The Governor of Texas, the Execution of an Innocent Man, and the Incomplete Search for Public Accountability

It is relatively rare for an American politician seeking office or re-election in a State that has retained the death penalty to make a strong statement against capital punishment. (Ohio’s Jennifer Brunner is a refreshing exception). However, one might expect a State’s leader to respond to compelling evidence that his government executed an innocent man with measured concern and a desire to uncover the truth. Not in Texas.

Nearly one month ago, the New Yorker published David Grann’s riveting and alarming piece that suggests that Texas wrongfully executed Cameron Todd Willingham in 2004. Despite the compelling expert evidence available in 2004 that indicated Mr. Willingham was convicted on the basis of ‘junk science,’ Texas moved brazenly forward with his execution. After Grann’s article rocked the nation in September, the Texas Forensic Science Commission prepared to make an official state-sponsored inquiry into Willingham’s conviction and the testimony that led to his death by lethal injection. Yet, two days before the inquiry was set to begin, Texas Governor Rick Perry sabotaged the effort. According to this Dallas Morning News article, “The hearing of the Texas Forensic Science Commission, scheduled for Friday in Irving, was abruptly canceled by the new chairman the governor chose, Williamson County District Attorney John Bradley. He is considered one of the most conservative, hard-line prosecutors in Texas.”

Though Perry defends his decision to appoint Bradley and railroad the commission as nothing more than a “typical” use of his appointment power and executive prerogative, nobody is buying his line. There is no such thing as ‘business as usual’ when the State uses its coercive power to execute an innocent man.

For anti-death penalty activists, Perry’s actions represent a mixed blessing. On the one hand, Perry has exploded the long-held hope that a State would officially recognize that it had mistakenly executed someone who was actually innocent. On the other hand, Perry has only drawn more attention to the issue. I find myself a little surprised he didn’t let the hearings proceed as scheduled and then strong-arm the Commission’s members (behind closed doors) to publish an equivocal report that did not firmly accept responsibility for wrongdoing. Instead, Perry has made a naked attempt to undermine the Commission’s work. His move seems to emanate from a deep fear that what most of us think is true: Cameron Todd Willingham was an innocent man.

Maybe anti-death penalty advocates have been unrealistic to hope that a State would acknowledge such a tragic mistake. Maybe we already have all the evidence we need. Who really needs Rick Perry’s stamp of disapproval, after all?

But, I wonder if other government officials can take action in Texas. Can the legislature rebuke Perry? Or, more importantly, can the legislature create a non-executive commission to undertake the task originally charged to the Texas Forensic Science Commission? If that is too much to hope for, perhaps the judiciary should step in. Judges and Justices concerned with the fair operation and administration of the Texas criminal justice system are not powerless people. Why can’t the judiciary establish its own commission to investigate whether any innocent individuals have been executed in Texas? The judicial branch is certainly empowered to ensure that it is working effectively, efficiently, and, above all, justly. The appearance of impropriety and injustice can sap the judiciary of its public legitimacy, and undermine people’s faith in the criminal justice system. The judiciary has an obligation to protect itself.

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. Once again, who needs Rick Perry?

Source: Bidish J. Sarma, A Criminal Enterprise, October 2, 2009