« Attention 2016 Prez candidates: new poll says 87% in Ohio support use of medical marijuana | Main | With intriguing coalitions, SCOTUS limits right to challenge pre-conviction asset seizure »

February 25, 2014

"The Banality of Wrongful Executions"

The title of this post is the title of this new piece authored by Brandon Garrett reviewing a number of recent new criminal justice books. Available via SSRN, here is the abstract:

What is so haunting about the known wrongful convictions is that they are the tip of the iceberg. Untold numbers of mundane errors may escape notice while sending the innocent to prison and even to the death chamber. That is why I recommended to readers a trilogy of fascinating new books that look into the larger but murkier problem of error. In this article for Michigan Law Review's annual book issue, I review three books: Los Tocayos Carlos, by James Liebman, Shawn Crowley, Andrew Markquart, Lauren Rosenberg, Lauren Gallo White and Daniel Zharkovsky; Anatomy of Injustice: A Murder Case Gone Wrong, by Raymond Bonner; and In Doubt: The Psychology of the Criminal Justice Process, by Dan Simon. Each of these books brings important new perspective and understanding to the reasons why our criminal justice system can make terrible mistakes.

February 25, 2014 at 09:22 AM | Permalink


TrackBack URL for this entry:

Listed below are links to weblogs that reference "The Banality of Wrongful Executions":


What is so significant about the known wrongful convictions is that not one
has resulted in a wrongful execution.

π π π

Why not name one clearly "innocent" git who was executed?
This would silence or at least give pause to supporters of capital punishment.

Posted by: Adamakis | Feb 25, 2014 9:29:34 AM

Too easy a task unfortunately. The following list is probably the tip of an iceberg, and may omit more recent examples.

In Texas alone:
Cameron Todd Willingham
Odell Barne
David Wayne Spence
Gregory Edward Wright
James Beathard
Carlos DeLuna

in Illinois:
Girvies Davis

in Alabama:
Freddie Lee Wright
Brian Baldwin

in Tennessee:
Philip Workman

in North Carolina
David Junior Brown

in Florida:
Jesse Tafero
Pedro Medina
Leo Jones

in Georgia:
Ellis Wayne Felker
Warren McCleskey

in Virginia:
Coleman Gray
Joseph O'Dell

in Louisiana:
Timothy Baldwin

Posted by: peter | Feb 25, 2014 11:11:23 AM

Claiming that innocent people have been executed in the modern (post-Gregg) era is, I concede, not banal. It's merely false.

Of course, one can see that it's false only if one looks at ALL the evidence in contested cases, not the very, very, very selected and misleading snippets presented on websites put together by people who long since pre-judged the issue.

Posted by: Bill Otis | Feb 25, 2014 1:41:12 PM

We deal here with trying to prove convicted people innocent. Hard job.

There are also various murderers who were not sentenced to die (as most are not) who later were found not legally guilty. My local paper just had an article on such a person. It's not murder, but a heinous rape case that is arguably the most infamous f the decade also was found (including by the prosecutor's office) to be wrongly tried.

Many here, given their druthers, would have many more people get the death penalty or a range of other procedural results that led to a commutation not occur. This would greatly expand the set of possible innocents here.

Posted by: Joe | Feb 25, 2014 2:56:34 PM

Joe --

"We deal here with trying to prove convicted people innocent. Hard job."

Indeed it is. That's because they're not innocent, by which I mean: Not one single neutral entity has found one single person executed in the modern era to have been innocent. Abolitionists' main poster boy during that time was Roger Keith Coleman, but the innocence campaign for him was exposed as a pack of lies.

This never kept your abolitionist buddies from snarling that Coleman was executed only because the prosecutor was a cheat, the judge was corrupt, and the jurors were amoral.

All these accusations were point-blank false, in addition to being scurrilous. Coleman was executed because he committed a brutal murder. Are you finally ready to admit it?

Posted by: Bill Otis | Feb 25, 2014 3:21:48 PM

Actually, what we are dealing with here is a judicial system which will not even admit that it is unconstitutional to execute an innocent man!

Posted by: peter | Feb 25, 2014 3:33:05 PM

the funny thing is that Billy Otis knows NOTHING about american capital punishment

Posted by: claudio giusti | Feb 25, 2014 3:53:02 PM

claudio --

It's all true. I confess. I know beans about American capital punishment.

I do, however, know something about American capitalization. You need a big "A" there, claudio.

I won't get into punctuation just now. You have to pay extra for that.

Posted by: Bill Otis | Feb 25, 2014 4:14:26 PM

america is the lone common law jurisdiction with the Death penalty. Australia, UK, Canada, Eire, New Zealand and even Scotland are free death countries

Posted by: claudio giusti | Feb 25, 2014 5:21:34 PM

Claudio --

Except for Antigua, the Bahamas, Barbados, Belize, Jamaica, Saint Kits, and India -- to give you the ones I can think of off the top of my head.

I hope that the board notices that you deemed as "common law countries" only PREDOMINATLY WHITE common law countries.

My goodness, Claudio. It might come to the point that the conservatives are not the only ones on the board getting accused of being racist.

Posted by: Bill Otis | Feb 25, 2014 5:51:07 PM

"even Scotland"
Tha sin gu math èibhinn, a bhleagairt.

Posted by: Adamakis | Feb 25, 2014 6:18:29 PM

"Cameron Todd Willingham"

-- Peter:
My word, man. Please check previous posts by me or by Bill Otis respecting him.
To put the bum up there tells me you have no discretion. Seriously,
you are probably a smarter man than I, but to advance Willingham as
innocent is so delusive.

Posted by: Adamakis | Feb 25, 2014 6:23:55 PM

I don't know what "one single neutral entity" is supposed to mean.

You for instance are far from "neutral" on this topic. Not that I think I am either. But, who are we talking about here? The article has citations to various cases. It doesn't rest on any one person, including your favorite apparently counter-argument Roger Keith Coleman. Not only "abolitionists" accept some of the people on the list.

Assertion aside, it would take detailed analysis to explain why each and every example provided by such sources are wrong. And, even then, there will be lots of room for argument. Your "buddies" and mine will tend to disagree there, of course.

And, I think perhaps the most telling case is that one reason the list is a lot smaller than it might be is that there are a limited number of executions for various reasons and they take so long in part because of extended appeals processes, which you and your "buddies" strongly oppose in various cases. Thus, many released aren't executed. They might have been on death row for an extended period or in prison for years etc.

Posted by: Joe | Feb 25, 2014 6:35:16 PM

Sometimes it helps to read the paper.

LOS TOCAYOS CARLOS, link in The Banality (last visited Oct. 29, 2013)

Posted by: George | Feb 25, 2014 7:49:58 PM

Peter et al:

I've begun with your list of "innocents" [1st alphabetically/last chronologically:]

in Louisiana:
Timothy Baldwin

• *--- "Appellant's case was difficult to defend, considering the evidence of
o fingerprints in the victim's home [Mary Jane Peters],
o the victim's property found in appellant's van., and the
o testimony of Jones that appellant had said he would kill the victim if necessary in order to get her money.”

o *--- “Before trial, counsel moved to change the plea to guilty by reason of insanity based in part on appellant's heavy drinking. See State v. Baldwin, 388 So.2d at 670. …“Appellant precipitated the abandonment of the intoxication defense when he testified on cross-examination that he was fully conscious of his activities on the night of the murder.”

o *--- “Shortly thereafter, a van was seen parked in front of Mrs. Peters' house. A man and woman were observed leaving the residence between 10:00 and 11:00 p. m. Shortly before their departure, passersby saw and heard indications that someone in the Peters' home was being beaten. Baldwin testified in his own behalf and admitted that he and Marilyn visited Mrs. Peters that evening but denied the murder.”

o *--- “Timothy Baldwin and Marilyn Hampton were subsequently located in El Dorado, Arkansas. Timothy Baldwin signed consents for the search of their motel room and the van. Two blue bank bags, one empty and one containing savings bonds and certificates of deposit payable to Mary James [Peters], were found in the van.1

o Jones, to whom Marilyn Hampton and Timothy Baldwin had made inculpatory statements both before and after the crime, helped police officers locate a safe that had belonged to the victim [Peters], in the LaFourche Canal in West Monroe.”

• *--- “Baldwin's finger and palm prints were found on various items in the Peters' home: a cigarette lighter, a television set, and a coffee cup.”

• *--- “This record was not added to, except in mitigation, at the time of sentencing.” {quoted entirely from: 653 F.2d 942}

Not that innocent

Posted by: Adamakis | Feb 25, 2014 9:13:43 PM

For a change of pace, and some serious policy considerations.

Legislation should have:

1) Appellate reviews conducted by experienced investigators, stop reviews by know nothing, clueless, laweyr dumbasses from Ivy indoctrination camp law schools reviewing legal loopholes. They and their work are a disgrace to Justice. Innocence should be the sole justiciability. The exoneration rate is unbearable, as a black eye on the justice system.

2) Wrongful death litigation should be permitted against all culpable parties, including, prosecutor, judges, jurors, inadequate defense lawyers. All appellate decisions finding legal fault with either prosecution or defense counsel should be negligence per se, since all are legal malpractice determined by experts on the bench. The action should be under strict liability, but deviation from reasonable, accepted standards of conduct should be sufficient to help the system improve.

3) Murder victims, especially the over-represented black population, should be allowed to file aggregate claims against all involved parties for negligent failure to execute a murderer who then goes on to kill in prison or on the street after an escape. Racial animus should be discoverable factor in the severe undervaluaiton of the lives and suffering of black murder victims.

4) Transplant recipient candidates should be to sue for damages and enjoin all prison authorities and do gooder groups interfering with suitable organ donations by the condemned in exchange for adequate compensation for the donation. The murder victims' estates should then be allowed to put a lien on this compensation so that crime is not rewarded with money payments.

Posted by: Supremacy Claus | Feb 25, 2014 11:23:35 PM

How long was Damien Echols on death row in Arkansas? How many years did Echols and the other two individuals comprising the West Memphis Three (Jason Baldwin & Jessie Misskelley) languish in prison for a triple homicide they didn't commit? Approximately 20 years. Geez! DNA evidence now points to the actual killer -- Terry Hobbs. But what have the conscientious, enlightened prosecutors in Arkansas done with the case? They insisted on an Alford plea from the WM3, and they're not prosecuting Hobbs. How can this be seen as anything other than unjust and preposterous?

With crap like this produced by the American justice system -- decades of the lives of innocent people stripped away -- how can anybody have confidence that no innocents have been put to death?

Numerous innocents, in Illinois alone, were exonerated and released from death row. How many didn't escape execution for crimes they didn't commit?

For another example, look at the case of the Norfolk Four. The State of Virginia convicted and imprisoned four members of the United States Navy of a horrible rape and murder that they did not commit.

Our criminal justice system and the participants in the criminal justice system lack sufficient competence to be entrusted with handling proceedings that can result in taking the lives of human beings.

Posted by: C. Estridge | Feb 26, 2014 12:51:22 AM

Apparently all the wrongly convicted people who have been released from death row are all the people who have ever been wrongfully sent to death row in the first place. Also, there are unicorns and the moon landings were a hoax.

If we'd just stop looking for the wrongly convicted, there wouldn't be any of them.

Posted by: C.E. | Feb 26, 2014 1:48:02 AM

C.E. --

"If we'd just stop looking for the wrongly convicted, there wouldn't be any of them."

If the defense bar would just keep up with the Roger Keith Coleman innocence hoax, there would be proof of the "executed innocent."

Look, I agree, if you don't have actual proof, the thing to do is use extrapolation, and if that's still insufficient, revert to the old standby -- lying.

You guys used it for at least ten years with Coleman. Why stop now?

Posted by: Bill Otis | Feb 26, 2014 3:19:12 AM

adamakis - Timothy Baldwin

"Timothy George Baldwin was convicted of the murder of Mary James Peters, an 85-year-old West Monroe woman. Peters was a former neighbor of Baldwin and also godmother to his youngest child. Peters was severely beaten in her home on April 4, 1978, apparently in the late evening hours. She was found at noontime the next day by a Meals on Wheels worker who went to her home to serve her lunch. Although the assault left Peters with some brain damage, she remained conscious following her discovery. Even though she knew Baldwin well, she did not identify him as her assailant. Peters died the day after she was found.

On the day of the assault, Baldwin and his girlfriend, Marilyn Hampton, visited Baldwin's children who were staying in West Monroe at the apartment of his oldest daughter, Michelle. Baldwin had most recently lived in Ohio, but at the time, he and Hampton were living an itinerant existence. The two left Michelle's apartment at 8 p.m. Baldwin admitted that he and Hampton visited Peters that evening, but said he did not assault or murder her.

Following the discovery of the assault, Baldwin and Hampton were located in El Dorado, Arkansas. Baldwin signed consents for the search of their motel room and his van. Police initially found no evidence against the pair. However, they later found a couple bank bags in his van, two days after they took possession of it. One of the bags was empty, but the other contained $27,000 worth of savings bonds and certificates of deposit payable to Peters. Baldwin claimed this evidence was planted.

The main witness against Baldwin was Hampton, who received a life sentence rather than a death sentence for testifying against him. She allegedly waited outside in Baldwin's van while he bludgeoned Peters. Baldwin's step-daughter, Michelle, also testified against him. Michelle's testimony was questionable because she was highly intoxicated on the night of the murder and threatened by police to make a statement. She testified Baldwin said he was facing the electric chair prior to his visit with Peters and that he told her three days later, “She didn't suffer, it was fast.” A traveling companion of Baldwin and Hampton who did not accompany them to West Monroe also said Baldwin made an incriminating statements to him before going to West Monroe and also the day after going there.

Testimony of Peters' neighbors placed a van at Peters' home around the time of her assault, but their description of the van did not match Baldwin's, though both were dark in color. They also picked out another man in a police lineup. Two witnesses, Paul Thomas Rice and Robert Grisham, gave testimony that the assailant appeared to be leaving Peters' home at 10:25 p.m. to 10:30 p.m. because they heard him say, “We'll see you later, Mrs. Peters,” but they did not see the van pull away. Another neighbor, Mrs. J.C. Hawkins, said she saw the van in front of Peters' home at 11:10 p.m.

Following Baldwin's conviction, his lawyers were able to locate a receipt that indicated he checked into White Sands Motel in El Dorado, Arkansas, on the same day as the assault on Peters. The receipt specified only the date of the check-in, indicating Baldwin checked in prior to midnight.

According to Google Maps, the normal driving time between West Monroe, LA and El Dorado, AR is 97 minutes. If Baldwin had left Peters' home at 10:30 p.m., it would have been possible for him to reach the motel by midnight if he encountered less than normal road traffic and perhaps was speeding. However, since the prosecution presented evidence that the apparent murderer's van was in front of Peters' home at 11:10 p.m., this evidence can be used in Baldwin's favor as the burden to prove guilt rests on the prosecution. It is not plausible that Baldwin could have left Peters' home after 11:10 p.m. and arrived at the motel before midnight. Some have argued that the Arkansas motel had simply failed to change the date on its receipt register at midnight on the night when Baldwin checked in.

The prosecution claimed that Baldwin had checked into the motel earlier in the day in order to establish an alibi. However, such behavior by Baldwin, appears unlikely. Evidence indicated Baldwin stayed at a cabin at Holmes County State Park in Mississippi the previous night and that he arrived in West Monroe at 2 p.m. Stopping in El Dorado prior to 2 p.m. would have required three additional hours of driving on Baldwin's part. Baldwin was executed in the electric chair on Sept. 10, 1984.

In an interview with a British newspaper, The Observer, Howard Marsellus, the chairman of the Louisiana Board of Pardons and Parole, was troubled that he may have allowed an innocent man to be put to death. The governor had appointed Marsellus and Marsellus felt he had to go along with the governor wishes that there be no recommendation for clemency in any capital case. The governor visited Hampton in prison before signing Baldwin’s death warrant. Marsellus believed the purpose of the visit was to induce Hampton to maintain her original testimony. Two months later the Board of Pardons and Paroles received Hampton's file marked “Expedite.” Seven years into a life sentence for first-degree murder Hampton was freed." Link from my name.

The "evidence" turned up by your "research" is either made irrelavent (eg. fingers in house since Baldwin and were close friends) or rendered unreliable by the findings above. The onus of proof in a criminal case is on the prosecution, not the defense, though in this case the defense is perhaps as strong as an innocent man is capable of in the face of every dirty trick in the book to find him guilty.

Posted by: peter | Feb 26, 2014 4:27:16 AM

typos! (eg. fingers in house since Baldwin and were close friends) should read: fingerprints in house since Baldwin and Peters were close friends.

Posted by: peter | Feb 26, 2014 4:34:38 AM

peter, C.E., C. Estridge, George, Joe --

Since your fellow abolitionist claudio seems not to be up to the task, I was wondering if you would join me in pointing out that his statement that, "[A]merica is the lone common law jurisdiction with the Death penalty," is a flagrant falsehood.

I mean, lying only undermines the cause, right?

So you are going to join me, right?

Posted by: Bill Otis | Feb 26, 2014 2:16:16 PM

claudio cut loose with a point-blank lie -- "[A]merica is the lone common law jurisdiction with the Death penalty."

Yesterday, I asked five abolitionists who have commented on this thread to join me in calling him out on it. Not one has done so.

This is very much worth remembering when abolitionists accuse THEIR OPPONENTS of dishonesty. We have now seen for ourselves how much abolitionists care about the truth.

Posted by: Bill Otis | Feb 27, 2014 12:52:49 PM

On Feb. 27, 2014 an article appeared in some newspaper to the effect that in the Scott Willingham case, the Innocnece Project (Barry Scheck) had uncovered that the prosecution withheld critical evidence of pleas agreement with an improtant witness. the state prosecutors had denied this repeatedly. Here's the excert: "What has changed is that investigators for the Innocence Project have discovered a curt handwritten note in Mr. Webb’s file in the district attorney’s office in Corsicana. The current district attorney, R. Lowell Thompson, made the files available to the Innocence Project lawyers, and in late November one of the lawyers, Bryce Benjet, received a box of photocopies.

As he worked through the stack of papers, he saw a note scrawled on the inside of the district attorney’s file folder stating that Mr. Webb’s charges were to be listed as robbery in the second degree, not the heavier first-degree robbery charge he had originally been convicted on, “based on coop in Willingham.”

So looks like Michael Morton all over again; except this time the criminal actions of the prosecution lead to willingham's execution.

Hey, Bill Otis, what do you say?

I can well remember my fellow prosecutors kidding around in the lunch room: "Hey, to convict the guilty is nothing....but to convict the innocnet--now there's the challenge."

Posted by: onlooker | Feb 28, 2014 12:50:16 PM

onlooker --

1. I'll believe that you were ever a prosecutor when you give me your name and work history, and not before. Why do you post only from behind the curtain? Got something to hide?

2. What I make of the latest attempt to undo Willingham's 22 year-old conviction is the same thing I make of all the other long after-the-fact attempts: Raising "serious questions" is the oldest charade around. The judicial process is more demanding, and more reliable, than years-later ex-parte forays, undertaken without the benefit or oath, cross-examination, or adversarial process of any kind.

3. The question is stark: Did Willingham do it or not? The alleged new evidence does not speak to that question, and both Willingham's wife and lawyer have said he confessed to doing it. Do you know more about it than they do?

4. You imply by your silence on the question actually raised by claudio that you agree with me that his statement is false. He said that the United States "is the lone common law jurisdiction with the death penalty."

That's a lie, isn't it? If you're so interested in a truthful debate about the death penalty, why won't you take a step to eliminate the falsehoods your side is using? Or are you not really interested in the truth?

Posted by: Bill Otis | Feb 28, 2014 3:01:34 PM

This is an update on the Todd Willingham case,through 2017

Rebuttal: "Trial by Fire: Did Texas execute an innocent man?"

Posted by: Dudley Sharp | Dec 19, 2018 8:17:29 AM

Post a comment

In the body of your email, please indicate if you are a professor, student, prosecutor, defense attorney, etc. so I can gain a sense of who is reading my blog. Thank you, DAB