JURIST Guest Columnist Brandon L. Garrett, of the University of Virginia School of Law, discusses Governor Tom Wolf’s death penalty moratorium …

Is declaring a “time out” to the death penalty in Pennsylvania an abuse of the governor’s power “ignoring duly enacted law,” as prosecutors have claimed, or is it a much needed opportunity to step back?

Even a years-long moratorium would be a blink of the eye compared to what Nick Yarris endured before he was exonerated by DNA tests in 2004, after 21 years on Pennsylvania’s death row. Now Yarris is part of the reason why Pennsylvania Governor Tom Wolf announced a death penalty “time out” in Pennsylvania, which has the fifth largest death row in the nation. In reaching his decision Wolf concluded: “Pennsylvania’s system is riddled with flaws, making it error prone, expensive, and anything but infallible.”

Yarris’ case shows just how much can go wrong in a high-stakes murder investigation. His case was not initially treated as part of a death penalty “system.” He was arrested by local police after being pulled over. The incident turned south when he got into an altercation with the officer. In lockup he read in the newspaper about a serious rape and murder investigation and made a misguided offer to assist the local police. Detectives proceeded to interrogate Yarris and without recording the initial conversation, they later asserted without any notes or documentation, that he had offered two key details about the murder that had never been made public. He supposedly volunteered that the victim had been raped and that her Chrysler Cordoba had a brown “landau” (or fake convertible) roof.

The police also located eyewitnesses. They did not initially identify Yarris at lineups and described someone who looked different. Yet at trial they said they thought they saw Yarris at the shopping mall where the victim was abducted on the day of the crime. The potential malleability and unreliability of eyewitness memory is set out in detail in a landmark new National Academy of Sciences report [PDF] (by a committee which I should note I participated in). The police also tried to bolster their case by tracking down a jailhouse informant who claimed Yarris had bragged about the shaky eyewitness evidence in the case (and the inconclusive forensics), making the weakness of the prosecution’s case all seem like a sinister plan. I describe this troubling testimony in my book, “Convicting the Innocent.”

It was not an even fight at trial. Yarris had a lone defense lawyer (today two lawyers, plus investigative and expert resources are recommended for death penalty trials). The lawyer was privately retained—for just $1,500—and the trial judge refused the defense much needed experts to explain, for example, why someone like Yarris might falsely confess or why he posed no danger justifying a death sentence.

Yet the prosecution’s house of cards fell apart decades later when a DNA test was finally obtained. Yarris’ civil rights case later settled in the millions.

The problems that sent Yarris to death row persist in Pennsylvania to this day. There is still no statewide requirement that entire interrogations be electronically recorded to prevent contamination by law enforcement. (This despite how failure to record may lead to prosecution losses more often than wrongful convictions). There are no state guidelines on interrogating the mentally ill or intellectually disabled. There are no state requirements that best practices for lineups, like those recommended by the National Academy of Sciences, be adopted. Indeed the Pennsylvania Supreme Court just ruled [PDF] that expert testimony on such false confessions is not admissible (although approving experts on eyewitness memory).

An American Bar Association report [PDF] in 2007 found still additional systemic problems in Pennsylvania. It takes special expertise and resources to handle a death penalty case. But in Pennsylvania there is no statewide authority to ensure adequate death penalty lawyers are appointed. Each county handles indigent defense on its own, with predictable failures to provide a sound defense. In addition racial disparity has not been studied; the governor noted data is simply not being collected. The governor should be applauded for allowing a bipartisan Task Force and Advisory Committee (chaired by Senators Daylin Leach and Stewart Greenleaf) to carefully study the problem without looming execution dates interrupting their work.

There is no rush. It took more than 20 years to uncover Yarris’ innocence. Although many complain of protracted litigation delays in capital cases, that same litigation has exonerated those facing the nightmare of a wrongful execution. As more states have stepped back from the death penalty and others have become deadlocked in litigation over secret drug protocols and botched executions, it is refreshing to see calmer heads prevail in Pennsylvania.

Until criminal investigations and capital litigation are fixed on the ground, we cannot place upon them the exorbitant weight of a death sentence. And until that day comes, in Pennsylvania and in each of the other remaining death penalty states, we need to give the death penalty a time out.

Brandon L. Garrett received his JD from Columbia University School of Law and is currently a law professor at the University of Virginia School of Law. He is the author of “Convicting the Innocent” and “Too Big to Jail: How Prosecutors Compromise With Corporations.”

Suggested citation: Brandon L. Garrett, A Time Out for the Death Penalty, JURIST – Academic Commentary, Feb. 21, 2015,http://jurist.org/academic/2015/02/brandon-garrett-death-penalty.php