"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."
DAHLIA LITHWICK; SLATE MAGAZINE;
(Wikipedia tells us: "Dahlia Lithwick is a contributing editor at Newsweek and senior editor at Slate. She writes "Supreme Court Dispatches" and "Jurisprudence" and has covered the Microsoft trial and other legal issues for Slate. Before joining Slate as a freelancer in 1999, she worked for a family law firm in Reno, Nevada. Her work has appeared in The New Republic, ELLE, The Ottawa Citizen, and The Washington Post. She was a regular guest on The Al Franken Show, and has been a guest columnist for the New York Times Op-Ed page. Lithwick, functioning in her role as Slate's "legal correspondent," frequently provides summaries of and commentary on current United States Supreme Court cases as a guest on National Public Radio's newsmagazine Day to Day, which is co-produced by Slate.com. She received the Online News Association's award for online commentary in 2001. Lithwick was born in Canada and she remains a Canadian citizen. She moved to the U.S. to study at Yale University, where she received a B.A. in English in 1990. As a student at Yale she debated on the American Parliamentary Debate Association circuit. In 1990 she and partner Austan Goolsbee were runners up for National Debate Team of the Year. She went on to study law at Stanford University, where she received her J.D. in 1996 . She then clerked for Judge Procter Hug on the United States Court of Appeals for the Ninth Circuit.[1] She is Jewish, and keeps a kosher home. In Slate, Lithwick has argued against draconian punishments for pedophiles and has instead pointed to uncontrollable biological urges as being the cause of such behaviours.)
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Background: (Wikipedia); Cameron Todd Willingham (January 9, 1968 – February 17, 2004), born in Carter County, Oklahoma, was sentenced to death by the state of Texas for murdering his three daughters—two year old Amber Louise Kuykendall, and one year old twins Karmon Diane Willingham and Kameron Marie Willingham— by setting his house on fire. The fire occurred on December 23, 1991 in Corsicana, Texas. Lighter fluid was kept on the front porch of Willingham’s house as evidenced by a melted container found there. Some of this fluid may have entered the front doorway of the house carried along by fire hose water. It was alleged this fluid was deliberately poured to start the fire and that Willingham chose this entrance way so as to impede rescue attempts. The prosecution also used other arson theories that have since been brought into question. In addition to the arson evidence, a jailhouse informant claimed Willingham confessed that he set the fire to hide his wife's physical abuse of the girls, although the girls showed no other injuries besides those caused by the fire. Neighbors also testified that Willingham did not try hard enough to save his children. They allege he "crouched down" in his front yard and watched the house burn for a period of time without attempting to enter the home or go to neighbors for help or request they call firefighters. He claimed that he tried to go back into the house but it was "too hot". As firefighters arrived, however, he rushed towards the garage and pushed his car away from the burning building, requesting firefighters do the same rather than put out the fire. After the fire, Willingham showed no emotion at the death of his children and spent the next day sorting through the debris, laughing and playing music. He expressed anger after finding his dartboard burned in the fire. Firefighters and other witnesses found him suspicious of how he reacted during and after the fire. Willingham was charged with murder on January 8, 1992. During his trial in August 1992, he was offered a life term in exchange for a guilty plea, which he turned down insisting he was innocent. After his conviction, he and his wife divorced. She later stated that she believed that Willingham was guilty. Prosecutors alleged this was part of a pattern of behavior intended to rid himself of his children. Willingham had a history of committing crimes, including burglary, grand larceny and car theft. There was also an incident when he beat his pregnant wife over the stomach with a telephone to induce a miscarriage. When asked if he had a final statement, Willingham said: "Yeah. The only statement I want to make is that I am an innocent man - convicted of a crime I did not commit. I have been persecuted for 12 years for something I did not do. From God's dust I came and to dust I will return - so the earth shall become my throne. I gotta go, road dog. I love you Gabby." However, his final words were directed at his ex-wife, Stacy Willingham. He turned to her and said "I hope you rot in hell, bitch" several times while attempting to extend his middle finger in an obscene gesture. His ex-wife did not show any reaction to this. He was executed by lethal injection on February 17, 2004. Subsequent to that date, persistent questions have been raised as to the accuracy of the forensic evidence used in the conviction, specifically, whether it can be proven that an accelerant (such as the lighter fluid mentioned above) was used to start the fatal fire. Fire investigator Gerald L. Hurst reviewed the case documents including the trial transcriptions and an hour-long videotape of the aftermath of the fire scene. Hurst said, "There's nothing to suggest to any reasonable arson investigator that this was an arson fire. It was just a fire."
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"For years, death-penalty opponents and supporters have been on what now looks to be an ethical snipe hunt," Dahlia Lithwick's September 5, 2009, commentary began, under the heading, "Not Innocent Enough: The elusive search for the sufficiently innocent death-row victim."
"Everyone was looking for a moment at which everything would change: a case in which a clearly innocent defendant was wrongly put to death," she continued.
"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."
The commentary can be found at:
http://www.slate.com/id/2227222/
Harold Levy...hlevy15@gmail.com;
