42 The Death Penalty in the OSCE Area Nonetheless, opponents of the death penalty frequently cite cases in which the convictions of murder defendants have been reversed for trial error to support the proposition that an innocent person has necessarily been executed. While a failure to afford a defendant one of the myriad rights attendant to a criminal trial may lead to reversal of the resulting conviction, this does not mean that the person convicted was actually innocent. For example, a conviction could be reversed because highly reliable evidence of guilt was obtained pursuant to an unconstitutional search. Even a reversal of a conviction for insufficient evidence does not mean that the defendant was actually innocent but merely that the evidence was insufficient to establish guilt beyond a reasonable doubt. To call someone “innocent”, even though they owe the reversal of their conviction simply to one of the many procedural protections afforded to capital defendants, “cheapens the word and impeaches the moral authority of those who claim that a person has been ‘exonerated.’”57 Nevertheless, abolitionists continue to assert, based on purported exonerations, that an innocent person must have been executed. They have not yet identified a single case in which that has in fact occurred. As Justice Scalia has discussed, post-conviction claims of innocence are often clearly spurious. In many instances, they are made in complete disregard for existing evidence of guilt or in reliance on a highly improbable and selective understanding of the evidence.58 Most recently, DNA testing proved that Roger Coleman, executed in 1992, whose claims of innocence were featured on the cover of a national news magazine and who became a prominent test case for the abolitionist movement, was indeed guilty.59 Adequate Representation Debate regarding the death penalty has also focused on the quality of representation provided to indigent capital defendants by counsel. As interpreted by the Supreme Court, the Sixth Amendment to the Constitution guarantees defendants the right to effective assistance of counsel at trial and capital sentencing in order to ensure the proper functioning of the adversarial process in procuring a just result.60 Indeed, claims of ineffective assistance of counsel are often made in federal habeas review of state convictions and sentences and may result in the overturning of a conviction or 57 58 59 Joshua Marquis, The Myth of Innocence, 95 J. Crim. L. & Criminology 501, 508 (2005). See Kansas v. Marsh, ___S.Ct.___, 2006 WL 1725515, at pp. 16-19 (Scalia, J., concurring). Maria Glod and Michael D. Shear, “DNA Tests Confirm Guilt of Executed Man,” Washington Post, 13 January 2006, Page A01. 60 Strickland v. Washington, 466 U.S. 668 (1984).