Blog on the Run: Reloaded

Friday, August 14, 2015 6:10 pm

Odds and ends for Aug. 14

U.S. Rep. Walter “Freedom Fries” Jones, a Republican who represents North Carolina’s 3rd Congressional District, voted for war against Iraq. However, unlike so many backers of that misbegotten expedition, he deeply and publicly repented of that decision. And he’s still repenting:

“I did not do what I should have done to read and find out whether Bush was telling us the truth about Saddam being responsible for 9/11 and having weapons of mass destruction. Because I did not do my job then, I helped kill 4,000 Americans, and I will go to my grave regretting that.”

Chelsea Manning committed a crime knowing prison would be the likely outcome. Still, the military’s threat to place her in indefinite solitary confinement strikes me as piling on.

Could we be seeing a “Central American spring”? I’ll believe it when/if it comes to pass, but I’m hopeful.

Connecticut has banned the death penalty, but I’m thinking that in this particular case the state Supreme Court may have overreached in doing so.

 

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Sunday, April 5, 2015 8:10 pm

Odds and ends for April 5

He is risen. He is risen indeed.

Cops in California are using a 1930s-era anti-lynching statute to intimidate protesters. Prosecutors so far have declined to press those charges, but it’s only a matter of time until a right-wing nutjob decides to try to make an example of someone.

Speaking of California, its people are in serious denial about its extreme drought, now in its fourth year. About 94% of the state considers the drought serious, but 61% still favor voluntary measures to deal with it. Y’all need to wake up.

Likely presidential contender and perennial horse’s ass Mike Huckabee thinks I’m a member of the “militant gay community,” inasmuch as that’s whom he’s blaming for the backlash against Indiana’s bigoted “religious freedom” statute. Who knew that Christians who take the Second Great Commandment seriously were militant gays? My wife certainly had no idea.

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.)

In Florida, relatives of officers of for-profit charter-school companies are enacting legislation to divert money from public schools to charter schools. But none dare call it a conflict of interest, let alone a crime.

Randi Harper, somewhat unwillingly turned into an activist by GamerGaters and perpetrators of online violent and/or sexual threats, got SWATed — someone called in a false tip to police that led a SWAT team to raid her apartment. Her experience could have ended with her dead, or at least her dog. Fortunately, both are alive and well. She talks about what you need to do to protect yourself from such potentially deadly “pranks.” For the record, given the risk of gunplay anytime heavily armed cops storm a home, I think this “prank” should be treated as attempted manslaughter, at least. (h/t: Chip)

Investigative reporter Seymour Hersh draws a useful distinction between what he does and much of the “news” you see in print and online today: Instead of taking a tip and building it into a story, too many reporters just run the tip.

 

Friday, March 20, 2015 5:17 pm

“What’s the recourse if you make a mistake?” redux; or, shouting Cameron Todd Willingham’s name from the rooftops

More 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 daughters. Now, misconduct charges have been filed against the prosecutor in the case.

A disciplinary petition in Navarro County, Texas, accuses then-prosecutor John Jackson of obstruction of justice, making false statements, and concealing evidence favorable to Willingham’s defense:

“Before, during, and after the 1992 trial, [Jackson] knew of the existence of evidence that tended to negate the guilt of Willingham and failed to disclose that evidence to defense counsel,” the [State Bar of Texas] investigators charged. …

The bar action was filed March 5 without any public announcement. It accuses Jackson of having intervened repeatedly to help a jailhouse informant, Johnny E. Webb, in return for his testimony that Willingham confessed the murders to him while they were both jailed in Corsicana, the Navarro County seat.

Webb has since recanted that testimony. In a series of recent interviews, he told the Marshall Project that Jackson coerced him to lie, threatening a long prison term for a robbery to which Webb ultimately pleaded guilty, but promising to reduce his sentence if he testified against Willingham.

The ironic thing is that Jackson told the New Yorker while Willingham was still alive that he personally opposes the death penalty. “What’s the recourse if you make a mistake?” he rhetorically asked an interviewer. Perhaps he’s about to find out, although he’s seeking a jury trial on his misconduct charges and I agree with him that it’s quite possible no Texas jury will vote to convict a prosecutor.

But even if he is convicted on all charges, what’s the worst that happens? He loses his law license. He gets fined. He quite possibly doesn’t spend a single day in jail. Frankly, next to executing an innocent man, that seems like pretty small beer.

So if we’re going to continue to have a death penalty — and I remain devoted to it in principle — then there needs to be a serious, serious penalty for prosecutorial misconduct in criminal cases. As I wrote in 2009:

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.

It was true five years ago. It is true today. And I pray for John Jackson’s soul as I pray for the late Cameron Todd Willingham’s.

 

 

Monday, September 8, 2014 7:49 pm

Joe Freeman Britt: Sociopath

This New York Times Sunday Magazine article about retired Robeson County DA (and later judge) Joe Freeman Britt shines a light into just how messed-up our judicial system is because of the ability of one sociopath to wreak havoc.

Britt won an international reputation decades ago as the “Deadliest DA,” but his many murder convictions and death-penalty judgments were won at the cost of innocent people’s lives: Henry McCollum and Leon Brown, convicted of murder and sentenced to death in a 1983 killing. DNA evidence exonerated them, and they recently were released from prison.

It’s not clear what, exactly, Britt cares about with the legal system, but it obviously isn’t the truth, nor is it justice. He says it’s not his ego, and not only will I grant that he probably believes that, I’ll even grant the possibility that that’s true.

Just read the story. Britt’s behavior in office was so bad that the current DA, who is related to Britt, says:

He is a bully, and that’s the way he ran this office. People were afraid of him. Lawyers were afraid of him. They were intimidated by his tactics. And he didn’t mind doing it that way. … “You treat people with dignity, and you can get a whole lot more done that way than you can by trying to run over people. And that’s part of his legacy, that he ran over people.

Britt’s response to this rebuke? Nothing but macho blustering and ad-hominem attack:

“Well, let’s say, if I was a bully, he is a pussy. How about that?” the elder Mr. Britt said. “I think Johnson Britt has been hanging around too much with the wine and cheese crowd.”

I have my own ideas about what should happen to prosecutors and judges who willfully or negligently convict innocent people. 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.

 

Wednesday, January 6, 2010 10:49 pm

Odds and ends for 1/6

Wall Street vs. Main Street: Despite record profits and record bonuses on Wall Street, overall U.S. payroll withholdings and corporate tax payments in December were down 8.2% (to a multi-year low) and 61.5%, respectively, from December 2008. If you still need proof that the banksters are feasting on the rest of us, well, I’m sorry, you’re just going to have to accept at this point that the sky really is blue, not pink with purple polka-dots.

With sepsis, we can at least hope he suffered some: James von Brunn, the white supremacist who shot and killed a guard at the Holocaust Museum in Washington last June, died today in prison of congestive heart failure and sepsis. Saving the taxpayers the expense of a trial, appeals and execution, von Brunn’s death appears to have been the first considerate thing the 89-year-old ever did in his life.

No matter where in the U.S. you live, one Texas wingnut creationist is deciding which textbooks your kids will use in school. Maybe we should let ’em secede; the national IQ would probably go up 30 points.

Speaking of wingnuts, Allen Quist is right. Just not in the way he thinks he is.

But … but … but … Democrats are dropping like flies! ABC said so!: As of today, more Republican than Democratic U.S. representatives, U.S. senators and governors are retiring than Democrats. But ABC says Democrats are dropping like flies. This is why I told my reporters not to use subjective terms when objective ones will do.

Speaking of the media, it’s only Jan. 6 and we’ve already had the best media criticism of the year, from commenter PeakVT at Balloon Juice, on why things like Travelgate and Filegate seem to get more media attention than, say, torture and other war crimes: “Republican scandals tend to involve the press corps. For instance, starting an unnecessary war under false pretenses was immensely helped by stenographers like [The New York Times’ Judith] Miller. Democratic “scandals” are limited to Democratic politicians, which makes them a lot more fun for the press.”

I’ll believe it when it happens: According to one report, White House anonymice are claiming President Obama will re-nominate Dawn Johnsen to run (and, please God, clean up) the Justice Department’s Office of Legal Counsel. Good news, if true.

I would watch this on pay-per-view: MSNBC’s liberal talk-show host Ed Schultz may run to succeed retiring N.D. Sen. Byron Dorgan. Republicans, who are confident of picking up the seat, think of Schultz as just another Al Franken, and they say that like it’s a bad thing.

Jogging bores me to tears, but I will read any jogging blog that regularly uses lines like this: “I’ve been needling my 67-year-old friend Jim to run the half-marathon with me just so I don’t come in last. What kind of friend exploits a slow-moving retiree? I’ll tell you what kind: the kind who doesn’t want to come in last. ”

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.)

Quote of the day, via Maru:  “What happens if Rush dies in Hawaii? Will anyone believe the death certificate?”

Another Quote of the Day, from Paul Volcker to BusinessWeek, via Goddard Taegan’s Political Wire: “The American political process is about as broken as the financial system.”

And why not one more Quote of the Day, this one from Jason Linkins at HuffPo on the Apple iSlate and its ilk: “… the short-term ‘end of print’ apocalypse will not be felt by people clutching pricey panes of glass, but by a forgotten class of people who need quality journalism as a stopgap against a whole range of societal ills.”

And James Fallows, for the win: “That is the American tragedy of the early 21st century: a vital and self-renewing culture that attracts the world’s talent, and a governing system that increasingly looks like a joke.”

He says he’s only a sportswriter, but Mike Lupica of the NY Daily News says it all with remarkable economy: “Cheney used to be a much better liar than this.”

Cue the “Applachian Trail” jokes. And worse: U.S. Rep. Joe “You Lie!” Wilson, R-S.C., Tweets about hiking through Panthertown National Forest with an “expert hiker” who also happens to be a babelicious congressional intern. (Although I’ll grant that if he’s dumb enough to Tweet about it, he’s probably guilty of nothing more than bad judgment.)

When Guantanamo inmates get transferred to Illinois, will torture come with them? It’s entirely possible.

I’d just like to say that my friend Andy Duncan rules. Yes, he does. And we’re really looking forward to lunch with him and Sydney on Saturday.

Out of the box. WAY out: As America struggles with an Afghan insurgency and the Center for a New American Security prepares for its June convention, Spencer Ackermann proposes what would be a fascinating keynote program: Gen. David Petraeus … and Gen. Vo Nguyen Giap.

Geoffrey Chaucer, who hath a blog, now also hath a forthcoming book, “a solid volume the which ye kan underlyne and spille egg-salad upon and take yn to yower jacuzzi whanne the mood stryketh yow.” Huzzah!

Those of us who don’t work for the MSNM see this as a feature, not a bug: Time’s Mark Halperin whines, “… politically and personally, the First Couple and their top aides have shown no hankering for the Establishment seal of approval, nor have they accepted the glut of invitations to embassy parties and other tribal rituals of the political class.” That would be because they have a mess to clean up that you pretty much ignored for eight years, jackass.

Charmed life: Tsutomu Yamaguchi, the only person known to have survived both U.S. atomic attacks on Japan, is dead at the age of 93.

Better the devil you know than the other devil you know: Sen. Christopher Dodd’s retirement is coming only because of the virtual certainty that he would be unseated in 2010 because of his coziness with banks. But his successor as chairman of the Senate Banking Committee will be even worse.

What part of “public” were you lying about?: C-SPAN’s Brian Lamb, bless him, reminds Congressional Dem leadership of their promise to have House/Senate reconciliation of health-care reform out in the open.

And yet I languish without, probably because of a relative lack of explosives: The demolition of Texas Stadium now has an official corporate sponsor.

Twitter through history. “Too soon? In the Twitter Era it is probably already too late.” And more.

Wednesday, October 14, 2009 8:01 pm

“Rick Perry: Tough on crime. Tough on the innocent.”

Rick Perry, the Texas governor who apparently blew off exculpatory evidence in a death-penalty case, is coming under increasing fire for yanking around the commission looking into the case.

Some of that pressure is from primary opponents in his re-election campaign, and this being Texas and me being a cynic, I frankly doubt any of them gives much of a damn whether, as appears almost certain in this case, Perry allowed the execution of an innocent man, Cameron Todd Willingham. But to the extent they’re making noise about the case, they’re making it more uncomfortable for Perry, they’re making it even harder for him to defend an already-indefensible system, and they’re contributing to a climate in which we finally, finally, might start talking critically and analytically about the system under which we put criminals to death.

Politicians have been killing convicts for political purposes for centuries, and the fact that some of them might have deserved the death penalty anyway doesn’t make it right.

Saturday, October 3, 2009 9:55 am

Wednesday night daytime massacre

I mentioned a little while ago that the world might soon be shouting Cameron Todd Willingham’s name from the rooftops, in Supreme Court Justice Antonin Scalia’s haunting (because I think it’s about to come back to haunt him) phrase, as the first person definitively proved to have been executed for a murder he didn’t commit. Well, just as the shouting was about to commence, Texas Gov. Rick “Goodhair” Perry this week fired three of the eight members of the investigative panel looking into the case.

A co-founder of a group that works to free wrongfully convicted prisoners called the firings “troubling,” which is sort of like calling the St. Valentine’s Day Massacre an affray, but he also likened it to the Saturday Night Massacre — when President Richard Nixon fired Archibald Cox, the special prosecutor who was looking into Watergate — which comes a lot closer. “Obstruction of justice” might get us the rest of the way there. Further complicating things is the fact that this is Texas we’re talking about — politicians would be almost as likely to brag about executing innocent people down there as Texas rock singers would be to brag about having 12-inch penises — and Perry is facing a tough re-election challenge from within his own party, so naturally his political instinct is to pander to the Neanderthal wing.

I said in my earlier post that any public official willing to put a prisoner to death ought to be so convinced of the prisoner’s guilt that he would forfeit his own life if a prisoner were wrongfully executed. Given his disadvantaged starting point, Rick Perry would have to borrow the testicles of every single Dallas Cowboy, including the practice squad, to be man enough to make that promise, so I’m not holding my breath.

I continue to support the death penalty, but I also think that being right on a capital case ought to be literally a matter of life and death not just for the prisoner but also for the state officials who condemn him. Sadly, this is not just a Texas problem. Some people in responsible positions right here in North Carolina haven’t gotten the message yet, either.

(h/t: Ed)

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.

Wednesday, August 19, 2009 8:48 pm

See, the problem is that the Declaration of Independence isn’t a legally binding document

Life, liberty and the pursuit of happiness? Associate Justice Antonin Scalia says that’s just so 1776:

“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.”

And he says this like it’s a good thing.

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