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21 N. Ill. U. L. Rev. 41 (2001)
Averting Mistaken Executions by Adopting the Model Penal Code's Exclusion of Death in the Presence of Lingering Doubt

handle is hein.journals/niulr21 and id is 47 raw text is: Averting Mistaken Executions by Adopting
the Model Penal Code's Exclusion of Death in
the Presence of Lingering Doubt
MARGERY MALKIN KOOSED*
ABSTRACT
We are bound to execute an innocent person unless we make some
changes. This article urges adopting the Model Penal Code's exclusion of the
death penalty when the evidence does not foreclose all doubt respecting the
defendant's guilt. Adopting a modified version of the Code's section
210.6(1)(f) would both save innocent lives and lessen burdens on our justice
system. While the trial jury may convict on proof beyond a reasonable doubt
of capital murder, the case would not proceed to a penalty phase unless jurors
found the elements proven by a stronger standard.
Illinois is now reevaluating its system of capital punishment, desperately
seeking means of averting the execution of innocents. That real threat brought
Governor George Ryan to announce a moratorium on January 31, 2000, two
weeks after the thirteenth innocent person was freed from Illinois death row.'
* Professor of Law, University of Akron School of Law. Thanks to Lisa J. McGuire
for her extensive research and assistance in this project, and to Alissa Amsden-Michel, Amy
Corrigal, Angela Walls and Melinda Smith for their research assistance while students at the
University of Akron School of Law. I appreciate the support of the University of Akron School
of Law in providing a summer research grant for this project. In addition, I appreciate the
assistance of Kevin McNally for providing materials of help in this study, Phyllis Crocker for
her thoughtful suggestions, and Maria Sandys and Tim Ford for their bits of input as this article
neared completion. I also extend my gratitude to the capital defense counsel who responded
to a survey questionnaire, and to so many others who provided insights in innumerable seminars
and conversations and who work tirelessly to avert mistaken executions.
This article grows out of a presentation entitled Averting the Mistaken Execution
of Innocent People, made at the Northern Illinois University Law Review's Ninth Annual
Symposium Defense Strategies in Death Penalty Litigation on March 23, 2000. That
presentation included a brief sketch of the reform measures then the subject of consideration
by Illinois legislative, court and executive committees in the wake of a moratorium on
executions announced by Governor George Ryan. It also contained a number of suggestions
for reform at the trial and appellate levels that are not developed in this article.
1. Announcing the moratorium, Governor Ryan decried the Illinois system as one that
was so fraught with error and has come so close to the ultimate nightmare of executing an
innocent that executions must be suspended. Ken Armstrong& Steve Mills, Ryan: Untillcan
be sure: Illinois Is First State to Suspend Death Penalty, Cm. TRIB., Feb. 1, 2000, § 1, at I
[hereinafter Illinois Is First]. The State had a shameful record of convicting innocent people
and putting them on Death Row. Id. Illinois had executed twelve persons in the period from

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