected on a pro-death penalty platform, asked council members - renowned scientists, legal scholars, and corrections officials - to set aside their personal views and make their recommendations with an eye to improving the institution's fairness. This week, calling their report a foundation on which to build "a model capital punishment provision," he asked the state legislature to reinstate the death penalty.

Politics aside, the 29-page report envisions capital murder trials different from those now prosecuted in US state and federal courts in five significant ways.

• Scope: Only a narrow subset of the "worst of the worst" killings - those involving terrorism or torture, serial murder, the murder of police, the murder of witnesses, or murder while serving a life sentence for murder - would be considered capital cases.

• Science: Scientific evidence, particularly DNA, would be required in every case to corroborate guilt. The state supreme court would appoint an independent committee of forensics experts to subject crime labs and medical examiners to rigorous accreditation standards, and to appoint expert panels to review the scientific evidence used in cases that end in a guilty verdict.

• "No doubt": Instead of proving a defendant's guilt only "beyond a reasonable doubt," prosecutors would need to leave "no doubt" in jurors' minds. Juries would get special instructions about the unreliability of eyewitness testimony, statements made by defendants in police custody, and the word of accomplices who have agreed to testify in exchange for lighter sentences. Defendants would also be able to choose whether the same jury that found them guilty would determine their sentence.

• Lawyers: The state attorney general would review all district attorneys' decisions to seek the death penalty to ensure consistency in its application. Each defendant would be represented by two lawyers, and defense attorneys would have to meet rigorous standards of experience, capital-case training, and "exemplary performance" to be assigned potential death penalty cases.

• Review: Trial and Massachusetts supreme court judges would have broad discretion to turn capital-murder convictions into first-degree murder ones where they feel verdicts are not supported by sufficient evidence. Appellate courts would be required to review every capital case, whether or not there were procedural errors during the trial and whether or not the defendant requested an appeal. An independent death-penalty review commission would be created to investigate claims of innocence or death-penalty ineligibility by death row inmates and to suggest legal reforms.

Death penalty opponents gathered in the State House Monday to protest the council's proposals as unnecessary. True, they conceded, such reforms would reduce the number of wrongfully convicted people executed in states that now practice capital punishment. But as Joshua Rubenstein, Amnesty International's Massachusetts-based northeast regional director, put it, "We have a foolproof system now: no death penalty."