Executing the Innocent

They all talk about the fiscal costs of the death penalty, and indeed the fiscal cost matters when the cost of execution is three times the cost of regular imprisonment.  And it really matters when you are not executing people and you really never have.

But at the end of the day, what is driving this new push to end the death penalty is a very unsettling feeling – the unsettling feeling that innocent people have been and will be put to death.  DNA testing has given us a glimpse at the possibilities.  DNA testing is only a factor in a tiny percentage of cases overall, and yet it has enabled hundreds of people to be exonerated who were wrongly imprisoned.

California has only executed 13 people since 1978, and yet Don Heller, one of the original authors of California’s death penalty, believes at least one of those 13 was innocent.

“I believe that Tommy Thompson was innocent of the rape-murder that he was convicted of and sentenced to death,” Mr. Heller said in response to a question from the Vanguard.  “Thompson’s case relied almost exclusively on the testimony of an informant, aptly named Mr. Fink.”

“Mr. Fink was a professional informant, he had actually put several people on death row by people confessing to him in jail and it just so happened that Mr. Fink always benefitted from this confession that was made to him,” Mr. Heller continued.

“I think that Tommy Thompson was innocent,” he said. “He was executed under the law I wrote and that has stayed with me since 1998 that I participated in the execution of an innocent man.”

Mr. Heller said, in a Los Angeles Times interview last spring, that the Tommy Thompson execution marked a turning point for him.

“It took the Tommy Thompson execution [in 1998] for me to become very vocal. It was an example of a clear abuse of the death penalty law,” he said.

He explained, “In the co-defendant’s trial, the prosecutor switched theories. It was no longer Thompson as the rapist-murderer but the accomplice. While you can aid and abet to qualify for the death penalty, an accomplice must have the intent to kill to be death-penalty eligible.”

“The co-defendant accomplice was convicted of 2nd-degree murder, but the prosecutor made no effort to notify Thompson’s trial judge that evidence now showed that Thompson was not the actual murderer. The trial judge has the authority to rectify an erroneous judgment,” he said.

While the issue was raised on habeas corpus, ultimately the U.S. Supreme Court upheld the conviction on a technicality.

Back in 1998, Dorothy Ehrlich of KQED reported Mr. Heller’s words: “I was contacted by Thompson’s appellate lawyer about testifying at a clemency hearing. I laid out in detail the reasons that I felt this was wrong, that it violated the letter and spirit of the initiative, the fundamental law, the prosecutor’s obligation, and was an injustice. Gov. Wilson refused to commute his sentence. In 1998, Thompson was executed. I’ve been a vocal advocate in favor of abolition ever since.”

“Thomas Thompson’s case was surely remarkable.  He was executed for a crime that we doubt he committed. A man prison officials described as a model prisoner, he not only had no criminal record, he had never even been arrested.”

“The federal district court was convinced that his trial lawyer had botched his case and that Thompson was erroneously convicted of capital murder. The 9th Circuit Court of Appeals ultimately agreed with this ruling, but unfortunately it missed its own procedural deadline for deciding the case.”

Ms. Ehrlich reported, “It was on this basis, the court missing its own deadline, that the U.S. Supreme Court reinstated Thompson’s death sentence. Thus Thomas Thompson may be the only person ever executed as a result of acknowledged judicial malpractice. And in the court of public opinion, sincere concern about Thompson’s guilt drowned in this morass of complex legal procedures.”

Unfortunately, the Tommy Thompson case is not an isolated incident.  While California has perhaps botched one of its 13 executions, the small number of executions in the state over the last 34 years have limited the damage, in that respect.

Other states have not been so lucky.

Many believe that Texas wrongly executed Cameron Todd Willingham when fire investigators, misunderstanding the science of fires, ascribed an arson cause to the fire when the actual cause of fire was more likely faulty electrical wires.

As Phil Locke, Science and Technology Advisor to the Ohio Innocence Project, recently explained, until recently arson investigations were based on faulty science.

“Arson is determined ex post facto by a ‘fire investigator.’  Fire investigators have historically been people who started their career with a fire department, and inherited the job from a predecessor,” Mr. Locke wrote.

He added, “Training was largely ‘on the job’ as a result of mentoring by superiors.  It might also be common for novice fire inspectors to attend a one week training course.  The body of knowledge concerning the causes, and locations of origin, of fires was anecdotal and passed from one generation of fire inspectors to another as folklore. Some have even compared the ‘old folklore science’ of fire investigation to witchcraft.”

In recent years, that has changed as actual scientists have set and studied fires under controlled scientific circumstances.  For instance he noted, “It wasn’t until the early 1990′s that science began understanding the phenomenon of flashover.  And it wasn’t until 1992 when the (US) National Fire Protection Association (NFPA) published the first edition of its standard for fire investigation based upon scientific principles, NFPA 921: Guide for Fire and Explosion Investigations.”

Despite these improvements, “problems linger.”  He noted, “In 2005, Steve Carman, Senior Special Agent ATF, helped design and conduct an experiment to judge the ability of experienced fire investigators to determine the location of origin of a fire.”

Out of 53 experienced fire investigators who were asked to examine the scene and then indicate in which quadrant they thought the fire originated, only 3 (5.7%) got it right and not one of them was able to determine the actual point of origin.

While the State of Texas has refused to admit that they have executed an innocent person, the revelations are starting to make a difference.

Last week, the Associated Press ran a story of Craig Watkins, District Attorney in Dallas County, Texas.

Unlike many, this Texas prosecutor is “leading an aggressive push to free wrongly imprisoned inmates, in a county where more than two dozen wrongful convictions have been overturned,” and is calling for a review of the capital punishment system in Texas which has long been the nation’s leaders in executions.

“I think it’s a legitimate question to have, to ask: ‘Have we executed someone that didn’t commit the crime?’ ” Mr. Watkins said in an interview with The Associated Press.

The AP reports that, after becoming DA in 2007, Mr. Watkins started “a conviction integrity unit that has examined convictions and, in some cases, pushed for them to be overturned.”  It is a remarkable thing to see, when prosecutors fight until the end for cases where DNA evidence clearly shows the individual could not have committed a crime.

So far, Dallas County has exonerated 22 people through DNA evidence since 2001 which, the AP reports, is not only the most of any Texas county but more than all but two states.  Five others have been exonerated outside of DNA testing and the AP reports most of that has coming during the tenure of Craig Watkins.

Texas is not alone in the possible execution of innocence people.  Andrew Cohen, writing in The Atlantic, compared the case of Tyrone Noling to that of Troy Davis, who was executed in Georgia in 2011, despite doubts about his guilt.

Mr. Noling was convicted of a 1990 murder of an elderly couple in their home.  There appeared to be no physical evidence that linked him to the crime and no witnesses against him.

However, an aggressive investigator took over the case and witnesses emerged, giving statements that implicated Mr. Noling.

Mr. Cohen reports that all of these witnesses have since recanted their statements, claiming they were pressured by the prosecutor.  In 2009, 13 years after the original trial, prosecutors provided defense attorneys with handwritten police notes from the investigations in 1990 in which a witness identified another man as having committed the murders.

Mr. Cohen reports that the state is currently refusing DNA testing of evidence collected from the crime scene that might place this other man at the scene of the crime.

The question that arises, at this point, is whether the massive amount of attention on the Troy Davis case last fall will act as a turning point nationally for the death penalty.

Nancy Petro, writing for the Wrongful Convictions Blog, writes, “When Davis’s guilt was called into question following the recantation of most key witnesses, thousands protested but were unable to stop the train that had left the station twenty years earlier.”

She adds, “Even in light of discredited testimonies and a thunderous public outcry, Davis’s execution was not paused, and Americans learned three important truths: (1) We must do all we can to get verdicts right the first time; (2) the appeals process does not adequately address conviction uncertainty; and (3) certainty of guilt must be a prerequisite if we are to continue to implement the ultimate punishment.”

The problem of wrongful executions undermines most of the objections to keeping California’s death penalty.  Death penalty advocates argue that the expense in the system is self-induced, born of a lengthy appeals process.

The problem is that, without the lengthy appeals process, a lot more innocent people would be executed.  Many exonerations occur more than twenty years after conviction.  Even with the system in place that we have now, as Ms. Petro writes, the appeals process is not adequate.

The safer course of action is also a cheaper course of action, and that is to move to life without parole.  It is not a perfect fix on a number of levels, but at least we will have some possibility of releasing people who were wrongfully imprisoned.

—David M. Greenwald reporting

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