The Fatal Flaws of Texas Justice

texas death chamber death penalty

The death chamber in Huntsville, Texas. (Photo by Joe Raedle/Newsmakers)

Good News: Californians are currently debating the various dysfunctions that plague their capital punishment system, and could in fact bring that failed experiment to a merciful end on November 6.

Bad News: The political leadership of the state of Texas continues to myopically ignore (or deliberately conceal) the massive flaws in their own heavily used death penalty. And today, Halloween, the Lone Star State is set to kill its 250th prisoner under Governor Rick Perry.

As Amnesty International’s new report points out, Governor Perry, in his first state of the state address in January 2001 (he’s been Governor since December 2000), touted Texas executions, somewhat perversely, for “affirm[ing] the high value we place on innocent life.” But he then did at least say that the state’s justice system “can be better.”

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Will Texas Admit It Wrongly Executed Cameron Willingham?

Death chamber in Huntsville, Texas

The death chamber in Huntsville, Texas. (Photo by Joe Raedle/Newsmakers)

Today, the family of Cameron Todd Willingham filed a petition calling for his posthumous exoneration.  Exoneration, because he is almost certainly innocent. Posthumous because the state of Texas executed him anyway. More info can be found here, courtesy of the Innocence Project.

A Texas father of three, Willingham was convicted and executed for the alleged murder of his three daughters by arson. However, in a 2011 report, the Texas Forensic Science Commission concluded that unreliable fire science led to Willingham’s 1992 conviction and 2004 execution. Evidence cited as proof of an intentionally set fire, such as pour patterns, discoloration and “crazed” glass, has since been discredited.

If the petition is accepted and Willingham is posthumously exonerated, he will join with Timothy Cole in Texas, and Joe Arridy and Lena Baker in Colorado and Georgia, who, among others, were wrongfully convicted and executed or died in prison while serving out their sentence. SEE THE REST OF THIS POST

Rick Perry By The Numbers

Rick Perry

(Photo by Scott Olson/Getty Images)

Amnesty International does not comment or take sides on elections.  But everyone knows that Rick Perry, Texas Governor for over a decade, is now running for President.  And everyone knows that during his tenure as Texas Governor, he has presided over a lot of executions. The total now sits at 234 (40% of all US executions carried out since Perry became Governor in December 2000).

Many folks also know that at least one of those, Cameron Todd Willingham, was probably innocent, and that evidence of his innocence was ignored by Governor Perry in the days and hours before Willingham was put to death.  And that an investigation into the dubious forensics that led to Willingham’s conviction was sidetracked when Perry suddenly put Williamson County District Attorney John Bradley in charge (Bradley is now being accused of withholding evidence of innocence in a case in his home county).

But there have been other cases of possible innocence, and, as currently scheduled, Perry’s 240th execution would be of Henry Skinner, a man whose innocence claim the Lone Star State is refusing to examine.

BY THE NUMBERS

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Texas Schedules One Execution, Tries To Forget Another

Hank Skinner, who resides on death row in Texas, won a case at the U.S. Supreme Court recently.  He got the right to sue, in federal court, for access to DNA evidence he says would exonerate him.  Officials in Gray County, Texas, are in possession of the evidence in question (including vaginal swabs, fingernail scrapings, hairs, and two bloody knives), but have refused to either test it or hand it over for testing.

So, a civil case is now pending in the Northern District of Texas, Amarillo Division.  But that hasn’t stopped Texas from going ahead and setting an execution date anyway.  Skinner is now scheduled to die on November 9.  His lawyers believe the date has been set as “an effort to put pressure on the federal court to act quickly.”

Why not just let the untested evidence be examined?

Perhaps for the same reason the Texas Attorney General recently ruled that the Texas Forensic Science Commission can’t look at any evidence collected before September 2005.  The Commission had been investigating the bogus fire science used to facilitate the execution of Cameron Todd Willingham, which took place in 2004.

Apparently, the best way to avoid errors or mistakes (or worse) in Texas justice is to not look for them.

Is Texas Death Penalty Unconstitutional?

That’s the question that District Judge Kevin Fine in Houston will be deciding in the next couple of weeks.  A hearing in the case of Texas v. Green, starting Monday, Dec. 6, will put the Lone Star State’s capital punishment system on trial, and by all accounts it will be a wide-ranging affair.  Evidence of the sentencing and execution of innocent men, the use of bogus science, and other egregious mistakes and examples of general incompetence will be considered to determine if the death penalty, as currently administered in Texas, is too prone to error to be allowed to continue.  (Green’s challenge to the Texas death penalty is here.)

The constitutionality of the death penalty in principle is NOT under consideration, just the way it is practiced.  The cases of Claude Jones, Cameron Todd Willingham, and Ernest Ray Willis will among the primary examples of how deeply flawed the practice of Texas capital punishment has become.  Well-intentioned reform efforts from, for example, the Texas Forensic Science Commission, have been smothered by political pressure, so maybe the courts can be the avenue for serious investigations into the major malfunctions of the Texas death penalty.

The state’s judicial system, with judges elected all the way up to and including the highest court, has not been known for courageous critical examinations of Texas justice, but evidence of wrongful convictions, wrongful death sentences, and wrongful executions may have – at last – become impossible to ignore or sweep under the rug.

Whatever the outcome of this hearing, it will be a welcome ray of sunlight on the dismally dysfunctional Texas death penalty.

10 Reasons to Abolish the Death Penalty

This blog post is brought to you by the number 10.  It was after 10 pm last night when Georgia put Brandon Rhode to death, less than a week after rushing madly to save his life after his failed suicide attempt.

October 10th, 2010 (10-10-10) will be World Day Against the Death Penalty, and the focus this year is on the USA.  There has never been a more important or better time to get involved in ending capital punishment in the USA, and here are 10 reasons why:

1) The death penalty is absurd and cruel.  The ridiculous spectacle of putting a man to death just days after saving his life, is a perfect illustration of that.

2) The death penalty is degrading.  It turns states into prescription drug abusers, killing prisoners with drugs like sodium thiopental that manufacturers are on record as stating should only be used to healing purposes.

3) High profile cases, often with racial undertones, create political pressures that can lead to police and prosecutor misconduct.  Reggie Clemons was convicted as an accomplice in the murder of two white women in St. Louis.  Four federal judges have agreed that the prosecutor’s conduct was “abusive and boorish,” and Clemons alleges police brutality during his questioning. Witnesses attest to Clemons’ face being swollen after his interrogation.

4) It is not limited to the “worst of the worst”.  A recent example: the execution of Teresa Lewis in Virginia on September 23; she was put to death as the “mastermind” of a crime despite her 72 IQ, and despite the fact that the men who actually carried out the crime did not get the death penalty.

5) The death penalty is not limited to cases where there is no doubt about guilt.  Convicted by flimsy witness testimony, and unable to exonerate himself with those same witnesses, Troy Davis remains on death row despite serious doubts about his guilt.  His birthday is on October 9!

6) The times are changing.  In Ohio, Governor Ted Strickland granted clemency in the case of Kevin Keith, despite his belief that Keith was probably guilty, because some doubt remained.

7) In Texas, a hearing on whether Cameron Todd Willingham was wrongfully executed will take place October 6-7.  Skepticism about the application of the death penalty continues to build in the Lone Star State.

8) Death sentences continue to drop.  Last year barely over 100 were sentenced to death , compared to an average of close to 300 in the 1990s.

9) One-by-one, states are abandoning capital punishment, particularly in odd numbered years. (New Jersey in 2007, New Mexico in 2009).  In the coming year (2011), many more states will have serious debates and possibly votes on abolition

10) There is so much that can be done for World Day Against the Death Penalty, from taking action on specific cases, to joining your local state-based coalition’s efforts to abolish the death penalty.

The death penalty abolition movement is growing, and some progress is being made, but there is a lot of work yet to be done.  This World Day is the perfect time to get started.

The Distinctive Vocabulary of a New York Lawyer

Back when I lived in Texas there was an TV ad (it may have run nationally) for a certain picante sauce made in San Antonio.  In the ad, a cook for a bunch of cowboys sitting around a campfire makes the mistake of using a picante sauce made in … New York City!  The last line of dialogue is, “Get a rope!”  Ha ha ha.  You used a New York hot sauce, therefore we will kill you.

The new Chairman of the Texas Forensics Science Commission demonstrated much the same mentality when he dismissed attention on the case of Cameron Willingham (executed in 2004 despite a severely flawed arson investigation) as a political tactic cooked up by “New York lawyers.”

Today, it was revealed that he used the same label for a Dallas Morning News reporter who dared to submit to him a list of questions about the Commission’s handling of the Willingham affair.  “The questions have the distinctive vocabulary of a New York lawyer,” Mr. Bradley wrote before refusing to provide any answers.

Mr. Bradley just can’t understand why New York lawyers (and Dallas reporters who sound like them) are so obsessed with the quality of arson investigations that have been used to convict hundreds of Texans, and may have sent one wrongly to his death.

Flawed Science and New York Lawyers

Cameron Todd Willingham was convicted in 1991 and sentenced to die for an arson that killed his three children in Corsicana, Texas. Throughout, he insisted that the fire was an accident, and after his execution, doubts only increased.  A report commissioned by the Innocence Project concluded that the arson investigation in Willingham’s case was seriously flawed, leading many to suspect that the Lone Star State did indeed execute an innocent man.  In 2008 the Texas Forensic Science Commission agreed to look into the case.

On Friday, July 23, the Commission decided that arson investigators had used flawed science, but were not negligent and committed no misconduct.  The investigators had relied, the Commission said, on the best science available at the time.  But a report given to them last year by fire expert Craig Beyler concluded that:

A finding of arson could not be sustained based upon the standard of care expressed by NFPA 921 [the current standard], or the standard of care expressed by fire investigation texts and papers in the period 1980–1992.

In other words, it wasn’t arson by any standard.

The Beyler report was completed over 9 months ago, but Governor Rick Perry stopped the Commission in its tracks by replacing three of its members, including its chairman, two days before a review of the report was to take place. It was Governor Perry who, in 2004, allowed Willingham’s execution to go forward, despite having in hand a report on the “junk science” Texas used to obtain the death sentence.  

Texas state Senator Rodney Ellis suggested to CNN the broader questions the Commission did not ask:

When did the State Fire Marshal start using modern arson science and did the State Fire Marshal commit professional negligence or misconduct when it failed to inform the courts, prosecutors, the Board of Pardons and Parole, and the Governor that flawed arson science had been used to convict hundreds of defendants?

The Forensic Science Commission’s chairman is now a prosecutor named John Bradley, who deftly blamed the whole thing on “New York lawyers”, saying of the Willingham case “I think that’s being used very much as a side issue to politicize, through some New York lawyers, the work of the commission.”

The Texas State Forensics Commission will vote on a final report sometime later this year.  Expectations are low.

Is Ignorance the Best Policy?

UPDATE:

The US Supreme Court has stayed the execution of Henry Skinner, at least temporarily.  He has filed a petition to the Supreme Court, and if the Court declines to hear his petition, the stay will be lifted.  If the petition is accepted, the stay would continue indefinitely and there would be a hearing at the Supreme Court.

Today, Texas is scheduled to execute Henry “Hank” Skinner, despite the fact that readily available evidence in his case has never been tested for DNA which might prove his innocence (or confirm his guilt).  Adopting a policy of willful ignorance is nothing new for officials of the Lone Star State.  Infamously, last week, the Texas State Board of Education voted to remove Thomas Jefferson from the state’s social studies curriculum because he coined the phrase “separation of church and state.” His name was deleted from a list of famous writers who inspired 18th and 19th century revolutions. He wrote the Declaration of Independence.  

Six years ago, the execution of Cameron Todd Willingham was allowed to proceed, even though Governor Rick Perry and others were warned that the science used to convict Willingham of an arson that killed his three children was seriously flawed, and that the fire might have been an accident.  Last Fall, Governor Perry personally sabotaged an investigation into the science used in Willingham’s case, abruptly replacing three members of the Texas Forensic Science Commission just as it was about to hear from a nationally respected forensic fire science expert, Craig Beyler, whose report concluded that the fire should not have been ruled an arson.

Well, now it’s Spring 2010, and Mr. Beyler has still not had a chance to present his findings to the Texas Forensic Science Commission, but last night, he did participate in a panel that discussed the case, and the need for better forensic science, at Georgetown Law School here in DC.  According to the Innocence Project, three states (Arizona, Nebraska and Oklahoma) are considering legislative resolutions in support of using “solid science” in arson investigations.

Really?  We need legislative resolutions for that?

Sadly, yes. Texas officials not only don’t endorse “solid science,” they continue to actively thwart efforts to improve the quality of forensic investigations.  Executing Henry Skinner while grave doubt hangs over his conviction, when DNA tests could easily remove that doubt, is just the latest example that, for Rick Perry and company, ignorance remains the best policy.

Texas Ex-Gov Doubts Death Penalty

In a recent interview on NPR, former Texas Governor Mark White discussed his lack of faith in the ability of the legal system to reliably handle death penalty cases, and emphasized the seriousness of handing down an irreversible sentence to a person who may later be proven innocent. While he was Governor, he oversaw a significant number of executions, but White now believes that: “What I see in retrospect is that our system is not as foolproof as I think it should be in order to carry out a punishment that’s irreversible.”

White also stated that he has never believed in the death penalty as a deterrent, because: “Obviously, with 400 people on death row, there’s at least 400 people up there that didn’t deter.”

As Amnesty International observed, Governor White’s evolution on this question is part of a national trend: “As advances in DNA and forensic science have revealed the extent to which our criminal justice system is prone to error, judges, jurors, the public, and even some politicians, have begun to question the wisdom of resorting to capital punishment.”

White’s statements (he’s a Democrat) also come at a particularly bad time for current Governor Rick Perry, who, in the middle of a re-election campaign, is now being scrutinized for his role in the execution of Cameron Todd Willingham, who appears to have been innocent and wrongly put to death.

In the past, you would only pay a political price if you didn’t support the death penalty strongly enough.  But in Texas, as everywhere else in the U.S., times have changed, and it would be quite something if the most prolific executing Governor in modern history wound up suffering politically because he supported the death penalty too much.