The Real Risk of Executing the Innocent

Since 1973, 185 people have been exonerated from death row after evidence emerged of their innocence. That’s approximately one innocent person exonerated for every eight executions. Three of those 185 people, three are from Tennessee, plus Tennessee also has an additional case, that of Ndume Olatushani, who was released on an Alford Plea after evidence revealed that he had been sentenced to die for a crime he did not commit.

In February 2021, the Death Penalty Information Center released a special report entitled, “The Innocence Epidemic,” that looked more closely into death-row exonerations in the U.S. in the years since the Supreme Court ruled in Furman v. Georgia in 1972 that the death penalty as then administered was unconstitutionally arbitrary and capricious. You can find that report at

Despite the best intentions, we can’t be right 100% of the time

  • DNA exonerations have been a window into all the things that can go wrong in a murder case. They have revealed that cases are often riddled with problems like mistaken eyewitnesses, incompetent lawyers, shoddy forensics, unreliable jailhouse snitches, and coerced confessions.
  • DNA by itself cannot solve these problems. DNA evidence exists in less than 15% of criminal cases – far fewer than one would think from watching TV crime shows like CSI.
  • Of the 375 exonerations for any crimes involving DNA, 21 of those individuals served time on death row (6%)
  • Contrary to popular belief, the appeals process is not designed to catch many of these mistakes. These exonerations came only because of the extraordinary efforts of people working outside the system – pro bono lawyers, family members, even students.

Innocent people have spent decades on death row, or come within hours of execution, before the truth came out. Cutting appeals will only increase the risk that an innocent person will be executed.

Ray Krone was sentenced to death in Arizona in 1992. He spent 10 years in prison, with 3 of those spent on death row. In 2002, he became the 100th man to be exonerated after being given a death sentence, and he now lives in Tennessee. Film source: One For Ten.

Stories of Tennessee’s Broken System

Michael McCormick was sentenced to death in Chattanooga in 1985. His conviction was based largely on hair evidence found in the murder victims’ car that the FBI said matched McCormick. After spending 20 years on death row, DNA testing ultimately proved that the hair did not belong to McCormick and he became the nation’s 125th death row exonoree.

Paul House was released in 2009 after spending nearly 23 years on death row, even though evidence indicating his innocence (including DNA) had been uncovered in the 1990’s. In 2006 the U.S. Supreme Court ruled that “had the jury heard all conflicting testimony, it is more likely than not that no reasonable juror would have lacked a reasonable doubt.” In other words, House would not be found guilty in a fair trial with all the evidence introduced. House’s case was finally thrown out and all charges were dropped, making House the 132nd exonoree nationwide and the second in Tennessee.

Gussie Vann is the 139th death row inmate, and the third in Tennessee, exonerated in the U.S. since 1973, after his 1994 conviction and death sentence for the sexual assault and murder of his eight-year-old daughter, Necia, were thrown out and all charges dismissed. Necia’s death was originally reported as an accidental hanging. Vann was awarded a new trial in 2008, following a state post-conviction review, after Judge Donald P. Harris ruled that Vann’s defense attorneys failed to hire forensic experts to challenge the state’s claims of sexual abuse. Forensic experts later testified that there were no signs of sexual abuse in the autopsy report. Judge Harris wrote that this failure led to Vann being convicted on “inaccurate, exaggerated and speculative medical testimony.”

Ndume Olatushani, formerly known as Erskine Johnson, spent almost 28 years in prison and nearly 20 of those on death row, for the 1983 murder of Joe Belenchia, a grocer in Memphis. Although he was was in St. Louis at his mother’s birthday party with nearly 30 witnesses when the crime occurred and had never been in the state of Tennessee, he was convicted and sentenced to death by an all white jury. After countless appeals, in 2004 the Tennessee Supreme Court found that prosecutors did not disclose important information to the defense, and Ndume was re-sentenced to life in prison and moved off of death row. In December 2011, Ndume’s conviction was overturned when the Tennessee Court of Criminal Appeals found that some of the state’s witnesses had close ties to other suspects, which could have led them to implicate Ndume. If the jury had known of this motive, it could have weakened the witnesses’ credibility, and might have resulted in a different verdict. Other evidence was also uncovered that revealed he had not committed the crime. He was awarded a new trial and was moved to a Memphis jail to wait. He was later offered an Alford plea, a deal allowing him to maintain his innocence but also allowing for an immediate release if he pled guilty to second-degree murder. Ndume took the deal, maintaining his innocence as he always had, and was released on June 1, 2012. (Adapted from: Hutson, Laura. “If not for love and art, Ndume Olatushani would have died on death row.” May 23, 2013, Nashville Scene).

Factors leading to wrongful convictions include:

  • Inadequate defense
  • Police and Prosecutorial misconduct
  • Perjured testimony and mistaken eyewitness testimony
  • Tainted jailhouse testimony
  • Suppression of mitigating evidence and misinterpretation of evidence
  • Death qualified juries
  • Lack of or unreliable eyewitness testimony

Though death penalty cases may take decades to complete, much of this time is spent waiting for counsel to be appointed or for the courts to review the case, and this review is frequently limited to the trial record. This also means that the appellate courts may not review critical facts such as new evidence of innocence, prosecutorial or police misconduct, the failings of the defense attorney, or new information on the individual’s background or mental health history that may have influenced the jury. Because the courts often emphasize finality over fairness and accuracy, the citizens of Tennessee cannot have confidence that the administration of the death penalty will not result in the execution of an innocent person.