A Texas-Sized Injustice

This has been quite a year for Republican governors. First there was Mark Sanford of South Carolina, who spent five days crying in Argentina and came back to tell us that he just met a girl named Maria. Then there was Sarah Palin of Alaska, who resigned her post because she’s a point guard, gosh darn it, and she knows when to pass the ball of freedom so that America can dunk it into the basket of small government. And now there’s Rick Perry, governor of Texas, whose story is less scintillating but more jaw-droppingly, head-shakingly unethical.

The sad tale goes like this. In 2004, under Perry’s watch, Texas executed Cameron Todd Willingham for setting the 1991 fire that killed his three daughters. A few days before the execution, Perry and the Board of Pardons and Paroles received a report from independent fire expert Gerald Hurst, which said that there was not “a single item of physical evidence” to suggest arson. The governor and the board could have delayed the execution to find out more, but they didn’t.

In the last few years, Hurst’s findings have been confirmed by three other independent examinations of the forensic evidence, including one by Craig Beyler, a fire scientist hired by the Texas Forensic Science Commission. Beyler’s scathing report, released in August, concludes that the original investigation of the Willingham fire “did not comport with the scientific method” and was “more characteristic of mystics or psychics.” Days before Beyler was to present his findings before the commission, Perry fired three commissioners, including the chairman of the nine-member panel, and a fourth got the axe shortly thereafter. Perry’s replacement chairman, a conservative prosecutor, promptly canceled the hearings. Samuel Bassett, the former chairman, said that the governor and his lawyers repeatedly expressed their disapproval of the commission’s investigation and implied that its funding could be cut.

In short, Perry is fighting an audacious and losing battle to prevent a full, public recognition of the fact that Willingham was, in all likelihood, innocent. But talk of probabilities and likelihoods do death-penalty opponents little good. The legal reality is that Willingham should not have been executed; the doctrine of reasonable doubt establishes that much. But the moral reality is that we may never have, as Slate’s Dahlia Lithwick put it, a “sufficiently innocent criminal.” The biggest fans of the death penalty will always assume away the exonerating evidence and focus on the little things that help them sleep at night.

That doesn’t mean that abolitionists shouldn’t continue to point out the flaws and frailties of the criminal-justice system. It just means that “He was innocent!” can never be their rallying cry. They will have to continue outlining the bugs in the system (incompetent lawyers, hole-ridden testimony, jailhouse snitches, flawed confessions, and the like) in hopes that the public will see that they inevitably add up to wrongful convictions—and sometimes executions.

Perhaps the most disturbing thing about Perry’s behavior is how little he seems to care for evidence. He insulted the skeptical fire scientists as “latter-day supposed experts” and called Willingham a “monster”—as if that settles the matter. Perry could have let the commission hold its hearings, and it would have been an embarrassment to him; he would have had to admit a mistake. Instead, he has bumblingly tried to cover his hide, demonstrating in the process that truth and evidence, guilt and innocence, just don’t matter to him.

Which is kind of refreshing, in its way. Because, let’s face it, individual guilt and innocence really don’t matter to the most ardent death-penalty supporters. A third of Americans support capital punishment despite believing that an innocent person has been executed in the last five years, according to a recent Gallup poll. It’s about getting revenge, not doing justice. Groups like the Innocence Project assume that if they could find a demonstrably guiltless victim of the death penalty, they would sway the public to their side. But they’d never sway Perry and his ilk. For them, the death penalty possesses such magical powers, deterring future criminals and healing grieving communities, that surely one misfire shouldn’t sink the whole enterprise.

But at least Perry has good company in his disregard for actual guilt and innocence. In June, the five conservatives on the Supreme Court ruled that a convicted rapist could not demand DNA testing of the evidence against him, even though it had been unavailable during his trial and he offered to foot the bill. Two months later, in another case, Justice Scalia wrote that the Constitution does not forbid the execution of a prisoner who had his trial but later proves that he is “‘actually’ innocent.” Seriously, he put scare quotes around “actually.” We shouldn’t let Rick Perry get away with doing the same.

Sam Barr ’11 is a government concentrator in Dunster House. His column appears on alternate Mondays.