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Not Innocent EnoughThe elusive search for the sufficiently innocent death-row victim.

By Dahlia LithwickPosted Saturday, Sept. 5, 2009, at 7:29 AM ET

Antonin ScaliaFor 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.

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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."

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 have a 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 Press before 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 Chicago Tribune 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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Dahlia Lithwick is a Slate senior editor.

Photograph of Antonin Scalia by Alex Wong/Getty Images.

COMMENTS

"In this new America we can execute a man for an accidental house fire, while the constitution stands silently by."

As long as capital punishment exists, this will be a possibility. As Justice Stevens noted:

"current decisions by state legislatures, by the Congress of the United States, and by this Court to retain the death penalty as a part of our law are the product of habit and inattention rather than an acceptable deliberative process that weighs the costs and risks of administering that penalty against its identifiable benefits, and rest in part on a faulty assumption about the retributive force of the death penalty"

The case of Troy Anthony Davis underlines the point. The matter was sent back to a lower court. But, the lower court is restrained in its discretion. This is underlined by the dissenting opinion in Herrera v. Collins, the case cited in the article the left open the question of executing an innocent person. Remember this is Justice Blackmun, who shortly after declared the death penalty as a whole unconstitutional:

"The government bears the burden of proving the defendant's guilt beyond a reasonable doubt, Jackson v. Virginia, 443 U.S. 307, 315 (1979); In re Winship, 397 U.S. 358, 364 (1970), but once the government has done so, the burden of proving innocence must shift to the convicted defendant."

This is no easy task. But, clearly, trial judgments are not perfect. Some innocents are convicted. This is horrible in respect to any crime, particularly those with long sentences in our less than ideal penal system. It is a risk we have to take, since we need to protect ourselves. OTOH, execution is not needed for that. In fact, often it is based surely on retribution.

This is a questionable ground by any metric, it surely is to the degree that the system risks executing innocent people. Which is but one problem with capital punishment. BTW, Scalia says innocents are weeded out. Of course, this includes by a mandatory system of due process and post-conviction review of a sort that he finds unnecessarily elaborate.

-- Joe_JP
(To reply, click here)

Sadly, both sides tend to have ulterior motives on the issue. I've come across stories that paint a naive picture of death penalty opponents that not only seek to have the death penalty ended, but would further seek to have the convicted released. And that includes certain conservative Evangelicals who when confronted tend to shriek that they are being persecuted for their faith. (Remember the Karla Fay Tucker case?) Of course supporters of the death penalty sometimes betray classicism, racism and just plain authoritarian mindsets. I suggest those other issues be set aside while the debate focuses on what the crucial issues of the death penalty are.

-- Puller58
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The trouble can be summed up very succinctly, I think. People are not sanctioned for being guilty of crimes. They are executed, jailed or fined for being convicted of crimes. Despite (or, as some cynics would tell you, in spite of) the best efforts of the criminal justice system, you may be one without being the other. The Supreme Court has never found "a constitutional right for the actually innocent to be free from execution," because, basically, if shockingly, it limits itself to the issue of conviction:

Amendment V

"No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation."

Note that is says: "without due process of law," and not: "unless they are actually guilty of the crime." It's an important distinction, and will remain so until investigative infallibility can be reasonably achieved.

-- Lyger
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