Texas Two-Step

"[W]ho needs Rick Perry?" That's the question posed by Bidish Sarma at the end of this intriguing post at A Criminal Enterprise.

The issue is Perry's blatantly politcal ploy in replacing three members (including the chair) of the Texas Forensic Science Commission just two days before they were to hold a hearing to explore whether Cameron Todd Willingham, executed in 2004 for the arson murder of his children, was factually innocent. Perry signed off on the Willingham killing despite strong evidence at the time that the purported arson was no such thing. The evidence has only gotten stronger since then. By replacing the Commission members just before the hearing, Perry effectively scuttled the hearing, which the new chair has put off at least temporarily and has suggested he may not hold at all.

[If you've somehow missed this story, or any part of it, click on Cameron Todd Willingham in the "Labels" section on the right. Read those posts and follow the links.]

Anyway, Sarma's argument is that maybe we're relying too much on the Commission to declare Willingham the dead innocent guy and therefore putting too much attention on Perry. Why can't the Texas legislature hold hearings and acknowledge the truth? Why not the courts?

As advocates, we need not focus only on the Governor, deplorable as his actions may be. Let us hold the entire government responsible, until someone steps up. Inaction here is as contemptible as Perry’s bad action.

Well, sure.

But it's the Texas Legislature that created the Commission to do just that. And it's the Texas Courts that have proved singularly uninterested in innocence or other justice related issues.

The law of Judge Roy Bean legend (Hang 'em first, try 'em later) has remarkable resonance in a state where the criminal courts are presided over by Judge Sharon Keller. She's the one who explained to Frontline that

We can't give new trials to everyone who establishes, after conviction, that they might be innocent.

She was talking about the denial of relief to Roy Criner whose rape conviction was so scuttled by DNA evidence that ultimately George Bush pardoned him. She's also the one who ordered the courthouse doors locked in September 2007 thereby preventing a late filing that almost surely would have prevented the execution of Michael Richard. We await a decision in her disciplinary hearing over that adventure (see here).

And of course, Keller's not alone. There's Judge Shaver who, commenting on a death penalty case before him where the lawyer slept through much of the trial (and not the only such case in Texas), said

The Constitution says everyone's entitled to the lawyer of their choice, and Mr. Benn was their choice. The Constitution doesn't say the lawyer has to be awake.

Strictly, of course, that's true. The framer's didn't think they needed to make that rule explicit. They probably figured that it would be covered by the general right to counsel, the one that SCOTUS says means the effective assistance of counsel. But why look to SCOTUS?

The Texas tourism industry used as its slogan for some one (and maybe still does), "Texas: It's a whole other country." As best-selling author Sarah Palin might say, "You betcha."

Anyway, Sarma makes a perfectly reasonable point when he says that we don't need Perry or the Texas Commission to acknowledge the innocent guy. And, frankly, we weren't likely to get them. Killing the wrong man is bad. Killing a man for what wasn't a crime at all may be even worse. Don't expect ready acknowledgement from anyone involved.

And why should we.

Look, the dead innocent guy is the holy grail of abolitionists. (Actually we have the dead innocent guy. He was Frank Lee Smith who died of cancer after 14 years on Florida's death row, and was exonerated by DNA - which identified the real killer -- 11 months later; the holy grail is the executed innocent guy.) They (we) believe that putting a name and face on an incontestably innocent guy who was executed will move people in a way little else can. And we (they) may be right.

But a concession that we screwed up, and we're not likely to see it from any quarter in Texas, may not be what we need. Heck, we came damn close to that from Governor Ryan in Illinois when he emptied death row, granting full pardons to four of the men there. The truth is that we probably need something more definitive for that particular grail.

But you know, Perry's political shenanigans may be almost as good. When the Governor so fears unleashing the truth that he's willing to be caught playing politics to hide it, we have a greater truth to which we can point.

If you fear what you might learn about Willingham, what about the next guy? If we're afraid to find out, aren't we implicitly saying this happens a lot? We may not have, right now, Willingham as a poster child for the executed innocent. We may have something better. Rick Perry as poster child for the recognition that they're out there. And he's scared.

I've said a lot that I don't know what happened to Willingham's kids. Neither does anyone else. I know there's no credible evidence Willingham killed them, but that doesn't mean it didn't happen (though it sure throws doubt on the prospect). But I know Perry is scared. We all know that, just as we know that Ohio officials are lying when they say we have a competent and capable execution team.

When government officials make it an official practice to hide from the truth and to deny the truth when confronted with it, when they do it so blatantly that everyone knows, the effect is that they admit it. And they reveal that even they don't believe in the very system they're hiding and lying to prop up.

I keep saying we need to face up to what we do. Public lying in so obvious a way is, paradoxically, facing up to the truth.

So the answer to who needs Rick Perry is that we do. His efforts to hide from the truth do more to make the truth convincing than his open embrace ever could.

Thanks, Rick.