What happens when death is taken off the table? Last week, Missouri's Governor bravely and correctly decided not to execute Kimber Edwards, an autistic man sentenced to death by an all-white jury in 2002 for hiring a hit man to kill his ex-wife. Now that Edwards has been granted clemency, in a move that surprised many observers, eyes may turn to the next emergency death row appeal. Outside of the death penalty spotlight, his case may return to obscurity.
The question is, did he even do it?
The jurors never heard that prosecutors promised the actual killer that he would be spared the death penalty if he implicated Edwards. To this day, the real killer maintains he acted alone and that police coerced him into implicating Edwards. Nor did the jurors hear that this man was actually in a relationship with Edwards' ex wife -- a drug fueled and abusive one.
The main evidence against Edwards was his own confession. Edwards only confessed, however, when the police promised they would leave his family alone. He believed the police would remove his daughter from his custody and his wife had been interrogated.
False confessions plague death penalty cases. I have found that in half of the 20 cases where individuals sentenced to death have later been exonerated by DNA evidence, false confessions occurred. Each of those confessions supposedly included specific details of the crime that only the murderer could have known. One half of the cases also involved testimony by police informants who falsely claimed to have overheard confessions. Intellectual disability is entwined with false confessions; one-third of those exonerated by DNA testing who had falsely confessed were mentally ill or intellectually disabled.
If the jury had heard about Edwards' history of Asperger's, learning disabilities, and childhood abuse, they would have understood why he might falsely confess. And they might never have considered him to be among the "worst of the worst." Intellectually disabled people, today, are not constitutionally permitted to be subject to the death penalty.
Or take the cases of Henry Lee McCollum and his brother, Leon Brown. After 30 years in prison, last year DNA tests exonerated them. They had falsely confessed to police who brought them into separate rooms and for hours aggressively interrogated the intellectually disabled youths. Brown and McCollum cooperated only because they thought that if they signed statements that they didn't understand, they could finally go home. A police informant also implicated them. The DNA testing, on evidence that had remained hidden for decades, cleared them and implicated another man, a serial murderer. Both have since been pardoned.
Yet most cases have no DNA to test. There is none in Edwards' case. There is no DNA to test in the case of Richard Glossip, whose execution was postponed last week in Oklahoma. Like Edwards, Glossip was implicated by an informant who avoided the death penalty by saying Glossip hired him to carry out the murder. And there was no DNA for decades in the McCollum and Brown cases, when the evidence remained hidden by the authorities.
There are so many ways a high-profile murder case can go wrong. Most police still do not routinely videotape interrogations. Many police and prosecutors still do not know how to identify, much less fairly treat, intellectually disabled or mentally ill people. Eyewitnesses are still shown suggestive lineups. Trial lawyers still do not adequate investigate the history of their clients. Informants know that they can get deals, even avoiding the death penalty themselves, if they lie, and prosecutors reward them. Even in this day and age, when formerly steadfast death penalty states sentence fewer and fewer people to death, cases continue to rely on the same unreliable evidence from unreliable sources.
Those cases will continue to haunt us. To find them, we need to look just as carefully at the cases that are not attention-grabbing death penalty cases. Life without parole sentences in this country have skyrocketed as have other massive sentences. Without a pressing execution date, there is time to carefully reassess whether the Edwards conviction is sound. No one should ever have to serve a life in prison for a lie.