India: "Abusive lottery must be abolished"

The most comprehensive study of India's death penalty system ever conducted has concluded that it is an abusive and inconsistent process, hanging people on the basis of shockingly inadequate evidence.

Describing the system as a "lethal lottery", at the launch of the report on 2 May 2008, the study's authors said "the only remedy is to abolish the death penalty [in India] completely".

The landmark 243-page report Lethal Lottery: The Death Penalty in India, A study of Supreme Court judgments in death penalty cases 1950-2006 was published by Amnesty International India and the People’s Union for Civil Liberties (Tamil Nadu & Puducherry).

Researchers analysed Supreme Court judgements handed down in more than 700 death penalty cases over a 56 year period.

Woefully few, too many
A summary of the study findings said the work was necessary "because of a vital gap that affected those campaigning against the death penalty: the absence of a comprehensive analysis of facts relating to the practice of capital punishment".

"There exist woefully few researched studies on the subject," it said.

Amnesty International reported at least 140 people were sentenced to death in 2006 and 2007. The most recent official figures, from 31 December 2005, showed at least 273 people were on death row, a figure which would certainly have increased.

"The fate of these death row prisoners is ultimately a lottery," the study's authors said.

This research was "the first to examine the essential unfairness of the death penalty system in India by analysing evidence found in Supreme Court judgments of abuse of law and procedure and of arbitrariness and inconsistency in the investigation, trial, sentencing and appeal stages in capital cases".

It found that the death penalty was not limited to "rarest of rare cases" as claimed by politicians and courts. But "on the contrary, there is ample evidence to show that the death penalty has been an arbitrary, imprecise and abusive means of dealing with defendants".

Poor evidence, poor defence
The main failings identified in the report were:

1. errors in consideration of evidence -- most death sentences handed down in India are based on circumstantial evidence alone. In a 1994 Supreme Court appeal, the Court noted the main witness's memory constantly improved from his statement a few days after the incident to the trial three years later

2. inadequate legal representation -- concerns include "lawyers ignoring key facts of mental incompetence, omitting to provide any arguments on sentencing, or failing to dispute claims that the accused was under 18 years of age at the time of the crime despite evidence to the contrary"
anti-terrorist legislation -- concerns include "the broad definition of 'terrorist acts', insufficient safeguards on arrest, and provisions allowing for confessions made to police to be admissible as evidence"

3. arbitrariness in sentencing -- "in the same month, different benches of the Supreme Court have treated similar cases differently, with mitigating factors taken into account or disregarded arbitrarily"

4. failure of the courts and state authorities to consistently apply the procedures supposed to limit the death penalty to the "rarest of rare" cases.

The report also condemned a range of failings in India's death penalty system, which were at odds with international standards on the use of the death penalty.

These included expansion in the scope of the death penalty, mandatory death sentences -- for example for drugs and firearms offences -- and a lack of safeguards to prevent execution of children and the mentally ill.

Doing without, for how long?
Amnesty International welcomed the "current hiatus" on executions in the past decade, and said this "illustrates that the people of India are willing to live without the death penalty".

The last execution in India was carried out in August 2004, when Dhananjoy Chatterjee was hanged for the 1990 rape and murder of a girl. He was the first person to be hanged in India for over six years, having spent more than 14 years in prison.

However this week the Times of India reported that on May 16 a Bettiah court issued a "black warrant" for the execution of Prajeet Kumar Singh.

The newspaper said authorities in Bhagalpur Central Jail were preparing for its first execution in 13 years, which by law must take place between 21 and 28 days from a warrant being issued.

It quoted prison superintendant Uma Kant Sharan as saying the gallows would have to be readied and a hangman recruited.

"A separate request will be made to manufacturers of the special noose rope in Buxar," he said.

Prajeet's family, however, has reportedly lodged a petition for mercy with the President.

Related stories:
India: The politics of hanging -- 16 January, 2007

Australia: Hanged man pardoned after 86 years

[Please note: long post]
The Victorian Government today announced it had pardoned Colin Campbell Ross (pictured), 86 years after he was hanged for the murder of a Melbourne schoolgirl.

Nell Alma Tirtschke was murdered on New Year's Eve 1921, and her naked body dumped in the dead-end Gun Alley, off Little Collins Street in Melbourne.

Ross, the 28 year-old owner of a wine saloon in nearby Eastern Arcade, always strenuously maintained his innocence. He was executed at Old Melbourne Gaol in April 1922, less than four months after the murder.

The 12 year-old girl was running errands for her aunt that afternoon, but the prosecution claimed in court that Alma was instead inside the saloon, where Ross plied her with wine before raping and strangling her in a back room. Witnesses identified him as the man who returned later that night to dump her body in the alley.

He was convicted on the basis of that testimony, a "confession" made to a fellow prisoner and the crucial "match" of hairs on a blanket found at his house with hair taken from the dead girl's head.
Deputy Premier and Attorney-General Rob Hulls said today the pardon followed a joint petition for mercy made by the families of Ross and Alma Tirtschke in October 2005.

The petition was signed by Ross' niece, Betty Everett, and Alma Tirtschke's niece, Bettye Arthur. It drew on evidence uncovered by a researcher who wrote a book about the case, which came to be known as the 'Gun Alley' murder.

Kevin Morgan's book Gun Alley: Murder, Lies and the Failure of Justice was based on 15 years of research into the case.

First review of its kind
In what is thought to be an Australian legal first, Hulls referred the application to the trial division of the Supreme Court of Victoria, which convened a panel of judges to examine the case and provide an opinion to the Attorney-General.

The three judges came to the conclusion in December 2007 that "that there has been a miscarriage of justice".

In the course of his research, Morgan tracked down the hair samples -- the only physical evidence linking Ross to the crime -- and had them examined using modern scientific analysis.

That analysis concluded the two hair samples were not from the same person.

At the time of the trial, the Crown had refused to make the samples available for testing by the defence.

Morgan also found that the jailhouse confession was reported by a prisoner with a record of perjury, a fact not disclosed to the jury.

Defence witnesses who placed Ross on a tram going home at the time of the murder were discounted at the trial.

Lifting the fear
According to a report in The Age newspaper, the pardon has taken an enormous weight from the descendents of both Alma Tirtschke and the man killed to punish her murder.

Morgan said: "A big stain on the legal system has finally been expunged, and a shadow on two Australian families has also been lifted.

"That justice has finally been done for the Ross and Tirtschke families after 86 years is a tremendous outcome."

The girl's niece, Bettye Arthur, said: "It is a tragedy for everybody that the actual perpetrator was not caught, and an innocent man lost his life."

She said her mother, Alma's younger sister, had been deeply affected by the murder.

"The actual pardon has also helped restore the reputation of Alma, because it shows that she didn't enter the wine bar as was said in the trial. She was a good girl," Mrs Arthur said.

Colin Ross' niece Betty Everett, said the pardon took the fear and doubt out of the family secret in the shadow of which she had grown up.

"I had lived with this fear and doubt for most of my life, the more so as I began to have children, that perhaps I carried the genes of a murderer," she said.

"That shadow has gone."

Attorney-General Hulls acknowledged the families' campaign for the pardon.

"The pardon is a tribute to the families of Colin Campbell Ross and Alma Tirtschke for their persistence," he said.

"These families have come together to right a historical wrong.

"I trust the pardon will provide some relief from the suffering that this terrible human tragedy has caused the Ross and Tirtschke families, and allow these wounds to heal."

"A retrial is not possible"
While the pardon is a recognition that Ross almost certainly did not kill the girl, the Attorney-General said in a statement issued today that a pardon is "not the same thing as a declaration of innocence".

"In the circumstances of the case a re-trial is not possible," Hulls said.

"A pardon is recorded against the conviction in recognition that the State forgives the legal consequences of the crime.

"The serious doubts about Mr Ross' conviction underscore why this government abhors the death penalty, which was formally abolished in Victoria in 1975."

Today Hulls presented both families with framed letters of pardon signed by the Governor.

"This is a tragic case where a miscarriage of justice resulted in a man being hanged," Hulls told The Age newspaper.

"May be others"
Victorian Premier John Brumby said science had virtually exonerated Ross, but there may be other cases of innocent people hanged in the state's history.

"Science in particular I think has proven beyond reasonable doubt that he could not have committed that crime."

According to a report on ABC Radio, the Premier said the case showed how far forensic technology had come, and it reinforced Victoria's decision to formally abolish the death penalty in 1975.

Premier Brumby told Fairfax Radio it was not inconceivable there could be other instances of people being executed for crimes they didn't commit.

"If you went back through every single case and you had the evidence still around to scientifically test, forensically test, there may well be some other cases," he said.

AAP said he added the case showed the law was not perfect and mistakes could happen.

"It might only be one mistake in a hundred but in that one case in a hundred, the damage, obviously, that you do to the individual is irredeemable - you take their life, so it's a very strong argument against capital punishment," he said.

'A miscarriage of justice'
Attorney-General Hulls referred the case to the trial division of the Supreme Court of Victoria in October 2006, pointing to the petition's claim that fresh evidence had been uncovered, essentially consisting of "new forensic evidence and new character evidence about one of the witnesses".

He asked the court to determine "whether there was a miscarriage of justice in the conviction of Mr Ross in the light of evidence now available".

Given the importance of the hair evidence, both as circumstantial evidence and to the interpretation of the evidence from key prosecution and defence witnesses, the Supreme Court said "we are driven to the conclusion that there has been a miscarriage of justice as that concept is applied by the appellate courts".

The court noted that the finding of a miscarriage would not automatically lead to an acquittal. Rather, in this sort of case it would lead to a conviction being quashed and a retrial ordered.

Since a retrial was not possible, the conviction could be referred to the Court of Appeal or the Attorney-General could independently grant a pardon.

The pardon was reportedly signed by the Governor of Victoria on Friday.