The apparent exoneration this week of former Warwick detective Jeffrey Scott Hornoff, who was convicted in the 1989 slaying of a female acquaintance, offers a stern rebuke to proponents of the death penalty. As noted by Steve Brown, executive director of the Rhode Island affiliate of the American Civil Liberties Union, "In a death penalty state, it's very likely he could have been on death row."

Attorney General Sheldon Whitehouse told reporters that Hornoff had repeatedly lied to investigators probing the death of Victoria Cushman, with whom he was having an affair, and as the Providence Journal reported on November 5, Hornoff didn't help his credibility by switching his story over time. Still, Whitehouse's characterization of the case as a "one-in-a-million situation" significantly sidesteps the frequency of wrongful convictions in the American criminal justice system. And Hornoff -- who had continued to proclaim his innocence -- would still be looking at a life sentence at the ACI had a new suspect, Todd J. Barry of Cranston, not contacted prosecutors to claim responsibility for Cushman's death.

According to the Death Penalty Information Center in Washington, D.C., 102 people in 25 states have been released from death row with evidence of their innocence since 1973. Although the American criminal justice system has many procedural safeguards that are designed to prevent these sort of errors, "They do occur and the fact that over 100 people have been released from death row in the last 25 or so years is a real strong sign that the system is a lot more fallible than it should be," Brown says. "To think it won't happen again in our lifetimes, that's wishful thinking."

As previously reported in the Phoenix (see "Down by law," October 14, 1999), even a tiny percentage of wrongful convictions represents a lot of mistakes in a country where some 1.8 million people are incarcerated in state and federal prisons. If the percentage of wrongly convicted people is one percent -- a figure thought to be low by David Protess, a Northwestern University professor who has helped to exonerate death row inmates in Illinois -- it nonetheless means, "There are more wrongly incarcerated people in America's jails and prisons than are incarcerated in most countries of the world."

Brown cites several common trends in instances of wrongful conviction. "One thing that happens a lot in cases where a person is later found to be wrongfully convicted is that police find the suspect and fit all the evidence around it," he says. "Instead of starting with an open mind, circumstantial evidence gets interpreted in a way that fits the preconceived conclusion. I think that happens a lot."

Other frequent factors, which do not seem present in the Hornoff case, include prosecutorial misconduct, incompetent counsel, and faulty eyewitness testimony. "The most benign one is what may have happened here," Brown says. "Things look one way when you have a suspect in mind that entirely take on a different view when a different suspect is found. An exoneration like this is a lesson for us on the fallibility of our criminal justice system."

Prompted in part by the testimony of Betty Ann Waters of Middletown -- who became a lawyer and succeeded in exonerating her brother, Kenneth, after he was wrongly convicted in 1983 of killing a Massachusetts woman -- Rhode Island recently adopted a law that mandates DNA testing in cases where the technology could prove a convict innocent.

There continues to be a disparity, however, between periodic efforts -- typically after a heinous crime -- to reinstate the death penalty in Rhode Island and the 11 other states that lack it, and the relatively rare attempts to remedy the root causes of wrongful conviction.

Rhode Island, however, has an instructive example in the state's most recent execution. The last victim of capital punishment, John Gordon, a 20-year-old Irish immigrant hanged in 1845 amid widespread anti-Irish sentiment, is now widely believed to have been innocent.

Ian Donnis can be reached at idonnis[a]phx.com.

Issue Date: November 8 - 14, 2002