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>>BOB ZALTSBERG: Welcome to Noon Edition on WFIU. I'm Bob Zaltsberg from the WFIU WTIU newsroom. I'll be hosting the show alone this week. We've been recording the show remotely for the last few weeks and last few months to avoid the risk of spreading infection from COVID-19. And today, we're going to be talking about the recent executions carried out in the federal penitentiary in Terre Haute, Indiana. We have five guests joining us today - Jody Madeira is an Indiana University Mauer School of Law professor. Adam Pinsker is a WFIU WTIU news reporter and a media witness for the executions. Robert Dunham is the death penalty Information Center Executive Director. Monica Foster is Indiana federal Community Defenders chief federal defender. And Monica Veillette is a member, a family member of the victims of Daniel Lee. Daniel Lee was the first of the three inmates to be executed last week. You can follow us on Twitter @NoonEdition. And you can also send us questions there. And you can send us questions for the show at news@indianapublicmedia.org. I'm very happy to have quite a very knowledgeable panel of guests today. I want to start with Jody Madeira and ask Jody to sort of set the stage for us for what happened in Indiana last week and why was it such a newsworthy event that we had these three executions in Terre Haute.
>>JODY MADEIRA: Sure. Thank you. So it's been a very long road. It's been nearly two decades since federal executions resumed at the U.S. penitentiary. And it wasn't just one execution. It was three. And we had a bit of drama actually getting to the execution in the first place. So we've had - over the last 20 years, we've had fierce contests about what drugs to use during executions, including difficulty getting drugs, contaminated drugs. And usually, you know, they replace the three-drug lethal injection cocktail with a single drug. That's the method that's preferred by the federal governments. But the other drama that we had was just finding out how to execute in the first place. And so there's always been some controversy over the last 17 years between the execution method used by the state that the inmate came from and the federal government. And so that - we had to resolve that question before we could even get to the death chamber last week. And unfortunately there were other questions as well which included, you know, what we do with pending appeals, how we deal with the U.S. Supreme Court jurisdiction versus D.C. Circuit Court of Appeals jurisdiction. And so there is many, many troubling issues that came up as a result of last week and lots of drama, as well.
>>BOB ZALTSBERG: Jody, there's going to be a - there's a fourth execution that's scheduled. Are some of these issues - have these issues been resolved do you think that everybody's satisfaction or will there be more issues that will come up before that execution can take place?
>>JODY MADEIRA: I believe that a lot of these issues are still lingering. So we've now settled the issue of whether we execute according to the Federal Government's method of execution or the state or the inmate state. We have chosen the Federal Government's method of execution, which is a single drug pentobarbital. But there's other claims that are still pending that were not resolved and were actually still pending when the Supreme Court overruled the D.C. Circuit Court of Appeals in the dead of night 2:00 in the morning including whether these executions involving pentobarbital, suffocate the inmate creating Eighth Amendment cruel and unusual punishment claims. And also just what procedure we want to have for putting people to death is can the highest court in the land suddenly say, yes, it's time when a circuit court of appeals had just upheld an inmate's right to raise challenges hours before.
>>BOB ZALTSBERG: All right, Adam Pinsker is on with us. And Adam is a reporter, WFIU WTIU. And he was a media witness. We're only going to have Adam for 10 or 15 minutes here. But Adam, I wanted you to describe the process as a media witness to what went on in Terre Haute. What was that like for you?
>>ADAM PINSKER: Overwhelming and startling to be totally honest. And like Jody was talking about with all the appeals playing out in in different jurisdictions, we were told to show up two hours before the original execution time but ended up staying up for a good almost 24 hours before Daniel Lee - was first execution. That was carried out. But it's very methodical and the Bureau of Prisons obviously conducts it because it's federal so - and the staff that they have in Terre Haute they're organizing the execution and carrying it out. They are not from - they're not based in Terre Haute. They don't want anybody who is associate with that prison to be handling the execution. I guess I had a concern of if they're too close to the condemned inmates. So they basically take us to the maximum security side the prison have a screened, put us back in a van and take us to what's known as a death chamber, which you cannot see from the highway. It's like a small, red brick building. There's four or five different entrances. The - one separate room for the victim's families. One separate room for the media witnesses. Another room for - the condemned inmate can pick up to six people to witness. And then there's a separate room or a couple Department of Justice people witness it. We - I was one of eight media persons. We were escorted in there. In the case of Daniel Lee, we sat in the - which was the first execution. We sat in the witness room with the shades drawn for four hours, not knowing that he was strapped down to the gurney the whole time. The Bureau of Prisons or two Bureau of Prison staffers with us. And they didn't tell us. They said they didn't know. They were getting the information from the Department of Justice. So the shades went up. And then immediately there's three, technically four people in the execution chamber - two prisons officials, a U.S. marshal and then the spiritual adviser for each inmate. And the prison's official reads the charges what he's convicted for turns. Asked him if he has any last words. He spoke. And then when he was done, they cut his mic. The prison's official asked the marshal to get on the phone to see if there's any last-minute stays. And he's on the phone with like some DOJ command center. They say no - he says no. Mic's cut again. And I can see the prisons person get on his, like, walkie talkie and radio to the executioner who is right behind - it looks like almost like - I hate to say like a bathroom. It's a very plain. It's all painted green inside. You have the gurney, and you have a slot with, like, four tubes coming out even though may only use one drug. And then as a one-way window there, which I'm assuming the executioner's in that room. And the gentleman gets on his radio and says go ahead. It was - the first one was very difficult to watch. It was like surreal. It was like something out of a movie, but it's reality. Once the execution begins, the inmate, each inmate had one of those things that read your pulse that's attached to your finger. And they finally told us that there's some sort of heart monitor on the wall because you just see the three men in there staring at the wall to see, you know, when - and there's somebody else. The Department of Justice officials looking at it from a different room. But they monitor inmate's vitals as he's dying. And I know that in every one of them they each took a breath. They each moved their heads. Daniel Lee, about 15 minutes in moved his hands a bit. I don't know if that was just a reflex or what. And you slowly see them lose color. They are all covered up in a sheet to their neck basically so you can't - you only see their - both their arms strapped down. They both have - each IV is in each arm. In one case, they were using the top of their hands to find veins. And it was in the - I think it was the second inmate Wesley Purkey. And you know, unfortunately, the third guy he took, which is Dustin Honken. It took him about a half hour. And at some point, they called the doctor to check. He's went in with a stethoscope, checked his heart and his neck and then walked out. And then a minute later, the Bureau of Prisons guys says inmate Honken has been declared dead at 8:30. The execution is complete. They drop the blinds, and the two guards and prison's media people escorted us out. Mind you that the entire building is under guard. I mean, there's about maybe 30 or 40 - there are, like, the tactical team at the prison. People have out there with, you know, high caliber weapons. You know, this is just a massive complex. It's a maximum security and medium security facility that's right on the Wabash River there. So when they take us back to the media center and by the time we get there, they've already got a press release saying that the execution was carried out. And in Wesley Purkey's case, the family agreed to talk to us at the Media Center and they were obviously very devastated because their daughter had been raped murdered by him. So it was just - it just took a long time for me to kind of process it because I've been in the mode of reporting but, you know, I don't know if it's any worse to see someone die in a different manner or not. But it was - just the way was conducted, it was a very methodical and non-emotional manner that I kind of drawn on.
>>BOB ZALTSBERG: No, it sounds very sobering, very sobering. I want to ask Monica Veillette. You are a family member of the victims of Daniel Lee, so do you feel you know better or worse since this execution?
>>MONICA VEILLETTE: Thank you for hosting this, Bob. You know, our family feels worse, and we have said from - it's been 21 years since Daniel Lee was given the sentence. It's been 24 years since my aunt and 8-year-old old cousin were murdered. And we have spoken out since the trial that this is not something we wanted. And when it was scheduled to go forward in December, we said as a family we wanted to be there just to speak out and say this is not being done for us. It is not being done in our names because that's been repeatedly said. And then when it was re-scheduled during the middle of a pandemic and we couldn't be there, I mean, honestly not only are we very disappointed and sad about all of this happening the way that it did but it is angering. You know, we are upset that over and over this has been said that is being done for my aunt and cousin and it's being done for our family. And in the end, they completely dismissed us. left us out of it completely and or wanted to put us at risk. And so we feel like we all have been re-traumatized and are looking at, you know, what are their options, what can we do now, what do we need to do now so this never happens to other family members. Because we've been left with no peace.
>>BOB ZALTSBERG: Monica, how - can you describe to our listeners how you have sort of come to peace or how you came to peace with Daniel Lee and the fact that, you know, and taking the position that you didn't want him to be executed?
>>MONICA VEILLETTE: Well, that is a complicated answer, but I will - you know, I will say this. I don't feel like I have peace with what Danielli did it, but I want justice in our justice system more than I want peace for one individual. And so I'm not at peace with what happened. We lost our family members. You know, they were murdered, and we didn't know where they were. And it is still painful. We are still grieving that loss. But we also didn't want Daniel Lee put to death because he was not the person who came up with this. He was not the person who murdered my 8-year-old cousin. Chevie Kehoe was. And that person was given life and stone to us as a family we did not feel like that was a fair sentence. The judge didn't. The prosecutor didn't. We all were on the second page and said please take this off the table at the trial. At the sentencing phase, they asked us as a family did we want that taken off the table. And we said yes, it wasn't fair. So those things are separate. Feeling like we want justice is different than whether or not we have peace. And I would say we don't. And I don't know that we ever will have peace.
>>BOB ZALTSBERG: All right, thank you. That's Monica Veillette who's a family member of the victims of Daniel Lee who was put to death in the federal penitentiary in Terre Haute last week. We're talking with five guests today about the death penalty. If you have questions or comments, you can send us questions on Twitter @NoonEdition or you can send them to news@indianapublicmedia.org. And Pinsker, I want to let you go, but I wondered if you had any final thoughts on your experience before you drop off the program.
>>ADAM PINSKER: I just wanted to kind of - as Monica mentioned, in Daniel these last words, last thing he said before they started to administer the lethal injection was that he - again, this is his words but had mentioned that there was some evidence in that case that he felt was not admitted into the trial and may change the outcome. Whether or not he, you know - he didn't really - he didn't take responsibility for his crimes but did mention that he felt like the DA didn't even wanted to hear this evidence. So I just wanted to mention that. And I guess just in closing, the whole experience was - that was the most difficult thing I've seen since I've been journalist. And it took several days. I kept replaying in my mind over and over again because it's such an impactful thing to watch. And it just took a while to get over. So.
>>BOB ZALTSBERG: All right.
>>ADAM PINSKER: I'm only a witness. I can only imagine what it's like for the ones who had, You know, were affected by it, the victim's family members, defendant's family members. And so.
>>BOB ZALTSBERG: All right, Adam, thanks a lot. That's Adam Pinsker from WFIU WTIU News. I want to ask Robert Dunn, Monica Foster now just - we're going to expand this conversation about the death penalty. And Robert Dunham's with the Death Penalty Information Center. Monica Foster, Indiana Federal Community Defenders, chief federal defender. I know both of you have done a lot of work, spoken out a lot about the death penalty. So, you know, hearing what you've heard from the three guests previously, just, you know, start by telling us, you know, is this a fair sentence? Should the sentence be still in the repertoire of how we deal with serious crimes. And Robert Dunham, I want to start with you.
>>ROBERT DUNHAM: Well, the Death Penalty Information Center doesn't take a position on whether there should or shouldn't be a death penalty. But if there's going to be one, it needs to be administered in a process that is fair and evenhanded and as divorced from the political system as possible. And I think that's what was the most disturbing thing about what happened over the course of the last week. If you haven't executed anybody for 17 years I think it's really critical that you make sure that you scrupulously adhere to the law to make sure that what you're going to do is lawful. And you take every precaution possible to ensure that there aren't going to be any mistakes and there's a possibility to correct them, if mistakes do occur. And what we saw here was the government selecting individuals for execution based on what appeared to be political considerations. They are very serious murders. I mean anytime a child is killed that is very very serious. But is that a traditional federal interest as opposed to a state interest? That's something that we leave to the states all the time. And so it appeared that the cases were selected for political reasons and to inflame the public as much as possible. And then three executions in five days after doing nothing, none for 17 years. If you're interested in carefully administering capital punishment to minimize the risk of error that's a reckless way of doing it. And 28 corrections officials told the government that last year. And they simply ignored it. And I think one of the things that's even more disturbing is the manner in which the Department of Justice pursued these executions because they knew full well that there was still litigation on important issues proceeding in these cases. And they set an execution schedule with the execution starting less than a month from the time that the death warrants set the date, ensuring that there was no way the trial courts were going to be able to resolve the issues. You knew right away there is going to be last minute litigation because that's the way the schedule is set up. And you went in right smack through the night. And you ended up with two of the three people being executed after the date for the warrant had expired. And in circumstances in which you'd have to be a grade B movie villain to think that proper notice was provided. What happened was, with Mr. Lee, he had a stay of execution in place until around 7 15. He was executed by eight o'clock. That means that they had 45 minutes in which to give new correct legal notice. They never told the lawyers before they executed him. And you had a man who was strapped to the gurney literally getting lip service of notice being told we rescheduled your execution for now. And we're going to kill you now. That is never something that would be accepted in any other kind of litigation. And in something this serious we shouldn't stand for it.
>>BOB ZALTSBERG: Is there any recourse?
>>ROBERT DUNHAM: Well certainly not for Mr. Lee. But the the remedies that are available would be disciplinary remedies against the lawyers and everyone who knew about this process. I think that you have to combine it with a bunch of other things in the cases because similar misconduct occurred in West A Perkins case where there was a motion for stay of execution that was pending before the 7th Circuit Court of Appeals and had been lodged in the court. When the stay was lifted by the lower court, the other appeal was still pending. And he was executed before the circuit could do anything about the last entry in the circuits docket is that the motion for a stay of execution is denied because it was rendered moot because the prisoner had been executed.
>>BOB ZALTSBERG: Monica Foster can you respond to this?
>>ROBERT DUNHAM: Yeah there's nothing that Rob Dunham said that I don't agree with wholeheartedly. These executions were set for political purposes and only political purposes. I think it's real clear when you look at the list of persons selected by the quote unquote Justice Department. And I'm not suggesting that these that these prisoners did not commit horrible horrible murders and that we grieve with the surviving victims of those cases, without question. But this list was so carefully curated by the so called Justice Department. They picked for white guys even though that the the majority of folks on death row are persons of color. We've been making arguments about the disparate treatment of persons of color in the execution of the death penalty for years years and years and years. And the federal death penalty is no different. If you like chaos in government, you know if that feels good and righteous to you then you loved having three executions in a week because this was set up from jump street to be a chaotic circus. The fact that Danny Lee was strapped to a gurney for four hours while the Justice Department tried to figure out if in fact it was a stay of execution for him is terribly disheartening. Wesley Perky, a man who has a decades long history of mental incompetence, mental illness was raising claims that he was incompetent to be executed that were never considered by any court. In the beginning when his lawyers were trying to raise those issues, the Justice Department said that he was making those claims too early and then at the end when he was making the claims, they said that he was making them too late. And it appears that the Justice Department had evidence that was either not produced to Mr. Purkey's lawyers or produced in such a late untimely fashion that it was unable to be used that indeed showed that Mr. Purkey was incompetent to be executed. This was nothing short of a federal circus. It was disgusting, and it was - It was just - you know When Rob says that this isn't how we litigate things in the United States, he's absolutely right. But this is how they do it in China. This is how they do it in Saudi Arabia, in Libya. Is that what we are aspiring to? -because that's what we've become. This was a very brutal week for our justice system.
>>BOB ZALTSBERG: I want to ask Jody Madeira to make a distinction between, you know, the federal system and the death penalty in the federal system and in states. And as I understand it, states are - states more often than the federal government do executions, correct?
>>JODY MADEIRA: Yes, federal executions are actually extremely rare. And for a federal execution to take place, a person, of course, has to be convicted of a federal crime. And they have to have gone through federal courts instead of state courts. It's interesting because there is, you know, only a few real types of claims that you typically find on the federal level - crimes against the United States that involve terrorism, crimes that involve the murder of a federal witness, crimes that occur on military bases, involving federal employees. You know, there is - it's just a very small subset. And what's a very compelling difference is that claims on the state level involve a whole other set of appeals. They go through the state level of appeals and then the federal level of appeals. Whereas with the federal, it's short circuited because you only get a sort of truncated round of federal appeals. And so, of course, another key difference is that if you're put to death on the state level, you could be subject to any one of several methods of execution depending on your state. Now that we know what this method is on the federal on the federal level, it's going to be pentobarbital, which also raises serious Eighth Amendment claims.
>>BOB ZALTSBERG: So many years ago I was involved with - well, I was the editor of a newspaper, and there were eight newspapers in Indiana that did a series of stories that looked at the death penalty situation in Indiana. And I guess we could expand it to the federal level, too. And we entitled that series, "Indiana's Other Lottery," the death penalty because it seemed like people who got to death row people who wound up being executed. There were a lot of places along the way where with a bit of different personnel perhaps or a little bit different luck that things would have been very different. And I wanted to ask Robert Dunham, Monica Foster and Jody to all comment on that. Is that a fair characterization of how the death penalty is administered in this country? Robert.
>>ROBERT DUNHAM: I think that's an absolutely fair way of describing it. The single most important factor in whether somebody faces the death penalty isn't what they did and it isn't necessarily even where they did it but who the prosecutor is in that locality. Within states, we see broad differences in the way offenses are prosecuted, whether they're sought capital or not. And when we look at the federal system, in fact, half of all federal death sentences are imposed from just three states, from Texas and Missouri and Virginia. If the system is supposed to be selecting the worst of the worst cases from across the country, it's unfathomable to think that half of them occur in just a tiny number of jurisdictions. And when we look across the country, the death penalty actually exists in only a very few number of counties. Eighty-five percent of the counties have nobody on death row. And what we see is that when you change prosecutors, you change death penalty policies. More than half of all the death sentences in the United States come from 1.2% of all the counties in the United States. So that tells us a lot. The prosecutor is what drives the death penalty. The second most important factor is who the defense lawyer is. And a great lawyer doesn't necessarily always win the case. But without it, you are much, much more likely to end up with the death penalty.
>>BOB ZALTSBERG: I once had a prosecutor in Monroe County tell me that he went to a prosecutor's attorney conference and they were talking about the death penalty. And one of the speakers said if the prosecutor from Monroe County, Indiana would like to stand up and leave right now, that's fine because you would never get a death penalty conviction in Bloomington, Indiana. So (laughter) you know, that said to me a lot just that one little experience. So...
>>MONICA FOSTER: Actually an expression amongst the death penalty that it's not - we don't kill the worst murderers. We kill the murderers with the worst lawyers. And the idea that whether you are going to end up on death row and being executed has so much to do with the lottery of who the government appoints to represent you, it is very disturbing.
>>BOB ZALTSBERG: Jody, any response to this?
>>JODY MADEIRA: Yes. I think that's absolutely true. It's incredibly serendipitous. And I also think that you know it's also based upon what happens with your case over the years. So it depends on other factors such as does the prosecutor allow victims' family members to have a say in what happens? Does the victims' family want an execution? Do they push for it? I remember my - the bulk of my research efforts on the death penalty have been tied to the McVeigh case. And in that case there actually was a group of family members and survivors that went to the Department of Justice and said we want to see McVeigh die. And so you know what do you do when they have a trauma reaction that might fade in five to six years but they're being consulted by a prosecutor you know in the time after trial which is pretty short after the murder? And I just think you also have the mental resilience of the defendant. He was sitting on death row. And you might have a defendant who might be innocent. They might have claims that are worthy of being heard. He might have a great chance to get off of death row but they can't take it anymore so they volunteer. And so I think there's other factors that the system creates that also should be considered in there as well.
>>BOB ZALTSBERG: Monica Veillette, you are a family member and you know you already described to us that you don't feel like you were listened to. Were there any members - any family members that were arguing that Daniel Lee should die?
>>MONICA VEILLETTE: None that attended the trial, none that were there when all of the evidence and witnesses were talking so I think, of course, we have a very large family and there are some people that don't care either way. They're like this doesn't affect my life. I don't really care. But you know my grandma, my mom, myself, the people who have been involved were most involved with my aunt were there. My mom was there every single day through this trial. You know, and since finding out all of the other things that weren't presented in court, you know, I think it is a hard place to be in. You're asking family members who are traumatized right after a crime what they think, which in our case we said from the beginning don't use the death penalty. But I don't think that our justice system really should be based on the opinions of traumatized family members, even though we are some of those family members. I think it should be a just and fair system regardless of how we feel.
>>BOB ZALTSBERG: Where does the judge fit into all this because judges are normally the people who are invoking the sentence. Where do they fit into this?
>>MONICA VEILLETTE: The judge in our case was actually against the death penalty. He - until he died, this - Daniel Lee's case - he said disturbed him and kept him up. I wrote Judge Isley at some point after and asked what we could do as a family. And he was a very kind person. You know but it - in our case it was (unintelligible) - it was a federal crime. And so even though the judge, the prosecutor, the defense, the family, everybody was on the same page, when it went up to the attorney general, they came back and said no, you have to keep the death penalty on the table.
>>BOB ZALTSBERG: Is this different in federal and state cases, Jody?
>>JODY MADEIRA: Yes, actually it is. So in federal cases I think there is less of an opportunity perhaps for the victim's family to weigh in. On state cases depending on the prosecutor, depending on the victim's advocate and how effective that person is in working with the prosecutor, you might have a victim's family with tremendous input or you might have a victim's family with very little input. And I would also guess, you know, because the death penalty is political, prosecutors are elected in certain areas - I think they feel like they're more likely to be re-elected if they do have a higher number of death penalty cases and successful convictions. If the victim's family is against the death penalty that might diminish their save right there on the state level.
>>BOB ZALTSBERG: And what about judges? Do they have leeway - more leeway in the state than a federal judge would?
>>JODY MADEIRA: I would say that they are also bound by many state laws that are - mirror those on the federal level. So if the jury votes for death, then the judge's reactions are somewhat constrained. The judge can declare that there was something wrong with the trial but that could happen also on the federal level as well. But I think that that ability varies across state laws. But again I don't think there's much wiggle room once the jury votes to put someone to death.
>>BOB ZALTSBERG: And for - yes?
>>MONICA FOSTER: In the federal system the Justice Department really only cares about the victim's family if they support whatever the Justice Department's position is. So for example with Ms. Veillette's family, they had filed a motion with the judge - the local Indianapolis federal judge who said that they did have a right to be there, and to be at the execution, and to be at the execution in a safe manner. And so the judge - the federal judge in Indianapolis issued a stay. But what happened is that the Justice Department then appealed the stay to the 7th Circuit. And even though the Justice Department had imposed these execution dates saying that the executions needed to be carried out for the victim's family members, the Justice Department in the example of Mr. Lee's execution that Miss Veillette was so badly impacted by, the Justice Department went to the 7th Circuit and argued that the victim's family had no interest in the matter. And the 7th Circuit agreed that the victim's family had no interest in the matter. And the United States Supreme Court upheld that. You can best believe that had Mr. Lee's surviving family - victim's family members been supportive of the death penalty, they'd have had him out there on front street doing interviews and cheering for what the government was doing. It's a sad situation.
>>MONICA VEILLETTE: Monica, I thank you. I just wanted to thank you for recognizing that and pointing it out because that has been our experience and it has been horrible, you know - that so everybody was from the - you know staff at the prison when they were setting up arrangements were so nice. But as soon as we were concerned about our health - my grandma is 81 and has congestive heart failure - and as soon as we started expressing our very valid concerns about where we're traveling from - you know, Spokane, Washington and Arkansas both are on mass mandates, both are still having surging numbers, they stopped talking to us completely. And in fact in the briefing with - the Supreme Court called our concerns frivolous.
>>MONICA FOSTER: Yes they did.
>>MONICA VEILLETTE: And that will not leave our minds. It's like wow like so our lives are frivolous? Has this been the case the whole time that we're only viewed as valuable as long as we're doing what they want us to do and behind what they want?
>>MONICA FOSTER: I am so sorry for what your family went through Monica. And there is an army of folks out here who do not believe that your concerns were frivolous and do not believe your lives are frivolous. And I'm sorry that you were hurt by our so-called Justice Department. But please know that your views on this are not frivolous.
>>ROBERT DUNHAM: Yeah, the government may not have apologized but the government owes the family an apology. I thought it was a disgrace in the manner in which they were treated throughout this entire process. Bob, I wanted to step back for a second and go back to your question on the role of judges because as Jody was saying we have a federal system that there really isn't a national policy on crime or national policy on capital punishment. There are 50 state jurisdictions, the D.C., Puerto Rico, the territories, and the U.S. and each has their own set of laws that govern criminal justice. When it comes to judges for the most part, juries are the ultimate decision maker. But in a significant number of states the judge has an opportunity to accept or reject the jury's recommendation of death. In other states the judge is the ultimate decision maker. In Indiana, if there is not a unanimous jury vote you then will go to a judge to decide. So there are - the judges have different roles in different states but is governed by state law. And that's part of the reason why the U.S. system is so chaotic when you look at it from above and produces such arbitrary results.
>>BOB ZALTSBERG: We're talking about the death penalty. We're just one week out from three federal inmates being executed in Terre Haute, Indiana. We're talking with four guests - four remaining guests on the program today, Jody Madeira from the IU Mauer School of Law, Robert Dunham from the Death Penalty Information Center, Monica Foster Indiana Federal Community Defenders chief federal defender, and Monica Veillette who is a family member of one of the - a family member of victims of one of the inmates who was put to death. If you have any questions or comments for us on the last 10 to 12 minutes of the show, you can reach us on Twitter at noon edition. You can also send those questions to news at Indiana Public Media dot org. I wanted to ask you, Robert Dunham, about some of the data that I saw on your Web site because you have quite a bit of data that shows death row prisoners by race, death row prisoners by state, the number of exonerations by state, all sorts of different things. And what are some of the key statistics that you've found out that makes you - things that you think that we might want to take a closer look at?
>>ROBERT DUNHAM: Well everybody's worst fear is that the death penalty is going to execute somebody who is innocent. We want fairness across the board. But we definitely do not want to kill people who are innocent. The two biggest numbers that I think people need to be aware of is that there have been 1,522 executions since the death penalty came back in the United States in the 1970s and 170 documented exonerations. And that means that for every nine people who are executed there's one person who has been exonerated. If we thought of this in different terms like landing a plane, if a plane crashed every 10 times we would be doing something about it to ensure that the system worked better or we would just rip up the system altogether. But here in matters of life and death when we get to the end of a case, the single most likely outcome of a capital case is that the conviction or death sentence has been overturned because it was unconstitutionally imposed. And when you reach the very tail end, for every nine executions there is an innocent person who's been - or a person who's been found to be innocent. We estimate that there are probably more than 100 people who are actually innocent who are still on the nation's death row.
>>BOB ZALTSBERG: So is this a real relatively recent phenomenon? I know we've heard a lot about DNA testing now. Has that really expanded the numbers of people who are found innocent?
>>ROBERT DUNHAM: Well that's what's really interesting because the key to the DNA is not who it's exonerated but what it tells us about the evidence. DNA is present in only about 15 percent of the innocence cases and an even smaller percent of the cases overall. But what it tells us is that every other piece of evidence that was used to convict was wrong. The eyewitness testimony was wrong. The testimony of prison informants was wrong. There was something that was wrong with the forensic - other forensic evidence in the case, junk science and so forth. And in 20 percent of the cases there are even false confessions that are either a product of improper interrogation techniques or a state witness simply making things up. The big thing to remember is that just because DNA isn't present and you don't have the smoking gun of innocence, it doesn't mean that all these errors didn't take place. And so when we look across the board at all the evidence in all of these cases it becomes increasingly frightening because we can't have confidence in the evidence. And we are certain that innocent people have been executed and continue to be executed and people are convicted and sentenced to death based on junk science, false testimony and eyewitness mistakes.
>>BOB ZALTSBERG: So I know you've also got some data on your site and I want to ask all of our people who are on the panel about the death penalty as a deterrent. I know there's been a lot of research done on that. So what - is it a deterrent to serious crime?
>>ROBERT DUNHAM: No. We did a 30-year study or I should say an analysis of 30 years of FBI data because we - if the death penalty is a deterrent and it makes the public safer, that's a powerful reason to have it. And if it makes police officers safer, that's another powerful reason to have it. So we looked at 30 years' worth of data. We did 30 years because that's how much the FBI had on the killings of police officers. And what we found were a series of patterns. First of all on average murder rates were higher and killings of police officers occurred with greater frequency in states that had the death penalty as opposed to states that didn't have the death penalty. We found that that remained the same over the course of time. We looked at not just the national numbers but state by state. And we found that the states with the lowest murder rate tended to be the ones without the death penalty and states with the highest murder rates and the highest rates of killings of police officers tended to be death penalty states. It would be nonsense to say that the death penalty causes more murder and places police in jeopardy, but what it does tell us is that murders drive the death penalty. The death penalty doesn't drive murders. You're more likely to have a death penalty if you're in a more highly punitive state and a state that has more murders. But whether you have the death penalty or don't has nothing to do with whether murder rates are going to go up or down.
>>BOB ZALTSBERG: Jody or Monica? Yeah. Yeah, Monica go ahead.
>>MONICA FOSTER: I just want to begin anecdotally. I've been representing persons charged with the death penalty and or convicted and sentenced to death for 37 years. I've never had a client that actually even knew there was a death penalty and that includes some fairly sophisticated - I mean, I represented a very sophisticated business man in the Northeast who did not know there was a death penalty before he committed the crime that he was ultimately convicted of. You know for those of us who care about these things, we may find that really hard to believe but that has certainly been my experience.
>>BOB ZALTSBERG: Jody, you want to weigh in?
>>JODY MADEIRA: Sure. I believe that even if there is a plausible argument which I don't think there is based upon my co panelist answers - you know and that's well settled information - what kind of a deterrent is it when you get somebody on death row and keep them there for 20 years, right? And so there is - it's so expensive to execute someone. It's so traumatic to execute someone. It's so flawed as a process you know that basically you have a greater chance of dying in prison than you do of actually getting to the death chamber.
>>BOB ZALTSBERG: What is it - what do statistics show us about racial breakdown when it comes to the number of people on death row, the number of people who are convicted of - death - in death penalty cases who are sentenced to death? Is there anything we can glean from those statistics?
>>ROBERT DUNHAM: I think there are two important things that we can learn from it, that there is discrimination and it occurs at two different levels. First of all in the state systems across the country there are roughly the same number of African-Americans and white prisoners who are on death row. And that is far out of proportion to the way in which murders occur. The more stunning number in the federal system is that about 60 percent of the people on federal death row are defendants of color. But what drives the system is the race of the victim. About half of all murders in the United States involve white victims. Seventy-five percent of executions involve white victims. And so there is a racial preference. Prosecutors value the lives of victims differently. And because of the white preference we see capital prosecutions far more frequently in cases in which the victims are white. And then once you look at these cases based on the race of victim you find that for each race of victim you're disproportionately likely to be sentenced to death if you are a defendant of color.
>>BOB ZALTSBERG: Does that surprise you Jody or you Monica?
>>JODY MADEIRA: Not at all.
>>MONICA FOSTER: It doesn't surprise me in the least. I've lived that. You know the conversations that you have to have with clients of color are deeply disturbing. And when you have to have a conversation with a client that tells that client of color you are more likely to be sentenced to death and executed solely because of the color of your skin. And that is a conversation that we have with the client because that is the reality of the criminal justice system.
>>BOB ZALTSBERG: We only have two or three minutes to go and I want to ask Monica Veillette first about you know that the death penalty - this case that involved your family and the lasting impact that is going to have on you.
>>MONICA VEILLETTE: The thing I would ask that people keep in mind is that aside from all of the other issues with the death penalty that we know about, a lot of what we have dealt with is understanding that when a person is given the sentence that the families of the victim are also given this sentence, that we have been in prison right along with Daniel Lee all of these years because we had to listen to all of these different things that came up, all of the updates, all of the feeling like this was being done in our name - another human being is going to be killed in my name. That is a heavy burden to live with. And now a person has been killed in our name and we have to live with that for the rest of our lives as a family. And we have to live with people coming up to us and saying I bet you're so happy this happened. And it's not - you know making assumptions. And so it doesn't just affect us as a country and the people who are in prison, it also affects family members. And it's something we can't ever get away from. And I would just...
>>BOB ZALTSBERG: Very - yeah.
>>MONICA VEILLETTE: ...People to consider that, you know?
>>BOB ZALTSBERG: Thank you. I wanted to ask - just turn to Robert Dunham for one last comment. Is there any legislation that you would like to see? Is there any remedy in the courts or something that you find particularly egregious from all the research and the data that you have?
>>ROBERT DUNHAM: Well, we would need another hour to go through all of it.
>>BOB ZALTSBERG: We only have one minute (laughter).
>>ROBERT DUNHAM: There are significant problems. I think that reforms - if there is going to be a death penalty, reforms need to be made to ensure that it's sought in only a very small narrow group of cases. You have to ensure that there is fair defense, accessibility for resources, for experts. Prosecutors need to turn over their evidence. The exoneration cases in capital cases - 85 percent involve police or prosecutorial misconduct. And I think that we need to include the death penalty as an integral part of overall criminal legal reform in the United States.
>>BOB ZALTSBERG: All right. Thank you very much for something that up for us. We're out of time. I want to thank our guests today Jody Madeira, Adam Pinsker, Robert Dunham, Monica Foster and Monica Veillette for being here with us. For our producers - Bente Bouthier, John Bailey and Mark Chilla, engineers Matt Stonecipher and Mike Paskash, I'm Bob Zaltsberg, thanks for listening to Noon Edition.
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