Forum describes problems with death penalty’s implementation

By Louise Reid Ritchie

In 1985, Florida was scheduled to execute James Agan for the first-degree stabbing-death murder of an inmate in a prison where Agan already was serving a life sentence for murder.

Agan had been sentenced to death after pleading guilty to deliberately stabbing to death a fellow inmate in 1980. He said that if he got a life sentence for that crime, he would kill the murdered inmate’s partner. Agan also said that he wished that the inmate who was murdered had died slower so that Agan could have tortured him. For many, Agan would seem to be a poster child for why the death penalty is needed.

But he actually is an example of what is wrong with the death penalty, attorneys Gale Anderson and Marty McClain told more than 100 people at a November 20 forum on the death penalty. Agan was almost executed for a crime that he confessed to, but didn’t do. This “illustrates the number of ways that the system can go wrong because it is run by human beings,” said Anderson, an attorney for death row inmates.

Agan’s trial lawyer had been so convinced of his client’s guilt that the lawyer spent only 15 hours working on the case. Agan’s obviously inadequate defense caused the Florida Supreme Court to say that he could not be executed without having a defense lawyer. The Legislature was called into special session, and that created the office of Capital Collateral Representation (CCR), a group of lawyers whose job was to represent inmates on death row.

CCR research found that Agan – who had had more than 80 electroshock treatments for psychoses dating back to the 1950s – could not have committed the crime that he almost was executed for. Indeed, the CCR lawyers found that before dying, the victim had written that two inmates – neither of which were Agan – had been threatening his life. In what Anderson described as a lucky break, CCR lawyers found in the prison investigator’s files information about a witness who had seen the murder and said that Agan did not do it.

“We don’t have God looking into people’s hearts and saying who deserves the death penalty and who does not. What we have is a government program. . . .,” said McClain, who had represented Frank Lee Anderson, who was exonerated by DNA evidence after dying on death row. “Because it is a government program, mistakes happen.” Florida has had more people on death row who were ultimately found to be innocent than has any other state, said Michael Minerva, a member of the American Bar Association team that researched how Florida’s death penalty has worked. Since 1976, when the U.S. Supreme Court allowed states to reinstitute capital punishment, there have been 22 inmates exonerated in Florida, and those don’t include people like Agan who were already serving sentences for prior convictions. Nationwide, during the same period, 100 death row inmates have been exonerated.

Due to the evidence that race, geography, wealth, and even personal politics can be factors at every stage of a capital case, the American Bar Association is calling for a moratorium on its use. Larry Spaulding of the American Civil Liberties Union told the forum that “We’re not going to abolish [the death penalty] in our lifetime, but we keep chipping away. We show more and more people the problems with the death penalty.”