Blog on the Run: Reloaded

Wednesday, September 2, 2009 8:23 pm

Irredeemable; or, “What’s the recourse if you make a mistake?”

In 1996, I published an Easter Sunday package of stories on forgiveness for the Greensboro News & Record that included the story of Ronald Cotton, a man in the next county who spent more than 10 years in prison for a rape that, DNA evidence later showed, he didn’t commit. What’s even more amazing, my former co-worker Don Patterson reports, is not only that Cotton has forgiven the rape victim who wrongly identified him, the two also are making public appearances together.

It’s sick in a way to say it, but Cotton was one of the lucky ones. His lawyer was persistent, the use of DNA evidence was developed, DNA evidence in his case was available and had been preserved after his trial, and none of the prosecutors or judges involved came up with stupid reasons not to give him the chance to prove his innocence.

How many men and women have done time for crimes they didn’t commit because their cases happened before DNA testing was accepted as evidence, or no DNA evidence was available in their cases (as is the case in about 80% of felonies), or because witnesses couldn’t be found or lied or, as in Cotton’s case, were honestly mistaken?

How many have been executed for murders they didn’t commit?

No one knows for sure. But at least one person, Supreme Court Associate Justice Antonin Scalia, believes that, as he wrote in a 2006 death-penalty case from Kansas, in the U.S. there has not been “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.”

A report in this week’s New Yorker suggests we may soon be shouting Cameron Todd Willingham‘s name from the rooftops.

* * *

We’ve known for a long time that there are problems with capital punishment in the U.S. In some jurisdictions there are inconsistencies in how prosecutors go about deciding in which cases to seek the death penalty. Defendants frequently get poor, if not legally incompetent, lawyers, and generally have few resources with which to retain expert witnesses or develop other helpful evidence. Recent research has found that eyewitness testimony isn’t as reliable has has been thought (a problem not limited to murder cases, as Ronald Cotton’s case shows). Appeals drag on for years, so that by the time a prisoner finally is executed, his case typically has cost the state somewhere north of $2 million, far more than it would have cost to imprison him for life.

Still, capital punishment is politically popular in the U.S. and has been since colonial days. Historically, large majorities of Americans have supported it — typically around 70% — although the majorities have shrunk in recent years. Because of capital punishment’s political popularity, prosecutors and judges who are politically ambitious informally vie with one another to see who can bring about the most executions in the name of being “tough on crime.”

Sometimes that competition isn’t so informal. Here in North Carolina, Robeson County District Attorney Joe Freeman Britt actually made it into the Guinness Book of World Records in the mid-1970s as the world’s “deadliest prosecutor” for having won death sentences against 23 defendants in 28 months. (Just getting through that many capital cases in that period of time is remarkable. Some first-degree murder trials last for weeks and require months of preparation for both sides.)

Britt later won election as a Superior Court judge.

* * *

In 1985, when I was a public-safety reporter for the Statesville Record & Landmark in Iredell County, I went out to cover a house fire east of Statesville in which an infant died. I had a good enough relationship with Iredell County sheriff’s detectives at the time that they often would let me walk into crime scenes — as long as I was careful — in a way that law-enforcement professionals today seldom do. In the living room of the burned-out house, I stood stock-still and stared at what I found: a burn pattern appearing to my untrained eye to indicate that the fire had started, and spread from, directly underneath the infant’s burned-out playpen.

My mind refused to accept what I was seeing. “What?” I asked one of the detectives, Cecil Cook. “Did the fire start in the basement — the furnace — underneath here … ?” He slowly, sadly, shook his head.

The child’s mother, later found to be both developmentally disabled and suffering from severe postpartum depression, had poured alcohol on, around and under the child and the playpen and had lit it. Even the detectives seemed stunned; for the first and only time in my 18 months in that job, they let me follow them into a closed room where they kicked around the evidence and decided that they had to charge the woman with first-degree murder and agreed to recommend to the DA that “aggravating circumstances” necessary for the death penalty to be sought were present. In North Carolina, the law recognizes such aggravating circumstances as that the victim is particularly young or old, that the killing is done by means of ambush, or that it is “especially heinous, atrocious and cruel,” among other things. (It also recognizes mitigating circumstances and requires the jury to find that any aggravating circumstances outweigh any mitigating circumstances to vote for the death penalty.)

By the time the woman came to trial, I had moved on. But a friend who covered the trial said the DA, in his closing arguments, reminded the jury of the medical examiner’s testimony that the burning infant might have remained conscious for up to 40 seconds. “Imagine being on fire,” my friend said the DA told the jury, and then he started counting off seconds … one … two … three …

It is likely that only the mother’s severe mental problems saved her from lethal injection.

* * *

Cameron Todd Willingham’s case seemed on the surface to be tailor-made for the death penalty. The state accused him of intentionally setting a house fire that killed his three children while his wife was away. The horror of burning to death, the multiple victims, the notion that a man would murder his own children because they “were interfering with his beer drinking and dart throwing,” as District Attorney Pat Batchelor argued in the absence of any more obvious motive, all combined to provide both the legal and emotional basis for imposing the death penalty if Willingham were found guilty.

This is the kind of capital case on which ambitious DAs and judges often hang their hats, refusing to consider any kind of plea deal. And yet the state offered Willingham a deal: plead guilty and receive life in prison, escaping the death penalty.

Willingham refused. He was innocent, he insisted.

I obviously can’t get inside the minds of the judicial officials in this particular case, but I’ve covered enough court cases to know that some prosecutors and judges really don’t like it if they think a defendant is lying about his innocence. (In televangelist Jim Bakker’s 1989 criminal fraud trial, as I recall, Judge Robert Potter openly indicated from the bench that Bakker’s continual insistence that he was innocent, despite overwhelming documentary evidence and testimony to the contrary, was cheesing the judge off.)

But investigators were convinced the fire had been deliberately set with some sort of accelerant — in such a way as to create a “wall of fire” between the twins’ room and the front door. Neighbors reported that Willingham didn’t seem all that upset at the scene after he escaped the home, although a police chaplain at the scene also reported that Willingham had to be restrained, and even handcuffed, to be prevented from running back inside the burning house after his children.

One witness against Willingham was a fellow jail inmate who said that Willingham had confessed to him. Jailhouse informants as a group aren’t the most reliable witnesses to begin with — in capital cases, the only cause of wrongful conviction common enough to come close to untrue testimony from jailhouse witnesses is lying police. And this witness was especially problematic. He gave his testimony, then later recanted, then later still recanted his recantation. He was diagnosed with bipolar disorder and admitted to having memory problems.

The state relied in part on the testimony of a psychologist specializing in family counseling who had never published any research into sociopathic behavior. This professional noted Willingham’s tattoos and some of the posters and art in the home, including a Led Zeppelin falling-angel poster, and said, “Many times individuals that have a lot of this type of art have interest in satanic-type activities.”

It also relied on testimony from a forensic psychiatrist named James P. Grigson, nicknamed “Dr. Death” because of his long record of testifying successfully against defendants in death-penalty cases. In one such case, he testified against an accused cop-killer who was convicted and later came within 72 hours of execution before new evidence was found that cleared him.

This psychiatrist testified that Willingham was an “extremely severe sociopath” who could not be treated.

Willingham had an imperfect past: glue-sniffing, assaults on his wife (although she and others insisted that Willingham had never harmed the children); his attorneys decided the jury wouldn’t find him credible and chose not to put him on the stand.

The trial lasted two days. The jury brought back its guilty verdict within an hour.

Three years after the Willingham verdict, the forensic psychiatrist, the New Yorker reported, “was expelled from the American Psychiatric Association for violating ethics. The association stated that Grigson had repeatedly arrived at a ‘psychiatric diagnosis without first having examined the individuals in question, and for indicating, while testifying in court as an expert witness, that he could predict with 100-per-cent certainty that the individuals would engage in future violent acts.’”

Whether guilty or not, Willingham and many other prisoners had been put on death row by a quack.

* * *

It is an interesting and, in my view as a layman, a not widely understood principle that people raising criminal appeals aren’t in the same circumstances as they are at trial: They are at a distinct disadvantage. At trial, the legal burden is on the state to prove beyond a reasonable doubt that the defendant is guilty. The defendant doesn’t have to prove a thing (although juries, though instructed not to, often infer guilt when a defendant doesn’t testify in his own behalf) and can exonerate himself by attacking the state’s evidence and witnesses without offering any witnesses or evidence of his own.

By and large, an appeal isn’t like a new trial. Rather, it is narrowly focused on determining whether the defendant received a fair trial, and the burden of proof is now on the defendant to show his rights were somehow compromised at trial, perhaps, for example, by use of prosecution evidence that under the law shouldn’t have been allowed.

An appeal  is not a new round of fact-finding. And even discovery of new evidence or error at trial does not automatically lead to a new trial, let alone an overturned conviction.

This is even more troubling in light of the fact that arson investigation, after relatively slow advances, has gotten a lot more sophisticated in the past 30 years or so as researchers have learned more — not about how set fires work, but about how accidental fires do. For example, although gasoline may ignite at a lower temperature than wood, they burn at roughly the same temperature. The so-called “Lime Street experiment” showed researchers that entire rooms could, under fairly common fire conditions, ignite all at once, something previously thought possible only with the use of an accelerant such as gasoline.

The expert testimony against Willingham had turned out to be anything but expert. But would the courts care, even in a death-penalty case?

Recently retired Supreme Court justice Sandra Day O’Connor has said that the “execution of a legally and factually innocent person would be a constitutionally intolerable event.”

But current justice Antonin Scalia disagrees:

“This 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,” wrote Scalia. “Quite to the contrary, we have repeatedly left that question unresolved, while expressing considerable doubt that any claim based on alleged ‘actual innocence’ is constitutionally cognizable.”

Even if you’re innocent, Scalia says, you have no right under the Constitution to escape execution as long as your trial was “fair.” The Declaration of Independence may claim that all men are entitled to life, liberty and the pursuit of happiness, but the Declaration is not a governing document, not legally and not, by Scalia’s lights, even in spirit. The Fifth Amendment says a person may not be deprived of life by the government “without due process of law,” and if the process was due, Scalia appears to believe, the substance — the facts — are irrelevant, even when an innocent person’s life is at stake.

This is the view of a constitutional sociopath, and it is highly unlikely that Scalia is the only current member of the court who holds it.

* * *

On a practical level, this is what Willingham’s appeals were up against:

The Texas Court of Criminal Appeals was known for upholding convictions even when overwhelming exculpatory evidence came to light. In 1997, DNA testing proved that sperm collected from a rape victim did not match Roy Criner, who had been sentenced to ninety-nine years for the crime. Two lower courts recommended that the verdict be overturned, but the Court of Criminal Appeals upheld it, arguing that Criner might have worn a condom or might not have ejaculated. Sharon Keller, who is now the presiding judge on the court, stated in a majority opinion, “The new evidence does not establish innocence.” In 2000, George W. Bush pardoned Criner. (Keller was recently charged with judicial misconduct, for refusing to keep open past five o’clock a clerk’s office in order to allow a last-minute petition from a man who was executed later that night.)

Willingham also appears to have been the victim of dereliction of duty on the part of state officials. Weeks before his scheduled execution date, an arson expert reviewed his case and wrote a report concluding that the fire hadn’t been arson at all. But records obtained through a lawsuit filed by a nonprofit that uses DNA evidence to try to free innocent prisoners showed no evidence that either the state’s Board of Pardons and Paroles or the governor had ever read Hurst’s report, which had been given to them, before turning down Willingham’s clemency request. Willingham was executed in February 2004.

But his story may not be over:

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 [Ernest] Willis [the defendant in a case very similar to Willingham’s who, with high-priced legal help, demolished the state’s arson case and was exonerated after 17 years in prison]. 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 [state deputy fire marshal Manuel] 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.”

* * *

All my life, I have supported the death penalty. I understand quite clearly the flaws in our current system, but I have never wavered from the principle that some premeditated murders are so despicable that their perpetrators have forfeited the right to live even among other convicted murderers, let alone the rest of society.

Philosophically speaking, I’m in good company on this; John Stuart Mill, among other lovers of freedom, felt the same way. Mill conceded only one strong argument against capital punishment: the possibility of executing the innocent.

We Americans tell ourselves that that could never happen. Surely, we think, between the forensic investigative prowess of the technicians we see on “CSI” and the finely honed legal navigation we see on “Law and Order,” we could never do that. Yet the record shows that not only could we, on a number of occasions we almost have. The governor of Illinois put a moratorium on the death penalty in that state in 2000 after no fewer than 13 Death Row inmates were found to have been wrongfully convicted.

Assuming for the sake of discussion (as well as because I really believe it) that capital punishment and civilized society are not mutually exclusive, what does it say about our society that we tolerate a system that appears to care so little for the rights of those on trial for their lives that it routinely assigns them incompetent counsel and denies them adequate resources for their defense? What does it say about our society that we routinely allow into positions of power people who not only favor the death penalty but also seem to delight in it? Karla Faye Tucker may have been guilty as sin, but was it seemly for President Bush, then governor of Texas, to mock her pleas for clemency?

* * *

Finally, what do we do when — for it seems certain that we will — we find that a person has been wrongfully executed? It’s telling that the assistant district attorney who actually prosecuted Willingham, John Jackson, personally opposes the death penalty because of this very question: “What’s the recourse if you make a mistake?” he rhetorically asked a New Yorker interviewer.

The family of such a person would certainly seek, and almost certainly receive, financial compensation from the state, particularly in cases of outright negligence or malice. But simple competence — the kind that appears to have been missing from Willingham’s case in a number of key positions, from arson investigator to parole-board member to governor — strikes me as an even better threshold. Bob Steele, ethics guru at the Poynter Institute for Media Studies, liked to argue during my sessions there that competence is a moral issue; if that’s true in journalism, and it is, how much more true is it in a life-or-death law-enforcement matter?

The practical part of me thinks that it would be much the easiest choice simply to end capital punishment, making the maximum sentence life without parole. It would save dramatically on legal expenses for both states and defendants, it would cut the appeal time, it would bring cases to closure more quickly (which would be easier on victims’ families) and it would erase the possibility of the state’s making the one mistake it cannot unmake.

And yet philosophically I still believe there is value, in the cases of the most heinous murder cases, in an eye for an eye. I believe that on an emotional level that, after almost 50 years on this planet, I doubt fact and logic will ever change. But I also feel obliged to suggest a possible solution to the conundrum.

So here’s what I’ve come up with:

If it ever can be shown that the state has wrongfully executed an innocent person even though a fair exculpatory case existed before the execution, then we also should put to death the prosecutor and judge in the case. If a parole board ever commits the kind of dereliction of duty displayed in Willingham’s case with the result that an innocent person is executed, the board members who voted for execution should be put to death. If a governor can be shown to have denied clemency to an innocent prisoner even in the face of exculpatory evidence, as Texas Gov. Rick Perry appears to have done, the governor should be put to death.

Then and only then, my friends, will we know that the accused is guilty beyond a reasonable doubt.


  1. Since I am against the death penalty, for it removes any moral high ground from sentencing policy, bringing the government down to the same level as murderers, I would propose that instead we merely sentence the perpetrators of the injustice to a minimum of 10 years in prison without parole.

    Comment by Graham Shevlin — Thursday, September 3, 2009 10:19 am @ 10:19 am

  2. I respect your position even though I don’t agree with it, Graham.

    Comment by Lex — Thursday, September 3, 2009 11:59 am @ 11:59 am

  3. I guess if a government is allows/promotes the death penalty then anything goes. Let’s just kill everyone that commits an egregious error. Or we could save the country a lot of tax payer money and abolish the death penalty. The only people that are entitled to an opinion for the death penalty or the relatives of the victim. The rest of you pro-death penalty and pro-abortion advocates need to stop calling yourselves Christians.

    Comment by Curt — Friday, September 4, 2009 7:42 am @ 7:42 am

  4. To paraphrase a good friend and faithful Christian, with whom I disagree deeply on the value and imperative of capital punishment: “I respect your position even though I don’t agree with it, Curt.” There are some places I try not to go if I can’t, in good conscience, cast a first stone; this discussion hits on two biggies.

    Comment by Jasbro — Wednesday, September 9, 2009 3:38 pm @ 3:38 pm

  5. […] The legal group that worked hardest to create the modern system of capital punishment now says its efforts have been a failure. Given the risk at which it places innocent defendants, it’s hard to argue otherwise. (And yet I find a way, sort of.) […]

    Pingback by Odds and ends for 1/6 « Blog on the Run: Reloaded — Wednesday, January 6, 2010 10:50 pm @ 10:50 pm

  6. […] Earlier tonight, I had an exchange on Facebook with someone claiming to be a police officer about the Ferguson case. I was polite until the point at which he suggested I do a ride-along sometime — as if I hadn’t done hundreds of hours worth in 25 years of journalism, as if I hadn’t, as he suggested, seen what they saw and smelled what they smelled. […]

    Pingback by Reality check, Ferguson, MO, edition | Blog on the Run: Reloaded — Saturday, August 16, 2014 11:24 pm @ 11:24 pm

  7. […] by any means. On the other hand, having spent a lot of time with cops over the years as a reporter, having seen some of what they see and smelled some of what they smell, having even witnessed a perfectly justifiable use of deadly force by sheriff’s deputies to […]

    Pingback by Time to yank a knot in the thin blue line | Blog on the Run: Reloaded — Tuesday, August 19, 2014 9:18 pm @ 9:18 pm

  8. […] I have my own ideas about what should happen to prosecutors and judges who willfully or negligently …. Those ideas are tailor-made for sociopaths like Joe Freeman Britt, who, if he doesn’t watch it, could end up on a spit in Hell between two of the murderers he convicted who actually were guilty. […]

    Pingback by Joe Freeman Britt: Sociopath | Blog on the Run: Reloaded — Monday, September 8, 2014 7:50 pm @ 7:50 pm

  9. […] not for the first time, the state of Texas is set to execute an innocent […]

    Pingback by Odds and ends for Feb. 16 | Blog on the Run: Reloaded — Monday, February 16, 2015 7:35 pm @ 7:35 pm

  10. […] than five years ago, I wrote about the Texas murder case of Cameron Todd Willingham, who was facing the death penalty (and later was executed) for the arson murder of his three […]

    Pingback by “What’s the recourse if you make a mistake?” redux; or, shouting Cameron Todd Willingham’s name from the rooftops | Blog on the Run: Reloaded — Friday, March 20, 2015 5:17 pm @ 5:17 pm

  11. […] “We have a system that treats you better if you are rich and guilty than if you are poor and innocent and this case proves it.” (Previously.) […]

    Pingback by Odds and ends for April 5 | Blog on the Run: Reloaded — Sunday, April 5, 2015 8:10 pm @ 8:10 pm

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