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September 1, 2009

How will death penalty proponents respond to "Trial by Fire"?

I have now read this potent and must-read article, headlined "Trial by Fire: Did Texas execute an innocent man?", in this week's New Yorkerconcerning the Cameron Todd Willingham case.  In the article, David Grann effectively reviews all the reasons to suspect and fear that Texas executed an innocent man in 2004.  It is certain that death penalty opponents will respond to the piece by asserting this case now proves that a wrongful execution is a real possibility and that the death penalty should therefore be completely abolished.  But what is not certain is how death penalty proponents in Texas and elsewhere will respond to the piece.

One easy response for death penalty proponents is simply to assert and maintain that Willingham was in fact guilty, notwithstanding the evidence suggesting otherwise.  The New Yorker article reveals that a number of folks involved in the case's prosecution have already adopted this approach.  But, given the potent evidence now suggesting Willingham was wrongly convicted and executed and the weak evidence that supporting his guilt, I am not sure all responsible death penalty proponents will feel comfortable adopting this response.

The alternative, of course, is to admit the possibility that Texas executed an innocent man, but that this obvious tragedy does not alone justify getting rid of a punishment that is thought just for the truly guilty and may save many more innocent lives through its deterrent force.  This alternative seems to me to be the more "honest" response to the Willingham case, but it is also necessarily more controversial.

Notably, I am yet to see any discussion of the Willingham case on either Crime and Consequences or Pro-Death Penalty.com.

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September 1, 2009 at 09:56 AM | Permalink

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Comments

Doug. I think you highlight an important issue. The pro-death community feels like it can't engage in an honest discussion about the fact that the criminal justice system makes mistakes. This, of course, is obvious, as criminal justice system is comprised of human beings, and human beings make mistakes. They will go to tremendous lengths to credit even the most incredible guilty verdicts, even once those verdicts have totally come unravelled. They rightfully place the burden on defense lawyers to produce evidence that verdicts have become infirm over time, but then they impose a burden of proof on those claiming innocence that no human being could meet: absolute certainty. In the face of overwhelming evidence of a wrongful conviction they cling to the thinnest of reeds -- a stubborn prosecutor who refuses to admit the obvious, a wavering snitch -- as though that somehow makes the remainder of the innocence claim utterly meritless.

It's about time these apologists stand up for what they really believe which is that in capital punishment is worth a few innocent people being killed. Collateral damage to an otherwise good policy. It's fine if they want to have an honest debate on those terms. I welcome it. But enough is enough with the reading every case of innocence as though the standard of proof is certainty. This insistence on certainty really just a backdoor indulgence of a deep moral relativism. Since I can't prove to the satisfaction of the most hateful victim's rights crusader that Willingham is innocence, Willingham must guilty. As soon as innocence can't be proven to a total certainty, it can't be taken seriously at all.

The truth is that Willingham is just one of several executed defendants in TX where there is powerful evidence of a wrongful execution. Ruben Cantu and Carlos DeLuna are also strong cases of innocence, though admittedly less overwhelmingly clear that WIllingham. I hope society begins to pay attention to these cases and others. And I hope the pro-death types will finally engage in an honest dialogue.

Posted by: dm | Sep 1, 2009 1:23:57 PM

There is a pretty loud silence going on here from the pro-kill crowd.

HEY KENT! WAKE UP!

Do you really believe no wrongfully-convicted folks have been executed in the U.S.?

If they have, is this acceptable to you?

Posted by: Samuel | Sep 1, 2009 2:05:18 PM

Let's assume Willingham was innocent, as in didn't do it innocent, not some bastardized concept of innocence that picks up Jeremy Sheets or Timothy Hennis. Fine. We have a human system. But the body count on the bleeding heart side far exceeds ours.

You wanna play that game?

Posted by: federalist | Sep 1, 2009 2:25:36 PM

Federalist, what you call the "bleeding heart" side is actually the "uphold the constitution and laws" side.

Yes, following the laws and fully effectuating constitutional protections will allow guilty people to go free and crimes to happen. The Framers fully understood this. Are you saying different?

I congratulate you for admitting that capital punishment may have killed an innocent person. But don't set up a false dichotomy by suggesting that it's OK to kill an innocent man because enforcement of constitutional rights has resulted in innocent people getting killed. Our system was step up so that a guilty person might go free. It was not set up so that an innocent person might be executed. You can't compare the two.

Posted by: CN | Sep 1, 2009 2:41:16 PM

To answer the question in the headline, they'll ignore it and become more shrill, claiming either that Willingham is really guilty or he was such a bad person it doesn't matter, anyway. At least, that's been my observation of the response so far.

I nominate Bill Otis, Dudley Sharp and Kent Scheidegger to jointly draft a response to the New Yorker piece. Doug, given the "loud silence" regarding this article, perhaps you'll need to give them a deadline. ;)

Posted by: Gritsforbreakfast | Sep 1, 2009 2:50:39 PM

Why "assume" Willingham is innocent federalist? Why not engage the facts and make a reasoned judgment. According to a raft of highly esteemed arson experts, the fire was not set, therefore there was no arson, therefore there was no murder.

And the notion that one should compare the "body count" of the various "sides" reveals a lot. When a criminal murders an innocent he does so in contravention of our shared values. We seek to apprehend the criminal and to punish him. When the state does it -- kills an innocent -- it does so in our names; it claims to do so in furtherance of our values. We murdered Willingham.

I thought conservatives understood the important difference between individual acts and those of government.

Posted by: dm | Sep 1, 2009 3:12:20 PM

It is not acceptable to execute an innocent defendant. It is acceptable to execute incompetent, rent seeking lawyer hierarchy members in insurrection against the constitution after an hour's fair trial. The sole evidence would be passages from their decisions and not any collateral corruption.

Is it also acceptable to loose vicious predators to carry out 17,000 extra-judicial executions that do not meet Eighth Amendment muster, year after dreary year? The 17,000 represents a 40% drop after the guidelines. In many cities, the murder rate is on pace to return to that of the 1970's and 1980's since Booker. The excess murders will represent a highly foreseeable, intentional decision to commit mass murder to restore lawyer jobs taken away by the falling crime rate.

Posted by: Supremacy Claus | Sep 1, 2009 3:35:52 PM


My position on the issue is already well know, I am not a fan of the death penalty.

With that said, since we are likely to keep the death penalty in large chunks of the United States, at least for now, the reality is this is the time for both sides of the fence to put on our big boys and girl britches and come to some common-sense agreements going forward. Gov. Romney, as much as I disagree with him on a wide variety of issues, in Massachusetts put forward some fairly straightforward prerequisites for a less error-prone system. Congress should mandate the Romney proposals as a prerequisite for a state's continued right to implement this irrevocable punishment.

Those who like the status quo, patch quilt system of innocence protections that are being honored more in the breach than in the observance, will obviously howl. Those on my side will obviously howl too that the system is too broken to fix. The reality is our profession has a moral obligation to do the best we can for both the victims and to the Cameron Todd Willingham's of this world to make sure that if we are going to use this medieval monstrosity that we get the right guys and gals and not simply the most convenient.

Posted by: karl | Sep 1, 2009 5:41:14 PM

"medieval monstrosity"

No, karl, that's what happened to Channon Christian and Timothy Newsom . . . . .

And spare us your crocodile tears for victims. You lauded the smearing of two teens in a Texas DP case a year or so ago. You don't give a fig about victims.

Posted by: federalist | Sep 1, 2009 6:44:04 PM

Federalist, what you call the "bleeding heart" side is actually the "uphold the constitution and laws" side.

I'd be happy to go back to the original understanding, but that's not the only issue. The "be nice to criminals crowd" (and there's a huge overlap with abolitionists) is responsible for a hell of a lot of heartache in this country.

Posted by: federalist | Sep 1, 2009 6:45:55 PM

Federalist, why don't you go back to watching your Nancy Grace reruns and let the grownups talk for a while?

Posted by: Anon | Sep 1, 2009 7:04:50 PM

By the way, as I posted in your other thread about this case, no doubt exists that an innocent person has been executed in America:

Nebraska hanged a man for murdering a victim who could not be found and who turned up alive years later.

http://www.law.northwestern.edu/wrongfulconvictions/exonerations/neMarionSummary.html

Posted by: Sentencing Observer | Sep 1, 2009 7:09:23 PM

Good one anon. A clever putdown is always appreciated. Doug never seems to get that. Of course, he comes up with lame stuff like me and SC making a love connection.

Actually, there are few things I would less like to do than sit and watch that harpie. I think I'd actually rather watch "The Real Housewives" than Nancy Grace.

But anon, I think you realize there's an awful lot of blood on the hands of those who thought that we should be nicer to criminals.

Posted by: federalist | Sep 1, 2009 7:13:18 PM

"The alternative, of course, is to admit the possibility that Texas executed an innocent man, but that this obvious tragedy does not alone justify getting rid of a punishment that is thought just for the truly guilty and may save many more innocent lives through its deterrent force. This alternative seems to me to be the more "honest" response to the Willingham case, but it is also necessarily more controversial."

Scalia made the honest response.

Posted by: federalist | Sep 1, 2009 7:15:36 PM

If you are shocked that Texas executed a person who was innocent of the crime for which he was executed, then join us in Austin at the Texas Capitol on October 24, 2009 for the 10th Annual March to Abolish the Death Penalty.

http://marchforabolition.org

At the 7th Annual March in 2006, the family of Todd Willingham attended and delivered a letter to Governor Perry that said in part:

“We are the family of Cameron Todd Willingham. Our names are Eugenia Willingham, Trina Willingham Quinton and Joshua Easley. Todd was an innocent person executed by Texas on February 17, 2004. We have come to Austin today from Ardmore, Oklahoma to stand outside the Texas Governor’s Mansion and attempt to deliver this letter to you in person, because we want to make sure that you know about Todd’s innocence and to urge you to stop executions in Texas and determine why innocent people are being executed in Texas.”

“Please ensure that no other family suffers the tragedy of seeing one of their loved ones wrongfully executed. Please enact a moratorium on executions and create a special blue ribbon commission to study the administration of the death penalty in Texas. A moratorium will ensure that no other innocent people are executed while the system is being studied and reforms implemented.”

Posted by: Scott Cobb | Sep 1, 2009 7:16:38 PM

federalist wrote: "But anon, I think you realize there's an awful lot of blood on the hands of those who thought that we should be nicer to criminals."

The problem, federalist, is that you have a fundamental misunderstanding of what creates responsibility (a misunderstanding undoubtedly caused by cognitive dissonance). I am not responsible for the actions of a person whom your politics intentionally deprives of stability in basic necessities like shelter, food, gainful employment, and mental health care. When that man commits a murder, that blood is on your hands.

However, by virtue of our relationship to a (quasi) democratic State, we are all responsible for the acts our government commits, even those of us who oppose the barbarity that is capital punishment. I resent you tremendously not only for your responsibility for the murders that regularly occur in our society but also, now, for turning me into a murderer. If it were up to me, you'd be exiled from my society.

Posted by: DK | Sep 1, 2009 7:28:52 PM

DK, is the sky blue on your planet--just askin'.

Posted by: federalist | Sep 1, 2009 7:58:42 PM

Fedealist:

I oppose the death penalty as currently constructed, and most likely under any circumstances. I do not oppose prison sentences for murder. Indeed, I do not oppose long sentences for people accused of murder.

You have not said one thing about how Willingham family was twice brutalized, once by fire and once by the State. You have dodged the question that Doug has so eloquently laid out your feet. I find it odd that you accuse me of shedding crocodile tears yet I have worked with murder victims family members and have murder victims family members in my own family, I'm not sure what your qualifications on the subject, however, are. Other than shrill rhetoric I have never heard you offer anything more than a Nancy Grace repeat about victims.

I find it sad that once you offered lively, constructive, germane comments here and elsewhere but have devolved into something far less.

Posted by: karl | Sep 1, 2009 8:43:22 PM

Californians' support for death penalty waning

Support for the death penalty plunged to 26% when respondents were offered the alternative of guaranteed life imprisonment and the requirement that the offender work to pay restitution to victims and their families, Haney said.

Posted by: George | Sep 1, 2009 11:35:52 PM

well, Karl, you lionized (and repeated) the smearing of two Texas teens killed for giving some murderer a ride.

And I haven't dodged anything. You don't know that Willingham is innocent (as in the real factual sense). I don't like the case either.

Posted by: federalist | Sep 2, 2009 11:51:57 AM

I find it curious that most of the commentators here presume that the New Yorker article proved that WIllingham was innocent. The fact that he had twice previously tried to kill his kids seems damning. And frankly, the expert retained by the defense certainly seems to be solidly in the abolitionists camp (strange how his comment no longer appears here).

But let's suppose that an innocent man was put to death. Does it follow then that we should ban the death penalty outright? I don't think so. There is no guarantee of perfect justice under our Constitution - nor should there be. Procedural protections must at some point bend to the communities desire and need for imposition of penalties.

Just as some innocent people are incarcerated some innocent people will be executed as long as the community shows a commitment to the death penalty. It's not right that either situation occurs, but some questions aren't about what's right or wrong - only what's just.

Posted by: noname | Sep 2, 2009 4:49:36 PM

noname:

Ultimately the question is this, would you want to be killed if a jury said it was ok to do so? And if the answer is no, why then Cameron Todd Willingham.

Oh, and your reference to twice trying to kill his kids, has that been thoroughly debunked. Slapping your wife while she's pregnant is vulgar and grotesque, however that does not equal an attempt to kill your kids.

Posted by: karl | Sep 2, 2009 10:18:43 PM

noname wrote: "I find it curious that most of the commentators here presume that the New Yorker article proved that WIllingham was innocent. The fact that he had twice previously tried to kill his kids seems damning."

The fact that? Where? Based on what evidence? You don't know. (And, please, respond to me to confirm that you are not, in fact, personally aware of any such evidence.) You got this tripe from the trial prosecutor's pathetic defense of his murder of Willingham that was so pathetic that only the Corsicana Daily Sun--the local newspaper--would have published it. This is what the prosecutor said:

"The event which caused the three childrens' deaths was the third attempt by Todd Willingham to kill his children established by the evidence. He had attempted to abort both pregnancies by vicious attacks on his wife in which he beat and kicked his wife with the specific intent to trigger miscarriages;"

This is called a conclusory allegation. It's certainly not a "fact" and, moreover, it's not even evidence. The fact of the matter is that there is no such "fact." Willingham never did try to kill his kids previously. (Here you can feel free to put up or shut up.) It's ironic, to say the least, that you so readily base your unfounded belief in Willingham's guilt on equally unfounded accusations of other crimes--accusations made by the very man who murdered him. Is it not enough for you to kill a man who failed to rescue his own children from a house fire? You have to insist--without a shred of evidence--that he tried to kill his children several times on top of it all? You are a pathetic excuse for a human being.

noname wrote: "But let's suppose that an innocent man was put to death. Does it follow then that we should ban the death penalty outright? I don't think so. There is no guarantee of perfect justice under our Constitution - nor should there be. Procedural protections must at some point bend to the communities desire and need for imposition of penalties.

Just as some innocent people are incarcerated some innocent people will be executed as long as the community shows a commitment to the death penalty. It's not right that either situation occurs, but some questions aren't about what's right or wrong - only what's just."

You're a sociopath. Rot in hell.

Posted by: DK | Sep 3, 2009 1:59:41 AM

New ABA opinion on prosecutorial duty to disclose information | New Yorker Article--Of Experts and Snitches

http://www.snitching.org/2009/09/new_yorker_articleof_experts_a.html

Posted by: Rev. Kobutsu Malone | Sep 3, 2009 7:09:45 PM

The fact that modern science has alternate explanations for some of the observations reported by the original arson investigators does not mean Willingham was actually innocent. For all we know the modern techniques could turn up other evidence of arson that were missed by the original investigators.

Of course you didn't consider these things because you already have an opinion about the death penalty in general that is preventing you from approaching this issue with a clear mind. Here is a hint: If the story you are reading fails to mention, or otherwise minimizes all the other evidence except the flawed evidence then your feelings are being manipulated by the author.

In the case of Cameron Todd Willingham, he was what you would call a poster-boy for good fathers or husbands. He had a history of violence including against his wife and children and, during the fire, Willingham was more concerned about the fire damaging the paint on his car than he was about his dying children.

Really you shouldn't get too worked up about Willingham's execution. Even if a good defense attorney could have won an acquittal, he probably wasn't actually innocent. Save your efforts for someone proven innocent by DNA testing. Making too big of a production over Willingham tends to brand you as a "Chicken Little" type of person and reduces your future effectiveness.

Posted by: Ben Dover | Sep 9, 2009 4:22:18 PM

1) "Cameron Todd Willingham: Media Meltdown & the Death Penalty:
"Trial by Fire: Did Texas execute an innocent man?", by David Grann
http://homicidesurvivors.com/2009/10/04/cameron-todd-willingham-media-meltdown--the-death-penalty.aspx

This was written and released prior to the Corsicana Fire Marshall's report. See below:


2) EXCLUSIVE: City report on arson probe:
State panel asks for city response in Willingham case
http://www.corsicanadailysun.com/news/local_story_276222736.html


3) No Doubts
http://www.corsicanadailysun.com/thewillinghamfiles/local_story_250180658.html


NOTE: There is the potential for, at least, 3 more, official, reports on this case: the Texas Fire Marshall's office, which will give an official and requested reply, the Corsicana Police Dept. and Navarro County District Attorney's office, both of which may only contribute to the TFM report.

There is an official "report" which, it appears, few have paid attention to - the trial transcript. I find that rather important because, at least five persons, who were involved with the trial, the prosecutor, defense attorney, two surviving fire investigators and a juror have all voiced support for the verdict, still, in the light of the criticsm of the arson forensics. One of those original fire investigators is, now, an active certified arson expert.

See Corsicana Daily Sun, The Willingham Files
http://www.corsicanadailysun.com/thewillinghamfiles

Posted by: Dudley Sharp | Oct 6, 2009 6:49:30 AM

A suggestion, wait for all the evidence to be presented.

1) EXCLUSIVE: City report on arson probe:
State panel asks for city response in Willingham case
http://www.corsicanadailysun.com/news/local_story_276222736.html


2) No Doubts
http://www.corsicanadailysun.com/thewillinghamfiles/local_story_250180658.html


NOTE: There is the potential for, at least, 3 more, official, reports on this case: the Texas Fire Marshall's office, which will give an official and requested reply, the Corsicana Police Dept. and Navarro County District Attorney's office, both of which may only contribute to the TFM report.

There is an official "report" which, it appears, few have paid attention to - the trial transcript. I find that rather important because, at least five persons, who were involved with the trial, the prosecutor, defense attorney, two surviving fire investigators and a juror have all voiced support for the verdict, still, in the light of the criticsm of the arson forensics. One of those original fire investigators is, now, an active certified arson expert.

See Corsicana Daily Sun, The Willingham Files
http://www.corsicanadailysun.com/thewillinghamfiles

Posted by: Dudley Sharp | Oct 6, 2009 6:58:07 AM

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