The Immeasurable Cost of Getting It Wrong.


This week’s New Yorker features this breathtakingly tragic and much-discussed piece by David Grann about Cameron Todd Willingham, a Texas man who was sentenced to death for starting the fire that killed his three kids. Grann’s piece points to evidence that more or less invalidates the entire case against Willingham, and exposes the shoddy “fail-safes” that are supposed to protect innocent people from being put to death by the state.

Some of the testimony of the witnesses to the fire morphed as time went on. They originally described him as being hysterical as his house burned down, yelling “My babies are burning up!” and having to be restrained by firefighters from running back into the house. But their recollections of how it went down changed once he was charged: he was  a little too distraught or  not distraught enough. It all looked so suspicious.

The testimony against Willingham included a jailhouse witness — an addled drug addict who describes himself as mentally unstable — who said Willingham confessed to starting the fire, but the inmate later recanted (and then recanted his recantation). One of the forensic psychiatrists who testified that Willingham was a sociopath hadonly received a master’s in marriage and family issues and had never published any research on sociopathic behavior. He pointed to an Iron Maiden poster with a skull on it as evidence that Willingham was obsessed with death.  The other psychiatrist was later kicked out of the the American Psychiatric Association for violating its ethics, after he “repeatedly arrived at a ‘psychiatric diagnosis without first having examined the individuals in question, and for indicating, while testifying in court as an expert witness, that he could predict with 100-per-cent certainty that the individuals would engage in future violent acts.'”

And perhaps most damning: an acclaimed fire scientist and explosives expert  submitted a report knocking down all the elementary errors that the crime scene investigators had gotten wrong, and roundly knocked down the argument that the fire was deliberately set. The person who originally ruled the fire an arson was using outdated methods that had  been largely discredited and ridiculed by fire scientists as an approach that was “characteristic of mystics or psychics.” (Last week, another renowned fire scientist submitted a report to a state commission blasting the arson ruling, saying the fire investigator “seems to be wholly without any realistic understanding of fires and how fire injuries are created” and the findings were “nothing more than a collection of personal beliefs that have nothing to do with science-based fire investigation.”)

The parole board didn’t even bother to read the expert’s report; apparently they never do. “You don’t retry the trial. You just make sure everything is in order and there are no glaring errors,” one board member said. Cameron Todd Willingham was executed in 2004.

As it stands now, there aren’t any real checks/correctives for police misconduct, prosecutorial overreach or legal incompetence of any kind in our legal system and prosecutors and judges have a  profound disinclination to correct egregious missteps even when exculpatory evidence becomes available. A perfect example is the Troy Davis case, in which Davis was sentenced to death for killing an off-duty  police officer and his conviction was upheld even after seven of the nine eyewitnesses for the prosecution later recanted their testimony. (One of the two who has not recanted was considered a suspect in the murder.) When the Supreme Court ruled a few weeks ago that Davis required an innocence hearing, Justice Scalia dissented, saying that the important constitutional consideration wasn’t the innocence of the condemned, but whether s/he received a fair trial. (How a trial in which most of the witnesses lied under oath can be considered “fair” is clearly beyond my meager powers of comprehension.)

We’re a society that watches police procedurals in which the cops always get the right person, the forensic scientists can dig up incontrovertible physical evidence linking the suspect to the crime, and few jurors think they’ll be prejudiced by seeing the accused trotted into the courtroom every day in an orange jumpsuit. We don’t like to admit that we’ve gotten something wrong, particularly when it comes to issues of life or death. There’s a small chance here that Texas could admit that it executed an innocent man — a move that would make it the first state to ever do so, and which would seriously challenge the constitutionality of the death penalty. It would also stir up a shitstorm of lawsuits, and a lot of “settled” convictions will open up for fresh scrutiny. It would be loud and messy and unsettling — a fitting and necessary antidote to the assuring, polite fictions about the death penalty that we cling to.



Gene "G.D." Demby is the founder and editor of PostBourgie. In his day job, he blogs and reports on race and ethnicity for NPR's Code Switch team.
  • quadmoniker

    I can’t wait to read this story. You don’t have to spend too much time in a courtroom to understand that the people making the decisions are really, really human.

  • I just read this article. Chilling doesn’t even begin to describe it, esp. since it happens in TX, a place where the likelihood of admission of mortal error seems extremely slim.

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  • blackink12

    My God. I finally finished the piece.

    You know, I had the occasion to cover an execution in Texas in 2000. It always struck me that the man, Joiner, went to his death proclaiming his innocence and insisting that the state had gotten it wrong.

    It’s tough to know what the ultimate toll of state-sanctioned homicide takes on its residents. Over time, you get used to it. You grow deaf to the concerns of the condemned. You grow resolute in your righteousness (we’re tough on crime and criminals).

    Overall, you slowly lose your grip on empathy. And the facts.

    In a larger sense, you can sort of see this reflected in the state government: the talk of secession, the right-wing tinkering with school curriculum, the refusal to acknowledge that the appeals process for the condemned is nothing like “super due process.”

    Over and over, I’ve started to fret that we’re – as a country, as a state (Texas) – nowhere near as sophisticated or as exceptional as we think we are. And you can kinda see that in this story by David Grann.

    I dunno, y’all. This shit really shook me. And it scares me. Because if the facts don’t matter, none of us are safe.

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