Massachusetts Citizens Against the Death Penalty

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MCADP, MA Citizens Against the Death Penalty

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last update 10/16/11

Commentary: October 2011

Davis, Brewer, and Perry

            The death penalty has been much in the news of late.  On September 22, Georgia executed Troy Davis for the murder of police officer Mark MacPhail in 1989 and Texas executed Lawrence Russell Brewer for the notorious slaying of James Byrd, Jr. in 1989.  Two weeks previous, Texas Governor Rick Perry unexpectedly introduced the death penalty into the presidential campaign when he claimed to have lost no sleep over the 234 executions that have occurred on his watch, calling the death penalty the “ultimate justice.”

Troy Davis

            If there is any lesson to be learned from Troy Davis’s case, it is that once someone is convicted, the presumption of innocence disappears to be replaced by a presumption of guilt, one remarkably difficult to overcome, no matter the stakes involved.  Five of the seven witnesses claiming to have seen Davis shoot Officer MacPhail as he came to the aid of a homeless man who was being beaten had since recanted, two others who testified that Davis had admitted his role to them had also recanted, forensic evidence that purportedly tied shell casings found at the scene to shell casings from another shooting that night in which Davis was allegedly involved (something he consistency denied) had been discredited, but the legal system was unmoved.  No matter how much doubt was created, the state and federal courts assumed the truth of the evidence as the jury originally heard it and greeted contrary evidence with skepticism.  On top of that, the courts set up up numerous procedural barriers to hearing Davis’s claims, mostly of the sort, if you didn’t present it earlier, we’re not going to listen now.

            All of this is in the name of finality.  But does anyone outside walls of the courts who turned down Davis’s appeals think justice has been achieved by proceeding to a finality that involves the taking of a human life when real doubts exist about whether the person to be put to death is guilty or not?  The press who covered the case was perfectly willing to look at the state of the evidence as we understand it now, and unsurprisingly no one interviewed objected.  In no other instance would anyone advocate that society make an important decision based on an outdated version of the facts, since substantially discredited, simply because we thought them to be true years ago.  The justice system needs to catch up with this simple principal.

Lawrence Brewer

            The Brewer case presents something altogether different.  Lawrence Russell Brewer, a white supremacist, and two other white men chained James Byrd, Jr., a black man, to the back of a pickup truck and dragged him for two miles through the streets of Jasper, Texas until he was decapitated.  The nation united in its profound disgust at this gruesome killing.  Mixed race juries convicted all three men and sentenced to death Brewer and the other white supremacist involved, John William King.  This is a far cry from the result that would have obtained in a bygone era in which the lynching of a black man would be tolerated, but it is hardly satisfactory.  Before Brewer went to prison, he was a small time loser, whose chief offenses were drinking beer on the top of the his home town’s water tower and burglarizing local homes.  There is little reason to believe he acquired any attitude that led to the killing from his home life.  His father expressed sympathy for the Byrd family; King’s father apologized for his son’s actions.  Not until Brewer went to prison and there met King did he (and King) become members of a white supremacist gang.  Executing Brewer (over the objections of James Byrd’s son) did nothing to address the problems with a prison system that released Brewer to society a far worse person than when he was imprisoned.

Rick Perry

            As for Rick Perry, who stated that he is well satisfied with Texas’s version of the death penalty because the state has “a very thoughtful, a very clear process in place” to prevent error, the follow up question to him should have been why has he not resigned for his role in Texas’s execution on his watch of Cameron Todd Willingham, a demonstrably innocent man?

            The facts of Willingham’s case are well known.  In December 1991, Willingham was the only person to escape from a house fire that killed his three children in a small town in northeast Texas.  Local arson investigators became convinced that Willingham, despite his protestations of innocence, had deliberately set the fire because they found what they believed to be clear evidence of the use of an accelerant to start the fire: charred puddles on the floor, burn marks near the bottom of some of the house’s interior walls, and burn patterns in the shape of a V starting the baseboard.  To them, these patterns could have been caused only by a chemical accelerant spread around on the floor, and then lit, with flames rising from the floor and spreading up.  Though this analysis appeared sensible at the time, and led to Willingham’s death sentence, the investigators were unaware of an analysis of a similar burn patterns in a house fire in Maryland.  An experimental recreation of that fire showed that these patterns could be created without an accelerant once a fire reaches the point of “flashover,” which David Grann, who published an article about Willingham’s case in the New Yorker, described as “the point at which radiant heat causes the fire in a room to became a room on fire.”  Once an entire room literally bursts into flame, then individual objects do as well.  Those that are low to the ground leave all the traces one would find of a fire that started near ground level.  The only way one can tell whether the resulting puddles and burns marks were caused by an accelerant or by a flashover would be to examine the remains for traces of an accelerant.  No such traces were found inside Willingham’s house.  No accelerant, no crime, and so not only was Willingham not guilty of murdering his own children, they had not been murdered at all.

            Unfortunately for Willingham, he did not acquire the assistance of a fire expert who pieced this all together until after all his court appeals had run out and an execution date had been set.  But there was still hope.  The Texas Board of Pardons and Paroles had yet to review his case and Governor Perry had the power to stay the execution temporarily.  And best of all, the expert who was assisting him, Dr. Gerald Hurst, would soon help free another inmate of Texas’s death row under virtually identical circumstances.  Ernest Ray Willis had been convicted of an arson in connection with a fire that killed two women based on the same type of burn evidence that convicted Willingham.  Hurst’s report on Willis’s case convinced the new District Attorney in the county where the fire occurred and that Willis, whose conviction had been vacated by a federal judge, should not be retried.

            Hurst’s report on Willingham was received on time by the governor and the pardon board, but the Innocence Project later learned through a Freedom of Information Request, that there is no indication anyone ever acknowledged the report, let alone read it.  The pardon board, which typically does not meet, and instead votes by fax, did not even ask Willingham’s lawyer to appear.  Needless to say, it refused to recommend a pardon based on a report none of its members had seen.  And also, unsurprisingly, Governor Perry declined to stay the execution.  Willingham was put to death on February 17, 2004.

            In 2005, Texas established a Forensic Science Commission to investigate allegations of flawed forensic procedure.  One of its first acts was to hire fire scientist Craig Beyler to reexamine the Willis and Willingham cases.  Beyler’s report blasted the investigation in Willingham’s case, deriding it for a lack of scientific basis and concluding the investigators based their findings on discredited folklore.  In April 2011, the Texas Commission finally issued its own report on the Willis and Willingham cases.  While it disclaimed any role in determining innocence, it rejected point by point every conclusion reached by the investigators whose testimony convicted Willingham and recommended that fire investigators adhere to national standards, receive training in the latest developments in fire investigations, and that old cases be reexamined based on relevant new developments in fire investigations.

            You would think that the governor who touts the excellence of Texas’s system of death penalty review would want to get to the bottom of the problems that plagued the Willingham case.  Far from it.  While the Commission was investigating the Willingham case, the governor’s staffers questioned a Commission member, who the Governor replaced, about the money spent to hire Beyler and the amount of money spent overall on this investigation.  Just before Beyler was to testify before the Commission, Governor Perry replaced three Commission members, and appointed one of his allies as the new chair, Williamson County District Attorney John Bradley.  Katherine Cesinger , a Perry spokeswoman, later defended the replacements as routine replacements of Commissioners whose terms had expired and rejected claims that Willingham had been innocent.  Bradley called off Beyler’s testimony saying he had not had enough time to prepare and then proceeded to stall the investigation for years.  Only after the Texas Senate refused to reappoint him was the report released this year.

            If Rick Perry wants to sit where Harry Truman used to sit, he should learn to follow that Presidents’s motto: “the buck stops here.”  Death penalty advocates have long acknowledged the possibility exists that an innocent person might be executed, but always in the context in which such an execution occurs in error.  No one advocates the knowing execution of the innocent.  Perry (and the Texas Pardon Board) did not know of Willingham’s innocence, but with Hurst’s report delivered to them, they should have known.  It is time for Governor Perry’s minions to stop defaming the dead and for Perry to face up to the fact that on his watch an innocent man who should not have died was executed even though the governor had in his possession a report that should have freed him.