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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…

When We Kill - Everything you think you know about the death penalty is wrong.

When we kill
“I hereby sentence you to death.”

The words of Judge Clifford B. Shepard filled the courtroom in Jacksonville, Fla., on Oct. 27, 1976. Shepard was sentencing Clifford Williams Jr., whom a jury had just found guilty of entering a woman’s house with a spare key entrusted to him and then shooting her dead from the foot of her bed.

It was a bizarre verdict, for forensics showed that the shots had been fired from outside the house — through the window, breaking the glass and piercing curtains and a screen. Moreover, at the time of the shooting Williams had been attending a birthday party, an alibi confirmed by many in attendance.

That didn’t matter, for Williams was an indigent black man with a public defender who didn’t call a single witness. The jury didn’t realize that he had an alibi or that the bullets had come from outside the house.

Judge Shepard, who was sometimes mocked in the legal community for harsh rulings and a weak intellect, ordered that “you be put to death in the electric chair by having electrical current passed through your body in such amount and frequency until you are rendered dead.”

The sentence came just three months after the Supreme Court had restored the death penalty in the United States, in the case of Gregg v. Georgia, saying that new safeguards meant that capital punishment would be applied only to the worst of the worst. “No longer can a jury wantonly and freakishly impose the death sentence,” Justice Potter Stewart declared in the majority opinion.

Fast forward four decades. Williams, now 76, was freed in March along with his co-defendant and nephew, Hubert Nathan Myers; as they emerged from prison, two frail and elderly men, Myers knelt and kissed the ground. They had each spent 42 years in prison for a murder they did not commit — spanning the entire period of the modern death penalty and its supposed safeguards.

Williams survived because the Florida Supreme Court had overturned his death sentence by a single vote, in a 4-to-3 decision, back in 1980, effectively giving him life in prison instead. Then in 2016 Jacksonville elected a reformist prosecutor who reviewed this old case and concluded, “There is no credible evidence of guilt, and likewise there is substantial credible evidence to find these men are innocent.” A judge, noting that she had been only 3 years old at the time of the convictions, finally released the men from a justice system that had treated them wantonly and freakishly.

President Trump is now calling for expanding the death penalty so it would apply to drug dealers and those who kill police officers, with an expedited trial and quick execution. A majority of Americans (56 percent, according to Gallup) favor capital punishment, believing that it will deter offenders or save money and presuming that it will apply only to the vilest criminals and that mistakes are not a serious risk.

All these assumptions are wrong.

My interest in the death penalty arises partly from a mistake of my own. At the beginning of 2000, I spoke to Barry Scheck of the Innocence Project, who told me about a white man on death row in Texas, Cameron Todd Willingham, whom he believed to be innocent. I discussed with editors the possibility of doing a deep dive into the case but let myself be lured away by the sirens of that year’s Iowa caucuses instead. I never wrote about Willingham, and he was executed in 2004.

Subsequent evidence strongly suggests that not only was Willingham innocent but that no crime was even committed. He had been convicted of splashing gasoline around his house and then setting it on fire to murder his three little children. But experts later showed that there was no gasoline and that the fire was simply an accident that probably started with faulty wiring.

Imagine what it would be like to lose the people you loved most, then be convicted of murdering them and finally be strapped to a gurney and executed by lethal injection. A powerful new movie, “Trial by Fire,” with Laura Dern, tells the story of the Willingham case, and I hope it will prick the national conscience.

Partly because I failed to investigate Willingham’s story, I have thrown myself into the case of Kevin Cooper, a black man on death row in California whose case reeks of prosecutorial misconduct. Cooper was convicted of the 1983 home invasion and murder of four white people in Chino Hills, Calif. After an extensive investigation, I argued last year that the San Bernardino County Sheriff’s Department may have framed Cooper.

Republican and Democratic politicians alike — including the state’s former attorney general Kamala Harris, now running for president — refused for years to allow advanced DNA testing in Cooper’s case, even though his lawyers would have paid for it. (Harris has apologized and says she now favors testing.) This summer crucial evidence from Cooper’s case is finally being subjected to that testing, 36 years after the murders. We may know the results by September.

DNA testing accounts for many of the 165 exonerations and prison releases because of dubious evidence since 1973, by the count of the Death Penalty Information Center.

Usually, though, there isn’t DNA available that can be tested to determine guilt or innocence. As in the Clifford Williams case, it’s more murky. The crucial evidence in his conviction came from an eyewitness who may have been a pathological liar.

But let’s be clear: The great majority of people executed are guilty. They have frequently killed with the utmost savagery.

Scotty Morrow, a black man from Georgia, indisputably committed a brutal murder in 1994. He fought with his ex-girlfriend, Barbara Ann Young, and, as her 5-year-old son watched, shot her in the head and killed her.

Morrow also shot dead another woman in the house, Tonya Woods, and shot a third woman, LaToya Horne, in the face. Horne was able to stagger down the road before collapsing. She suffered permanent injuries.

Not surprisingly, Morrow was sentenced to die — but let me throw in a bit of complexity.

Morrow grew up in a violent home where he was raped and beaten as a child, and he never received mental health support to deal with his trauma; that justifies nothing but may help explain something. He desperately wanted to reconcile with Young, and when told that she had been exploiting him for money while she waited for her “real man” to return from prison, he “just snapped,” as he put it. After the murders, he prepared to commit suicide but was arrested; he then prayed daily for 25 years for the families of the women he had killed.

“Rarely in my career as a prosecutor and a judge did I witness this level of remorse and acceptance of responsibility,” reflected Judge Wendy Shoob, one of the judges who dealt with Morrow’s appeals over two decades. The only disciplinary report against him in a quarter-century in prison was for intervening in a fight to protect an inmate who was being stabbed with a shank. Several correctional officers wrote letters appealing that his life be spared.

“Scotty Morrow is literally the only inmate I would do this for,” said a correctional officer with 16 years in law enforcement, Nathan Adkerson. Sgt. Tajuana Burns described him as “just a really nice man.” Lindsey Veal Jr., a mental health counselor, said Morrow “actually makes the prison safer,” and added: “There are very few inmates I can call fully rehabilitated. But, without question, Scotty is one of them.”

William L. Buchanan, a psychologist who worked with Morrow, recalled that one correctional officer “looked me straight in the eyes and stated to me, ‘This is the best man in the world.’”

Yet in the end the State of Georgia did with meticulous planning what Morrow had done impulsively in a spasm of fury. It executed him last month by lethal injection. In his last moments in the execution chamber, Morrow apologized again to the families of the women he had killed, adding to the 20 witnesses: “I’m truly sorry for all that happened. I hope that you all recover and have healing.”

Was the man strapped down on a gurney truly the same person as the enraged brute who had shot dead Young and Woods 25 years earlier?

The death penalty has been applied to at least 222 crimes in the Anglo-American legal system, including marrying a Jew and stealing a rabbit. For a time in America, stealing grapes was punishable by death. So was witchcraft, as we know from the Salem trials.

For centuries executions were public affairs. The last public execution in the United States was in August 1936 in Owensboro, Ky. Perhaps 20,000 people gathered to see a black man, Rainey Bethea, 22, hanged for the rape and murder of a white woman. The carnival atmosphere and “hanging parties” led Kentucky to ban public executions, although public lynchings continued.

The argument for public punishment was that it deters crime, and even today a common argument in favor of executions is that through deterrence they save the lives of innocent people. Is that true?

One 2003 study purported to find that each execution deterred five murders, while opponents of the death penalty sometimes argue the opposite, that executions brutalize society and lead to additional murders. Statisticians and criminologists have studied this issue carefully for decades, and the general conclusion is that executions have no greater deterrent effect than long prison sentences.

Murder rates are actually lower in states without the death penalty than in those with it. Some jurisdictions have periodically banned the death penalty and then brought it back, and this back-and-forth seems to have zero impact on homicide rates. Scholars have also examined whether there is a decline in homicides after well-publicized death verdicts or executions; there is not.

One rigorous 2012 study published by the American Economic Review found no clear deterrent effect and noted that depending on the statistical model used, one could conclude that each execution saves 21 lives or causes an additional 63 murders. Note also that a 2008 poll of leading criminologists found that only 5 percent believed that capital punishment was an effective deterrent; 88 percent believed the opposite.

Meanwhile, the experts polled in that survey agreed that death penalty debates distract legislatures from policies that actually would reduce crime — like lead removal, early childhood programs, career academies, job training, gang violence initiatives like Cure Violence, and programs for at-risk young people like Becoming a Man.

Let’s also examine another argument of death penalty proponents: that it’s not worth spending hundreds of thousands of dollars supporting brutal killers for the rest of their lives: Execute them and use the savings for better purposes!

This argument, too, is groundless: Capital punishment is far more expensive than life prison terms. This is because pretrial preparations, jury selection and appeals are all more expensive in capital cases, and death row confinement is more costly than incarceration for the general prison population. One 2017 study by several criminologists found that on average, each death sentence costs taxpayers $700,000 more than life imprisonment.

“It is a simple fact that seeking the death penalty is more expensive,” concluded that inquiry, by Peter A. Collins of Seattle University and colleagues. “There is not one credible study, to our knowledge, that presents evidence to the contrary.”

One reason death penalty cases are expensive is that the defense is given more time and resources to prepare the case, and appeals are automatic. So you would think that innocent people are less likely to be put to death than to serve life sentences.

That may be true. Defense lawyers grimly joke that if you’re falsely convicted of a crime, it’s best to be sentenced to death — because then at least you will get pro bono lawyers and media scrutiny that may increase the prospect of exoneration. Researchers find that an exoneration is 130 times more likely for a death sentence than for other sentences.

Yet if death penalties get unusual scrutiny, there are countervailing forces. Researchers find that juries are more likely to recommend the death penalty for defendants who are perceived as showing a lack of remorse — and innocent people don’t display remorse. A second factor is that death sentences are often sought after particularly brutal crimes that create great pressure on the police to find the culprits.

In 1989, for example, after five black teenagers in New York City were arrested in the rape and beating of a white investment banker who became known as the Central Park Jogger, Donald Trump bought full-page newspaper ads calling for the death penalty. The teenagers were later exonerated when DNA evidence and a confession by another man showed that they were innocent of that crime.

One peer-reviewed study suggested that at least 4.1 percent of those sentenced to death in the United States are innocent. With more than 2,700 Americans on death row, that would imply that more than 110 innocent people are awaiting execution.

The Supreme Court in 1976 restored the death penalty partly because it was confident that safeguards — such as meticulous rules about when death penalties could be applied — would eliminate the arbitrary application of capital punishment. In fact, “its defining feature is still its arbitrariness,” noted Jill Benton, an Atlanta lawyer who defends capital punishment cases.

Racial bias affects every aspect of the criminal justice system, and researchers have found that black defendants not only do worse than white defendants, but also that blacks with dark complexions fare worse than those with light ones. Of prisoners now on death row, 42 percent are black, 42 percent are white, and most of the remainder are Hispanic.

Dismantling California's death chamber
Bias is not just found in judges and prosecutors. In Washington State, researchers found that juries were four times as likely to recommend a death sentence for a black defendant as for a similar white defendant. The same study also underscored how random capital punishment is. In Thurston County in Washington, prosecutors sought the death penalty in 67 percent of aggravated murder cases; in Okanogan County, 130 miles away, zero percent. Over all in America, 2 percent of counties account for a majority of death penalty cases.

Researchers have found that whether Texas prosecutors seek the death penalty depends partly on how The Houston Chronicle covers the case. They have also found that if a jury has a majority of women, it is less likely to recommend death.

Justice is supposed to be blind. But it is not supposed to be random.

Aside from deterring murders and saving money, a third common argument for the death penalty is that it is appropriate retribution for a heinous crime, a way for a community to rise up and express its revulsion for some brutal act. We dishonor victims, so the argument goes, if we simply lock away a monster.

This is an argument that cannot be countered with data, for it rests on values. It has to be said, though, that the history of executions as an expression of a community’s moral values is not an inspiring one. Such values-based arguments have been made through history for stoning adulterers and burning witches — and, in Japan in the 1600s, boiling Christians alive.

Just this spring, the small Southeast Asian sultanate of Brunei defended the stoning to death of gays, adulterers and heretics as an expression of community values intended “to educate, respect and protect the legitimate rights of all individuals.”

Strom Thurmond, the South Carolina senator who was the longest-serving Republican in congressional history, used to boast that as a judge in the 1930s and 1940s, he had sentenced four men to death; he saw capital punishment as reflecting community values and had no regrets, for the men got what they deserved.

A South Carolina lawyer, David Bruck, looked into those four death sentences. Three involved black men: one who was deranged from syphilis, one who was accused of rape by a white woman but had many alibi witnesses and may have been innocent, and one who in self-defense shot an armed white man who attacked him. The fourth was a white man who, in a rage, killed his girlfriend.

At the time, it may have seemed to Thurmond and the white community self-evident that these four executions were righteous. Today the first three seem hideous examples of racist injustice. Our standards and perspectives have changed — but what is unique about the death penalty is that a person can never be un-executed.

Today the Supreme Court is caught in a bitter feud over the death penalty, with a conservative majority approving executions and fretting about “unjustified delay” in carrying them out, as Justice Neil M. Gorsuch put it in April. In her dissent in that case, Justice Sonia Sotomayor argued, “There are higher values than ensuring that executions run on time.”

The result of this division is that the court is unlikely to constrain executions significantly. Yet there is some recognition that the system is faulty, and capital punishment is becoming more rare. In 1998, there were 295 death sentences in this country; in 2018, just 42. In California, which has the largest death row, Gov. Gavin Newsom has bravely declared a moratorium on executions.

The case of Kenneth Reams, a man on death row in Arkansas, encapsulates the cruelty and absurdity of this system. It “shows clearly all the problems with a democratic society using the death penalty,” said George H. Kendall, a lawyer who is helping Reams challenge his sentence.

Reams was a black kid born to an impoverished 15-year-old mom. He had a turbulent childhood, running away from home at 13 and dabbling in juvenile crime. Then at 18 he helped a friend who needed money to pay for his graduation cap and gown: They robbed a white man named Gary Turner at an A.T.M., and the friend shot and killed Turner.

Reams was defended by a part-time lawyer with several hundred other cases and no capital punishment experience, and there were indications that the jury was manipulated to underrepresent African-Americans. In the end, Reams was sentenced to death.

Last year the Arkansas Supreme Court overturned the death penalty for Reams, but he remains on death row pending new hearings and a new sentence. Even if you believe it is appropriate to execute an unarmed robber because his partner shot someone, even if you’re unconcerned by a criminal’s troubled childhood, even if racial manipulation of juries doesn’t bother you, there remains the basic question of what the execution of someone like Reams would accomplish — and whether, more than a quarter-century later, that 18-year-old offender still exists to execute.

“People change,” Kendall told me. “Kenny was a reckless, out-of-control kid who, while barely 18 at the time of the crime, had the mental maturity of a 14-year-old. His maturation had been slowed by years of horrible neglect and abuse.” Behind bars, Reams has grown into an accomplished artist who encourages other prisoners to express themselves through poetry.

That’s something you encounter again and again: People evolve. So because of the glacial pace of “justice,” we sometimes execute a graying, kindly inmate quite different from the violent felon he once was. They may have the same DNA and fingerprints, but their hearts are not the same.

There is no evidence that the death penalty deters. It costs hundreds of thousands of additional dollars per prisoner. It is steeped in caprice, arbitrariness and racial bias. It is fallible — and when it fails, it undermines the legitimacy of our judicial system.

Some day, I believe, Americans will look back at today’s executions just as we now look back at witch burnings and public hangings, and they will ask, What were they thinking?

In Jacksonville, Clifford Williams Jr. is now trying to get used to freedom after 42 years as a convicted murderer. Buddy Schulz, his lawyer, told me what happened when he visited Williams in prison and told him that he would be released.

“He cried for the first 10 minutes,” Schulz recalled. “For the next 10 minutes, he laughed. And finally after 20 minutes, he said, ‘Mr. Buddy, I hope you don’t think me rude, but I’ve got to go to the chapel and thank God.’”

Schulz added: “I’m personally of the opinion that the death penalty serves no purpose whatsoever, and I think it’s immoral. This is an example. The judge imposed it and but for a close decision by the Supreme Court, here would have been an innocent man who would have lost his life.”

I reached out to Henry M. Coxe III, who four decades ago prosecuted the case against Williams and won the death sentence. I figured that he would see the issue differently, but he didn’t. In fact, he was relieved that of the five death sentences he won as a prosecutor, none were ever carried out.

“In hindsight, I don’t think the death penalty serves a meaningful purpose,” he told me.

Williams is now living with his daughter in Jacksonville, taking “one day at a time,” he told me. The fact that he knew he was innocent made it immeasurably harder, he said, but he added, “I was trusting God would deal with it.”

Calm and mild-mannered, he didn’t want to talk about his decades in prison. “It wasn’t a nice time,” he explained mildly. I told him that I was surprised he didn’t sound bitter. Williams laughed. “Well, I feel a little bit bitter,” he said.

I asked about the death penalty, and there was a long silence. I thought he hadn’t heard, so I asked again, and then I realized that he was struggling with his emotions.

“Too many people,” he said, suddenly sounding exhausted, “are getting the death sentence who don’t deserve it.”

Source: The New York Times, Opinion, Nicholas Krystof, June 14, 2019. Nicholas Kristof has been a columnist for The Times since 2001. He has won two Pulitzer Prizes, for his coverage of China and of the genocide in Darfur.



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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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