Who Killed Ashley Estell?
If Michael Blair didn’t do it who did? The physical evidence against Blair amounted to hair found in his car and on the girl’s body. A since discredited forensic expert testified the hair from the car was probably Ashley’s and that found on the child’s body was likely Blair’s. That was thirteen years ago. Seven years later a series of DNA tests all but exonerated Blair. None of the hair presented as evidence belonged to either him or the girl. If the hair from the body was not his, whose was it? When we thought it tied Blair to Ashley we assumed it meant he was the killer. Now yet another round of DNA testing indicates tissue found under the girl’s fingernails came from two different men, neither of them Blair. Is anyone trying to find out who it does belong to? Has whoever did this been free all these years to do it again?
Seven year old Ashley went missing from a crowded Plano soccer field Labor Day weekend 1993. A frantic search turned up her body the next day in a ditch alongside a rural road a few miles away. She had been strangled. The whole community was horrified. It wasn’t something we expected. Plano was still new. It represented the American dream; a house in the suburbs, children playing on the lawn, good schools, a place to raise a family. This wasn’t supposed to happen. The Estells were at a soccer game for Pete’s sake. How much more wholesome can it get? But Ashley was gone. Our focus turned to finding her murderer.
Pressure on authorities was enormous. There was the sort of media frenzy we often see, especially when the victim tugs at the heart in the way Ashley did. We wanted the killer found. First there was a massive search. There were over a thousand volunteers and Michael Blair was one of them. Police wouldn’t have been doing their job if they hadn’t run routine checks. Blair turned up as a child molester out on parole and that made him a prime suspect. When the child’s body was found there wasn’t much evidence to go on. Police thought what little there was pointed to Blair. Prosecutors built a case, charged him with abduction and murder, and asked for the death penalty. The defense put Blair on the stand and showed several hours of video taped interrogation to demonstrate he had cooperated fully and there was no hint of any admission of guilt, but it also meant prosecutors could introduce his background as a child molester. Bad strategy, he was a terrible witness. Jurors were convinced he did it and Blair has been on death row ever since. There’s just one problem, he didn’t do it.
The District Attorney at the time of trial, Tom O’Connell, insists there was more than enough evidence to convict Blair without the hair. He cites eye witnesses who saw Blair at the soccer field, candy found in his car presumably used to entice the second grader, fibers in the car similar to those from one of Ashley’s toys, and the fact that after the body was found Blair twice drove past the site. Current District Attorney John Roach says his office is prepared to retry the case if necessary. They are both convinced they got their man the first time. It’s hard to see why. None of that connects Blair to the girl or to the crime. The DNA connects somebody else.
None of the witnesses who claimed Blair was at the soccer field knew him. Though his appearance would make him stand out in a crowd their descriptions didn’t fit. They identified him only after seeing his photograph in the news. (If you think your drivers license photo is bad wait until you see yourself in a mug shot.) Nobody claims to have seen him with Ashley. Several witnesses who did know Blair placed him miles away at the time of the abduction and should have provided more than adequate reason to believe he wasn’t there.
There was no accomplice, no confession, not even a jailhouse snitch. The fibers were so common they could have come from anywhere. How many people do you suppose have candy in their car? It reminds me of the TV commercial trying to connect an insurance company with interplanetary aliens through a series of irrelevant coincidences. You’ve seen it. The clincher is they both spell their names with the same letters, MERCURY. Blair did show a high level of interest, so did a lot of other people. There was a fire in my neighborhood recently. A lot of people came out to see that too. It’s true Blair’s interest was more than normal. It still is. When there is a story in the news about the kidnapping or rape of a young girl he follows it with a morbid curiosity. These days he has an airtight alibi. He had one then too. Somebody else killed Ashley.
I’d like to know who and I would feel a lot better about this whole affair if police and prosecutors had reopened the case when they found out about the hair. If they have they are keeping quiet about it. Maybe it’s because they always knew the hair was a red herring. Let’s start with the state’s principle expert witness, one Charles Linch, purportedly of the Southwest Institute of Forensic Sciences (SWIFS.) It turns out he had been terminated from SWIFS shortly before trial, involuntarily committed to a mental hospital, and at prosecutors request temporarily released so that he could testify against Blair. None of this was disclosed to the defense. I’m not a lawyer but I believe that is called prosecutorial misconduct. Had they known, Blair’s lawyers would surely have impeached Linch as an incompetent witness, discrediting both his testimony and the prosecutors who put him on the stand. But they didn’t know until much later when the Dallas Morning News reported it in a series of articles. The Linch issue alone should have been enough to get Blair a new trial. Also, all the parties knew the sort of microscopic analysis Linch conducted can’t be used to positively identify a suspect in the way fingerprints can. It just isn’t that reliable. In fact the word “match” can’t even legally be used in that context. The word came up repeatedly however. Sometimes the defense objected, sometimes not. Toward the end even they were referring to the “matching” hair. In any case some of the jurors later said it was the hair that clinched it for them.
Jurors are not usually people who are trained to ignore their feelings and preconceptions when weighing evidence. Anyone who is is routinely dismissed at jury selection. (Know any lawyers who have ever been picked?) Lawyers on both sides regularly skirt ethical boundaries to play on the emotions of jurors as a matter of strategy. The prosecution painted Michael Blair as a monster. It was easy. He is only five feet tall and has a bad complexion. He testified that he was on parole for a burglary conviction which was technically true, the prison system hadn’t been notified of the sentence for molesting, otherwise he would not have been paroled, but he appeared to be obfuscating. His was a tough case to defend. He was not guilty of the crime at hand but by no means was he innocent. His court appointed lawyers were out of their league. Jurors saw evil personified sitting across from them. That was the real case against Blair, any relevant evidence was secondary. The image colored their view of an otherwise weak case and they convicted the wrong monster. So Michael Blair sits on death row. The real killer is still out there.
J’Accuse
It’s been well over a century now since Emile Zola published his famous essay exposing the Dreyfus affair. The French Army version of a kangaroo court convicted Dreyfus of passing military secrets to the Germans and sentenced him to life in the prison colony on Devil’s Island. The court quickly found it had very little evidence against Dreyfus but for reasons involving high level politics and intrigue they convicted him anyway. They were afraid the anti-Semitic press would accuse them of a Jewish cover up. The so called secrets were actually part of a disinformation campaign designed to mislead Germans about developments in French artillery. Dreyfus had nothing to do with it. He became a scapegoat and a further part of the counterintelligence ruse.
Once the affair was public it became an issue of honor. The reputations of the Army and of France were more important than any single man to some, the higher issue of justice a cause célèbre for others. Dreyfus was recalled, re-tried, re-convicted, and re-sentenced. Twelve years after it all began he was pardoned and his commission reinstated. He went on to serve in WWI, but the affair had torn French society apart. Wounds were deep. In 1985 President François Mitterand commissioned a statue of Dreyfus by sculptor Louis Mitelberg to be installed at the Ecole Militaire in the square where Dreyfus was stripped of his rank. The minister of defense refused to display it. Despite universal recognition of his innocense, the army formally acknowledged it in 1995, it remains a divisive issue today.
I can’t recall a similar incident in American history that excited quite that level of passion. The My Lai massacre in Vietnam comes to mind. When 1st Lt Hugh Thompson Jr. and his crew landed their helicopter and stopped the shooting they and Lt. William Calley became stand-ins for many who were either for or against the war. To war protestors Calley was a symbol for the “baby killers” as they came to call American troops. For his part Thompson was roundly condemned for calling undue attention to the atrocity. The Abu Ghraib scandal in Iraq is an echo of the earlier event but in neither case can the American Army be fairly accused of a cover up. Both affairs were duly investigated and prosecuted in open court. President Johnson commuted Calley’s sentence for political reasons but he did that openly too. Maybe they learned comething from the French.
I wish I could say the same thing for American courts. When they railroad somebody into a conviction he stays convicted until somebody catches them red handed, with DNA evidence say, sometimes even then. Michael Blair is a case in point. He was convicted of killing Ashley Estell largely on the strength of hair thought at the time to connect him to the crime. It’s been six years since DNA testing demonstrated it did no such thing. Blair still hasn’t gotten a new trial. He remains on death row and I suppose that means we still intend to execute him. I can’t imagine any reason other than prosecutors’ unwillingness to admit a miscarriage of justice, and trial and appeals courts’ willingness to go along.
Michael Blair’s predicament isn’t going to arouse much public outrage. He is a serial child molestor after all, but he has not been proved guilty of any crime justifying his incarcerration on death row. Prison conditions in general are bad but people go insane where Blair is. It’s a hell hole as bad in its way as Devil’s Island ever was. Move him, and find Ashley Estell’s killer.
How a Society Treats Its Criminals
Many commentators have pointed out that inmates at the American military prison at Guantanamo enjoy better living conditions than most convicts, better at times and in some ways than even their guards. Some of them have put on a great deal of weight, becoming grotesquely obese. I’ll not argue for more or less humane treatment of terrorists, or what legal rights they should or should not have. That’s another essay. I just wish the same public passion and debate could be directed at the plight of everyday prisoners in our domestic penitentiaries.
We have two conflicting views of prison life. One is of “Club Fed,” with daytime TV, rec rooms, conjugal visits, and time off for good behavior. The other is of incarceration in a lawless environment of gangs and brutality. I suspect neither view is representative but I have to think life on death row must be the worst on offer from a society that considers itself humane. It is not exactly solitary confinement but it is a life of isolation and deprivation. Inmates spend years there, sometimes dozens of years. They spend every day in anticipation of being strapped to a gurney and given a lethal injection. They receive the death sentence not once but multiple times as one appeal after another is denied. Some of them are strapped in and given a last minute reprieve only to face it again. Some of them aren’t guilty of the crimes that put them there. Some of them are executed anyway.
Almost all death row inmates are destitute. In Texas they aren’t allowed to work and have no legitimate means of earning money though there is apparently a tiny underground economy even there. Michael Blair tells of spending hour after hour taking threads from his gym shorts and weaving “lines” for sale to his fellow inmates. They use them to surreptitiously slip notes and small packages to each other. If it’s true it’s a limited market. The guards must know about it. As you would expect, they read his mail. Postage stamps are the currency of choice. Anything else is contraband. Some have family or friends who make deposits to their prison accounts so they can buy a few things from the commissary, though there isn’t much to buy. Most things are, well, contraband.
Inmates occupy single cells and that’s where they spend their days. They are allowed out for an hour of exercise but there is no “equipment” room of the sort provided the Gitmo prisoners, just a small yard. They have no TV and no access to the internet. Blair had a manual typewriter for a while but lost it when he was sent to “level 2” for disciplinary reasons. He’s back on level 1 but the typewriter is gone. He writes long letters and prints them by hand. He is allowed to write as often as he likes so long as he has money for postage. He also draws and paints, the necessary materials are among the things he can buy. He reads but the choice is limited. I’ve sent him a few books but I have to order them from Amazon. He can only get them through an approved shipper.
It isn’t the dungeon of old certainly. Nobody hangs from the wall in chains, not in American prisons anyway, but it isn’t how anybody would like to spend the last dozen or so years of life either. They tell me conditions are much better for the general prison population. That’s where Blair belongs. He’s not guilty of a capital crime.
Law and Justice
A good friend who often disagrees with me observes that Jesus allowed himself to be nailed to the cross. He asks if that doesn’t represent an implicit imprimatur for the death penalty. Not being theologians my friend and I are both in way over our heads on this but that has never stopped either of us on issues we have opinions about. I think his question warrants an answer. I’ll let him support the affirmative and limit my response to a polemic.
Now I have never argued that society has no right to execute its criminals. I do argue that we will have risen to a higher level of humanity when we no longer choose to exercise that right. We will be a better society. As best I read the Gospels Jesus submitted to Pontius Pilate’s civil authority but that did not amount to a vindication of Roman justice and it doesn’t amount to an endorsement of American penal codes. I am Catholic and concur with Popes who in recent years have argued for the abolition of capital punishment on compassionate grounds. I also am of one mind with official church teaching which doesn’t question the right of the people to make that judgment. That’s the difference between law and justice. It is the former we must live within and the latter we aspire to.
The logic doesn’t stop with Jesus but extends to the martyrs as well. Nor does it address the issue of guilt or innocence. None of them were guilty of or even charged with what we would consider crimes but with the exception of Jesus, Mary, and, in the beginning Adam and Eve, no one has ever been innocent. Small children would be an exception if you are Muslim or don’t subscribe to the doctrine of original sin, but that’s another subject. The point is the law is a creature of its day and two thousand years ago Roman law was the best that could be had. The alternative was chaos. Even today we refer to Pax Romana with some reverence. Other things being equal peace is to be preferred over war, maybe even when other things aren’t equal.
Nor do I suggest the worst of our criminals don’t deserve what they get, and I concede that we have come a long way toward reserving the most severe punishment for the most serious crimes. We’ve long since stopped hanging horse thieves from the nearest tree and we pretty much restrict modern lynch mobs to the relative decorum of the courtroom. I do suggest that what passes for justice in our system is as often as not mere process. In Texas juries are charged to answer a series of questions regarding fact and opinion but rarely if ever asked to consider whether a verdict or punishment is just. Neither does the judge in a capital case. He rules on the law. Evidence is admissible, or not, based on technical rules, not those of equity. Only at the US Supreme Court can judges freely substitute their personal notions of fairness for the rules of statute and precedent. Even they rarely do it and always under the pretext of constitutionality.
The rules are meant to ensure justice of course, and sometimes they work, maybe most of the time. It may be the best we can do, but every now and then an injustice is done. In the case of capital punishment there is no way to undo it. There is nothing compelling us to make these irrevocable decisions, so why do we? Because Jesus approved it?
Seven year old Ashley went missing from a crowded Plano soccer field Labor Day weekend 1993. A frantic search turned up her body the next day in a ditch alongside a rural road a few miles away. She had been strangled. The whole community was horrified. It wasn’t something we expected. Plano was still new. It represented the American dream; a house in the suburbs, children playing on the lawn, good schools, a place to raise a family. This wasn’t supposed to happen. The Estells were at a soccer game for Pete’s sake. How much more wholesome can it get? But Ashley was gone. Our focus turned to finding her murderer.
Pressure on authorities was enormous. There was the sort of media frenzy we often see, especially when the victim tugs at the heart in the way Ashley did. We wanted the killer found. First there was a massive search. There were over a thousand volunteers and Michael Blair was one of them. Police wouldn’t have been doing their job if they hadn’t run routine checks. Blair turned up as a child molester out on parole and that made him a prime suspect. When the child’s body was found there wasn’t much evidence to go on. Police thought what little there was pointed to Blair. Prosecutors built a case, charged him with abduction and murder, and asked for the death penalty. The defense put Blair on the stand and showed several hours of video taped interrogation to demonstrate he had cooperated fully and there was no hint of any admission of guilt, but it also meant prosecutors could introduce his background as a child molester. Bad strategy, he was a terrible witness. Jurors were convinced he did it and Blair has been on death row ever since. There’s just one problem, he didn’t do it.
The District Attorney at the time of trial, Tom O’Connell, insists there was more than enough evidence to convict Blair without the hair. He cites eye witnesses who saw Blair at the soccer field, candy found in his car presumably used to entice the second grader, fibers in the car similar to those from one of Ashley’s toys, and the fact that after the body was found Blair twice drove past the site. Current District Attorney John Roach says his office is prepared to retry the case if necessary. They are both convinced they got their man the first time. It’s hard to see why. None of that connects Blair to the girl or to the crime. The DNA connects somebody else.
None of the witnesses who claimed Blair was at the soccer field knew him. Though his appearance would make him stand out in a crowd their descriptions didn’t fit. They identified him only after seeing his photograph in the news. (If you think your drivers license photo is bad wait until you see yourself in a mug shot.) Nobody claims to have seen him with Ashley. Several witnesses who did know Blair placed him miles away at the time of the abduction and should have provided more than adequate reason to believe he wasn’t there.
There was no accomplice, no confession, not even a jailhouse snitch. The fibers were so common they could have come from anywhere. How many people do you suppose have candy in their car? It reminds me of the TV commercial trying to connect an insurance company with interplanetary aliens through a series of irrelevant coincidences. You’ve seen it. The clincher is they both spell their names with the same letters, MERCURY. Blair did show a high level of interest, so did a lot of other people. There was a fire in my neighborhood recently. A lot of people came out to see that too. It’s true Blair’s interest was more than normal. It still is. When there is a story in the news about the kidnapping or rape of a young girl he follows it with a morbid curiosity. These days he has an airtight alibi. He had one then too. Somebody else killed Ashley.
I’d like to know who and I would feel a lot better about this whole affair if police and prosecutors had reopened the case when they found out about the hair. If they have they are keeping quiet about it. Maybe it’s because they always knew the hair was a red herring. Let’s start with the state’s principle expert witness, one Charles Linch, purportedly of the Southwest Institute of Forensic Sciences (SWIFS.) It turns out he had been terminated from SWIFS shortly before trial, involuntarily committed to a mental hospital, and at prosecutors request temporarily released so that he could testify against Blair. None of this was disclosed to the defense. I’m not a lawyer but I believe that is called prosecutorial misconduct. Had they known, Blair’s lawyers would surely have impeached Linch as an incompetent witness, discrediting both his testimony and the prosecutors who put him on the stand. But they didn’t know until much later when the Dallas Morning News reported it in a series of articles. The Linch issue alone should have been enough to get Blair a new trial. Also, all the parties knew the sort of microscopic analysis Linch conducted can’t be used to positively identify a suspect in the way fingerprints can. It just isn’t that reliable. In fact the word “match” can’t even legally be used in that context. The word came up repeatedly however. Sometimes the defense objected, sometimes not. Toward the end even they were referring to the “matching” hair. In any case some of the jurors later said it was the hair that clinched it for them.
Jurors are not usually people who are trained to ignore their feelings and preconceptions when weighing evidence. Anyone who is is routinely dismissed at jury selection. (Know any lawyers who have ever been picked?) Lawyers on both sides regularly skirt ethical boundaries to play on the emotions of jurors as a matter of strategy. The prosecution painted Michael Blair as a monster. It was easy. He is only five feet tall and has a bad complexion. He testified that he was on parole for a burglary conviction which was technically true, the prison system hadn’t been notified of the sentence for molesting, otherwise he would not have been paroled, but he appeared to be obfuscating. His was a tough case to defend. He was not guilty of the crime at hand but by no means was he innocent. His court appointed lawyers were out of their league. Jurors saw evil personified sitting across from them. That was the real case against Blair, any relevant evidence was secondary. The image colored their view of an otherwise weak case and they convicted the wrong monster. So Michael Blair sits on death row. The real killer is still out there.
J’Accuse
It’s been well over a century now since Emile Zola published his famous essay exposing the Dreyfus affair. The French Army version of a kangaroo court convicted Dreyfus of passing military secrets to the Germans and sentenced him to life in the prison colony on Devil’s Island. The court quickly found it had very little evidence against Dreyfus but for reasons involving high level politics and intrigue they convicted him anyway. They were afraid the anti-Semitic press would accuse them of a Jewish cover up. The so called secrets were actually part of a disinformation campaign designed to mislead Germans about developments in French artillery. Dreyfus had nothing to do with it. He became a scapegoat and a further part of the counterintelligence ruse.
Once the affair was public it became an issue of honor. The reputations of the Army and of France were more important than any single man to some, the higher issue of justice a cause célèbre for others. Dreyfus was recalled, re-tried, re-convicted, and re-sentenced. Twelve years after it all began he was pardoned and his commission reinstated. He went on to serve in WWI, but the affair had torn French society apart. Wounds were deep. In 1985 President François Mitterand commissioned a statue of Dreyfus by sculptor Louis Mitelberg to be installed at the Ecole Militaire in the square where Dreyfus was stripped of his rank. The minister of defense refused to display it. Despite universal recognition of his innocense, the army formally acknowledged it in 1995, it remains a divisive issue today.
I can’t recall a similar incident in American history that excited quite that level of passion. The My Lai massacre in Vietnam comes to mind. When 1st Lt Hugh Thompson Jr. and his crew landed their helicopter and stopped the shooting they and Lt. William Calley became stand-ins for many who were either for or against the war. To war protestors Calley was a symbol for the “baby killers” as they came to call American troops. For his part Thompson was roundly condemned for calling undue attention to the atrocity. The Abu Ghraib scandal in Iraq is an echo of the earlier event but in neither case can the American Army be fairly accused of a cover up. Both affairs were duly investigated and prosecuted in open court. President Johnson commuted Calley’s sentence for political reasons but he did that openly too. Maybe they learned comething from the French.
I wish I could say the same thing for American courts. When they railroad somebody into a conviction he stays convicted until somebody catches them red handed, with DNA evidence say, sometimes even then. Michael Blair is a case in point. He was convicted of killing Ashley Estell largely on the strength of hair thought at the time to connect him to the crime. It’s been six years since DNA testing demonstrated it did no such thing. Blair still hasn’t gotten a new trial. He remains on death row and I suppose that means we still intend to execute him. I can’t imagine any reason other than prosecutors’ unwillingness to admit a miscarriage of justice, and trial and appeals courts’ willingness to go along.
Michael Blair’s predicament isn’t going to arouse much public outrage. He is a serial child molestor after all, but he has not been proved guilty of any crime justifying his incarcerration on death row. Prison conditions in general are bad but people go insane where Blair is. It’s a hell hole as bad in its way as Devil’s Island ever was. Move him, and find Ashley Estell’s killer.
How a Society Treats Its Criminals
Many commentators have pointed out that inmates at the American military prison at Guantanamo enjoy better living conditions than most convicts, better at times and in some ways than even their guards. Some of them have put on a great deal of weight, becoming grotesquely obese. I’ll not argue for more or less humane treatment of terrorists, or what legal rights they should or should not have. That’s another essay. I just wish the same public passion and debate could be directed at the plight of everyday prisoners in our domestic penitentiaries.
We have two conflicting views of prison life. One is of “Club Fed,” with daytime TV, rec rooms, conjugal visits, and time off for good behavior. The other is of incarceration in a lawless environment of gangs and brutality. I suspect neither view is representative but I have to think life on death row must be the worst on offer from a society that considers itself humane. It is not exactly solitary confinement but it is a life of isolation and deprivation. Inmates spend years there, sometimes dozens of years. They spend every day in anticipation of being strapped to a gurney and given a lethal injection. They receive the death sentence not once but multiple times as one appeal after another is denied. Some of them are strapped in and given a last minute reprieve only to face it again. Some of them aren’t guilty of the crimes that put them there. Some of them are executed anyway.
Almost all death row inmates are destitute. In Texas they aren’t allowed to work and have no legitimate means of earning money though there is apparently a tiny underground economy even there. Michael Blair tells of spending hour after hour taking threads from his gym shorts and weaving “lines” for sale to his fellow inmates. They use them to surreptitiously slip notes and small packages to each other. If it’s true it’s a limited market. The guards must know about it. As you would expect, they read his mail. Postage stamps are the currency of choice. Anything else is contraband. Some have family or friends who make deposits to their prison accounts so they can buy a few things from the commissary, though there isn’t much to buy. Most things are, well, contraband.
Inmates occupy single cells and that’s where they spend their days. They are allowed out for an hour of exercise but there is no “equipment” room of the sort provided the Gitmo prisoners, just a small yard. They have no TV and no access to the internet. Blair had a manual typewriter for a while but lost it when he was sent to “level 2” for disciplinary reasons. He’s back on level 1 but the typewriter is gone. He writes long letters and prints them by hand. He is allowed to write as often as he likes so long as he has money for postage. He also draws and paints, the necessary materials are among the things he can buy. He reads but the choice is limited. I’ve sent him a few books but I have to order them from Amazon. He can only get them through an approved shipper.
It isn’t the dungeon of old certainly. Nobody hangs from the wall in chains, not in American prisons anyway, but it isn’t how anybody would like to spend the last dozen or so years of life either. They tell me conditions are much better for the general prison population. That’s where Blair belongs. He’s not guilty of a capital crime.
Law and Justice
A good friend who often disagrees with me observes that Jesus allowed himself to be nailed to the cross. He asks if that doesn’t represent an implicit imprimatur for the death penalty. Not being theologians my friend and I are both in way over our heads on this but that has never stopped either of us on issues we have opinions about. I think his question warrants an answer. I’ll let him support the affirmative and limit my response to a polemic.
Now I have never argued that society has no right to execute its criminals. I do argue that we will have risen to a higher level of humanity when we no longer choose to exercise that right. We will be a better society. As best I read the Gospels Jesus submitted to Pontius Pilate’s civil authority but that did not amount to a vindication of Roman justice and it doesn’t amount to an endorsement of American penal codes. I am Catholic and concur with Popes who in recent years have argued for the abolition of capital punishment on compassionate grounds. I also am of one mind with official church teaching which doesn’t question the right of the people to make that judgment. That’s the difference between law and justice. It is the former we must live within and the latter we aspire to.
The logic doesn’t stop with Jesus but extends to the martyrs as well. Nor does it address the issue of guilt or innocence. None of them were guilty of or even charged with what we would consider crimes but with the exception of Jesus, Mary, and, in the beginning Adam and Eve, no one has ever been innocent. Small children would be an exception if you are Muslim or don’t subscribe to the doctrine of original sin, but that’s another subject. The point is the law is a creature of its day and two thousand years ago Roman law was the best that could be had. The alternative was chaos. Even today we refer to Pax Romana with some reverence. Other things being equal peace is to be preferred over war, maybe even when other things aren’t equal.
Nor do I suggest the worst of our criminals don’t deserve what they get, and I concede that we have come a long way toward reserving the most severe punishment for the most serious crimes. We’ve long since stopped hanging horse thieves from the nearest tree and we pretty much restrict modern lynch mobs to the relative decorum of the courtroom. I do suggest that what passes for justice in our system is as often as not mere process. In Texas juries are charged to answer a series of questions regarding fact and opinion but rarely if ever asked to consider whether a verdict or punishment is just. Neither does the judge in a capital case. He rules on the law. Evidence is admissible, or not, based on technical rules, not those of equity. Only at the US Supreme Court can judges freely substitute their personal notions of fairness for the rules of statute and precedent. Even they rarely do it and always under the pretext of constitutionality.
The rules are meant to ensure justice of course, and sometimes they work, maybe most of the time. It may be the best we can do, but every now and then an injustice is done. In the case of capital punishment there is no way to undo it. There is nothing compelling us to make these irrevocable decisions, so why do we? Because Jesus approved it?
posted by Onfoot at 12:15 PM
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