Prosecutors See Limits to Doubt in Capital Cases

 By ADAM LIPTAK

Judge Laura Denvir Stith seemed not to believe what she was hearing.

A prosecutor was trying to block a death row inmate from having his conviction reopened on the basis of new  evidence, and Judge Stith, of the Missouri Supreme Court,  was getting exasperated. "Are you suggesting," she asked the prosecutor, that "even if we find Mr. Amrine is actually innocent, he should be executed?"

Frank A. Jung, an assistant state attorney general,  replied, "That's correct, your honor."

 That exchange was, legal experts say, unusual only for its  frankness.

  After a trial and appeal, many prosecutors say, new evidence of claimed innocence should generally not be considered by the courts.

 While death row inmates have always peppered the courts with legal filings, the recent wave of death row exonerations, based on DNA and other evidence, has inspired

 more defense lawyers and academics to seek to reopen death

 penalty cases in a sustained and vigorous way.

  Courts are beginning to express concern that they may be  parties to the occasional miscarriage of justice. Gov.  George Ryan's commutations of the death sentences of all  164 prisoners on death row in Illinois focused public  attention on the issues of wrongful convictions and flaws in the capital justice system.

 Jeremiah W. Nixon, Missouri's attorney general, said Mr. Jung's response to Judge Stith was a legally correct answer  to an inflammatory hypothetical question. The point Mr. Jung was trying to make, he said, is that there must come a time when cases can be closed.

"Is the state required to prove every day that someone  committed an offense beyond a reasonable doubt?" Mr. Nixon asked.

 Other prosecutors take a different view. Mary Jo White, who  was the United States attorney in Manhattan for almost a  decade, said prosecutors have a continuing obligation to  test claims of innocence.

 "What the government should do is move heaven and earth to  figure it out," Ms. White said. "You're out to exonerate  the innocent every bit as much if not more than you mean to  convict the guilty. Not to allow the exoneration system to  go forward is just indefensible and uncivilized."

 Still, for a variety of reasons, many prosecutors'  frustration with these postconviction claims of innocence  is rising. They say that many such cases are frivolous, and  that relitigating imposes needless emotional trauma on  victims' families.

 Jennifer Joyce, St. Louis's circuit attorney, said she saw a "steady trickle" of "deceitful and sadistic" motions.

"The defendant knows he is guilty," she said, "and he wants  to play the lottery."

 Conversations with victims' families about these motions  are not easy for prosecutors, said Joshua Marquis,  co-chairman of the National District Attorneys  Association's capital litigation committee. "Every  prosecutor dreads making a phone call to a victim after the  victim thinks the case is over," Mr. Marquis said. "You're  reopening the wound."

 Frivolous claims of innocence, Mr. Marquis said, also burn up scarce resources and distract attention from the  prosecution of new crimes. "We are dealing with everything  we can already," he said. "We are scrambling. Our primary obligation is to service the cases that come before us  now."

 Other prosecutors say that the criminal justice system has  an interest in finality, and that executive clemency is the  best mechanism for considering claims of innocence made  long after the original trial. Retrying cases years later  puts prosecutors at a disadvantage, they say. 

 "Society has a real and legitimate need for finality in  answering the question of whether someone is guilty of a  crime," said Jamie Orenstein, a former Justice Department official. "The justification for closing off  innocence-based challenges is that eventually we reach a  point where allowing them will prevent very few unjust  executions, but will undermine the deterrence and  retribution justifications for the death penalty by letting  prisoners engage in endless delay."

 Mr. Marquis said a retrial many years after the fact gives  defendants a huge advantage. The prosecutor who handled the  case has typically moved on, he said, and it is not easy  for new lawyers to gain the victims' trust. In addition,  the evidence is often difficult to reconstruct. "Your  witnesses are gone and scattered to the winds," he said.

 Ms. Joyce said she would penalize defendants who request  DNA tests that fail to exonerate them. The tests cost  $1,500 to $2,500 each, she said, and that does not include  charges for the lawyers' and investigators' time.

 She has proposed legislation to charge the cost of failed tests to prison accounts, add six months to such prisoners'  sentences and require the attempts to be considered at

 parole hearings.

 DNA evidence, though, is available in a fairly small percentage of cases - as in those where blood, hair or  semen have been recovered - and can provide conclusive  evidence in even fewer. The impact of such evidence,  moreover, may be a limited and passing phenomenon.

 DNA testing at the outset of a prosecution is now routine,  so that more recent convictions will not be subject to  challenges on this basis.

 "The time is soon drawing nigh when it won't matter," said Bryan A. Stevenson, director of the Equal Justice  Initiative in Montgomery, Ala., which represents death row

 inmates.

 DNA has played a relatively small role in death row  exonerations. More than 100 death row inmates have been  exonerated since 1976, according to the Death Penalty  Information Center, an advocacy group that opposes the  death penalty. But the Innocence Project at the Benjamin N.  Cardozo Law School says that DNA played a role in only  about 13 cases.

 DNA exonerations are most common in rape cases. The large majority of felonies do not involve biological evidence.

The larger question, then, may be whether the flaws in the  system pointed out by a finite number of DNA-based exonerations will cause judges and prosecutors to listen  sympathetically to claims of innocence based on less  categorical forms of evidence.

 This summer, the federal appeals court in St. Louis  provided one sort of answer. Despite what the court said  was "a nagging suspicion that the wrong man may have been convicted of capital murder," the three-judge panel wrote,  the defendant, Darryl Burton, was entitled to "no relief, even as the facts suggest that he may well be innocent."

 If the courts can offer no relief, said Rob Warden of the  Center on Wrongful Conviction at Northwestern University,  prosecutors must use their discretion to evaluate claims of innocence.

 "But asking prosecutors what we should do about wrongful  convictions," he said, "is like asking Hannibal Lecter what  we should so about cannibalism."

 Barry Scheck, a founder of the Innocence Project, said many prosecutors conceive of their roles too narrowly.

"There is enormous resistance to these exonerations," Mr.  Scheck said. "That raises, frankly, a serious ethical question. A prosecutor's duty is to justice, not to convictions. Is it about holding onto victory? Is it about the fear of having made a mistake?"

 According to the Innocence Project, prosecutors have  consented to DNA testing in slightly fewer than half of the cases in which the evidence ultimately cleared the prisoner. In the other cases, the prisoners had to fight for such review in court.

Prosecutors argue that DNA-based and other indisputable exonerations are much rarer than the statistics used by death penalty opponents suggest.

 "The word 'innocent' has been tortured beyond recognition," Mr. Marquis of the district attorneys' association said "

'Innocence' means didn't do it, wasn't there. A very small portion of the people pardoned by Ryan, to say nothing of commuted, are innocent in that sense."

 Mr. Marquis said that "20 or 25 percent" of the people released from death row based on what the Death Penalty Information Center calls evidence of their innocence are actually innocent.

Kent Scheidegger, the legal director of the Criminal Justice Legal Foundation, also took issue with the center's statistics.

 "One hundred cases were removed from death row and not successfully reprosecuted," Mr. Scheidegger said. "That's not the same as being proven innocent. One hundred out of 7,000 people in the modern era is still a small number," he said, referring to the number of people sent to death row since the Supreme Court reinstated capital punishment in 1976.

 At some point, Mr. Marquis said, enough is enough. "A death row inmate can continue to manufacture claims of actual innocence for infinity," he said.

 Joseph Amrine, whose appeal gave rise to the contentious questioning in the Missouri Supreme Court, is accused of killing another prison inmate while serving time for  robbery, burglary and forgery. His conviction was based on the testimony of three other inmates; a guard identified someone else as the likely killer. All three have since recanted their accusations, and Mr. Amrine says this means he should have a new trial.

Mr. Jung, the Missouri prosecutor, told the court that Mr. Amrine's request was simply too late.

"To make sure we are clear on this," Judge Michael A. Wolff of the Supreme Court replied, "if we find in a particular case that DNA evidence absolutely excludes somebody as the murderer, then we must execute them anyway if we can't find an underlying constitutional violation at their trial?"

 Again, Mr. Jung said yes.

 Mr. Jung did not return a call seeking comment. His boss, Mr. Nixon, the state's attorney general, said clemency proceedings rather than courts were the right forum for claims like Mr. Amrine's. He added that prosecutors had a moral duty to evaluate claims like Mr. Amrine's, which he said he found wanting.

 "As attorney general of Missouri," Mr. Nixon said, "I would never allow the execution of an innocent man or woman."