Hopefully you’ve all read David Grann’s remarkable New Yorker story about Cameron Todd Willingham, an almost certainly innocent man who was executed for arson based on worthless junk science roughly on a par with astrology and the highly implausible testimony of a mentally ill jailhouse snitch. (The kindest construction you can put on the state of Texas here is that — although since he was at the scene of the “crime” you can’t prove the negative — they executed a man despite the fact that there was no reliable evidence at all that he was guilty.) I don’t even want to excerpt it, because it’s all an essential portrait of the death penalty as it functions in the state that executes the most people — state-serving testimony from exceptionally dubious “experts,” inept and/or underfunded defense counsel, irresponsible prosecutors, and an appeals process (in both the judicial and executive branches) that would have to accrue some rigor to rise to the level of being “cursory.”
Emily Bazelon points out, however, that there’s additional blame to go around:
My answer starts with the 1996 Antiterrorism and Effective Death Penalty Act, which President Bill Clinton signed in the wake of the Oklahoma City bombings. The Supreme Court also gets a share of the blame for the noose-tightening way in which it interpreted AEDPA. Justice Antonin Scalia has led this charge and went so far as to write recently, in the appeal of Troy Davis, “This Court has never held that the Constitution forbids the execution of a convicted defendant who has had a full and fair trial but is later able to convince a habeas court that he is ‘actually’ innocent.” But more centrist justices also lined up on the side of “finality”—the idea that there is value in closing the doors of due process. Grann quotes Justice Sandra Day O’Connor, who wrote in a 1993 case that the “execution of a legally and factually innocent person would be a constitutionally intolerable event.” But in that case, Herrera v. Collins, O’Connor ruled against the defendant. And that is one of a string of rulings from her that made it more and more difficult for defendants to bring to light new evidence and to get the courts to pay attention to flaws in their convictions. Cameron Todd Willingham is dead because of a bad and abstruse law and a series of even worse legal rulings from our high court.
And it hardly seems likely that this is the only case where the process has failed to this degree…
…slightly edited to reflect the fact that there is, of course, no evidence that a “crime” was committed at all.