Ben Carson, a Paternity Case and the Death Penalty

This article originally appeared in the Chicago Tribune on Nov. 12, 2015.

By Steven Lubet

There are now 392 people on death row in Florida, and they may soon find an unlikely champion in GOP presidential contender Ben Carson. Not that Carson opposes capital punishment on moral grounds.

According to his website, he is "unabashedly and entirely pro-life," but he pointedly limits his commitment to protecting "innocent life." Nor does he think that the death penalty is unconstitutional. He told CNN that capital punishment should be left up to the states — "to be decided by the people in the area" — which necessarily would include Florida's right to execute the 387 men and five women currently facing lethal injection. Nonetheless, Carson's view of the Florida judicial system should put him firmly in the anti-death penalty camp, simply on the basis of his own experience.

According to Carson, he once faced a bogus paternity lawsuit from a woman whom he had never met. He described it this way in the Washington Times:

"Several years ago while I was in the operating room, I received a call from one of the legal offices at Johns Hopkins University informing me that the State of Florida was trying to attach my wages for child support. ... They said a woman in Florida was accusing me of being the father of her son, and that she had proof of our relationship."

Carson had to retain a lawyer to resist the spurious claim, which he regarded as a thinly veiled attempt to get him to "fork over the money to avoid public embarrassment." Even so, he refused on principle to take the usual next step:

"As the case advanced, I was asked to provide a blood specimen to facilitate DNA testing," he wrote. "I refused on the basis of the incompetence of any governmental agency that was willing to pursue a paternity suit on such flimsy grounds. I said that level of incompetence would probably result in my blood specimen being found at a murder scene and me spending the rest of my life in prison."

The tactic worked, and the woman eventually dropped the case, leading Carson to conclude that "corrupt practices" can be defeated by "courage and conviction." Maybe so, but there is another lesson that Carson and other conservatives seem to have missed.

If the government of Florida is too inept to reliably manage a paternity determination, then it surely makes no sense to allow the same state to execute almost 400 men and women. If Florida is too incompetent to accurately test Ben Carson's DNA, then we should be equally mistrustful of the forensic and other evidence that sends people to death row. If someone as affluent and famous as Ben Carson thinks he could be convicted due to a laboratory mix-up, then how many of the condemned prisoners in Florida — overwhelmingly poor and without resources — might also be innocent?

Although I do not share Carson's skepticism of DNA testing — which is far more trustworthy than, say, eyewitness identification or the testimony of a jailhouse snitch — I certainly agree that government agencies are capable of grave mistakes. Florida's Department of Children and Families is not infallible, but neither are its police and prosecutors, or even its judges and juries. I am therefore hopeful that suspicion of government and respect for life will eventually lead Carson and his conservative supporters to make the obvious connection.

Erroneous child support rulings can be reversed. An execution is forever.

- Steven Lubet is a law professor and director of the Bartlit Center for Trial Strategy at Northwestern University School of Law.