IT WAS A QUESTION that might haunt any judge: Was the murder victim still dead after she was killed? The Washington State Supreme Court couldn't be absolutely certain back in 1991. But it affirmed the conviction and death sentence of Brian Keith Lord, accused of raping and bludgeoning the victim in 1987, nonetheless.
Still, three classmates said they saw Tracy Parker, 16, alive the day after prosecutors say Lord killed her. Lord's attorneys decided (without talking directly with them) that the boys were unreliable and opted not to call them as witnesses. A Kitsap County jury quickly found Lord guilty of aggravated first-degree murder. The capital case, by law, was automatically reviewed by the state's high court, which—critics claim—has never seen a death penalty conviction it didn't like. For sure it liked this one: There was no "reasonable probability" the trio's testimony would have changed the outcome, the court found.
Last year, the US Ninth Circuit Court of Appeals found otherwise, expressing "grave doubt as to the harmlessness of an error that affects substantial rights" and reversing the 13-year-old conviction. In February, the US Supreme Court let the reversal stand.
Lord, who faces a retrial, is now a poster boy for those concerned about a court some think failed its mission of careful checks and balances. That concern comes at a time when the nation is growing restless over a process that sometimes puts innocent or wrongly convicted suspects on death row. Several states have declared moratoriums on executions and others are following (Washington lawmakers are weighing the move). Adding to the debate, a recent Columbia University study found that 68 percent of US death sentences were overturned due to an error-prone trial and sentencing system.
What does that say about Washington's appellate process, in which the reversal rate is more than 85 percent? That's the finding in still another new study, by the American Civil Liberties Union in Seattle. To some, such reversals merely reflect honest disagreement among courts. To the ACLU, the stunning rate of federal rejection—seven out of eight state death penalty convictions—suggests a constitutional breakdown.
The reversals aren't based on mere technicalities, says the ACLU's Jerry Sheehan, who notes that seeking justice for someone such as Lord, who was convicted of killing another woman when he was 14, shouldn't be misconstrued as support for his case. "It's not a debate about innocence," Sheehan says, "but whether the system is working properly. And it's not."
Among the federal reversals noted in the ACLU study was the Pierce County conviction of double murderer Gary Benn. The state Supreme Court upheld the conviction, even though it turned in part on testimony of a jailhouse informant with a history of perjury—the US court called him "a liar for hire." The state Supreme Court was also reversed for OK'ing the 1985 Tacoma murder conviction of Benjamin Harris. Federal judges found 11 constitutional violations the state supremes missed, including inadequate representation by Harris' counsel (in court he called his client a womanizer, alcoholic, thief, and "liar 85 percent of the time"). Benn faces a new trial and Harris was released in 1997.
To the ACLU, which is pushing for a moratorium here, the state appeals process is "fraught with error." If, says Sheehan, "a hospital booted seven out of eight life-and-death procedures, the public would be screaming for reform. It's our responsibility to make this system fair for all, too."