Actually Innocent? Sure Looks Like it

In the debate over the death penalty, perhaps the most perverse Holy Grail that has been pursued is proof that an innocent person has actually been executed. Such a clear injustice would surely sway some hearts and minds to the side of abolition. It’s not enough that hundreds of people have been exonerated from death row before their execution could be carried out. Since they got out, eventually, pro-death penalty advocates say those are examples of the system working, not failing. And let’s forget about potential historical examples and concentrate on the here and now – in the modern United States, the land of constitutionalized criminal procedure and seemingly endless appeals, has a state ever gotten it completely wrong?

Increasingly, it’s looking like one state has. To nobody’s great surprise, it’s Texas.

In 2004, Texas executed Cameron Willingham, who had previously been convicted of murdering his three children. They died when the family home burned down just before Christmas 1991. The linchpin of the state's case against Willingham was the conclusion of state fire investigators that the fire was arson, rather than accidental. That conclusion not only provided the "how" of the crime, but caused many witnesses to change their perception of Willingham's behavior during and after the fire. For a good run down on the case and prosecution, see David Grann's recent in-depth article in the New Yorker.

Willingham went to his death proclaiming his innocence (alleged jail house confession to a snitch of questionable mental health aside). What makes his case more notable than similar claims is that several fire investigation experts have reviewed the evidence in the case and concluded that the fire was an accident. Most recently, a state-procurred report from an expert laid waste to the trial evidence:

The state fire marshal on the case, Beyler concluded in his report, had 'limited understanding' of fire science. The fire marshal 'seems to be wholly without any realistic understanding of fires and how fire injuries are created,' he wrote.

The marshal's findings, he added, 'are nothing more than a collection of personal beliefs that have nothing to do with science-based fire investigation.'

In other words, this isn't a "he didn't do it" case. It's a "nothing was done" case. There was no crime for which anybody should have been convicted.

Will this be enough for the state to admit it got this one wrong? The prosecutor, who has moved on to become a judge (of course), isn't conceding a mistake, even though he admits the arson conclusion is "undeniably flawed." Instead, he throws out a host of irrelevant and stretched facts (see Grann's response) in an effort to invoke what an old boss of mine called the "Dirty Bastard Rule" - in other words, Willingham was a son of a bitch and we're better off without him on this Earth, guilt of this crime be damned.

It's interesting that the developments in Willingham's case are flaring up right now. Last month the Supreme Court garnered a lot of attention for indicating that the Constitution may prohibit the execution of someone who is actually Innocent of the crime. Troy Davis may prove (or disprove, if you prefer) his case and break new ground on that issue. But it will come too late for Willingham.

Which is one of the key problems with the death penalty - there are no do overs or makeups if things go wrong. Is it good enough that the system gets it right most of the time? What was once a more theoretical issue can no longer be put off to another day. That day is here.