Thursday, May 17, 2018

What is truth, said jesting Pilate

Back in 2010, Times columnist Nicholas Kristoff had an op-ed about Kevin Cooper, a black man on death row in California for stabbing four people to death and leaving for dead a fifth who somehow survived and said the killing was done by 3 white guys. Kristoff's op-ed grew out of a dissenting opinion by 9th Circuit Judge William Fletcher in Cooper v. Brown, arguing that Cooper was likely factually innocent, had been framed by the cops, and that the courts and prosecutors and government authorities were at least passively complicit.

As Fletcher's dissent was a jumping off point for Kristoff, so his op-ed was a jumping off point for a blog post I wrote.

Today, in the Times on-line and I think set for a print version in the Sunday paper, Kristoff has a lengthy follow-up, detailing his own investigation. It's powerful. Well worth reading for justice gone awry and for the active unwillingness​ of those sometime Democratic heroes Jerry Brown and Kamala Harris to just take the smallest of steps - allowing the DNA testing to go forward. The testing that might well show it wasn't Cooper - which seems pretty likely, but who knows.

As I've regularly said here,


But Jerry Brown (yeah, that Jerry Brown, the former Governor Moonbeam, the present Governor Old-Liberal-Icon) won't allow it. And Kamala Harris, once California Attorney General, now Senator Harris - she (like Jerry when he was California's AG) just wants the conviction affirmed and Cooper to stay in prison forever unless he's killed and damned with any DNA testing.

It's worth noting how Kristoff explains his continuing passion for the case:
It’s obvious to you by now that this is not a usual column — I’m not sure The Times has ever published a column of this length — so why am I exploring the case with such passion? I became interested primarily because Fletcher and other respected federal appeals judges had said he was framed. That just doesn’t happen.
I’m also haunted by something else. In 2000, I proposed reporting a lengthy piece about doubts about the conviction of Cameron Willingham, who was then on death row in Texas for the arson murder of his three children. An editor talked me out of it, and I never did write about Willingham, who was executed in 2004. Since then, growing evidence has emerged that he was innocent, and perhaps it’s partly to atone for my earlier failure that I’ve taken up Cooper’s case.​Which does sort of make the point that Cooper's not the only one. That death row, and really all our prisons (and our jails, too, but that's a different story), have significant numbers of folks in them who are likely to be innocent.
Wholly, factually, innocent. Wrong guy.*  Or, even, crime didn't happen.**

All of that ​​is quite an extraordinary explanation from a Times columnist, I think.

And he follows it up with the plaint of everyone who recognizes that we're supposed to have a system of something like justice - whatever exactly that might be.
Maybe in the grand scheme of things, the fate of one man on death row doesn’t seem so important; innumerable people die tragically every day. Yet we aspire to be a nation where we are all equal before the law, and if we execute a man in so flawed a case without even bothering to test the evidence rigorously, then a piece of our justice system dies along with Kevin Cooper.
Governor Brown, if you’re reading this, I understand that you may believe that Cooper is guilty. But other smart people, including federal judges and law school deans, believe him innocent. So how can you possibly execute him without even allowing advanced DNA testing, at the defense’s expense, to resolve the doubt? What’s your argument for refusing to allow testing? ​
Though Kristoff doesn't say it this way, testing will lead to one of three conclusions:
  1. Cooper's guilty, in which everyone can go home and rest assured.
  2. Cooper's an innocent guy we wanted to kill, in which case we can try and find the real killer and, by the way, do what we can to make sure we don't keep doing shit like this and also try to make some small amends to Cooper for his wrongful decades on death row.
  3. Can't really tell shit. In which case, we'll at least have tried.
So what's the harm? What, exactly, are they scared of?  Don't we want the truth?

Oh, yeah, I forgot.

*In which case, of course, the right guy is presumably still out there on the streets.
**The likelihood in Willingham's case.  The fire was probably not arson but an electrical fire from bad wiring.

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