LETTERS: COLUMNIST ACCEPTS A FLAWED STUDY

To the editor:

This refers to David Broder's June 18 column, "Capital punishment is a broken system," concerning a study by a Columbia University law professor and others which found that serious errors occurred in 68 percent of the death-sentence cases tried from 1973 to 1995.

In The Wall Street Journal of June 16, Paul G. Cassell, a law professor at the University of Utah, takes issue with the Columbia University report. Most of the information in this paragraph and the next two is from the Cassell article. In the 1970s and 1980s the U.S. Supreme Court made a great number of decisions setting procedures for death cases. In 1972 the court struck down all capital sentences in the country as involving too much discretion. A 1995 study found that the reversal rates have declined sharply as the law has settled. About half of California's 87 percent error rate was due to that state's chief justice, Rose Bird, who was firmly opposed to any death sentence and was able to find error in nearly all such cases. Since she has been turned out of office, the errors found by that court decreased remarkably.

Cassell points to outright falsehoods in the Columbia University report and states "there is no credible example of any innocent persons being executed under the modern death-penalty system." On the contrary, innocent people have died because of failure to execute murderers.

Coleen Reed, among many others, deserves to be remembered in any discussion of our error rates. She was kidnapped, raped, tortured and finally murdered by Kenneth McDuff during the Christmas holidays in 1991. She would be alive today if McDuff has not narrowly escaped execution three times for two 1966 murders. His life was spared when the Supreme Court set aside death penalties in 1972, and he was paroled in 1989 because of prison overcrowding in Texas. After McDuff's release, Reed and at least eight other women died at his hands. Gov. George W. Bush approved McDuff's execution in 1998.

I was prosecuting attorney of Cape Girardeau County 50 years ago. In two murder cases I told the jury the death penalty was an option. The juries did not vote for death. In retrospect, I think those jurors were right. Of course, the rules were much different then from those of today. I agree with Morley Swingle, our current prosecutor, that the Columbia University report does not accurately reflect the error record since the adoption of the present-day procedures in death cases. As Mr. Swingle says, the death penalty is reserved for the most aggravated of cases.

Mr. Broder's column is another example of a columnist who has no real background or information on a particular subject but will swallow whole any study that appears to confirm the columnist's beliefs. Mark Twain said, "There are little white lies, big black lies, and then there are statistics, and those are the worst." The statistics of the study, when rightly viewed, do not show that capital punishment is a broken system. In capital cases, the defendant gets more than due process. He receives more protective procedures than any other defendant.

I practiced law for 54 years after service as an FBI agent for six year, and I retired from the firm of Vogel, Layton and Lewis on April 28.

RAYMOND H. VOGEL

Cape Girardeau