Tales of journey from death row to freedom

Conference put on by death-penalty critics intended to raise question: How many innocents are being executed?

It's the little noises in everyday life that remind Jay Smith he wasn't always a free man - that he spent six years on Pennsylvania's death row, just one failed legal appeal away from receiving a lethal injection.

It's the jangling of car keys that reminds him of the haunting moments before a squadron of guards, in combat boots and riot shields, barreled into his cell and hustled him off to "Phase 2" - the holding pen for the death chamber.

It's the snap of a broken pencil that reminds this former high school principal of the days he spent pleading with guards to sharpen his pencil, the one writing instrument he was allowed to have.

Mr. Smith got his freedom back in 1992, after the state's top court ruled that the prosecutor hid evidence and lied to the jury to convict him.

He is one of 75 Americans who've been set free from death row since 1976. Many told their stories this weekend at a Chicago gathering organized by death-penalty critics.

With public support for the death penalty steadfast - and with the number of executions rising - organizers hope the tales will force the public to confront the possibilities of the ultimate injustice: innocent people being put to death.

The numbers

The numbers are startling. Since the death penalty was reinstated in 1976, nearly 500 people have been put to death. For every seven of those, one death-row inmate has been exonerated and set free.

In one-third of the cases, it was false testimony that secured the convictions - often by jailhouse informants. Other causes are faulty eyewitness identifications and coerced confessions, according to a recent study by Hugo Bedeau of Tufts University in Medford, Mass., and Michael Radelet of the University of Florida.

"Police and prosecutors want convictions, not justice," says Gary Gauger, an Illinois organic farmer who was sent to death row in 1993 after being convicted of killing his parents.

Sitting in a sun-soaked conference room at Northwestern University's law school, Mr. Gauger strokes his brown beard with dirt-edged fingers and says softly that, in his case, investigators "played the percentages." They assumed that he - as a family member who was at home when his parents were killed - must have committed the crime.

During a 21-hour interrogation, Gauger made statements that police took as a confession. Despite what looked like a lack of physical evidence, he was sentenced to die. He was released only when a federal wiretap caught two members of a biker gang bragging about committing the murders. Both are now headed to trial.

Gauger, meanwhile, has gone back to farming leeks, potatoes, and beets. He's suing the local law-enforcement agency that investigated the case but says he's not entirely disillusioned. In fact, he's heartened by the conference. "The justice system is evolving right here," he says.

The biggest reason for the number of people being exonerated is improvements in DNA testing. To date, 56 people - including 11 on death row - have been set free with the help of the technology.

Many of the cases have been handled by The Innocence Project, a New York-based group co-founded by former O.J. Simpson attorney Barry Scheck. "In many ways it's a magic bullet," he says.

The major hurdles to DNA testing, Mr. Scheck says, are laws that prohibit introduction of new evidence - laws that have tightened as pro-death-penalty groups have tried to limit lengthy appeals - and the destruction or loss of evidence. Currently as much as 70 percent of key DNA evidence is lost or destroyed, he says. And it can be worth preserving: In one case in Canada, DNA helped confirm a convicted man's innocence 28 years after the crime.

In Kirk Bloodsworth's case, DNA alone led to exoneration. This blond, burly former marine was put on Maryland's death row in 1984 for the rape and murder of a young girl - based largely on an eyewitness identification. But a 1993 DNA test indicated Mr. Bloodsworth wasn't at the scene. He was released.

As for laws allowing more appeals, that's exactly what death-penalty proponents want to avoid. "Appeals already go on for 10 to 15 years," says Michael Rushford, president of the Criminal Justice Legal Foundation in Sacramento, Calif.

"In the field of human endeavor, where perfection is elusive, how long do we want the appeals to go on?" he asks. "Death-penalty critics would say forever."

But the truth can be slow to come out. More than a decade after being sent to Florida's death row in 1963, Freddie Pitts and Wilbert Lee were pardoned by the governor. Mr. Lee says they were convicted "by a kangaroo court by a bunch of rednecks" because they are black. They each got $500,000 from the state in restitution.

Mr. Smith goes to jail

Smith, the former Pennsylvania high school principal accused of killing a fellow teacher and her children, was ready for a long fight to prove his innocence.

Inside his 8-foot-by-9-foot cell - not far from celebrated death-row journalist Mumia Abu-Jamal - he had a regimen for mental and physical exercise. His "stairmaster" was a pile of five books - the ones he was allowed to keep in his cell. And he wrote often, usually legal briefs, halted only by his pencil going dull or breaking.

One time, after he argued with a guard about sharpening the pencil, he says the man intentionally dropped a piece of bread just outside his cell. That night roaches converged on the bread and then moved into his cell.

Then, in an act that he calls "divine intervention," a police detective who had worked on the case called a junk man to clean out his house. The junk man found reams of papers and other evidence that led to Smith's exoneration. No officials have been reprimanded in the case, although Smith has civil suits pending.

After being quiet since his release, the bespectacled man with small, intense eyes says he's girding to take on death-penalty proponents, especially those who use the Bible to defend the practice.

"All things work together for good," he says, quoting the Bible and talking about his experience. And, grounded in biblical teachings, this man who holds a doctorate in education says he'll be setting out to persuade people that the "death penalty is contrary to any idea of love and life."

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