Of 14 separate DNA samples, Mann sent 3 for post-conviction testing: the hairs, a rape kit, and fingernail clippings. (Note that Hank Skinner had no fingernail scratches on his body when he was arrested hours after the murders.) The results, withheld by Mann for 7 months: the hairs conclusively excluded Hank Skinner as a donor.

The remaining test results, rape kit and fingernails, and the remaining untested DNA were swiftly yanked back by the DA’s office so they could be scrutinized no further. And while Hank Skinner has been vocal that testing all available DNA will prove actual innocence, the DA’s office refuses him access to it because it will likely exculpate, rather than inculpate, him. David Protess of the Medill Innocence Project has offered for a decade to fund the testing, but the DA is adamant that guilt by judgment reigns over any DNA proof.

The current DA, Lynn Switzer, hides behind legal cover that she has no post-conviction obligation to entertain any likelihood of factual innocence. The reviewing courts have denied all of Skinner’s appeals. Gov. Rick Perry is apathetic.

After the execution in 17 days, Lynn Switzer is free to destroy the DNA.

So back to my original point. Statistics are only as good as the reliability of reportable information. Hank Skinner is likely factually innocent. He certainly was inadvertently factually exonerated by prior DA John Mann when the decisive hair DNA excluded Hank Skinner. But since that was post-conviction, it doesn’t count. And since all such evidence will no doubt disappear upon Hank Skinner’s execution, Skinner’s case, for one, will have no fair opportunity to be archived in the statistics of wrongfully-executed.

On the other side of the balance from the supposed higher standards in death penalty cases (pretrial? trial? really?), death penalty cases involve dead bodies and appeal to jurors’ lizard brains more than most cases. This militates in favor of more wrongful convictions in death penalty cases. Maybe the end result is more false convictions, maybe the end result is fewer, maybe it’s a wash. Who knows?

I’m sure you would look forward to a hearing as much as I would, since the parties could develop some actual evidence. If the case against Willingham can be judged by John Jackson’s defense of it, there’s not much there.

Here’s a thought: a trial court is interested in trial procedure—that’s all the trial court has any control over. If there is a problem with death penalty procedure, the fact that the problem might be corrected on appeal or habeas is no reason for the court to let the procedure stand. The trial judge shouldn’t have to count on an innocent sentenced to death getting postconviction relief.

you write: “Even the greatest fans of the criminal justice system cite an estimated .027% wrongful felony conviction rate. That means that for every 3,702 factually guilty people we execute, we’ll execute one innocent. Those are unacceptable odds to me, and probably much better than the real odds—the true error range is probably between .8% and 8%, which means that at least one out of every 125 people we execute will have been factually innocent.”

I’d like to see your proof of the true error range. Produce it.

First, based upon the available evidence, I have concluded that we likely have solid evidence of 25 actually innocent people actually discovered on and released from death row, post Gregg. I can produce how I arrived at this number.

Secondly, I also know the number is higher than that, in that a certain number were released from death row and placed in prison, because of various legal issues and that some of those were later found to be actually innocent.

Thirdly, there will be an additonal group of those cases of actual innocence for which we may never have any proof of innocence.

Fourth, the case for any innocents executed since Greegg is very, very thin, indeed. Including Willingham.

Fifth, in you analysis, you overlook that death penalty case have more thorugh appellate review than any other cases. You cannot tranfer the percentage of all convictions of actual innocents, from the entire criminal justice system and presume that such an error rate is the same for death row.

The pre trial, trial, appellate and executive clemency/commutation standards in death penalty cases are far above those of lesser cases.

For example, about 40% of death penalty cases are taken off death row, via some legal procedures. About 15% of all criminal cases are overturned (I am told – I haven’t confirm this).

We are not looking at apples and apples here, we are looking at apples and kangaroos.

It is both improper and wildly inaccurate to say that actual innocents are likely to be executed at a rate equal to the actual innocents conviction rate in all criminal cases.

It is dead wrong.

The only cases I can think of where language is anywhere close to those Fine used are the 1st Amendment cases deciding what obscenity is. So, the central question I see is whether this is a legislative or judicial function. For practical and cost reasons, the death penalty is probably on its “death throws”. But this is a ultimately a legislative decision. Though the reluctance of jurys to impose the dealth penalty now that LWOP is the law mutes the issue in most cases.

It sure seems as though Fine will be successfully mandamused in the short run, as he should be.

Here, where judges are basically on the bench till they do something kind to a child molester or retire, there’s a fairly small handful of judges who even handle murders and a much smaller group who do all the capital trials.