US milestone: 100th death-row inmate exonerated

Activists cite latest mistake to build their case for a death-penalty moratorium.

Like so many of the innocent people freed from death row, Ray Krone says he isn't bitter. He just wants to make up for lost time. So it was that, on his first day out of prison in 10-1/2 years, this former mail carrier spent his time feasting on steak and floating in a hotel swimming pool in Phoenix.

His story probably would've been confined to the local Arizona newspapers, if it weren't for the fact that Mr. Krone is a milestone in the battle over capital punishment. He is the 100th former death-row prisoner to be exonerated since 1973, when the Supreme Court found the death penalty unconstitutional. (The death penalty was reinstated in 1976.)

His case is a powerful reminder that there are grave problems with this ultimate punishment – and his case has renewed calls by civil rights activists for a moratorium on the death penalty.

"This is a system broken beyond repair," says David Elliot, with the National Coalition to Abolish the Death Penalty. "There's nothing magic about the number 100, but it'is a good opportunity to convey to the public the extent of the problem."

Since 1976, 767 people have been put to death, says Mr. Elliot. And with 100 exonerations of death-row inmates in the past 25 years, he says he can only conclude that innocents have been executed.

Indeed, polls do suggest public attitudes are influenced by these exonerations – particularly since DNA testing became a tool to prove innocence, or guilt, conclusively. Though a majority of Americans still support the death penalty in murder cases, the Gallup Poll shows that support dropped from an all-time high of 80 percent in 1994 to 67 percent in 2001.

Still, death-penalty advocates argue that capital punishment is needed. "Yes, there are innocent people and the system has to be vigilant about that. But that's why we have the extraordinarily time-consuming appeals system," says Joshua Marquis, an Oregon prosecutor on the board of the National District Attorneys Association.

"The reason these people want to say that there are 100 people who are innocent is that they want to make it sound like an epidemic," he says. "There are far more people who are guilty than people who are wrongfully convicted. I'm not saying we should trade one for the other, but the problem is not so extreme that we should shut down the capital-punishment system."

But Krone's attorney, Alan Simpson, sees it up close and personal. "As I sat and talked to Ray, I began to realize that there are 100 guys just like Ray," says the Phoenix defense attorney. "This is a terrific person with a terrific family and, my God, the state almost got to the point of executing him.... This is the face of the wrongfully accused."

Theproblems with Krone's case are similar to those of other exoneration cases. Accused of murdering a cocktail waitress in 1991 – based on what was later determined shoddy investigative work andflimsy forensic evidence – he was convicted and sentenced to death in 1992. On appeal, he was granted a retrial but was convicted sentenced to life in prison. Krone's family rasked for DNA tests. Those tests strongly implicated, Kenneth Phillips, who was already inprison for attempted child molestation.

Maricopa County Attorney Rick Romley said it's almost certain Krone wasn't the killer and that Phillips was.

"[Krone] deserves an apology from us, that's for sure," said Mr. Romley. "What do you say to him? An injustice was done, and we will try to do better. And we're sorry."

But death-penalty foe Sen. Russ Feingold believes there is more the American people can say to Krone.

"We can do more than just talk or apologize," he said. "An apology is the first step. But we can also act. We can act to ensure that not another innocent person faces execution," he said this week.

He's sponsoring the National Death Penalty Moratorium Act, which includes a federal moratorium on capital punishment and a review of the death penalty.

"It is time to recognize the magnitude of the problems plaguing our nation's death-penalty system," says Diann Rust-Tierney, director of the American Civil Liberties Union Capital Punishment Project, which is calling for a nationwide moratorium until problems are adequately addressed.

She wants to address: mistaken or false testimony, prosecutorial misconduct, police misconduct, racial bias, and incompetent lawyers. These are important because DNA testing only works in certain cases.

"If 100 people sentenced to death have been found wrongfully convicted, how many more people don't we know about that aren't lucky enough to have ... DNA to change their fate?" she asks.

SOMETIMES, DNA evidence doesn't come soon enough. Frank Lee Smith, for instance, was convicted of the 1985 rape and murder of an 8-year-old Florida girl. He died in 2000 while still on death row, and was later cleared of these charges through DNA testing.

Five states last year passed legislation banning the execution of the mentally retarded, 17 states enacted laws that provided greater access to DNA testing, and 18 states introduced bills to place a moratorium on executions, though none of those passed. And just this year, Indiana passed a law banning the execution of juveniles under 18.

Reform can't happen soon enough for Gary Gauger, who spent 3-1/2 years on death row in Illinois for the murder of his parents. In 1996, he was exonerated. Upon hearing the news of the 100th exoneration, he said the flaws in the death penalty are a direct reflection on all of us.

"We all have to bear responsibility for this conduct. There's no place for it in a civilized society."

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