Saturday, November 13, 2010

There, They Did It Again

"They" is Texas.  "Did It Again" is killed a guy when there's simply no credible evidence (none, zippo, not a smidge) that he did it.
Oh there was stuff at trial.  But by the time he was killed . . . .
Round 1Cameron Todd Willingham.  He's the guy who was killed for setting the fire that killed his children.  Except that by the time of the execution, by the time Gov. Perry signed of on it for sure, people who actually knew what they were doing and determined that there was no evidence that the fire was arson.  All the evidence pointed to faulty wiring.
Ooops.  Our bad.
Except, of course, Perry has rigged the investigating system to try and ensure that it won't reveal the truth.  And that it won't change anything.  After all, it's important to be sure that Texas continues to have arson investigations based on flawed analysis.
Round 2Claude Jones.  Like Willingham, he always claimed he didn't do it.  Like Willingham, the conviction was based on worthless forensics.  (Hair comparison, in this case.  One hair: the only thing that tied Jones to the crime.)    He asked for DNA testing.  There's some reason to think that if then-Governor Shrub had known that Jones wanted that single hair tested, he might have granted a reprieve to have it done.
But nobody bothered to tell Governor Shrub.  ("Nobody," in this case, is a combination of the about-to-be-President's General Counsel Margaret Wilson and Assistant General Counsel Claudia Nadig who sent him a memo indicating that a chemist said the hair from the scene matched Jones but not bothering to mention that Jones wanted DNA testing.)   Jones was the last killing on his watch. 
Ooops.  Our bad.
Cause now they've tested that hair and, darned it didn't belong to the victim, not Jones.  Now, Jones could still have done it.  So could millions of other people.  Because, you see, once again, there's no evidence that he did.  There was just that hair.
I've never been particularly fond of arguing about whether some guy on the row is factually innocent.  The truth is that proving factual innocence is damned hard and there's not much call for it.  And then, sometimes (see Coleman, Roger Keith) all those people who are speculating about and believing in and making promises - well darned if the guy doesn't turn out to be guilty.
That's not to say there aren't factually innocent people on death row.  There are.  It's pretty much incontestable.  Nobody who's serious denies it can happen and has happened.  (There's a lot of arguing about the numbers, but that's just haggling around the edges.)  Similarly, it's nonsense to maintain that we haven't executed an innocent person.  In fact, according to a recent poll by Angus-Reid, 81% of us believe it's happened.  But just who?  Ah, that takes us back to the Coleman, Roger Keith problem and the difficulty of proving a negative.
It's not that we don't have candidates.  Some with really good claims of factual innocence.  And some of those still alive.  But proof is tougher.  Hell we can even be wrong about exonerations.  (See Hennis, Timothy.)
So let me be clear. I don't know whether Willingham killed his children or Jones killed Allen Hilzendager. What I know is that there's simply no honest evidence that they did those things. And if there's no evidence of factual guilt, then they should be legally deemed innocent. And whatever legal terms we give, there's the larger point, which is that we're not supposed to be in the business of killing people without really good evidence that they're guilty.

Cause if we don't have that, well then, why not just pick people off the street and kill them? I mean, what the hell? If the goal is getting folks dead, we really don't need this whole trial thing.

But let's pretend, just for the moment, that we both want a death penalty and we want it actually to be used only on the people who are factually guilty. Then we need to be one hell of a lot more willing to double check. Even triple check. Because we've now got two cases from the Lone Star State where the supposed experts were just wrong, and where we killed with no evidence of guilt.

That's none.


Not a smidge.
H/T Grits and The Texas Observer which has the full report.

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