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Panel: Death Penalty Can Be Reinstated With Safeguards

By Scott S. Greenberger

The Boston Globe -- Massachusetts can create a capital punishment system that is “as infallible as humanly possible” by narrowly defining the eligible crimes and requiring the use of DNA or other scientific evidence, according to a report that will be released Monday by a panel appointed by Governor Mitt Romney.

The panel of specialists is recommending that Massachusetts mete out capital punishment for what it calls the “worst of the worst” crimes. The new system would require jurors to have “no doubt” of guilt -- a higher hurdle than the customary “beyond a reasonable doubt” standard -- to sentence a defendant to death. And it would establish a series of reviews -- by scientific experts and the courts -- to attempt to protect the innocent from execution.

Romney, who convened the 11-member commission of lawyers, law enforcement officials, and forensic scientists last September, wants to reinstate the death penalty in Massachusetts, which abolished capital punishment in 1984 and has not executed anyone since 1947. It is one of a dozen states without the death penalty.

The governor’s goal is to sway a reluctant Legislature -- both Senate President Robert E. Travaglini, Democrat of East Boston, and House Speaker Thomas M. Finneran, Democrat of Mattapan, a Boston neighborhood, have said they oppose the death penalty -- by turning the controversy over death-row exonerations on its head: If DNA can be used to prove the innocence of death row inmates, he argues, it can also be used to prevent wrongful convictions.

Dr. Frederick R. Bieber, an associate professor of pathology at Harvard Medical School and a medical geneticist at Brigham and Women’s Hospital who cochaired the commission, said the report has the potential “to influence things far beyond the borders of Massachusetts.”

“We’re humans, and you’re not going to find anybody who can tell you that humans could never make a mistake,” said Bieber, who declined to reveal his personal views on the death penalty. “But as much as is humanly possible, I and the others are of a common mind that if these recommendations were put in place in their entirety, we believe to a man, or woman, that the chance of an erroneous conviction and execution would be vanishingly small.”

Nevertheless, the safeguards envisioned in the 29-page report are not sufficient to satisfy many death-penalty critics.

The proposal “doesn’t hit at enough of the real problems in the system that causes false convictions,” said Harvey Silverglate, a Boston criminal defense and civil liberties attorney who says he opposes the death penalty because of the possibility of wrongful convictions, rather than on ethical grounds. “It hits at some of them, but not enough of them and surely not all of them.”

Meanwhile, some death-penalty opponents, and supporters, say they believe the proposal is drawn so narrowly it will almost never result in a capital conviction.

Romney declined to comment before the official release of the report Monday, but when he created the panel last year he called for “a standard of proof that is incontrovertible.”

“Just as science can be used to free the innocent, it can be used to identify the guilty,” the governor said in announcing the formation of the commission.