Wednesday, September 9, 2009

Executing the Innocent

There is a fantastic article here in the New Yorker about the first case where it seems to have been established beyond a doubt that an innocent man, Cameron Todd Willingham, was put to death here in the United States. It's riveting, it's poignant, it's sad, it's outrageous, and it will be the best thing you read all day.

I want to make a few comments about the death penalty, especially regarding the claims that no innocent people are ever put to death. Obviously, there are important moral and social reasons to abolish the death penalty, which I won't even try to get into here.

At the heart of the executionists argument is the belief that the people they kill all deserve it. But if we cannot even determine guilt or innocence, much less whether their actions deserve to be punished by death.

The Willingham case is interesting because it has so many of the features of a broken system that it could be used as a case study in judicial failure. I'll run through a few of these.

Investigation: The initial investigation was conducted by people whose job it is to find arson. This follows a general pattern of state investigators whose incentives are to find evidence of crimes. When the evidence is inconclusive or ambiguous, the tendency on the part of many of these investigators is to interpret them in such a way as to incriminate someone. And a justice system whose objective is to obtain convictions will naturally encourage this sort of interpretation.

This case also highlights the problems with eyewitness testimony. The witnesses apparently changed their testimony, but this was not some isolated incident of people who decided that they wanted to lie and to railroad the defendant. Rather, it's a systemic issue; it's not hard to get people to view and describe the same incident in two radically different ways, depending on their perceptions and the information which they are given. What looked like a man desperately trying to save his children was turned in a man putting on a show for the cops. What changed? Willingham was now a defendant, and so his actions were now being viewed in a different way. Psychologists have shown over and over again how the human mind does this, and that people can convince themselves of just about anything. And yet we still rely on those people in investigations.

The investigation process will also have a tendency to reinforce itself in whatever direction it begins. First you begin by assuming that ambiguous fire evidence is actually evidence of arson, because it is your job to find arson. Then you interview witnesses by asking questions that make it obvious that you suspect someone. Then, after getting the kind of witness statements that you elicited, you ignore problems with your evidence, and try to minimize the importance of exculpatory evidence. This is generally more of a subconscious process. It does not require you to be out to get the defendant. It's a symptom of the system. And of course there are the prejudicial effects of racial and socioeconomic profiling.

Prosecutors are supposed to be engaged in a objective search for truth, wherever that leads them. In practice, they are in the business of obtaining convictions. And while they want to give the defendant enough of a chance to make sure they are not reprimanded by an appeals court, they generally believe that if they can get a conviction, then justice is served. There does not seem to be much concern for a determination of factual innocence or guilt on the part of the prosecutor.

Prosecutors are often politically motivated, as well. Successful prosecutors are often looking for judgeships or thinking about running for elective office. Prosecutors who obtain convictions, especially high-profile ones, are perceived by the public to be successful; since the public never really knows the details of the cases, they just assume that anyone who is convicted or pleads guilty is factually guilty. Prosecutors have nothing to lose and everything to gain politically by trying to convict as many people as they can.

And of course the racial and socioeconomic discrimination that is found in the investigation process is far worse in the prosecutorial realm, where prosecutorial discretion is rampant, and which results in people who are least able to defend themselves being the most likely to face capital charges.

Expert Testimony:
The experts in this case were typical of many expert witnesses. They were poorly trained. They had biases. And yet they considered themselves to be infallible.

Here is an example from the New Yorker article:

..several family members, including Stacy, testified during the penalty phase, asking the jury to spare Willingham’s life. When Stacy was on the stand, Jackson grilled her about the “significance” of Willingham’s “very large tattoo of a skull, encircled by some kind of a serpent.”
“It’s just a tattoo,” Stacy responded.
“He just likes skulls and snakes. Is that what you’re saying?”
“No. He just had—he got a tattoo on him.”
The prosecution cited such evidence in asserting that Willingham fit the profile of a sociopath, and brought forth two medical experts to confirm the theory. Neither had met Willingham. One of them was Tim Gregory, a psychologist with a master’s degree in marriage and family issues, who had previously gone goose hunting with Jackson, (John Jackson, the prosecutor!) and had not published any research in the field of sociopathic behavior. His practice was devoted to family counselling.

At one point, Jackson showed Gregory Exhibit No. 60—a photograph of an Iron Maiden poster that had hung in Willingham’s house—and asked the psychologist to interpret it. “This one is a picture of a skull, with a fist being punched through the skull,” Gregory said; the image displayed “violence” and “death.” Gregory looked at photographs of other music posters owned by Willingham. “There’s a hooded skull, with wings and a hatchet,” Gregory continued. “And all of these are in fire, depicting—it reminds me of something like Hell. And there’s a picture—a Led Zeppelin picture of a falling angel. . . . I see there’s an association many times with cultive-type of activities. A focus on death, dying. Many times individuals that have a lot of this type of art have interest in satanic-type activities.”

Prosecutors are allowed wide latitude with these type of experts, and the courts generally defer to them. Juries are instructed that they may rely upon their testimony, and to a jury, these witnesses often seem very competent and confident. If an expert says it's arson, well, it must be arson. And if a defendant or his less-than-stellar attorney is unable to afford an expert who can contradict, or even be aware that someone could contradict them, then whatever the expert says is truth. In this case, the defendant himself likely believed that it was arson; he just knew he didn't commit it. Incidentally, expert witnesses are also called professional witnesses, which seems for more appropriate, as they are compensated for their testimony (somehow, this is not considered a bribe) and they know that continued employment in other cases rests on their willingness to reach the conclusion the DA wants.

Consider that in many of the cases where innocent people are suspected to have been executed, death advocates maintain that the expert testimony was overwhelming, as though that means anything at all.

The other medical expert was James P. Grigson, a forensic psychiatrist. He testified so often for the prosecution in capital-punishment cases that he had become known as Dr. Death. (A Texas appellate judge once wrote that when Grigson appeared on the stand the defendant might as well “commence writing out his last will and testament.”) Grigson suggested that Willingham was an “extremely severe sociopath,” and that “no pill” or treatment could help him. Grigson had previously used nearly the same words in helping to secure a death sentence against Randall Dale Adams, who had been convicted of murdering a police officer, in 1977. After Adams, who had no prior criminal record, spent a dozen years on death row—and once came within seventy-two hours of being executed—new evidence emerged that absolved him, and he was released. In 1995, three years after Willingham’s trial, Grigson 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.”

These are the people we rely on to establish guilt before we kill someone.

Defense Attorney:
There is a perception in the US that defendants in death penalty cases are given the the best representation: that these cases are so rare, and so high-profile, and so important to get right, that the defendants are given some hot-shot attorney and a team of experts right out of a Grisham novel. Yet look at the attorneys in this cases. They were clearly incompetent. They had no knowledge of arson cases, or of death penalty cases, nor even of which questions they should ask. His attorney both admitted that they considered him guilty; because the state assigned him these two morons, Willingham had no choice but to take them, as he could not afford to hire an attorney of his choice, who might actually believe that he was innocent, and be prepared to fight for his life!

Here is David Martin, Willingham's attorney and a former state trooper:

All the evidence showed that he was one hundred per cent guilty. He poured accelerant all over the house and put lighter fluid under the kids’ beds.” It was, he said, “a classic arson case”: there were “puddle patterns all over the place—no disputing those.

How could we ever expect an attorney with this mindset to vigorously defend his client? He was probably happy to find the case so cut and dried; death penalty cases are a lot of work, and it's far easier to just believe your client is guilty, and try to talk him into accepting a plea. So much for the notion that people on death row all got a chance to make their case.

We also tend to believe that because there is a relatively lengthy appeals process for death row inmates, the appeals courts will ensure that all of the above problems are taken care of. But this is wrong.

Appeals courts rarely consider new evidence, and even more rarely will they review the actual evidence in a trial in an attempt to ascertain the factual guilt or innocence of an appellant. Instead, they simply review the trial to ensure that there were no procedural errors, and if there were not, the appeal is denied. Here is Justice Antonin Scalia in a recent dissent:

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.

In other words, Scalia has no problem with executing innocent people, as long as they had a fair trial. And the sad fact is that the Willingham's trial would be considered fair. The rules and procedures were followed; there is no doubt about this. This is the system's definition of justice-whether procedure was followed. Whether the truth is revealed is of a lower priority.

The clemency board, which is supposed to review these cases as the last and final measure, simply rubber-stamped the courts decisions, and obviously operated under the assumption that Willingham was guilty. They ignored the report that would have exonerated him, because they had already made up their minds.

Former 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.”

And now it has happened. We've executed 1,100 people since the death penalty was reinstated. We have 3,300 people on death row today. Is there any possibility that in all 4,400 of these cases, the truth has been determined with absolute certainty? The very idea is ludicrous. No sane person could make this argument with a straight face. The only thing that is surprising is that it has taken this long to find the proof.

But let's be honest-a broken criminal just system cannot be reformed by simply ending executions. This is of little comfort to those who are sentenced to life in prison with the possiblity of parole, based on trials which are often even more unjust. Ironically, the only thing that is keeping any attention on this joke of a system is the fact that we are using it to kill people; take that away, and there will be a lot less attention on the fact that innocent people are people sent to prison for the rest of their lives all the time.

Supreme Court Justice Antonin Scalia, in 2006, voted with a majority to uphold the death penalty in a Kansas case. In his opinion, Scalia declared that, in the modern judicial system, 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.”

Well, it's time to start shouting from the rooftops. Where is Mr. Scalia now?


  1. I would advise folks read the last paragraph of Justice Sandra Day O’Connor’s concurrence in Herrera on this issue, below.

    As well as her entire concurrence at

    “Ultimately, two things about this case are clear. First is what the Court does not hold.

    Nowhere does the Court state that that the Constitution permits the execution of an actually innocent person. Instead, the Court assumes for the sake of argument that a truly persuasive demonstration of actual innocence would render any such execution unconstitutional and that federal habeas relief would be warranted if no state avenue were open to process the claim.

    Second is what petitioner has not demonstrated. Petitioner has failed to make a persuasive showing of actual innocence. Not one judge–no state court judge, not the District Court Judge, none of the three Judges of the Court of Appeals, and none of the Justices of this Court–has expressed doubt about petitioner’s guilt.
    Accordingly, the Court has no reason to pass on, and appropriately reserves, the question whether federal courts may entertain convincing claims of actual innocence. That difficult question remains open.

    If the Constitution’s guarantees of fair procedure and the safeguards of clemency and pardon fulfill their historical mission, it may never require resolution at all.”

    Instead of, completely, misinterpreting Scalia, maybe folks should be responsible enough to read Scalia’s opinion. Here it is. It’s not too late.

  2. Making an assesment of a death penalty case, based upon Grann's reporting, is not a good idea.

  3. Please tell me what is wrong with Grann's reporting, if you're going to dismiss it so easily.

    I have read Scalia's dissent in Davis. I would agree that his opinion makes sense, if you begin with the assumption that people convicted at capital trials are always factually guilty.

    But point of this post is to demolish the claim that people who are convicted in capital trials are always and necessarily factually guilty, and that the process is foolproof. It is not. And Scalia's naive belief in the sanctity of that process does not change that fact.

    As you must know, once the trial is over, the appeals process will never consider the facts of the case again. It will focus on procedural issues, and pretend that truth is whatever the jury decides. In fact, your comment does the same thing, as it never addresses the question of whether Willingham was guilty.

    O'Connor's states that the court assumes that a factually innocent person would be able to get federal habeas relief. But this requires the assumption that the process works.

    In theory, of course, there are multiple systems in place to ensure that innocent people are not executed.But in practice, these systems do not work. They all rely on the infallibility of the jury verdict. We may have to live with the fact that juries will send innocent people to prison. There are ways to improve the process, but it will never be perfect.

    But if it is not perfect, we must stop killing people!

  4. Saclia's dissent does not have that presumption. You read that into his opinion.

    The finding is of legal guilt, not factual guilt.

    I think you presume, a lot like Grann does.

    For example, you write: "if it is not perfect, we must stop killing people!"

    But, there is this consideration:

    "The Death Penalty: More Protection for Innocents"

    Is there any other government managed program, which puts innocents at risk, that you say must be perfect or it should be done away with?

    Try this:

    Re read Grann's article. Where he presumes one way, why don't you try and presume another and see where it takes you.

    Grann makes presumptions that his own article contradicts.

    Also, based upon Grann's fact checking, there seems a strong anti death penalty/defense side bias.

    For example, He just parrots the 135 "exonerated" from death row, the 13 "exonerated" from Illinois and the 17 saved because of DNA.

    In other words, you may speculate that he either didn't fact check, which is bad enough, or he fact checked and still used them, which would be down right horrible.

    Who knows?