The victim was not dead; he was in New Jersey

Silas Merrill holds a dubious place in American jurisprudence.

An accused forger, Merrill became the first known jailhouse informant when he claimed to have overheard another Vermont prisoner, Jesse Boorn, admit that he and his brother, Stephen Boorn, had murdered their brother-in-law.

The year was 1819. The Boorns were convicted and sentenced to death. Jesse’s sentence was later commuted to a life sentence of hard labor.

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Stephen Boorn was waiting for the gallows when proof of their wrongful conviction appeared: The supposed victim was not dead after all, but had merely moved to New Jersey.

The anecdote of the Boorns is one of many details documented in a new law review co-authored by Injustice Watch co-founder Rob Warden, with the assistance of Injustice Watch fellows John Seasly and Sam Hart. The law review, co-authored by attorney Daniel Lennard, was published Thursday in the Northwestern Journal of Law and Social Policy.

“Death in America Under Color of Law: Our Long, Inglorious Experience with Capital Punishment,” details milestone after milestone of problems in applying the ultimate punishment, which remains legal in 31 states.

Warden and Lennard write that capital punishment “has been plagued by racism, infliction of unspeakable pain both intentional and unintentional, executions for crimes to which the death penalty no longer applies, for the imaginary crime of witchcraft, and, in two instances, for murders that appear not to have occurred.”

Despite the late U.S. Supreme Court justice Antonin Scalia’s contention that no innocent person had ever been proved wrongly executed, the authors note “executions of innocent defendants have been acknowledged in three states, while executions of untold numbers of others who likely were innocent remain unacknowledged.”