Friday, September 4, 2009

Don't get convicted in Texas

Last night, I read David Grann's profoundly disturbing article "Trial By Fire" in the New Yorker. An investigation into the arrest, trial, conviction, and execution of Cameron Willingham, Grann makes a remarkably strong case that the unthinkable has happened -- that the State of Texas put to death an innocent man. What's worse is that in a state other than Texas, there's a good chance that Cameron Willingham would still be alive, if not a free man.

Willingham was tried and convicted in the 1991 deaths of his three children, accused of setting fire to his home while his wife was out and the children were asleep. The conviction rested largely on the testimony of an assistant fire chief and a deputy arson investigator. Their commentary, along with the statements of two psychologists who never actually met or spoke with Willingham, were sufficient to lead the jury to a guilty verdict and hand down the death penalty.

Looking at several reports that were commissioned in recent years to examine the Willingham case, however, Grann eviscerates the "expert" arson investigators whose testimony directly led to Willingham's execution:
Nearly two years later, the Innocence Project commissioned Lentini and three other top fire investigators to conduct an independent review of the arson evidence in the Willingham case. The panel concluded that “each and every one” of the indicators of arson had been “scientifically proven to be invalid.”

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.”
What's almost as tragic as the use of such disastrously flawed "evidence" to convict and then execute a man is the case Grann makes for how skewed in favor of death the Texas penal system is right now. Reading the article, I was aghast at the callous and indifferent attitude of officials who have the ultimate responsibility for whether or not someone lives or dies:
  • Judge Sharon Keller, now facing charges of judicial misconduct, refused to allow a clerk's office to remain open for an additional 15 minutes to permit defense attorneys to submit a petition for a stay of execution for another inmate following a U.S. Supreme Court ruling that very day that directly applied to the Texas inmate's case. The inmate was executed hours later.
  • A scientific report submitted to the Board of Pardons and Paroles and demolishing the prosecution's case against Willingham was apparently never even read by members of the Board, one of whom remarked, "We get all kinds of reports, but we don’t have the mechanisms to vet them" despite the fact that according to that same member of the Board, they are tasked with ensuring that before an execution occurs that there are "no glaring errors."
What does this add up to? 439 executions in Texas between 1976 and 2009 with the trend line accelerating (33 in the 1980s, 166 in the 1990s, and 240 thus far in the 2000s).

I guess comedian Ron What wasn't actually joking when he declared "Texas has the death penalty and we use it! Other states are trying to abolish the death penalty. My state's putting in an express lane."

I've always had somewhat mixed feelings about the death penalty. In virtually all cases, I'm opposed though I suppose that there could be extreme situations in which I could be convinced it would be justified. Maybe. The issue is that execution is irrevocable. There's no option for "oops!" You can't take a mulligan. There's no additional appeal. If you're wrong, you can never take it back.

Former Supreme Court Justice referred to the execution of an innocent person as "a constitutionally intolerable event". On the flip side, Justice Antonin Scalia, that paragon of compassion, declared that 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.”

Sadly, David Grann's article and the diligent work of arson investigators basing their work on scientific analysis appear to make a compelling case that the State of Texas did indeed execute an innocent man in the face of evidence that he was innocent, a profoundly wrong and irrevocable action.

Perhaps it will be Cameron Willingham's name that will be shouted from the rooftops, hopefully somewhere within earshot of Antonin Scalia, Sharon Keller, Texas Governor Rick Perry, and the members of the Texas Pardons and Parole Board.

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