My View: “I, Walter ‘Arkie’ Barton, am innocent and they are executing an innocent man!”

The question out of Missouri this is week is one of the most fundamental we can ask in the criminal justice system—did we just execute an innocent man?  And perhaps more importantly—why?

That is the question that keeps running through my head. What’s the rush? The US had not executed anyone since March 5—pre-COVID. Why rush to execute Walter Barton when there was substantial evidence of innocence?

You can point out that this case has been ongoing for 14 years—and while true, we still have questions, not to mention an impossibly high legal standard for questioning the verdict rendered by a jury.

The Innocence Project last year identified 18 people proven innocent and exonerated by DNA testing in the United States after serving time on death row last year. But the worst part of that is we really don’t know how many actually innocent people have been executed.

Given what we know about wrongful convictions, the number of innocent people executed is probably more than we want to know.  I believe Cameron Todd Willingham is one of them.  This is a man who was executed for an arson fire that killed his three kids, except after he was already put to death, new arson science called into question the finding by investigators that the fire was intentionally set.

In 2011, Texas Forensic Science Commission closed its inquiry into the case of Cameron Todd Willingham who was executed in 2004.  The Texas AG at the time said it did not have jurisdiction to rule on the case, but in its final report, it acknowledged that outdated science regarding arsons played a role in Willingham’s 1991 murder conviction.

That case is probably the closest we have to definitive evidence of an innocent man executed.  Though last weekend I finished my read of David Dow’s Autobiography of an Execution.  Dow is ” a far cry from a shouting lunatic, and the farthest thing from a bleeding-heart abolitionist” the New York Times book review noted and, yet, he was pretty convinced that his client executed at the end of his book was innocent.

In the case of Barton, this is no proof of innocence. But the evidence is there to cast doubt on guilt—serious doubt. Last week we learned that three jurors involved in his original 2006 trial now express “misgivings” about their conviction, based on the new blood spatter evidence.

“At his trial, a prosecution expert argued the three small bloodstains were the result of spatter resulting from blows to the victim,” according to one account. But a new crime scene analyst believes that if Barton had killed the victim, whose throat was cut, he would have been covered in blood, not with small blood stains on his clothing.

The red flag should have been the jurors from that case who, based on this new evidence, wrote to ask them not to execute Barton.

“The jury foreman said he would have been ‘uncomfortable’ recommending the death penalty based on the new evidence,” the Kansas City Star reported.

Shouldn’t that have been enough to pause things and make sure we are not executing an innocent man?

Not according to the state Attorney General’s office.   The AG’s office, which has also opposed the release of Lamar Johnson in another high profile wrongful conviction case, said that the evidence was not new and did not suggest that no reasonable juror would vote to convict him.

That standard is way too high, especially in a death penalty case.

Courts have generally held that in order to establish actual innocence, the convicted must demonstrate that, in light of the new evidence, it is more likely than not that no reasonable juror would vote to convict.

In this case you have a quandary—the DNA testing found that the blood was on his clothing, but it was there in such a small amount as to call into question whether he could have been the actual killer.

In a death penalty case, shouldn’t we err on the grounds that death is immutable and, when there is a shadow of a doubt, shouldn’t we commute to life and further inquiry?

Certainly, in my opinion, the new evidence should have shown a reasonable likelihood of changing the outcome of a trial.

Unlike a wrongful conviction case where the individual is still in custody, in this case, you can’t bring the executed back. We should be sure—reasonable people are not.

There seems to be a lot of doubt in this case.  The votes by the courts were split narrowly.  For example, the Missouri Supreme Court narrowly upheld his conviction in 2007, with multiple judges dissenting.

One dissenting judge, Michael Wolff, wrote: “How could Barton have perpetrated the kind of violent, forceful attack that killed Ms. Kuehler and walked away quite unstained by the effort?”

Then there was the American Bar Association, which called on the governor to issue an execution reprieve.

The ABA cited “unprecedented limitations on effective representation” due to the coronavirus pandemic. In Barton’s case, coronavirus restrictions have made it difficult for his attorneys to investigate the new evidence, the group wrote.

They cited the case’s “troubling history” and “lingering doubts around guilt,” and called on the governor to commission an inquiry board to review Barton’s conviction and sentence.

In a letter to Parson on Friday, The Innocence Project, the Midwest Innocence Project and the MacArthur Justice Center echoed this call for an independent inquiry.

It noted Barton’s conviction “rests entirely upon evidence now known to be two of the leading causes of wrongful conviction: incentivized jailhouse informant testimony and blood spatter evidence, an infamously unreliable forensic ‘science.'”

“The evidence against Mr. Barton has always been weak and circumstantial—so weak it took the state five tries over the course of 15 years—to convict and sentence him to death,” the Innocence Project wrote. “Just two pieces of evidence were used to secure Mr. Barton’s conviction, both of which have now been fatally undermined.”

So again I am left to wonder, why are we executing this guy? What is the compelling reason? We have seen enough of these cases proven to be wrongful convictions over the years that we should be reluctant to execute when there is any doubt that the guy did it—and in this case that doubt is sufficient, so much that if he had a trial today, he would not have been convicted beyond a reasonable doubt.

It should be noted the last execution was also a fiasco. Nathaniel Woods was executed in Alabama after Supreme Court denied a stay and Alabama Gov. Kay Ivey refused to step in and stop the lethal injection.

Advocates had argued Woods, who was convicted in the murder of three police officers in 2004, did not directly take part in the slayings and should have his execution delayed.

The decision came after Alabama Gov. Kay Ivey reviewed the letter requesting a reprieve from the death sentence, but said she would allow the execution to proceed.

Neither of these executions seemed necessary and both call into question the ability of the criminal justice system to get death penalty decisions right in cases where guilt and innocence are in question.

—David M. Greenwald reporting

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