COLUMN LEFT : Facing Death After Tainted Prosecution : Looking at the Chance-Powell case, how often does such ‘sordid’ misconduct occur?

Californians recently got a rare glimpse into a hidden aspect of criminal prosecutions that may be more common than we like to think: deliberate misconduct by law-enforcement agents to secure convictions against the innocent.

When Clarence Chance and Benny Powell were released last week in Los Angeles, after spending 17 years in prison for a murder they did not commit, Superior Court Judge Florence-Marie Cooper described their ordeal as a “gross injustice” perpetrated by the Los Angeles Police Department’s “reprehensible” behavior. A private investigator uncovered evidence that the police had suppressed evidence and relied on a jailhouse informant to secure the men’s conviction in the murder of a sheriff’s deputy.

When Chance and Powell were sentenced in 1975, California did not have a death penalty, so they received the maximum penalty the law would then permit: life in prison. Had they been sentenced before 1972 or after 1977, we may never have learned of this miscarriage of justice. The efforts to clear their names would have died with them in the gas chamber.

Tragically, as our state races toward joining Texas and Louisiana and Georgia in executions, there is growing evidence that the “sordid” misconduct Judge Cooper assailed will become all too common in death penalty cases.

In 1978, when Jimmy Carter was still in the White House, a man named Gary Nelson was convicted of and sentenced to death for the rape and murder of a 6-year-old girl in Georgia, the kind of emotionally charged crime that puts tremendous pressures on police and prosecutors to solve quickly.

On Nov. 6, 1991, Nelson was released. It had taken his appellate lawyers, working without pay, 11 years to prove what their client had maintained from the beginning: that the state’s case rested on a foundation of official lies, the knowing use of false testimony and the willful suppression of evidence that reinforced Nelson’s claim of innocence.

The tragedy of Nelson’s ordeal, beyond its profound and terrible impact on his life, is that it is far from an isolated case. In a report just released by the Death Penalty Information Center, “Killing Justice,” more than two dozen such miscarriages of justice are detailed, involving the use of threats and intimidation to obtain a “confession,” the suppression of exculpatory evidence and secret promises of leniency for a co-defendant or informant in exchange for testimony against the accused.

It is difficult to assess the extent of such misconduct, since prosecutors do not open their files for inspection. Among the nearly 170 executions carried out since 1977, some were certainly the product of official misconduct. As the Death Row population grows--it is now 2,500 nationwide--so do the odds for wrongful execution.

Shameful as that is, so is the motivation for prosecutors and police to engage in such misconduct: a blatant appeal for votes. The death penalty has become a political issue, a shorthand code for political candidates to demonstrate their toughness in the face of epidemic levels of violence and fear. Conventional wisdom holds that no candidate can afford to appear soft on crime. We saw an example of this in January with the execution of the brain-damaged Rickey Rector in Arkansas. Gov. Bill Clinton felt compelled to leave his New England primary campaign and return home for Rector’s execution, though his presence was not required.

At the local level--the level where the decision to seek a death sentence is made by an elected district attorney--the same political pressures that compel national candidates to “do whatever it takes” to win (to borrow a phrase from President Bush) lead some prosecutors to do whatever it takes to win when political stakes are high.

Where justice finally worked for Gary Nelson, it has failed Roger Coleman. Eleven years ago he was arrested, tried and convicted, and sentenced to die for a rape/murder that he has always adamantly denied knowing anything about. Without a single piece of physical evidence linking Coleman to the crime, the prosecution miraculously came up with what it needed for a conviction: an alleged jailhouse confession to a fellow inmate.

Although the informant, who was freed shortly after his testimony, has since recanted, Coleman still is scheduled to die in Virginia’s electric chair on May 20.

When she ordered Chance and Powell released, Judge Cooper said, “Nothing can be done to return to you the years irretrievably lost.” She is right, of course, but at least these two men now have the opportunity to rebuild their lives. When death is the punishment, the life irretrievably lost cannot be rebuilt.