Boston Globe

DAs rap governor's death penalty plan
By Jonathan Saltzman, Boston Globe Staff  
May 4, 2004

Several district attorneys criticized Governor Mitt Romney's proposal to establish what he insisted would be a nearly foolproof death penalty system, with the prosecutors saying yesterday that the troubled state medical examiner's office and State Police crime laboratory can barely carry out current responsibilities, let alone make sure that innocent people don't end up on death row.

The Suffolk, Norfolk, Middlesex, Essex, and Barnstable district attorneys also cited many other concerns, including the high cost of prosecuting death penalty cases, the wisdom of adopting a higher standard of proof for such cases, and the potential for human error no matter how much scientific evidence is gathered.

The prosecutors spoke after an 11-member commission appointed by Romney released its report yesterday on how Massachusetts can devise a death-penalty system that uses DNA technology and other state-of-the-art scientific methods to prove guilt in capital cases and avoid wrongful convictions. (Read the commission's full report here.) At a State House press conference, the panel of lawyers, law enforcement officials and forensic scientists discussed a system that would be as nearly infallible as humanly possible. The plan calls for upgrading standards of crime laboratories, medical examiners, and other specialists who gather and analyze evidence.

But Norfolk District Attorney William R. Keating said it is ridiculous for the state to consider giving the medical examiner's office and crime lab the added task of analyzing scientific evidence in death penalty cases. Both offices have struggled with crushing backlogs, Keating said, with delays of several months in getting scientific analyses for criminal cases.

The medical examiner's office has also been criticized in recent months for sending the wrong set of eyes out for testing during an autopsy and misidentifying a fire victim's body, which was later cremated.

"Look at what's happening in the medical examiner's office," said Keating, a Democrat who consistently opposed the death penalty as a state legislator for 22 years. "And now they're proposing a new, independent, scientific review system, for a handful of [death penalty] cases that might make it that far?"

Barnstable District Attorney Michael O'Keefe, a Republican, credited Romney with tying the possible reintroduction of the death penalty to cutting-edge science. But he, too, said the governor should instead bring the medical examiner's office and state police lab into the 21st century, before adding responsibilities.

"Let's fix what's wrong first," said O'Keefe. "We're significantly behind in the Commonwealth in the delivery of forensic services, relative to other jurisdictions."

Shawn Feddeman, a spokeswoman for Romney, said that because the death penalty would be applied to a "narrow subsection of first-degree murders," such as those that involve torture or the deaths of law enforcement officials, the added workload for the medical examiner's office and police lab would be manageable.

She also said that Romney recognizes that both offices were underfunded and has proposed increasing their budgets.

The prosecutors raised other financial concerns, as well. Citing the experience of others states with capital punishment, including Texas and Idaho, Keating estimated that it would cost Massachusetts at least $5 million to prosecute someone in a death penalty case, because of the added costs of a review by a death penalty commission, a separate sentencing phase, and appeals. He estimated that prosecuting someone for first-degree murder and incarcerating for life would now cost the state about $1 million.

Keating, whose office handles about 19,000 criminal complaints a year, said the cost of prosecuting one death penalty case would be almost as much as his entire annual budget of $6.8 million.

Some prosecutors said the release of wrongfully convicted people from prisons across the country, including eight such cases in Suffolk County since 1997, suggest that it is impossible to protect the innocent from execution.

Suffolk District Attorney Daniel F. Conley, a Democrat, said the release of four wrongly convicted or indicted inmates since he took the job in 2002 "has simply convinced me that while technology like DNA is critical in determining one's guilt or innocence, the administration of justice is a human endeavor, and we're all fallible."

Middlesex District Attorney Martha Coakley, also a Democrat, who formerly supported the death penalty under limited circumstances but no longer does, said she was troubled by the commission's proposal to create a heightened burden of guilt in the sentencing phase of cases.

At sentencing, 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. "You're creating two burdens of proof," she said, which raises potential constitutional questions.

Other district attorneys were more receptive. Plymouth District Attorney Timothy J. Cruz, a Republican and one of the 11 members of the gubernatorial panel, said that prosecuting death penalty cases would undoubtedly be costly, but that the state could afford it, because the punishment would be reserved for "the worst of the worst."

He said he would be shocked if the cost of prosecuting each case totaled $5 million, as Keating had estimated.

Worcester District Attorney John J. Conte, a Democrat, strongly supports the death penalty, but said wanted to study the panel's recommendations before commenting, said his spokewoman.

Death Penalty Issues
Truth in Justice