Finality v. Fairness

Henry “Hank” Skinner is scheduled for execution in Texas on February 24.  A two-part review of the case was recently published by the Texas Tribune.  He is asking for DNA testing of evidence that was found at the crime scene but never tested.  He claims these tests would establish that someone else committed the crime for which he is slated to be put to death.  The state, of course, is opposing the tests. 

But, why?  The cost of allowing the testing would be a few extra months for a man who has already been on death row for almost 15 years.  The benefit would be guaranteeing that the state does not execute someone who is actually innocent.   Don’t the benefits outweigh the costs in this case?  Is it even close?

Sadly, this is the classic “Finality v. Fairness” battle that death penalty cases so often come down to.  And the importance of “finality” has been inflated out of all proportion.  While “finality” is necessary to ensure that justice is done, the state is also charged with ensuring “fairness” (and accuracy) in its pursuit of that justice.

(It should be noted that long prison sentences usually provide far more real “finality” than death sentences, which are frequently overturned, sometimes re-instated, and mostly never carried out.)

Yet too often in death penalty cases the state (and the courts) seem to care only about “finality”.  Appeals with valid claims are rejected on technical grounds, and reasonable requests to test new evidence are aggressively resisted.  Even proof of actual innocence is no bar to the “finality” of an execution (though, depending on how the Troy Davis case turns out, that may change).  The result of all this, inevitably, is the execution, or near-execution, of the innocent and the undeserving.  The state of Texas should balance its enthusiasm for finality with a genuine commitment to fairness, and let all the evidence in Hank Skinner’s case be tested.


The Saturday New York Times story on Texas Court of Criminal Appeals Presiding Justice Sharon Keller contains this gem: 

“We can’t give new trials to everyone who establishes, after conviction, that they might be innocent,” she later told the television news program Frontline. “We would have no finality in the criminal justice system, and finality is important.”

Judge Keller is now in big trouble in Texas, not for this callous attitude towards innocent people, but for her role in shutting her court down promptly at 5 pm despite knowing that an appeal in the death penalty case of Michael Richard was on the way, an appeal that would almost certainly have been successful.

Judge Keller is NOT getting in trouble for her preference for finality over innocence because that is in fact a very common view in legal circles throughout the United States.  Indeed this perceived need for finality has led to the rejection of countless appeals with real merit, and the question of executing someone who can establish his innocence, purely for the sake of finality, is the central question for which we are awaiting an answer in the Troy Davis case.

What Judge Keller did in the Richard case was reprehensible, but the casual disregard for the rights of people who can establish their innocence is not only equally reprehensible, but also amazingly widespread.