‘I was about to die for something I didn’t do’: Meet the numerous people on death row who are innocent

A Florida Supreme Court Justice later wrote that the “prosecution’s comments were not only improper but were also prejudicial and made with the apparent goal of inflaming the jury.’’

Even in death row cases where someone else has out-and-out confessed to the underlying crime, people awaiting execution face Kafka-eqsue legal odysseys to secure their freedom. They become mired in a legal appeals process so confined to technical questions that the overall question of innocence can seem to fade away.

Tyrone Noling, who is currently on death row in Ohio, has been fighting for his freedom since being charged for a gruesome 1990 double-murder in rural Portage County. Lawyers from the Ohio Innocence Project (OIP) believe he has a compelling case.

Following the brutal shooting deaths of Bearnhardt and Cora Hartig, both 81, in the small village of Atawater Township, police struggled to find immediate suspects. “It’s a big scandal there wasn’t an immediate arrest,” said Brian Howe, a University of Cincinnati law professor who works with the OIP. “As the investigation drags on and on, there’s more and more pressure for law enforcement to come up with something.”

Eventually, after multiple attempts to charge Mr Noling failed, police returned Mr Noling and his associates in 1995, after the man had admitted to a series of robberies in a nearby town, using a gun of the same .25 caliber that killed the Hartigs. (Ballistics tests, however, showed that the two weapons weren’t a likely match.) Investigators called in a child psychologist who convinced the youngest member of Mr Noling’s circle, just 16-years-old, using hypnosis that he had memories of the crime that he had repressed. Police then offered the teen and three others deals to testify against Mr Noling.

One of these individuals recanted before the trial even began, and the others did later. Another man, Dan Wilson, who was executed in 2009 for burning a woman alive, allegedly confessed the killings to his foster brother, who reported the confession to police. Investigators ignored other key suspects, according to OIP. The jury that sent Mr Noling to his death was informed of none of this.

“Tyrone’s case is one that just sort of makes me want to just scream sometimes,” Mr Howe said. Mr Noling has been engaged in a tortuous appeals process since, marred by lost files, deeply wonky procedural denials, and most recently, the Ohio Supreme Court’s 2018 refusal to DNA test evidence from the scene. “It’s always a very dry, technical, piece of the story. At any given point, that’s usually what’s in front of the court,” Mr Howe continued, “I don’t understand how it’s possible that this person is still in prison, much less on death row.”

The adoption of DNA testing in the late 1980s opened the doors of death row just a crack to overturning wrongful convictions, but many cases don’t have DNA evidence. The world of capital cases is rarely as neat and tidy as an episode of CSI.

In place of such hard evidence, human factors like bias, class, politics, and geography often decide who goes to and dies on death row, rather than true guilt or innocence.

Black men, especially those allegedly involved in crimes with white victims, are vastly overrepresented on death row—and in those few who are exonerated. Eyewitness testimony, which has been shown over and over again to be unreliable, often forms the bedrock of capital cases.

Luck is just as much a factor. Though 27 states, largely in the US South, still have the death penalty on the books, the largest numbers of death sentences come from a small number of jurisdictions like Oklahoma County, home to Oklahoma City, and Harris County, Texas, home to Houston.

“Zip code really does matter a lot and that results in a very arbitrary system of justice,” said Kristin Houlé Cuellar, executive director of the Texas Coalition to Abolish the Death Penalty, a non-partisan advocacy group. “And then of course we know that the death penalty has always been racially biased and continues to be. Racial bias permeates the system from top to bottom.”

Structural barriers have played a role as well. The 1996 Antiterrorism and Effective Death Penalty Act limited the ability of death row inmates to make appeals in federal courts. Prosecutors are allowed to screen potential jurors to make sure they are, in the strange argot of capital punishment, “death-qualified”—that is, to serve in a capital case, jurors must not be fundamentally opposed to the death penalty. Public support for the death penalty has been declining for decades to near record lows, yet those more likely support the death penalty, who tend to skew white and conservative, end up most likely to be weighing the life and death of the people of colour most likely to be executed.

Despite these serious questions, the death penalty remains because of its political saliency in a certain number of conservative jurisdictions, according to Mr Newberry of the University of Houston.

“I don’t think the average person thinks about the death penalty at all,” he said. “The reason we still have it is that prosecutors feel the need to be ‘tough on crime.’ They think that if this is removed, if legislation takes away death as a sentencing option, if prosecutors are not going to seek death, they’re going to look weak.”

Change at the national level remains unlikely with a gridlocked Congress, though President Biden’s Justice Department instituted a moratorium on federal executions this summer. (Previously, after a 17-year pause, Donald Trump restarted federal executions, and 13 were killed during the second half of 2020, the most federal inmates put to death under one president in the last 120 years.) The president campaigned on opposing capital punishment, and has the power to commute all federal inmates’ sentences with the stroke of a pen, but so far hasn’t taken any concrete action beyond stopping the killings.

Still, despite these odds, anti-death penalty advocates have nonetheless made gains in recent years, as an increasingly bipartisan coalition of legislators, advocates, faith leaders, racial justice activists, and exonerees like Mr Lindsey have gotten capital punishment outlawed even in unlikely places like Virginia, which ended executions earlier this year, the first Southern state to take such a step.

And even if every one of the more than 2,500 people on state and federal death row were free, those who have survived a capital conviction will still be putting together the pieces of their life.

Mr Lindsey, who still lives Florida, and is a board member of the exoneree-led advocacy group Witness to Innocence, says he’s now serving a “public life sentence.” His name has been cleared, but he’s struggled to find work or obtain health insurance.

He still battles anxiety, and he never received compensation for the years he was mistakenly put behind bars.

What gives him hope, however, is that the pain he has experienced in his life has also made people take heed of his voice. He’s spent his time on the outside campaigning against the death penalty and mentoring youth. Something so simple as truly being heard becomes a great luxury when you’ve been wrongly imprisoned and sentenced to die.

“When I speak up, as someone who’s been on death row, it’s like I get full attention. I looked at how powerful I could be if I used myself as a tool to educate people,” he said.

The way he sees it, the criminal legal system has never wrongfully convicted anyone, including him: the process worked the way it was designed to, and individual people, knowing what they did, made the choice to send him to death.

But there’s a flip side to that understanding: human beings set up the system, and human beings make it work, so that means those same human beings can be convinced, after thousands are killed, to build a system that does something different.

This article was amended on 13 October, 2021. Its headline and body text both previously inaccurately stated that one in nine people on death row were later found to be innocent. The study referred to found that for every 8.3 people executed between 1972 and this year, one person had been exonerated. However, far more people are sentenced to death than are ever executed. Around 2 per cent of people on death row during that period have later been exonerated.

The Independent and the nonprofit Responsible Business Initiative for Justice (RBIJ) have launched a joint campaign calling for an end to death penalty in the US. The RBIJ has attracted more than 150 well-known signatories to their Business Leaders Declaration Against the Death Penalty - with The Independent as the latest on the list. We join high-profile executives like Ariana Huffington, Facebook’s Sheryl Sandberg, and Virgin Group founder Sir Richard Branson as part of this initiative and are making a pledge to highlight the injustices of the death penalty in our coverage.