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The “Post Mortem” campaign is aimed at exploring the potential innocence of a number of people among the 1536 executed in the US since 1977. The campaign is based on creating a case repository that will be made available to journalists, academics, documentary makers, podcasters and drama producers so that these stories can be more widely told, and these men and women finally get the hearing in the court of public opinion that they were denied in the courts of law.
Our initial goal was to make 8-10 documentaries about strongly credible cases of innocence where the individual has been executed in the US since the reintroduction of the death penalty in 1977.
But such has been the interest in this campaign, and due to the extraordinary commitment of the law firm Greenberg Traurig, we currently have 110 lawyers working pro bono (without charge) across 206 potential innocence cases. Some of these are notorious for suspicions of wrongful conviction, and in roughly 140 cases, the prisoner claimed innocence in their final statement before death. While this is not proof positive, the law has long recognised a dying declaration as presumptively reliable.
Using rigorous criteria, a number of cases were eliminated in the first pass through – which involved a fairly thorough evaluation of the facts in memoranda averaging 7,000 words. But surprisingly this still left 185 cases that progressed to the fourth stage of the project, where a full collection of records and interviews with some witnesses is required. This is where we are today.
In the 2006 case, Kansas v. March, the late U.S. Supreme Court Justice Antonin Scalia loudly proclaimed that there is not “a single case — not one — in which it is clear that a person was executed for a crime he did not commit.”
There is a circularity to this statement. In Herrera v. Collins, Justice Scalia opined that
“there is no basis […] for finding in the Constitution a right to demand judicial consideration of newly discovered evidence of innocence brought forward after conviction.”
What he meant in plain English was that the Supreme Court should not stop an execution merely because someone was innocent. This remains the law today, which makes it particularly difficult to prove that a prisoner did not commit the crime once the jurors have made their original mistake.
Thus, for example, in the case of Kris Maharaj, the British man sentenced to death for a crime he did not commit in Miami in 1986, the government argued in federal court: “Claims of actual innocence based on newly discovered evidence, have never been held to state a ground for federal habeas relief.” In other words, the prisoner has no true opportunity to prove innocence, even if he has the tools to do so, when he is still alive.
When the prisoner is dead, there are even fewer resources, and no forum: a court may rule that the issue is moot, and therefore those who continue to dispute the prisoner’s guilt cannot continue to litigate the case to get access, for example, to material for DNA testing.
The notion that there have been no innocent people among those executed is improbable. Since the U.S. resumed executions in 1977, 185 people have been exonerated off death row – one for every eight people executed. At each of these 185 trials, twelve jurors were convinced beyond a reasonable doubt of their decision; so sure that they imposed death. Yet we are meant to believe that somehow they got it right every time someone got through to the Chamber? This is no more likely than wishful thinking.
In the end, this project will stand on the thoroughness of the investigation. It seems likely that some victims of the death chamber will be exonerated beyond reasonable doubt.
Clive leads the team working on this research and is assisted by two volunteer project managers: Curtis Large & Claire Neil. They coordinate with our partners at the Clinton Young Foundation and pro bono lawyers from law firm Greenberg Traurig