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Did Texas execute an innocent man? Film revisits a haunting question.

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Texans will have an opportunity to revisit a question that should haunt anyone who believes in the integrity of our criminal justice system: Did our state execute an innocent man? 
The new film “Trial by Fire” tells the true story of Cameron Todd Willingham, who was sentenced to death for setting a fire to his home in Corsicana that killed his three young daughters in 1991. The film is based on an investigative story by David Grann that appeared in the New Yorker in 2009, five years after Willingham was executed over his vociferous protestations of innocence.
In my experience of serving 8 years on the Texas Court of Criminal Appeals and 4 years as a state district judge in Travis County, the Willingham case stands out to me for many of the same reasons it stood out to filmmaker Edward Zwick, who calls it a veritable catalogue of everything that’s wrong with the criminal justice system and, especially, the death penalty. False testimony, junk science, a jailhouse informant, and ineffe…

Tennessee governors recall their agonizing death row decisions

Tennessee's death chamber
Bob Clement remembers walking past his father's bedroom inside the governor’s mansion when he was a boy. Gov. Frank Clement was on his knees leaning against his bed, praying.

A man was about to die.

The life-or-death decisions placed on the shoulders of Tennessee’s governors weighed mightily on the men in the moment and, for some, throughout their lives.

Donnie Johnson is on death watch, scheduled to die by lethal injection Thursday for suffocating his wife with a 30-gallon trash bag just 2 weeks before Christmas in 1984.

By Tuesday evening, Gov. Bill Lee had made his decision, declining offer clemency.

RELATED Tennessee Governor Denies Clemency for Don Johnson

Johnson will die Thursday.

‘The most difficult decision’


On the campaign trail, Republican Gov. Bill Haslam said he would uphold the state constitution if presented with a death penalty decision. It took 8 years, but by the time Haslam exited office he had overseen 3 executions.

Making a decision on capital punishment was “far heavier” than Haslam anticipated and is something he thinks about from time to time, particularly this week as Lee is making a decision.

“You’re actually talking about a real person, a real crime and real victims, and the reality of it is at some point and time they look at you and say, ‘Do you want us to go ahead?’ That’s about as sobering a moment you can have,” he said.

Democratic Gov. Phil Bredesen oversaw 5 executions as governor. He said few have ever been through the experience of holding a person's life in your hands, and there is no life experience to prepare you. He vividly remembers overseeing his 1st execution, the death of Sedley Alley, in 2006.

“You’re sitting there, it’s 11 o’clock in the evening, and the Supreme Court has said go ahead, and you’re the only person on earth with a 15-second phone call who can bring this to an end and save this person’s life,” he said. “It’s a very agonizing, unpleasant situation to be in.”

6 executions in 2 years


During Clement’s 1st 2 terms as governor, he oversaw 6 executions, all within a 2-year window from April 1955 to May 1957.

Bob Clement, the former U.S. congressman, said the childhood memory of his father’s prayers is sharp..

“He knew all he had to do was pick up that phone, call the warden and stop the execution,” he said.

U.S. Sen. Lamar Alexander, who served as Republican governor from 1979 to 1987, never had to make the decision, although he almost did when a death-row inmate temporarily stopped his appeals.

Alexander sought advice from others about how to handle death penalty clemency ple, including Frank Clement's father, longtime Dickson city judge Robert Clement. Frank Clement died an untimely death in 1969.

Donald Wayne Strouth was convicted of murdering a Kingsport businessman in 1978. He was scheduled to die in November 1981, but, with less than a month remaining, exercised his final appeal. He died of natural causes in 2015.

“I thought about it a lot and prayed about it and worried about it,” Alexander said. “It was the most difficult decision I could imagine having.

“For me, it separated itself from all other types of decisions the governor has to make. I mean, there were prison riots, firings of Cabinet members, civil rights disturbances (and) all of that, but this was all by itself.”

Tom Ingram, a Republican politico, was deputy and chief of staff to Alexander during his 1st term as governor. He set up the meeting with the elder Clement.

“(The death penalty) was not something Lamar looked forward to at all,” he said. “It was a sense of relief when the appeals moved it down the road and we were fortunate in his 2 terms not to have to deal with it.”

Taking its toll over time


As Alexander tells it, Frank Clement used to visit death row and talk to the prisoners before an execution date, even bringing the Rev. Billy Graham for one of his visits.

Bob Clement said his father would meet with the victim’s family. It took a toll.

“He really struggled with capital punishment, but what made it so tough on him (was his visits),” Clement said. “I don’t know of any governor anywhere at any time who did what he did, personally going out to the state penitentiary to sit out with those on death row and talk with them 1 on 1.”

Alexander agreed.

“He worried about it the whole time he was governor, and (his father, Robert) Clement thought it was probably what caused Frank to die an early death — his drinking as a result of his agony over the death sentence,” he said. “So, it’s a tough issue for the governor.”

Clement didn’t attribute his father's untimely death to the death penalty, but said the decisions were always emotional for him.

“It was tough making those decisions. He did let some die, but he saved some of their lives … that’s an overwhelming decision to make, and all you have to do is pick up the phone and save someone’s life,” Clement said.

For Bredesen, “I’ve been able to put it out of my mind. I don’t agonize over it in retrospect. You wait until the decision is right, you make a decision and then go on with the next thing.”

Haslam said capital punishment decisions were just part of the job, albeit, not those he wanted to have.

“It’s neither a decision that haunts me nor one that I just put out of my mind,” he said. “It continues to be one that feels heavy and sobering, but I think of those decisions as being ones that are part of the role.”

A matter of faith


Republican Gov. Don Sundquist oversaw the execution of West Tennessee’s Robert Coe in 2000, the state’s 1st execution in 40 years, but said his faith didn’t prohibit him from upholding the state’s constitution. “It’s still something when you take somebody’s life, but I didn’t agonize over it. I agonized over the crime and the fact that he’s guilty.”

Haslam said he spent time in prayer and spent hours calling people he respected and getting their opinion. He was with his wife, Crissy, waiting by the phone during the 3 executions.

“I think like everything you do in a role like this, you’re constantly praying and thinking about what the right decision will be and talking with as many people as we can so we can get (more) perspective on it,” he said.

Mike McWherter, former Democratic gubernatorial candidate and son of the late Democratic Gov. Ned McWherter, said he and his father spoke about capital punishment. Their ideas of the governor’s role were similar, ideas the younger man was ready to adopt had he been elected.

“I remember my father telling me at the time that he didn’t like the concept, but it was the law of the state of Tennessee and if he was going to swear to uphold the laws and constitution, he would enforce it.”

Ned McWherter served 2 terms without an execution.

Commuting sentences


After overseeing 6 executions during his 1st 2 terms as governor, when Clement won reelection after Gov. Buford Ellington served 4 years, he did away with the death penalty altogether in 1965 and commuted the sentences of everyone on death row. The U.S. Supreme Court struck down death penalty cases in 1972, though the state rewrote the statute and reinstated the practice in 1975. Executions did not resume until 2000 under Sundquist.

Thirty states and the federal government have the death penalty on the books, but some of those states, including California, have imposed moratoriums, according to Reuters. The vast majority of executions are carried out by a handful of states. There were 25 U.S. executions last year.

Bredesen commuted the death sentences of 3 inmates as governor, including Gaile Owens in 2010. She was released from prison a year later. Owens was sentenced to death for hiring a hit man to kill her husband in 1984.

Bredesen commuted the death sentence of Michael Joe Boyd to life in prison months before his execution date. Days before leaving office, he commuted the death sentence of convicted murderer Edward Jerome Harbison to life in prison without parole.

No other governor has commuted death penalty sentences, according to the Death Penalty Information Center.

“The approach I decided was to say I’m not going to try to be the 13th juror … I’m (not) looking at it and saying whether the person is guilty or anything. I liked to think of it as being the final check on whether the system has worked here.”

In these cases, he thought the system had failed the convicted based on similar cases nationally or, as was the case with Boyd, that the convicted’s legal representation failed them.

In Lee’s shoes


Before Lee had decided, Alexander said he wouldn’t advise the governor on what to do but he’s “very sympathetic” for any governor who has to deal with the death penalty, particularly someone of faith like Lee.

Earlier Tuesday, Ingram said he had not spoken with Lee about his pending decision but could imagine what he was going through.

“Knowing him and knowing his faith and his compassion for people, I can imagine (it’s hard). It’s easy to respect the judicial process, but at the end of the day you have a life-or-death decision given to you by law. I think it’s probably the most difficult and personal decision a governor is ever faced with.”

Sundquist said Lee has to follow his principles and then make a decision.

“I wouldn’t tell him to do it or not do it. He’s going to have to reach that conclusion. The only thing I’d do to reach it is to make sure (Johnson has) had the appeal process required and that he’s guilty.”

Source: Knoxville News Sentinel, Staff, May 15, 2019


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"One is absolutely sickened, not by the crimes that the wicked have committed,
but by the punishments that the good have inflicted." -- Oscar Wilde

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