Manny Babbitt suffered the same fate. A decorated Vietnam War veteran (he was awarded his Purple Heart on San Quentin's death row only weeks before his death), Babbitt was executed in May 1999 for the death of Leah Schendel, a 78-year-old woman who died of a heart attack in 1980 during Babbitt's attempt to burglarize her home. No claim of premeditated murder was made by the state. Rather, it became a death penalty case because of a California law making death caused in the process of a burglary a capital offense.

Babbitt's state-appointed trial attorney -- who was later disbarred for financial improprieties -- failed to introduce mitigating evidence of his client's prior confinement in a mental hospital, or of his obvious symptoms of post-traumatic stress disorder from his Vietnam experience -- Babbitt had been observed reenacting battle scenes as a homeless person in Providence, R.I., prior to the burglary.

Two jurors in the Babbitt case subsequently testified that had they known of his wartime experiences and mental history, they would not have voted for death. His subsequent execution, which followed a rejection by Gov. Gray Davis of his clemency appeal (which had been endorsed by hundreds of Vietnam vets), also illustrates how capital-sentencing error, like murder itself, casts a wide net of suffering.

"When my Manny was sentenced to death, at first I thought of killing myself," recalls his older brother Bill, 60, who personally turned in his brother after word of Schendel's death, on a promise by the police that his brother would not receive a death sentence. "I turned Manny in because I felt sympathy for that family, and I felt very guilty about it when they went ahead and sought the death penalty."

Bill Babbitt, now active with the group Murder Family Victims for Reconciliation, says that his brother's 17 years on death row, and his ultimate execution, were "devastating" to his family, which included himself, a mother, two children and several grandchildren. While saying he feels great sympathy for the victim's family, he asks, "What kind of closure did they have? They could have had closure in 1982 if Manny had been sentenced to life in prison. The prosecutors told them that when Manny was dead, they'd feel better. Instead, the state kept that wound open almost 20 years. That's closure?"

Bill Babbitt watched, along with several of Schendel's relatives, as his brother was killed by injection. "Her granddaughter couldn't watch," he recalls. "She looked at the floor. So did the prosecutor. But I watched the whole thing. My brother had told us he was not afraid to die, and that we should not show any malice toward the victim's family. He said he would keep his eyes closed and meditate on God and Jesus, but that he wanted a smiling face watching him. So I told him I'd be there."

Liebman says that since sentencing errors are so often the result of incompetent or inadequate defense attorneys, they are often red flags for probable errors in the guilt phase of the trial -- suggesting that some of those with sentencing errors may well have been wrongfully convicted too. "It's just that sentencing errors are much easier to prove," he explains.

That is because while guilt must be proven "beyond a reasonable doubt," the standards for justifying the death penalty are much lower. "In the conviction phase of a capital trial, the whole burden of proving guilt is on the prosecution, so you pretty much have to prove the errors occurred there, which is harder to do," says Liebman. "In the sentencing phase, part of the burden is on the defense -- to bring in mitigating evidence to convince a jury that death is not appropriate. If an attorney doesn't do that, it's easy to point it out on appeal."

That doesn't mean an appeals court will go along with a claim of ineffective counsel, however. Even in cases where defense attorneys slept through trials or attended while stone drunk, higher courts have upheld the subsequent convictions and death sentences of their hapless clients. But at least it is relatively easier to present evidence that no mitigating evidence was submitted than to prove that a conviction was incorrect.

Liebman adds it is also politically easier for judges in capital cases to overturn a sentence that leaves a convict behind bars for life than to overturn a conviction, which raises the possibility that the individual might end up back on the street. At the same time, he says it is clear that, since the reinstatement of the death penalty in the United States nearly three decades ago, hundreds of capital prisoners have already been executed whose sentences were in error.

That certainly was the case with Robert Coe, the only prisoner to be executed in Tennessee since the reinstatement of the death penalty in that state. Coe, executed in 2000, was a severely mentally ill individual with a grotesque history of abuse as a child -- his father raped his sister in front of him and had punished him for a childhood transgression by deliberately shooting him in the leg.

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