The Wrongly Condemned: Innocent on Death Row

How many innocent people are languishing on Death Row, awaiting execution? How did they get there, if they’re innocent? How many have already been executed? What options exist for these people? What will happen to them? These questions are being asked again and again as various states reconsider their positions on the death penalty.

The Death Penalty Information Center keeps an “Innocence List” which names incarcerated people who have been exonerated since 1973. There are 119 to date. The criteria for inclusion on the list are:

“In order to be included on the list, defendants must have been convicted and sentenced to death, and subsequently either:

a) their conviction was overturned and they were acquitted at a re-trial, or all charges were dismissed; or

b) they were given an absolute pardon by the governor based on new evidence of innocence.”

DPIC estimates the average wait for inmates of Death Row before exoneration is 9.3 years, but 15-30 years is not uncommon. That is a huge cut out of an innocent person’s life! They also report that DNA assisted in the exoneration in 14 of these cases, all in recent years since DNA has become an important forensic tool in establishing innocence.

To most Americans, the death penalty seems the correct punishment for the most heinous crime – murder. Yet with so many being exonerated, one must wonder: is there any way we can avoid sentencing innocent people to death? Gerald Kogan, former Chief Justice of Florida’s Supreme Court, has been quoted as saying, “If one innocent person is executed along the way, then we can no longer justify capital punishment.”

The statistics are staggering. For every seven executions, one Death Row inmate has been exonerated. And surely more will turn up in the future as more and more people are convicted of capital crimes, proponents push for speedier executions, and legal help becomes less and less available for those who commit capital crimes.

In the light of these numbers, the American Bar Association called for a moratorium on the death penalty. The state of Illinois responded positively, sending the issue to the legislature. Some might say, “It’s about time!” as Illinois had exonerated nearly as many Death Row inmates (nine) as it has executed in recent years (11).

But what happens to these exonerated people to land them in prison in the first place? How do they get there? To answer those questions, let’s examine a few cases:


One day in 1993, Gary Gauger called 911 to report he’d found his father dead in a pool of blood. When police arrived at the Illinois farmhouse they found Gary’s mother was dead too – both with throats slashed.

Gary Gauger, 40, quickly became the chief suspect. He’d been sleeping, he said, 30 feet from where his parents slept. Signs of break-in, struggle, robbery, etc. were absent. Gary’s reaction to these events puzzled police; he calmly “tended to his tomato plants” while they tended their investigation.

Gary was arrested, tried and eventually sent to Death Row. His apparent lack of concern attracted the cops’ attention, but it was his naivetÃ?© that gave them their case. Gauger reported that through 18 hours of “non-stop interrogation” detectives stated again and again that they had “a stack of evidence” against him. They were lying, in fact, but how was this simple farmer to know that? It probably never occurred to him that the police would lie to get a conviction. Gary, a former heavy drinker, thought he’d possibly blacked out as he used to do, and committed the murder without knowing it. In response to questions, he admitted he “could have” done the vile deed. As he talked, Gary came more and more convinced that he could have, must have killed his parents.

In the 10 days they searched the farm, police failed to turn up any evidence against Gary. But prosecutors portrayed Gary as a pot-smoking former alcoholic who had once lived in a commune! Gary’s testimony caused the judge to roll his eyes and when defense attorneys objected, he turned his back on the defendant.

During the trial, one of Gary’s fellow jailbirds claimed he’d heard Gary confess. When US News interviewed him in regard to his dubious claim, he offered to tell a different one if they would pay him.

Gauger was freed after eight months in prison when FBI agents working a wiretap heard motorcycle gang members talking about the killings. Eventually two members were indicted, but a federal judge tossed out the wiretaps and dismissed the charges.


In 2000 Odell Barnes, Jr. was executed for a crime he apparently did not commit: murder. Prosecutors depended heavily on a spot of blood on his clothing that matched the blood of the victim. He was convicted and sentenced to death.

Later, his appeals attorney examined the blood more carefully, and found that the blood was contaminated by a preservative, raising suspicions that the sample was suspect and may have been planted on Barnes to get a conviction. Other evidence pointing to Barnes’ guilt was discovered, but the courts, the Board of Pardons, even the governor, ignored it. Barnes was duly executed for a crime he apparently did not commit.


Claims that innocent persons have been executed since 1976 have not been proven. In 1993, Leonel Herrera was executed by lethal injection in Texas in spite of the fact that another man had confessed to the murder. His case went all the way to the U.S. Supreme Court, which ruled that since all his appeals had been exhausted, it would take something really incredible to free him, and suggested he appeal to the governor. But increasingly, in today’s anti-crime society, state governors view clemency as political suicide, and are reluctant to grant it.

The three main factors that contribute to mistaken convictions are: perjured testimony from jailhouse snitches; mistaken identification by witnesses, and false confessions. According to Richard Leo of the University of California-Irvine, 25% of false confessions are given by the mentally challenged, who often wait for clues as to what the police want them to say. Some are children: two boys, a seven-year-old and an eight-year-old, confessed to killing an 11-year-old friend with a rock, to steal her bicycle. Only the finding of semen on the girl’s clothes turned suspicion away from them. Other confessors, like Gary Gauger, simply believe everything the police tell them. The fact that police are allowed by law to lie to suspects in many jurisdictions is probably not commonly known.

The vast majority of false convictions, however, are the result of inept legal representation. Poor people are often unable to hire competent lawyers and must fall back on lawyers appointed by the court to represent them. “You get what you pay for,” has never been more reliably demonstrated than in courts of law. Many courts have set limits on how much an “appointed” attorney can make defending indigent clients – they are not high, and often result in the youngest, most inexperienced and most inept representation available.


Rolando Cruz and Alejandro Hernandez spent 10 years on death row in Illinois after being convicted of the rape and murder of Melissa Nicarico, 10. The child was snatched off her bicycle, raped, sodomized and murdered, her body tossed in a ditch. Cruz’s conviction turned largely on the testimony of a “footprint expert” who claimed she could read footprints well enough to determine a person’s class and race. One Brian Dugan finally confessed to the murder, furnishing details of the murder that had not been published. But prosecutors refused to reconsider, even after DNA evidence showed Dugan to be the perpetrator. Cruz suffered through a second, then a third trial, during which a policeman confessed he’d lied when he said Cruz had confessed.


A well-known case of mistaken conviction involves Ray Krone, who languished for two years on Arizona’s death row before being exonerated. He was the 100th inmate to be released nationwide, and the second convict to be released following DNA testing since the death penalty was reinstated in 1976.

Ray Krone was accused and convicted for the murder of a bartender, Kim Ancona, in 1991. He remained on Death Row for 10 years before a revelation of suspect evidence released him. He was retried, but again found guilty and sentenced to life. Again, DNA testing in 1995 finally exonerated him.


A black man, Walter MacMillian, was accused of murdering a white woman, tried for one and one-half days, and sent to Death Row. Twelve black people testified that they saw MacMillian at a church function at the time the murder was committed. Rather, they chose to believe three witnesses for the prosecution, one of whom was a convicted murderer.

Many politicians say that the release of mistakenly convicted persons proves that the system works, but that ignores the agony of the wrongly convicted suffering their way through the years while waiting to be executed – unjustly. Too many times, these unfortunates – deprived of justice – are unable or unwilling to rely on the system (it put them where they are, after all) and so must depend on the activities of their relatives and friends, or organizations like Barry Scheck’s Innocence Project.

The system isn’t making it any easier – public pressure is chewing away at the many levels of appeals that lie between the convicted and the needle, ever reducing the time many can expect to serve before being shipped off to the Other Side. Details of heinous crimes, especially against children, inflames the public and causes them to put pressure on the police to “Solve the crime now!”

Piers Bannister of Amnesty International had this to say:

“The majority of the appeal courts of the USA will not look at the simple question of whether a death row inmate is innocent of the crime for which he or she was sentenced to die,” Piers Bannister said. “Their main concern seems to be whether the legal procedures and the constitution were followed.”

Our justice system is faulty. It runs on a double standard: the rich v. the poor. It leans too often and too hard on false testimony, misconduct on the part of prosecutors and police, dubious “expert’ testimony and perjury by jailhouse informants. Of 38 states with inmates on Death Row, 24 have had to release unjustly convicted people. Not because an error had been made, but because numerous errors had been made. These errors, added up, make it plain that the chance an innocent person will be convicted and sent to Death Row is increasing all the time.

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