WASHINGTON (APBnews.com) -- A committee that will wrestle with the mechanics of the death penalty in America includes the lawyer who won a death sentence against Oklahoma City bomber Timothy McVeigh, a mother who watched as the killer of her daughter was executed and a syndicated advice columnist.
They are part of a 23-member panel that will try to determine if death sentences are being administered fairly and, if not, what's wrong and how it can be fixed.
The heavyweight panel is called the National Committee to Prevent Wrongful Executions and is the brainchild of the Constitution Project, a Washington-based nonprofit group that studies constitutional issues. Virginia Sloan, the executive director, said her organization chose to create a "bipartisan" panel that includes experts for and against the death penalty.
The panel includes Ann Landers, the syndicated advice columnist; former FBI Director William Sessions; Charles Ruff, a former White House counsel; Mario Cuomo, a former governor of New York; Charles Gruber, former president of the International Association of Chiefs of Police; and Beth Wilkinson, a prosecutor in the Oklahoma City bombing case.
Paula Kurland, a victims' rights advocate who watched the killer of her daughter executed in Texas, has signed on.
"We tried to find out who the experts are out there, the people who have looked closely at this issue to bring in their experience or have some ability to communicate a message," Sloan said.
Mission: to identify problem areas
Several of the committee members say there are serious problems with capital punishment in the United States, where 637 people had been executed since 1976.
They have cited cases of incompetent lawyers, testimony from jailhouse snitches, faulty identification from witnesses and the new laws aimed at speeding up the appeals process to get the condemned to the death house quicker.
"I think it's a very flawed system," said Charles Baird, a former Texas Criminal Court of Appeals judge. "The sooner people recognize that and work to correct it, the better."
Baird stated that the judicial system is subject to all "human frailties, including bias, mistakes and dishonesty."
"There are enough issues where we ought to be very concerned: whether we are a society that is executing individuals who should not be executed, are not guilty or are being deprived of due process," Baird said. "The process should be all what we expect it to be before we take anyone's life."
In addition, two prominent members of the panel, former federal prosecutor Beth Wilkinson and Gerald Kogan, the former chief justice of the Florida Supreme Court, also say they have concerns about some aspects of the death penalty system.
McVeigh prosecutor: system 'not working'
Wilkinson, who won a death sentence against Oklahoma City federal building bomber Timothy McVeigh, said she is primarily concerned about people facing the death penalty not getting adequate counsel.
"I believe that, currently, the system in some jurisdictions is not working as well as it should and that there are reforms that need to be implemented," Wilkinson said.
Wilkinson, now in private practice, said she still believes there is a place for the death penalty in criminal justice -- especially in cases of premeditated murder. After reading about cases of wrongful convictions in Illinois, however, and poor defendants not having access to top-flight lawyers, she believes there are "problems" in some states.
Wilkinson did not provide any specific examples. She said the work of the committee will be to review death penalty cases, determine any errors and what caused them and then make systematic and practical suggestions for reform.
'High probability' of wrongful executions
Kogan, who will chair the committee, goes a step further, believing there is a "high probability" that some innocent people have been executed.
"It is time for us to rethink the death penalty for many reasons," Kogan said. "The cost, the uses of resources and, more importantly, the high probability that over the years we have in fact executed innocent people."
Kogan, who was also a chief homicide prosecutor, trial judge, defense lawyer and served on the Florida Supreme Court from 1987 to 1998, said he is bothered by the possibility of witness misidentification; incompetent defense attorneys; overzealous police and prosecutors; and deals made to elicit testimony from jailhouse snitches and co-defendants.
During his tenure on Florida's highest court, Kogan said the panel affirmed 28 death sentences. He declined to say whether he had any second thoughts on any of these cases or to cite any specific examples of persons wrongfully convicted.
"Those I signed on and approved, I have no problem with," Kogan told APBnews.com.
Kogan said he is still in favor of the death penalty in some cases.
Assault on death penalty
With 38 states having death penalty statutes on the books and more than 3,670 convicted killers awaiting execution, a full-scale assault on capital punishment is underway -- along with increasing scrutiny as to how and why death sentences are handed out.
Most local anti-death penalty coalitions have Web sites trumpeting cases of what they believe are wrongful or questionable convictions of men and women on death row in their individual states. Anti-death penalty forces are trying to put moratoriums on executions in their states until the fairness of capital punishment can be studied.
Accounts of condemned men found innocent through the use of DNA evidence have been widely publicized. In Illinois, Gov. George Ryan placed a moratorium on executions because of what he called the high number of wrongful convictions and releases. A study of the capital punishment system in Illinois is now underway.
In New Hampshire, the state came close to becoming the first state to abolish the death penalty since 1976, when the U.S. Supreme Court ruled it was legal. State lawmakers passed a bill to abolish capital punishment, but Gov. Jeanne Shaheen vetoed it. New Hampshire has yet to execute anyone since reinstating its death penalty in 1991 and has nobody on death row.
'We're human in Texas'
In Texas, where 217 convicted murderers have been executed since the death penalty was reinstated, several members of the Board of Pardons and Paroles raised eyebrows when they expressed doubts about Gov. George W. Bush's claim that every person executed in his state was guilty. In May alone, Texas executed seven convicted murders. There are even groups promoting an international tourist boycott in the state as a result of criticisms of the high number of executions.
But Kurland, who in 1998 witnessed the execution of Jonathan Nobles, who had murdered her daughter, becomes angry when critics call the Texas criminal justice system barbaric. She still is a strong supporter of the death penalty.
"We're human in Texas, we are not barbaric," Kurland said. "We're not out to just kill people. That isn't the purpose of the death penalty. For a person to get the death penalty in the state of Texas, they have to do something really very, very bad. They are not there because they slapped somebody's wrist. I mean, the death penalty offenses are the worst of crimes, and not everyone that is sentenced to death in any state is innocent."
Kurland said Nobles was guilty of murdering her daughter, Mitzi, and deserved death. Kurland met Nobles before he was executed. The killer convinced Kurland that he was remorseful for the murders and accepted his punishment.
"He was guilty beyond a doubt," Kurland said. "He murdered two people and almost murdered a third. He was a rapist. You know, he was not a nice person."
Kurland believes that part of the reason for the high number of executions in Texas and the fact that 457 others now sit on death row waiting to die is the fact that her state has no life sentence without parole. So, Kurland said, juries often choose death over life in prison when deciding a convicted killer's fate.
She believes if juries were better educated in Texas and life in prison without parole was guaranteed, the number of death sentences would drop.
But the attacks on the way the death penalty is administered are not limited to the state level.
Seeking guarantees on federal level
Sen. Patrick Leahy, D-Vt., announced in February that he was sponsoring federal laws that would prevent the courts from blocking DNA testing of convicted felons based on deadline rules and would improve the quality of lawyers for indigent suspects facing a death sentence.
Leahy, citing the number of people sentenced to death in Illinois and later found innocent or not guilty after appeals and DNA evidence, called wrongful convictions a "national crisis."
"The American people are entitled to expect something better from their government than 'whoops, we executed the wrong guy,'" Leahy said. But some prosecutors don't like the idea of the federal government butting in.
"We want to see the right people in jail," said Harris County, Texas,
District Attorney John Holmes, which has the highest number of death sentences handed down in the nation. "We don't need an act of Congress to tell us that it is not the case."
Poll shows drop in support
A February Gallup Poll reported that 66 percent of Americans still favor the death penalty -- but support for capital punishment is at its lowest level in 19 years. Most of those who said they favored the death penalty also believe that, occasionally, innocent people are condemned to die.
The poll also reported that when life imprisonment is given as an explicit alternative to the death penalty, the percentage of people favoring a death sentence drops to about 52 percent.
In 1994, 80 percent of Americans favored the death penalty in murder cases, a Gallup Poll found.
Statistics on innocence skewered
But not everyone believes the death penalty system is a rat's nest of mistakes and wrongful convictions.
Justice for All, a Texas-based criminal justice reform group, has constantly attacked such claims by anti-death penalty forces and the media that since 1976 87 people on death row have been set free because of newly discovered evidence or that one person for every seven executed.
Dudley Sharp, vice president of the group, said no distinction is being made between those found "factually innocent" and "legal innocence."
Justice for All says that the actual number of condemned prisoners sentenced to death and later found factually innocent is between 25 to 40 people.
"That is approximately 0.5 percent of the 6,700 sentenced to death since that time and all of those alleged innocents have been taken off death row," the group states. "A remarkable record of accuracy."
Sharp disputes claims by Kogan that the number of wrongful convictions are a "national crisis." He said that the committee does not have a single "knowledgeable pro-death penalty person."
"Nobody wants innocents sentenced to death," Sharp said. "It is about the systems ability to locate them. So far, the evidence shows that they have all been removed from death row."
Poor legal maneuvering to blame?
While dramatic cases of DNA evidence clearing death row inmates have grabbed headlines, criminal defense lawyers and anti-death penalty groups believe that the main reason for the bulging death rows, in some cases, is simple: incompetent or inexperienced lawyers representing those charged with capital offenses.
"If you are concerned about fairness, the fundamental ingredient is competent counsel," said Stephen Bright, a Yale Law School professor and director of the Southern Center for Human Rights. "If you're going to have an adversarial system as we do, there has to be one. We are pretending now."
"Hodgepodge" is the phrase Bright uses to describe the systems in place in many states to provide lawyers to the poor in criminal cases, including those involving the death penalty.
Scott Wallace, the executive director of the National Legal Aid and Defender Association, said states have a wide range of public defender systems -- from none at all to minimal and to taxpayer funded public defender systems to represent the poor in criminal cases. About 20 states have taxpayer funded public defender systems, he said.
Texas criticized
But in Texas, the execution capital of the Western world, elected judges appoint lawyers to represent indigent defendants -- and that could be deadly in a capital case if the lawyer's only claim to fame is that he or she is a political crony who is a friend of the judge, critics charge.
The appointment system in Texas has come under constant criticism in studies by lawyers. Ugly stories of two appointed lawyers falling asleep at capital murder trials and lawyers with limited experience taking on death penalty cases have fueled the rage of anti-death penalty advocates.
Texas' Baird has frequently cited two cases in which the Texas Court of Criminal Appeals -- despite the fact that attorneys for the condemned men had fallen asleep during a portion of the trials -- affirmed death sentences. One of these cases was later overturned at the federal level and the other is still under appeal, Baird said.
'You're viewed as soft on crime'
Bright, an outspoken critic of the indigent defense system in the United States, said it isn't even a system of defense for the poor.
"You look at places that have a lot of death sentences, like Texas, Mississippi, Georgia and Alabama, those states have nothing," Bright said.
"You have counties that put out public defender systems out on low bid contracts, other counties appoint lawyers and pay them a token amount. Some so-called public defenders don't even have a staff to back them up.
"There is no constituency for a public defender system. The president can run around and say we need 100,000 police officers, have to be tough on crime and more money for law enforcement. In many cases if you say you want to provide more money for public defenders, you're viewed as soft on crime."
Sloan, of the Constitution Center, said that the newly formed committee would get help with its research work from some of the largest law firms in the country. She said the initial plan is to research several years of death penalty cases that occurred after 1996 -- when a new law went into affect restricting the number of habeas corpus appeals.
Kogan added that only by reviewing the cases would the committee be able to determine if longtime and constant critics of the death penalty are right.
Robert Anthony Phillips is an APBnews.com staff writer
(Robert.Phillips@apbnews.com).