Wednesday, May 05, 2004 Editorial It's nearly foolproof and it's fatally flawed Gov. W. Mitt Romney is prepared to present the Legislature with a plan to fire up Old Sparky with a death penalty bill that is described as infallible as humanly possible, nearly foolproof and almost perfect. He believes Massachusetts can resurrect the death penalty using DNA technology and the latest state-of-the-art science to create a higher standard of proof. If the state's district attorneys and technicians at the State Police Crime lab read that news over breakfast yesterday, Romney's plan flunked the cereal test. Massachusetts has only a handful of people at the crime laboratory trained to perform DNA analysis. For comparison, New York City has 80 DNA technicians. District attorneys were told last year they could submit evidence from only one non-murder case each month to the lab in Sudbury for DNA analysis. And when the Legislature - with the enthusiastic support of the district attorneys - included funding last year in its budget for a new Department of Forensic Sciences, the governor vetoed the money. The governor's nearly foolproof death penalty isn't foolproof at all. Even if the Legislature provides enough funding to give the state's crime lab the staff and tools it needs, the governor's death penalty plan is fatally flawed. Whatever system the governor devises to execute people, it is certain to fail every so often because humans fail every so often. As long as there is a death penalty, the possibility exists that an innocent person will be killed. That alone is enough evidence for the Legislature to pull the plug on the governor. Romney is the latest of four Republican governors who have tried to reinstate the death penalty in Massachusetts; it's almost as if he were expected to give it his best shot. He's done that and we give him points for creativity. However, we hope he fails just as the others failed. There is a long history to show that the death penalty is arbitrary and capricious, and no number of DNA tests will change that. It is, as the Supreme Judicial Court noted in 1980, unacceptably cruel under contemporary standards of decency. That, governor, is a foolproof argument.