Monday, January 4, 2010

A Legally and Factually Innocent Man?

In all the years I've been teaching capital punishment, the issue of whether we have ever executed an innocent person is always brought up. Plenty of people have been exonerated from death rows throughout the country, but a smoking-gun case, one where there is definitive proof the person put to death was in fact innocent, has never been shown.

In that sense, anti-death penalty students are always disappointed when I say I agree with Supreme Court Justice Antonin Scalia, who wrote in the Kansas v. Marsh (2006) case, that there is not "a single case—not one—in which it is clear that a person was executed for a crime he did not commit. If such an event had occurred in recent years, we would not have to hunt for it; the innocent’s name would be shouted from the rooftops."

Get ready for some shouting.

For the anti-death penalty side, the search for a "grisly Holy Grail," a case where it can be shown definitively we executed an innocent man, has become an elusive goal. The problem, as noted anti-death penalty attorney David Bruck once put it, is that "most people on death row are guilty, and most protest their innocence. The problem is those who are telling the truth sound just like those who are lying."

Yet journalist David Grann, writing in the September issue of the New Yorker, may have unearthed said "holy grail" in the case of Cameron Todd Willingham, put to death in the state of Texas in 2004.

In 2005, Texas established a government commission to investigate allegations of error and misconduct by forensic scientists. The first cases that are being reviewed by the commission are those of Willingham and Willis. In mid-August, the noted fire scientist Craig Beyler, who was hired by the commission, completed his investigation. In a scathing report, he concluded that investigators in the Willingham case had no scientific basis for claiming that the fire was arson, ignored evidence that contradicted their theory, had no comprehension of flashover and fire dynamics, relied on discredited folklore, and failed to eliminate potential accidental or alternative causes of the fire. He said that Vasquez’s approach seemed to deny “rational reasoning” and was more “characteristic of mystics or psychics.” What’s more, Beyler determined that the investigation violated, as he put it to me, “not only the standards of today but even of the time period.” The commission is reviewing his findings, and plans to release its own report next year. Some legal scholars believe that the commission may narrowly assess the reliability of the scientific evidence. There is a chance, however, that Texas could become the first state to acknowledge officially that, since the advent of the modern judicial system, it had carried out the “execution of a legally and factually innocent person.”
A couple of colleagues and students alerted me to Grann's essay back in the fall but I never got around to reading it. My mistake. As conservative writer David Brooks wrote in a year-end column in the NYT, not only is it one of the most powerful essays you'll ever read, but "if you can still support the death penalty after reading this piece, you have stronger convictions than I do."

I'm not going to review the facts of the case since Grann does such an excellent job mining the record for details. And while I'm not quite ready to point to the Willingham case as "definitive proof" we've executed an innocent person, I will say I agree with Brooks and others, it's damn close.

Naturally, those who support capital punishment will challenge the facts themselves (though it might be better for their side if they could make arguments that amounted to more than "because we said so"). And the hard-core death penalty advocates will no doubt argue that miscarriages of justice, as bad as they are, are no reason to scrap an entire system of justice. While executing one innocent person is unfortunate, one out of 1,100 since 1976 is an acceptable rate of error (provided it's not them, of course).

Too, even if Texas does fess up to the error, it still doesn't negate the guilt of the hundreds of others put to death in that state during the same time period; nor does it suggest the innocence of the hundreds of inmates awaiting execution in Texas (or anywhere else).

But in the end, if we know a system that is designed to "kill the most dangerous criminals in society" in fact took the life of someone completely innocent, then clearly the system has failed. There are no "do-overs" here. There is no "early release" or compensation for the wrongfully executed. Willingham is dead. And real questions regarding his guilt haunt this case, six years after his execution.

Take an hour or so and read this essay. Pro or con on the death penalty, you won't be sorry you read it.


dudleysharp said...

David Brooks needs a stronger conviction to fact checking.

A convicncing article doesn't not mean and accurate article.

Brooks should know that, but, apparently, does not.

Trial By Fire: How bad can it get?

"Cameron Todd Willingham: Another Media Meltdown", A Collection of Articles

dudleysharp said...


BTW, Grann allegedly worked on this article for 7 months.

I think it took me less than 2 weeks to gather my rebuttal information and I HAD NOT YET READ THE TRIAL TRANSCRIPTS AND THE WITNESS INTERVIEWS WITH POLICE.

I have read those, now, and it makes Grann's article look even worse.

When I get around to it, it will add the trial transcripts and wtiness staments onto my earlier review.

Do you think Grann had enough time to find all the material I did?

Of course he did.