Judge: Death Penalty Kills Innocent

By ADAM GORLICK,

SPRINGFIELD, Mass. - A federal judge who presided over the first capital punishment trial in Massachusetts since 1984 said he believes innocent people die under the death penalty.

U.S. District Judge Michael Ponsor said he reached the ``unavoidable conclusion'' as he reflected on the trial of nurse Kristen Gilbert, who had faced the death penalty for killing four of her patients. She was given a life sentence when jurors did not unanimously agree she should be executed.

``(A) legal regime relying on the death penalty will inevitably execute innocent people - not too often, one hopes, but undoubtedly sometimes,'' Ponsor wrote in The Boston Globe on Sunday.

``Mistakes will be made because it is simply not possible to do something this difficult perfectly, all the time,'' he said. ``Any honest proponent of capital punishment must face this fact.''

Ponsor did not say whether he supports the death penalty and did not question Gilbert's conviction or sentence. He did not return phone calls Monday from The Associated Press.

``(The) issue is not whether the Gilbert jurors got it right, or even whether the next 10, or 20, or 100 capital cases will go off without error,'' Ponsor wrote. ``Eventually, in some courtroom somewhere, someone will get it wrong; the process is both too human and too complex to expect otherwise.''

It was Ponsor's first capital punishment case in his 17 years on the bench. He said that he had nightmares in which he was an executioner or a prisoner facing death, but would be willing to preside over another death penalty trial.

Beth Cohen, a professor at Western New England College School of Law, said Ponsor's public statements don't breach any codes of judicial conduct.

``He's saying quite clearly that he takes no position on the death penalty,'' Cohen said. ``He in no way at all compromises his ability to enforce the law if another capital case is before him.''

Gilbert, 33, was found guilty in March of killing her patients with overdoses of epinephrine, a heart stimulant that sent their hearts racing out of control. She also was convicted of trying to murder three other patients.

Because the deaths were at a veterans hospital, the case was tried in federal court, where the death penalty applied. Massachusetts banned capital punishment in state cases in 1984.

Ponsor's statements came a week after Supreme Court Justice Sandra Day O'Connor  questioned the fairness of the death penalty, saying some death row inmates had inferior representation and may not have had access to DNA testing that could clear them.

``Judge Ponsor is expressing the same kind of concerns that many people are having now,'' said Virginia Sloan, the executive director of the Constitution Project, a national bipartisan committee studying the death penalty. The committee is composed of supporters and opponents of the death penalty who believe it is administered unevenly.