Faith And The Death Penalty

Last week, I read David Grann’s article about the conviction and execution of Cameron Todd Willingham. Grann makes a powerful case that in Willingham, Texas executed an innocent man. In response, the man who prosecuted Willingham, John Jackson (now judge), wrote an editorial entitled “Willingham Guilt Never in Doubt.”  The Judge is wrong; Grann’s article and his response to the judge show that Willingham’s guilt is very much in doubt. The title of the judge’s editorial, though, is what caught my attention.

The judge is certain that Willingham deserved to die. He has no factual basis for that certainty. Willingham was convicted for setting his house on fire, killing three children. As Grann shows, the “scientific” evidence of arson offered at the trial was a joke. Every real expert to examine the evidence since the trial has concluded there was no indication the fire was an arson. There was never a motive. Sure, a jailhouse snitch said Willingham admitted to it, but the same guy received favors from the state and changed his statement several times after the trial. Willingham may really have been guilty, but the facts of the case don’t indicate it. What, then is the source of the judge’s certainty?

That isn’t hard to figure out: As the prosecutor, he can either defend his decision to seek death or admit he helped execute a man who was probably innocent. Faced with that choice, it’s no surprise he defends his prosecution. The shocking thing would be if anything other than a direct word from God himself could change Jackson’s mind. Until then, he’ll have faith in his case, no matter the evidence.

The prosecutor wasn’t the only one acting on faith, though. At the trial level, judges faced with a tough call will often err on the side of the state. “If I’m wrong, the defendant can always appeal” is the rationale. Faith in the higher courts.

The higher courts have faith in the lower one, too. As a former attorney who focussed on criminal appeals, especially in death penalty cases, I can assure you that these cases get only a perfunctory review from appellate courts. You never feel like you receive a fair hearing, rather that each level is looking for the easiest way to affirm the previous court’s decision. They all have faith that the previous decision was correct. No need to spend extra time examining the issues, don’t want to look soft on crime, just trust the trial court and the prosecutor.

Or else, the appeals courts will punt to the governor or whoever else is in charge of clemency hearings. Yet, in Willingham’s case, no one – including Governor Rick Perry – bothered to even read the contents of his clemency petition. Why bother? He was charged, convicted and lost his appeals. Surely after having his case examined at all levels of the justice system, he must have been guilty. The governor’s faith in the death process precluded him from seeing the real facts about the fire.

Even Willingham’s attorney’s had faith. They believed, strongly, that he was guilty. They tried to persuade him to plead guilty. Nothing wrong with that, every attorney has had that argument with a client. But they rolled over and played dead at trial. They had so much faith in the state’s arson experts they never hired one of their own. When they lost? Oh well, he was guilty anyway.

Whether or not you believe in the death penalty, you have to understand that the death machine is a bureaucracy like any other. No-one is responsible for anything; everyone can pass the buck to another level. That’s the lesson of Cameron Todd Willingham. The issue isn’t whether or not death is an appropriate penalty for some crimes. Of course it is. The issue is whether we can accurately identify those crimes and who is responsible for them. I have no problems with the death penalty when considered in theory. But if you can read the story of Cameron Todd Willingham and still think our system can accurately determine who does and who does not deserve to die, well, you have a lot more faith than me.

Explore posts in the same categories: Uncategorized