The elusive search for the sufficiently innocent criminal.

The law, lawyers, and the court.
Sept. 5 2009 7:29 AM

Not Innocent Enough

The elusive search for the sufficiently innocent death-row victim.

Justice Antonin Scalia. Click image to expand.
Antonin Scalia

For years, death-penalty opponents and supporters have been on what now looks to be an ethical snipe hunt. Everyone was looking for a moment at which everything would change: a case in which a clearly innocent defendant was wrongly put to death.

Dahlia Lithwick Dahlia Lithwick

Dahlia Lithwick writes about the courts and the law for Slate

In a 2005 Supreme Court case that actually had nothing to do with the execution of innocents, Justices David Souter and Antonin Scalia locked horns over the possibility that such a creature could even exist. Souter fretted that "the period starting in 1989 has seen repeated exonerations of convicts under death sentences, in numbers never imagined before the development of DNA tests." To which Scalia retorted: "[T]he dissent makes much of the new-found capacity of DNA testing to establish innocence. But in every case of an executed defendant of which I am aware, that technology has confirmed guilt." Scalia went on to blast "sanctimonious" death-penalty opponents, a 1987 study on innocent exonerations whose "obsolescence began at the moment of publication," and then concluded that there was not "a single case—not one—in which it is clear that a person was executed for a crime he did not commit."

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This language suggested that if anyone ever found such a case, the Scalias of the world might rethink matters. As of today, the Innocence Project, a national organization dedicated to exonerating the wrongfully convicted through DNA testing, claims there have been 241 post-conviction DNA exonerations, of which 17 were former death-row inmates who now have been spared the death penalty. The gap between their data and Justice Scalia's widens every year. And for those who insist that not even one of those alleged innocents is indeed innocent, we now havea name: Cameron Todd Willingham, executed by the state of Texas in 2004 for allegedly setting a 1991 house fire that killed his three young daughters.

David Grann, who wrote a remarkable piece about the case in last week's New Yorker, sifted through the evidence against Willingham to reveal that the entire prosecution was a train wreck of eyewitness testimony that changed over time: a jailhouse snitch who was both mentally impaired and stood to benefit from testifying against Willingham, "expert" psychiatrists who never examined the accused but proclaimed him a "sociopath" based on his posters and tattoos, and local arson investigators whose conclusions were less rooted in science than a sort of spiritual performance art. And at every step in his appeals process, Willingham's repeated claims of innocence were met with the response that he'd already had more than enough due process for a baby-killer.

But you needn't take Grann's word for it. In 2004, Dr. Gerald Hurst, an acclaimed scientist and fire investigator conducted an independent investigation of the evidence in the Willingham case and came away with little doubt that it was an accidental fire—likely caused by a space heater or bad wiring. Hurst found no evidence of arson and wrote a report to that effect to try to stay the execution. According to documents obtained by the Innocence Project, it appears nobody at the state Board of Pardons and Paroles or the Texas governor's office even took note of Hurst's conclusions. Willingham was executed by lethal injection, telling the Associated Pressbefore his death, "[t]he most distressing thing is the state of Texas will kill an innocent man and doesn't care they're making a mistake."

In 2004 the ChicagoTribune asked three fire experts to evaluate the Willingham arson investigation. Their testing confirmed Hurst's report. In 2006, the Innocence Project commissioned yet another independent review of the arson evidence in Willingham's case. Their panel concluded that "each and every one" of the indicators of arson was "scientifically proven to be invalid." Finally, in 2007 the state of Texas created the Forensic Science Commission to investigate alleged errors and misconduct and commissioned another renowned arson expert, Craig Beyler, to examine the Willingham evidence. Beyler's report, issued two weeks ago, concluded that investigators had no scientific basis for claiming the fire was arson and that one of the arson investigator's approaches seemed to deny "rational reasoning" and was more "characteristic of mystics or psychics."

The state of Texas now has the opportunity to review Beyler's findings and conclude that it has carried out the "execution of a legally and factually innocent person."

One might think that all this would put a thumb on the scale for death-penalty opponents, who have long contended that conclusive proof of an innocent murdered by the state would fundamentally change the debate. But that was before the goal posts began to shift this summer. In June, by a 5-4 margin, the Supreme Court ruled that a prisoner did not have a constitutional right to demand DNA testing of evidence in police files, even at his own expense. "A criminal defendant proved guilty after a fair trial does not have the same liberty interests as a free man," wrote Chief Justice John Roberts. And two months later, Justices Scalia and Thomas went even further than the chief justice following an extraordinary Supreme Court order instructing a federal court to hold a new hearing in Troy Davis' murder case, after seven of nine eyewitnesses recanted their testimony. Scalia, dissenting from that order, wrote for himself and Justice Clarence Thomas, "[t]his 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."

As a constitutional matter, Scalia is not wrong. The court has never found a constitutional right for the actually innocent to be free from execution. When the court flirted with the question in 1993, a majority ruled against the accused, but Chief Justice William Rehnquist left open the possibility that it may be unconstitutional to execute someone with a "truly persuasive demonstration" of innocence. Oddly enough, for at least some members of the current court that question is now seemingly irrelevant: In Scalia's America, the Cameron Todd Willingham whose very existence was once in doubt is today constitutionally immaterial. Having waited decades for an innocent victim of capital punishment, the fact that we have finally found one won't matter at all. In this new America we can execute a man for an accidental house fire, while the constitution stands silently by.

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