The Common Good
April 2012

The Innocence List

by Kimberly Burge | April 2012

There are many reasons to abolish the death penalty. Innocents on death row may be the most compelling.

WHILE JUAN ROBERTO Meléndez sat on Florida’s death row, his mother, back in Puerto Rico, built an altar in her home where she placed a statue of Our Lady of Guadalupe. She prayed three rosaries a day for his release and wrote letters to her son assuring him that God knew of his innocence. If Juan would put his trust in God, eventually he would be freed.

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“I believed her,” Meléndez says. “But I also told him later, ‘It took you too long, God.’”

It took 17 years, eight months, and one day.

It took considerably less time to send him to death row. Meléndez, a migrant fruit picker, was arrested in Pennsylvania in May 1984, charged with the killing of a man in Florida, where he had previously lived. Meléndez, who spoke very little English, was appointed a public defender but not a translator.

“He kept patting me on the back and saying everything’s going to be okay,” Meléndez recalls.

In one week’s time he was tried, convicted, and sentenced to death, with no physical evidence presented against him. The conviction rested on the testimony of two questionable witnesses—a police informant with a criminal record and a co-defendant who was threatened with the electric chair but who ultimately received a sentence of two years’ probation after he testified against Meléndez. The jury contained 11 white members and one African American.

Meléndez was sent to death row on a November Tuesday in 1984, “an ugly, ugly day.” On Thursday, guards took a man to be executed. “I got real scared then, thought they killed someone every week. I wondered: How long until they come for me?”

In time, during the two hours twice a week death row prisoners were permitted into the yard, other inmates taught him how to speak, read, and write in English. He developed friendships with men he knew he would lose to death. Whenever an execution took place, Meléndez recalls, he heard a buzzing sound and watched the lights in the prison flicker as the current was drained by the electric chair.

The Florida Supreme Court upheld his conviction three times. When a new defense team took over in 2001, as Meléndez neared his final round of appeals, they pored through a box of materials from his original trial—and discovered a taped confession from the real killer. Corroborating witnesses were found, including the wife and sister of the killer, now deceased, who had confessed to at least 16 people. The prosecution had had a copy of this taped confession, and had withheld this and other exculpatory evidence from trial.

IN LIGHT OF this new evidence, Florida Circuit Court Judge Barbara Fleischer overturned Meléndez’s capital murder conviction in December 2001 and determined he was entitled to a new trial. The state declined to prosecute him a second time.

Back on death row, as they began to process his release, guards began calling him “Mr. Meléndez.”

“Everyone [on death row] knew I was getting out. There were tears running down my cheeks, I was so happy. Tears on their cheeks, too. But I also knew I was leaving them behind. They told me, ‘Don’t get into any trouble out there. Take care of your mama. And don’t forget about us.’”

On Jan. 3, 2002, after more than 17 years, the state of Florida provided him with a new shirt, a pair of pants, and $100 and set Juan Roberto Meléndez free.

Four days after his release, when he traveled home to Puerto Rico, his mother showed him the altar where she prayed for him. Then she made a confession to her son. Even as she prayed for his freedom, she put away money to bring his body back home if he was executed.

“I don’t think anyone can really comprehend being innocent and languishing in prison while the state plots your murder,” says David Love, executive director of Witness to Innocence. This Philadelphia-based organization is the only one in the nation comprised of exonerated death row survivors who now travel the country telling their own stories and speaking out for abolition of the death penalty. Meléndez has become a passionate and compelling speaker for Witness to Innocence, addressing audiences across the United States and Europe.

Meléndez is number 97 on the “Innocence List,” an accounting by the Death Penalty Information Center of death row inmates exonerated of their crimes. Those on the list must have been convicted and sentenced to death—and then later either been given an absolute pardon by the governor based on new evidence of innocence, or had their conviction overturned and then been acquitted at re-trial or had all charges dropped. To date, the list includes 140 people.

“We started as a speakers’ bureau for exonerees to tell their stories to colleges, churches, and community groups. But we also wanted to empower them to become effective advocates against the death penalty,” Love says. “On one level, it can be painful to revisit their stories repeatedly. But [Witness to Innocence] is a potent support group for exonerees. It’s also a potent symbol for what is wrong with a system that can send innocent people to death.”

Meléndez concurs: “I was not saved by the system. I was saved in spite of the system.”

“YOU CAN’T ACT like nothing’s happened [after being released from death row]. Something has happened. Something dramatic has happened,” says Delbert Tibbs, who is number 11 on the Innocence List.

Tibbs claims he is “not a firebrand by nature,” but rather a man who prefers books and a quiet life. But he became an outspoken abolitionist against the death penalty the minute he walked free from death row in 1977.

A former theology school student from Chicago with no prior criminal record, he was hitchhiking through Florida in 1974 when he was picked up for the murder of a man and the rape of his 16-year-old companion. An all-white jury convicted Tibbs, who is African American, based on the uncorroborated testimony of the female victim, who was also white. Although she picked Tibbs out of a lineup, her identification was inconsistent with the initial description she gave of her assailant.

Tibbs had friends who were civil rights activists, and they began organizing to secure his freedom. Celebrities such as Joan Baez and Angela Davis spoke out on his behalf and raised money for his defense. Pete Seeger wrote a ballad in Tibbs’ honor. The Florida Supreme Court overturned his conviction because the verdict was not supported by the weight of the evidence; the state decided not to retry the case. Tibbs’ former prosecutor said that the original investigation had been tainted from the beginning and that, if there had been a retrial, he would have appeared as a witness for Tibbs.

He walked free in 1977 after serving three years; all charges against him were dropped in 1982. “God sent me to death row so I could be a witness against the death penalty,” he says. “Even after my case was dropped, I realized that I had to advocate for those still there.”

A poet, Tibbs also speaks out with Witness to Innocence. A character based on him serves as the centerpiece of The Exonerated, an award-winning play, based on six true stories, that has been filmed for television.

“I really wish God had found another way,” Tibbs says. “But worse things have happened to better people than me. Anyone who’s locked up has anger. But if you don’t embrace the evil and become evil yourself, you can transcend it.”

MOMENTUM TO ABOLISH the death penalty has never been stronger, according to lawyer and Witness to Innocence board member Judi Caruso. “It’s been building in the last five years or so, but has really accelerated in the last year, especially—and tragically—with Troy Davis,” Caruso says.

Last September, the execution of Davis in Georgia, carried out despite significant doubts about his guilt, drew worldwide condemnation. Davis had been convicted, primarily on the basis of eyewitness testimony, of killing off-duty police officer Mark MacPhail. Years later, before his execution, seven out of nine witnesses had changed their stories. Yet a federal judge reviewing this new evidence required that Davis provide not only reasonable doubt of his guilt, but clear proof of his innocence. He was unable to do that to the judge’s satisfaction.

“If one of our fellow citizens can be executed with so much doubt surrounding his guilt, then the death penalty system in our country is unjust and outdated,” former president Jimmy Carter said.

Others appear to be coming around to share Carter’s view. A Gallup Poll last year showed support for the death penalty at its lowest level in nearly four decades. Sixty-one percent supported the death penalty, down from 80 percent in 1994; 35 percent opposed it, up from 16 percent in 1994. In a 2011 CNN poll, given a choice between the death penalty and a sentence of life without parole for those who commit murder, 50 percent favored a life sentence; 48 percent chose death.

The number of new death sentences imposed in 2011 dropped sharply, to 78, falling below 100 for the first time since the death penalty was reinstated in the United States in 1976. It’s a decline of 75 percent since 1996. The number of executions carried out fell to 43, a 56 percent decline since 1999.

Illinois abolished the death penalty in 2011, becoming the fourth state in four years to do so. The governor of Oregon, John Kitzhaber, declared that no more executions would occur while he was in office: “I refuse to be a part of this compromised and inequitable system any longer.”

For many years, activists have used pragmatic arguments to oppose the death penalty: Capital punishment is not a deterrent to crime. Death sentences are disproportionately handed down to people of color, or to people convicted of killing someone white. It is a staggeringly expensive process for states.

But Caruso believes that the voices of innocent people nearly put to death for crimes they did not commit are ultimately what will turn the tide against the death penalty: “That’s what’s beginning to create the change of opinion. When the punishment is irreversible, nothing but perfection is acceptable. We can certainly improve the system, but we can never guarantee that we can make the system perfect.”

Kirk Bloodsworth—number 48 on the Innocence List—offers a sharper reflection, and a unique sense of authority. He was the first person with a capital conviction to be exonerated based on DNA evidence. Accused of the brutal rape and murder of a 9-year-old girl outside Baltimore, Bloodsworth spent eight years, 11 months, and 19 days on death row. In letters from prison, below his name he signed the initials A.I.M., “An Innocent Man.”

“If you want to support the death penalty in the U. S., then you’re supporting a system that can execute an innocent person,” he says. “Even if you believe it would be valid for the guilty, it cannot be valid for the innocent. Do away with it before it kills your neighbor, or you.”

Night after night,  Sabrina Butler rises from her bed in Columbus, Mississippi, and goes in to check on her 9-year-old daughter and 14-year-old son. “My husband tells me, ‘Baby, relax. You don’t have to do that every night.’ But I can’t relax,” she says.

In 1989, when Butler was 17 and a single mother, she found her 9-month-old son in his crib, not breathing. After she and a neighbor tried to resuscitate him, Butler took him to the emergency room, where he died. The next day, she was arrested and charged with child abuse and murder, based on bruises left by the failed attempts at CPR.

“I didn’t know what I was doing and I probably did it wrong,” she says. “I was just trying to help him.”

Her lawyer urged her not to take the stand in her own defense and told her they had the case nipped in the bud. But a jury found her guilty of capital murder. Butler later learned the prosecutor in the case took the jury out for a picnic while they were sequestered.

“Being so young, I was scared to death. I didn’t know what was happening to me.”

On death row, a guard met her there with these words: “This is where you’re going to be for the rest of your life until we kill you.”

The Mississippi Supreme Court overturned her conviction in 1992, saying that the prosecution had failed to prove that the incident was anything more than an accident. She was retried and then acquitted in 1995 after a very brief jury deliberation. It is now believed that her son, Walter, died of kidney disease or sudden infant death syndrome.

Butler spent six and a half years in jail, including more than two and a half years on death row. She is the only woman to be exonerated, number 59 on the Innocence List.

Now she tells her story, and checks on her children each night, every night.

“I don’t want someone to stop breathing again on my watch.”

Kimberly Burge is a Sojourners contributing writer who divides her time between Washington, D.C., and Cape Town, South Africa.

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