William J. Genego, a sole practicioner in Santa Monica, CA, is co-chair
of the NACDL Rules of Procedure Committee. Together with attorney John D. Barnett,
he represented Thomas R. Merrill in the successful challenge of his 1991 double-murder
conviction in Orange County, and his subsequent trial, where he was gound not guilty,
after being in prison for five years.
"Our system is not 100 percent perfect." So spoke the district attorney for Orange County, Michael Capizzi, in acknowledging recently that Kevin Green had been wrongfully convicted of murder 18 years ago.
The day before Green's wrongful imprisonment ended, Thomas Thompson's death sentence was upheld by the 9th U.S. Circuit Court of Appeals. Fifteen years ago, Thompson was convicted of murder in Orange County Superior Court, where he was prosecuted by the same district attorney's office and defended by the same lawyer who defended Green. The similarities between Green's case and Thompson's case, and the starkly different manner in which the two cases will end, present a powerful systemic argument against the death penalty.
Kevin Green's murder conviction was based on the 1979 bludgeoning attack of his then-pregnant wife, an attack that resulted in the death of their unborn child. The evidence of guilt appeared overwhelming. Green's own wife testified against him, identifying him as her attacker, and semen from the attacker matched Green's blood. Green always maintained his innocence. He testified at trial that he was out alone buying a cheeseburger at the time of the attack. Not surprisingly, the jury did not believe him. The deputy district attorney who prosecuted Green was so certain the verdict was correct that he personally attended Green's parole hearings, to argue against his release.
Now, after nearly two decades, there is scientific evidence excluding Green and establishing his innocence. A genetic test performed on evidence preserved from the original trial has convinced prosecutors that Gerald Parker, already in prison for rape, is the person who bludgeoned Kevin Green's wife and killed their unborn baby. Green's wife, whose identification must have been powerful evidence to the jury, didn't just identify the wrong man, she identified a man of the wrong race.
Thomas Thompson's conviction was based on the 1981 rape and murder of a woman acquaintance. She had been seen with another man prior to the discovery of her body. Thompson testified that he had consensual intercourse with the woman, but he denied any involvement in or knowledge of her murder. There were no witnesses to the woman's death, and the prosecution relied on circumstantial evidence to convict Thompson. Semen found on the woman's body matched Thompson's blood and two jailhouse informants testified that Thompson had confessed to them.
In affirming Thompson's conviction and death sentence, the federal court of appeals rejected numerous arguments he made as to why his trial was unfair, including the incompetence of his attorney. Thompson's claim that his attorney was incompetent was supported by an expert witness, an experienced defense attorney. A forensic expert also supported Thompson's bid for a new trial, explaining that the prosecution's forensic expert had made serious errors. The jury also never learned that jail officials apparently considered one of the informants to be a "liar" and a "confidence man," and that both informants had a regular pattern of providing information against others to obtain leniency for their own crimes and other favors.
A federal trial judge agreed with Thompson that his attorney had been incompetent in defending him on the rape charge, and overturned his conviction on that charge. The court of appeals, in reinstating the rape conviction and affirming the death penalty, ruled that the evidence against Thompson was so strong that even if his attorney was incompetent, it didn't matter. The court pointed to Thompson's own testimony, which it found not to be believable, as support for its decision.
As appellate courts often note, the system doesn't guarantee a defendant a perfect trial, only a fair trial. Not a "fair trial" in the sense that both parties had equal resources, or equally capable lawyers. But a "fair trial" in the sense that the rules that govern trials were followed, or, if any were violated, the violation wasn't so serious that it likely affected the outcome. Under that standard, Thompson's trial was fair, and so his scheduled execution will proceed.
It may well be that Thompson is guilty of rape and murder. But, as the Green case illustrates, with a system that is "not 100 percent," we can never be certain that the verdict matched the truth. Indeed, from a review of the trials, there is more reason to question the accuracy of the verdict in Thompson's trial than in Green's. If there was a mistake in Thompson's case, however, it will not be able to be corrected. While our imperfect system took Green's freedom for 18 years, it will take Thompson's life.
Proponents of the death penalty must confront this systemic argument. To accept the death penalty in a system that imperfectly determines guilt or innocence is to accept the reality that factually innocent people will be killed.
There have been and always will be cases like that of Kevin Green where the evidence seems overwhelming and guilt appears unquestionable but the truth is the opposite. With that knowledge, those who argue in favor of the death penalty must accept that inevitably, they are facilitating the same immoral act that motivates their cause --the killing of an innocent person.