Panel offers death penalty plan

Massachusetts can create a capital punishment system that is “as infallible as humanly possible” by narrowly defining the eligible crimes and requiring the use of DNA or other scientific evidence, according to a report that will be released today by a panel appointed by Governor Mitt Romney.

The panel of specialists is recommending that Massachusetts mete out capital punishment for what it calls the “worst of the worst” crimes. The new system would require jurors to have “no doubt” of guilt — a higher hurdle than the customary “beyond a reasonable doubt” standard — to sentence a defendant to death. And it would establish a series of reviews — by scientific experts and the courts — to attempt to protect the innocent from execution.

Romney, who convened the 11-member commission of lawyers, law enforcement officials, and forensic scientists last September, wants to reinstate the death penalty in Massachusetts, which abolished capital punishment in 1984 and has not executed anyone since 1947. It is one of a dozen states without the death penalty.

The governor’s goal is to sway a reluctant Legislature — both Senate President Robert E. Travaglini, Democrat of East Boston, and House Speaker Thomas M. Finneran, Democrat of Mattapan, have said they oppose the death penalty — by turning the controversy over death-row exonerations on its head: If DNA can be used to prove the innocence of death row inmates, he argues, it can also be used to prevent wrongful convictions.

Dr. Frederick R. Bieber, an associate professor of pathology at Harvard Medical School and a medical geneticist at Brigham and Women’s Hospital who cochaired the commission, said the report has the potential “to influence things far beyond the borders of Massachusetts.”

“We’re humans, and you’re not going to find anybody who can tell you that humans could never make a mistake,” said Bieber, who declined to reveal his personal views on the death penalty. "But as much as is humanly possible, I and the others are of a common mind that if these recommendations were put in place in their entirety, we believe to a man, or woman, that the chance of an erroneous conviction and execution would be vanishingly small." Nevertheless, the safeguards envisioned in the 29-page report are not sufficient to satisfy many death-penalty critics.

The proposal "doesn't hit at enough of the real problems in the system that causes false convictions," said Harvey Silverglate, a Boston criminal defense and civil liberties attorney who says he opposes the death penalty because of the possibility of wrongful convictions, rather than on ethical grounds. "It hits at some of them, but not enough of them and surely not all of them."

Meanwhile, some death-penalty opponents, and supporters, say they believe the proposal is drawn so narrowly it will almost never result in a capital conviction.

Romney declined to comment before the official release of the report today, but when he created the panel last year he called for "a standard of proof that is incontrovertible."

"Just as science can be used to free the innocent, it can be used to identify the guilty," the governor said in announcing the formation of the commission.

The centerpiece of the plan is a requirement that the jury find that there is "conclusive scientific evidence" reaching "a high level of scientific certainty" linking the defendant to the crime scene, the murder weapon, or the victim's body, and corroborating guilt before a death sentence can be issued. It describes DNA evidence as the gold standard, but evidence such as footwear impressions, fingerprints, ballistics, and photographs are also permissible.

At the same time, the report highlights the weakness of so-called "human evidence," especially eyewitness testimony, statements made by defendants while in police custody, and statements made by codefendants or informants. To curb the influence of such testimony, it recommends that the jury be warned about the inherent pitfalls of such evidence, which has been shown to be unreliable in many cases.

Silverglate says that is not enough. "We already know that merely instructing a jury about these problems doesn't do it," he said. "Jurors, notwithstanding special instructions, are going to go by their gut. And their gut is that eyewitness testimony is very effective, even though we know it is very prone to error."

Silverglate also noted that DNA evidence is more useful in proving innocence than proving guilt: The absence of a suspect's DNA in a rape case, for example, may prove that he did not have intercourse with the victim. But the presence of his DNA merely proves that he had sex with the victim, not that he raped her.

Andrew Good, another Boston attorney who is president-elect of the Massachusetts Association of Criminal Defense Lawyers, added that the report's emphasis on scientific evidence is "wrong-headed" because it would reward criminals skilled enough to cover their tracks by allowing them to avoid the death penalty.

Romney said he wanted the panel to focus on "the most heinous violent crimes," and the report lays out a "narrowly defined list of death-eligible murders." The commission notes that in other states, the number of "aggravating circumstances" triggering capital punishment has steadily grown, usually in response to public revulsion at a recent crime. California has 22 such circumstances, and Illinois has 21, according to the report.

In contrast, the Massachusetts proposal comprises only six such circumstances: an act of "political terrorism"; obstruction of justice, such as the murder of police officers, judges, lawyers or witnesses; the torture of the victim in a "gratuitous and depraved manner"; multiple victims in a single episode; multiple murders at different times; and a prison inmate who commits murder while serving a life sentence for another crime.

In addition, the defendant must be at least 18 years old at the time of the crime and not mentally retarded. Furthermore, at the sentencing stage, the jury would be required to find that there is "no doubt" that the defendant committed capital murder, exceeding the "beyond a reasonable doubt" standard for the trial phase.

The commission acknowledges that the eligibility requirements are so strict that "there will be some first-degree murders that should be death-eligible but will not be." The authors say that is a price the state should be willing to pay to avoid wrongful convictions.

But Kent Scheidegger of the Criminal Justice Legal Foundation, a Sacramento-based group that backs the death penalty, said the proposal is worded so narrowly it would not even cover the murderer of Megan Kanka, a 7-year-old New Jersey girl who was abducted, raped, and murdered in 1994 by a convicted sex offender.

"If you're going to define the worst of the worst, I think the kidnapping, rape, and murder of a child has got to be up there," he said. The authors of the report say "torture" includes rape, but Scheidegger said "rape is one thing, and torture is something else. If you want to include rape, you've got to say `rape.' And it's not hard to define `child,' either."

James Alan Fox, a criminal justice professor at Northeastern University who opposes the death penalty, said the requirements are so restrictive there will not be enough capital cases to justify the expense of setting up the system.

Joseph L. Hoffmann, a law professor at Indiana University, who cochaired the commission, said that while critics may find fault with individual safeguards, taken together they make it "virtually inconceivable" that an innocent person could be executed. "I don't have any question in my mind that we accomplished what the governor wanted us to do," he said.