Bad Faith

The possible wrongful execution of Cameron Todd Willingham is back in the news. The Dallas Morning News presents it as fresh evidence in an old case. It isn’t. It’s old evidence. We knew before we executed Todd Willingham he probably wasn’t guilty. Prosecutors knew it, courts knew it, the Texas Board of Pardons and Paroles knew it, Governor Rick Perry knew it, and the public knew it, at least those who follow the news did. We executed him anyway. For us to now be “troubled” is revisionist history and convenient memory. We’re lucky Clint Eastwood isn’t around.
Prosecutors insist the case was complicated. Willingham was a vicious child killer. All sorts of evidence pointed to it. For one piece of the case to be questioned after the trial doesn’t change that. It is true there was a lot of corroborating evidence but it is also true the case turned on a single point. Willingham’s daughters died in a fire. If it was arson it was murder and all the other evidence strongly suggests Willingham was the arsonist. If it wasn’t arson it was just a fire. There was no crime. The girls died in a tragic accident. All the other evidence that Willingham was a violent man and a bad husband and father who behaved suspiciously at the scene doesn’t make him a murderer. Without evidence the fire was deliberately set it is unlikely prosecutors would have charged Willingham with a capital crime, unlikelier still that twelve reasonable men and women would have convicted him, and even less likely he would have been sentenced to die. We knew all that before we strapped him to a gurney. Why did we do that? Why didn’t we at least give him a new trial?
We can’t fault the original investigators. They used the best available science to conclude the fire was arson. What they didn’t know, what nobody at the trial knew, was that scientists at the national level had demonstrated then current arson investigation methodology to be seriously flawed and were publishing revised guidelines. The same investigators investigating the same fire a year later would have concluded and testified there was no evidence of arson. By then Willingham was trapped. His appeals had already been filed with no mention of the new science. By the time his attorneys became aware of it, it was too late to raise the issue. Appeals courts have an aversion to something called “abusing the writ.” Simply stated it means they won’t allow defense lawyers to delay executions indefinitely by continually raising new issues. They would not allow Willingham’s lawyers to raise this one so late in the process. They should have raised it earlier. The courts didn’t consider new evidence and reject it. They refused to consider it on procedural grounds, even though it might well have meant the public execution of an innocent man.
Prosecutors don’t like to admit mistakes, especially when someone may have been wrongfully executed. That’s no reason for us to give them a pass and pretend they don’t have a conflict of interest but I’m not blaming prosecutors. Nobody is clean here. A more competent defense would have raised the issues earlier. Courts shouldn’t be hiding behind arcane procedural issues when someone’s life is at stake. Neither the pardons board nor the governor has much of an excuse. But the thing that bothers me most is, what sort of society lets this happen? Where was the public outcry? We all knew or should have known an injustice was being done. We could have stopped it. Where were we?