Forgive me, I have been unfair. For some time now I have been cuffing around George W. Bush for presiding over Texas's appalling death penalty system while all the time I have been ignoring Al Gore. I should mention what Gore has said about this issue, the position he has taken regarding the sheer number of executions and insistent questions regarding the system's fairness: Nothing. If Gore were an American Indian of yore, his name would be Al Finger-in-the-Wind.
How silent is he? As silent as the dead. Never mind that Gore won't open up on Bush; he won't even lend his name to a Senate effort to ensure that inmates have access to any DNA evidence that might prove them innocent. President Clinton supports the legislation and so, I might add, does Justice herself, but Gore will take no position. He approves of its goals, his spokesman said, but has not endorsed this particular bill. In other words, he's opposed to the imprisonment or execution of the innocent, but won't do anything about it.
The bill, sponsored by Sen. Patrick Leahy (D-Vt.) is one of many kicking around Congress and some state legislatures requiring the testing of old biological evidence to determine if it is exculpatory. In many old cases, a conviction was obtained without DNA testing. If any of the evidence was retained, it can still be tested. With DNA, it is never too late to establish innocence--or guilt.
But prosecutors and judges are sometimes loath to make this evidence available. Occasionally, it has been destroyed or discarded, but even when it's obtainable, some law enforcement officials are either so convinced of the inmate's guilt--or so afraid of his innocence--that they fight attempts to do DNA testing. Most of the requests are viewed with great suspicion by understandably cynical authorities.
But consider the case of Ronald Jones, cited in "Actual Innocence," a book on DNA testing by Barry Scheck, Peter Neufeld and Jim Dwyer. Jones was convicted in Illinois of rape and murder. As sometimes happens, he confessed and later recanted. In 1994, five years after his conviction, the judge who had sentenced Jones to death refused to approve a new type of DNA testing. The Illinois Supreme Court ruled otherwise, Jones was tested and, as you might have guessed, found not to have been the man whose semen was found in the dead woman's body. In May 1999, he was freed.
Just last month George W. Bush pardoned A. B. Butler Jr. on the basis of DNA testing. Butler, convicted of rape, had been trying for seven years to obtain the tests. Finally, a new lawyer got what the others could not--and Butler got his freedom. He did not, however, get back the 17 years taken from him.
Leahy, a former prosecutor, says, "DNA is the fingerprint evidence of the 21st century, and it's taking a lot of people time to catch up to that." Yes, DNA is, like fingerprints, unique to each individual. But no, it's not that law enforcement officials don't know that, it's rather that many of them are stubbornly reluctant to open old cases. Once a case is closed, it ought to stay closed, they feel.
Actually, DNA will play a diminishing role in death-row cases. The test is now often administered before indictment, so it's not likely that the wrong person will be convicted when DNA evidence is available. But another aspect of the Leahy bill is not going to fade: Its insistence that the accused be adequately represented. In Texas and elsewhere, murder suspects are usually indigent and sometimes get state-provided lawyers who are incompetent.
Every day, it seems, another report is issued questioning some aspect of the capital punishment system. It is a serious indictment of Bush that as Texas governor he acted as death's cheerleader, never questioning a system in which defense lawyers have nodded off in the courtroom, where death sentences have been rendered on the basis of one eyewitness and where every effort has been made to accelerate the process. Like a parent with a truly ugly child, Bush looked at his system and pronounced it just plain adorable.
But Gore, too, is culpable. Innocent men are convicted, and Gore has nothing to say about it. His opponent played piano in the death house and never noticed any inadequacies--and still the vice president is silent. Gore won't even take a position on a bill designed only to ensure fairness. He is the very model of the very modern leader--self-proclaimed and daring to take the public where it already wants to go. I understand. The politics of the issue are simple. Alas, so is its morality.
© 2000 The Washington Post Company