death penalty news—-TEXAS

Sept. 5


Not Innocent Enough—-The elusive search for the sufficiently innocent
death-row victim.

For years, death-penalty opponents and supporters have been on what now
looks to be an ethical snipe hunt. Everyone was looking for a moment at
which everything would change: a case in which a clearly innocent
defendant was wrongly put to death.

In a 2005 Supreme Court case that actually had nothing to do with the
execution of innocents, Justices David Souter and Antonin Scalia locked
horns over the possibility that such a creature could even exist. Souter
fretted that "the period starting in 1989 has seen repeated exonerations
of convicts under death sentences, in numbers never imagined before the
development of DNA tests." To which Scalia retorted: "[T]he dissent makes
much of the new-found capacity of DNA testing to establish innocence. But
in every case of an executed defendant of which I am aware, that
technology has confirmed guilt." Scalia went on to blast "sanctimonious"
death-penalty opponents, a 1987 study on innocent exonerations whose
"obsolescence began at the moment of publication," and then concluded that
there was not "a single casenot onein which it is clear that a person was
executed for a crime he did not commit."

This language suggested that if anyone ever found such a case, the Scalias
of the world might rethink matters. As of today, the Innocence Project, a
national organization dedicated to exonerating the wrongfully convicted
through DNA testing, claims there have been 241 post-conviction DNA
exonerations, of which 17 were former death-row inmates who now have been
spared the death penalty. The gap between their data and Justice Scalia's
widens every year. And for those who insist that not even one of those
alleged innocents is indeed innocent, we now have a name: Cameron Todd
Willingham, executed by the state of Texas in 2004 for allegedly setting a
1991 house fire that killed his three young daughters.

David Grann, who wrote a remarkable piece about the case in last week's
New Yorker, sifted through the evidence against Willingham to reveal that
the entire prosecution was a train wreck of eyewitness testimony that
changed over time: a jailhouse snitch who was both mentally impaired and
stood to benefit from testifying against Willingham, "expert"
psychiatrists who never examined the accused but proclaimed him a
"sociopath" based on his posters and tattoos, and local arson
investigators whose conclusions were less rooted in science than a sort of
spiritual performance art. And at every step in his appeals process,
Willingham's repeated claims of innocence were met with the response that
he'd already had more than enough due process for a baby-killer.

But you needn't take Grann's word for it. In 2004, Dr. Gerald Hurst, an
acclaimed scientist and fire investigator conducted an independent
investigation of the evidence in the Willingham case and came away with
little doubt that it was an accidental firelikely caused by a space heater
or bad wiring. Hurst found no evidence of arson and wrote a report to that
effect to try to stay the execution. According to documents obtained by
the Innocence Project, it appears nobody at the state Board of Pardons and
Paroles or the Texas governor's office even took note of Hurst's
conclusions. Willingham was executed by lethal injection, telling the
Associated Press before his death, "[t]he most distressing thing is the
state of Texas will kill an innocent man and doesn't care they're making a

In 2004 the Chicago Tribune asked three fire experts to evaluate the
Willingham arson investigation. Their testing confirmed Hurst's report. In
2006, the Innocence Project commissioned yet another independent review of
the arson evidence in Willingham's case. Their panel concluded that "each
and every one" of the indicators of arson was "scientifically proven to be
invalid." Finally, in 2007 the state of Texas created the Forensic Science
Commission to investigate alleged errors and misconduct and commissioned
another renowned arson expert, Craig Beyler, to examine the Willingham
evidence. Beyler's report, issued two weeks ago, concluded that
investigators had no scientific basis for claiming the fire was arson and
that one of the arson investigator's approaches seemed to deny "rational
reasoning" and was more "characteristic of mystics or psychics."

The state of Texas now has the opportunity to review Beyler's findings and
conclude that it has carried out the "execution of a legally and factually
innocent person."

One might think that all this would put a thumb on the scale for
death-penalty opponents, who have long contended that conclusive proof of
an innocent murdered by the state would fundamentally change the debate.
But that was before the goal posts began to shift this summer. In June, by
a 5-4 margin, the Supreme Court ruled that a prisoner did not have a
constitutional right to demand DNA testing of evidence in police files,
even at his own expense. "A criminal defendant proved guilty after a fair
trial does not have the same liberty interests as a free man," wrote Chief
Justice John Roberts. And 2 months later, Justices Scalia and Thomas went
even further than the chief justice following an extraordinary Supreme
Court order instructing a federal court to hold a new hearing in Troy
Davis' murder case, after seven of nine eyewitnesses recanted their
testimony. Scalia, dissenting from that order, wrote for himself and
Justice Clarence Thomas, "[t]his court has never held that the
Constitution forbids the execution of a convicted defendant who has had a
full and fair trial but is later able to convince a habeas court that he
is 'actually' innocent."

As a constitutional matter, Scalia is not wrong. The court has never found
a constitutional right for the actually innocent to be free from
execution. When the court flirted with the question in 1993, a majority
ruled against the accused, but Chief Justice William Rehnquist left open
the possibility that it may be unconstitutional to execute someone with a
"truly persuasive demonstration" of innocence. Oddly enough, for at least
some members of the current court that question is now seemingly
irrelevant: In Scalia's America, the Cameron Todd Willingham whose very
existence was once in doubt is today constitutionally immaterial. Having
waited decades for an innocent victim of capital punishment, the fact that
we have finally found one won't matter at all. In this new America we can
execute a man for an accidental house fire, while the constitution stands
silently by.

(source: Dahlia LIthwick,