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ND law school instructors look at issues raised in Lovitt trial

Maddie Hanna | Monday, April 18, 2005

While Robin Lovitt’s death sentence from the U.S. Court of Appeals for the 4th Circuit raises some controversial issues, many Notre Dame law professors say the broader topic of the death penalty is more complex than people often assume.Aspects of this case involving DNA evidence, the possibility of innocent prisoners on death row and arguments against the death penalty all need to be addressed in such cases, said law school professor Richard Garnett.”We shouldn’t think that because now we can do DNA testing that in every case there’s going to be DNA evidence that exonerates the defendant,” Garnett said.Garnett cited two potential problems for people who think DNA evidence will help exonerate those on death row – a lack of available DNA evidence and the fact that “in most cases, DNA evidence will determine guilt.””People have to be careful about thinking all these guys are innocent,” Garnett said. “They’re not.”Law school professor Jay Tidmarsh agreed with Garnett about the guilt-determining factor of DNA evidence.”DNA evidence is as useful to obtain convictions as to not,” Tidmarsh said. “It certainly is a great tool in cases with physical evidence we know was left by people.”Both Garnett and Tidmarsh said conclusive DNA evidence can make it more acceptable to sentence a prisoner to death, meaning those who oppose the death penalty should be cautious about using the innocence argument to back their opinion.”If DNA evidence becomes more and more common, it could put to rest some people on the death penalty,” Garnett said.Tidmarsh also said the innocence argument doesn’t necessarily hold weight in the U.S. judicial system, even with conclusive DNA evidence proving the innocence.”One of the most bizarre things in our system is that you don’t have the right to be let out of jail just because you’re innocent,” Tidmarsh said. “As long as it was fair, it doesn’t really matter if it was erroneous.”The most striking example of this occurred in the 1993 case, Herrera v. Collins, where Leonel Torres Herrera was convicted of the murder of a police officer based on two eyewitness identifications, numerous pieces of circumstantial evidence and the verification of Herrara’s handwriting on a letter. He was sentenced to death in January 1982. Even though Herrera’s brother confessed to the crime after the trial, the Supreme Court upheld the original death sentence, according to the Death Penalty Information Center (DPIC) Web site.”The Court held that, in the absence of other constitutional violations, new evidence of innocence is no reason for federal courts to order a new trial,” the Web site said. “The Court also held that an innocent inmate could seek to prevent his execution through the clemency process, which, historically, has been the ‘fail safe’ in our justice system.”Although Herrera sought clemency, it was not granted. He was executed later that year.However, in recent years, the number of those sentenced to death row that have received clemency has grown.States officials have granted clemency to 228 death row inmates since 1976, including six from Lovitt’s home state of Virginia.Illinois Governor George Ryan was responsible for the bulk of the clemency grants, commuting the death sentences of 167 inmates on the state’s death row. Ryan’s reasoning was flaws in the system that led to the inmates’ convictions.In addition to those who have received clemency, over 115 people have been released from death row after being found innocent since 1973, the DPIC Web site said.Regarding the issue of the destruction of evidence, such as what occurred in Lovitt’s case, Tidmarsh said that is a different issue.”The destruction of evidence creates other problems because it eliminates the possibility of more sophisticated DNA evidence in the future,” he said.However, he made the point that the state isn’t expected to keep the evidence forever.”At some point in virtually every case, they throw out the evidence,” Tidmarsh said. “But you would hope in a case like this they would keep the evidence until after the execution.”Neither Garnett nor Tidmarsh thought the U.S. death penalty system or public opinion would change drastically in the near future.”In the short term, I think very little will change,” Tidmarsh said.Tidmarsh believes the Supreme Court has shown signs of changing opinion regarding capital punishment, however, by being more active, listening to international opinion and tackling the issue of the death penalty for juveniles or those with mental retardation.”Over the long term, I don’t think DNA evidence is going to move public opinion to an extent where [the death penalty] is abolished,” Garnett said.He also acknowledged the possibility for error in the U.S. judicial system.”The decision about who gets the death penalty – we give that to juries,” Garnett said, “If we’re going to do that, we have to accept the fact that they’re normal people, using their moral judgment.”