Death Penalty Repeal Bill Considered

Saturday, February 02, 2008
By: Anna Jo Bratton Associated Press Writer

LINCOLN, Neb. - An Oklahoma man who spent 19 years on death row came to Nebraska Friday to ask state lawmakers to make sure innocent people aren't executed before evidence can exonerate them.

"If you discover the error too late ... you can't resurrect him from the grave to say, 'I'm sorry, we've made this grievous error,"' 45-year-old Curtis McCarty said after testifying before the Legislature's Judiciary Committee, which is considering a bill that would repeal the death penalty in Nebraska.

McCarty was released from jail in May after a state judge dismissed a 22-year-old murder charge, ruling that the case against him was tainted by a former police chemist whom the judge said lost and destroyed evidence that could have been used to show McCarty's innocence.

McCarty was twice convicted of the 1982 murder of the daughter of an Oklahoma City police officer and was sentenced to death three times. He's maintained his innocence, and although prosecutors said they believed there was still enough evidence to convict him, they did not appeal the judge's decision to dismiss the charge.

McCarty's attorneys contend no evidence linked him to the stabbing and strangulation death of 18-year-old Pamela Willis once testimony offered by the chemist was refuted by subsequent scientific tests.

"I think it's important that maybe new voices be heard on this subject," McCarty said. "I'm just an example of the fallibility of the system."

This is the last opportunity for Nebraska's longest-serving senator to champion a death penalty bill before he's out of office, a casualty of voter-approved term limits. Sen. Ernie Chambers of Omaha has made it a mission to abolish the death penalty in the state, and this is his "last hurrah," he said Friday.

"No matter the nature of the murder, the identity of the victim or the perpetrator, I don't want the state I live in to kill anybody," Chambers said.

The bill (LB1063) would change the death penalty to life in prison without the possibility of parole. Last year, a vote on a similar measure failed first-round approval by a razor-thin margin: 24-25. The bill would need 30 votes to overcome an expected veto from Gov. Dave Heineman.

Nebraska is the only state that has the electric chair as its sole means of execution, and the Nebraska Supreme Court is considering whether that is cruel and unusual punishment.

Meanwhile, the U.S. Supreme Court is considering whether execution by lethal injection - which most other states use - violates the constitutional ban on cruel and unusual punishment.

The closest Chambers came to having the law changed was in 1979, when his bill passed on a 26-22 vote but was vetoed by then-Governor Charley Thone.

In McCarty's case, an FBI investigation showed that the chemist, Joyce Gilchrist, altered her own case notes and may have intentionally lost or destroyed hairs used to convict McCarty so the hairs could not be retested.

Gilchrist concluded after the 1982 murder that McCarty's hair was "not consistent" with strands found at the crime scene - meaning he was excluded as a suspect.

But three years later, when McCarty was tried for murder, she testified from her altered notes, according to an FBI memo. She told jurors that McCarty's hairs were consistent with strands found on the body of Willis, whom McCarty knew.