Chemical Ali Hassan al-Majid Hangs

Apparently Al-Majid's execution by gallows was more "civilized" than that of Saddam Hussein three years ago. No one called him any names.

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Missing the Point

There's something very depressing about the oral arguments on juvenile sentencing yesterday. It's not just that, at best, the court seems headed towards a content fre...er, "minimalist" balancing test. In theory, I don't even have a problem with proportionality review in these cases; it's true enough that it doesn't make much sense to say that a 17-year-old could never get l-w-p for 1st degree murder while a 19-year-old could get l-w-p for armed robbery. The problem is that balancing tests are exactly as good as the courts applying them, and given the current composition of both the Florida courts and the federal courts...there's not a lot of room for optimism. One suspects that, aside from maybe 1 or 2 egregious cases involving adolescents, we'll get a Kennedy special in which the Court holds open the theoretical possibility that a sentence could be unconstitutional while in practice never finding a non-capital sentence disproportionate.

But it really goes beyond that. There's something jarring about these cases -- which in the Sullivan case involved not only a draconian sentence but procedural defects that should be unacceptable if he was 40 -- being addressed at an angle that will have the least impact. That's not the fault of the lawyers -- their job is to shock the consciences of Kennedy and/or Roberts, and for their clients the lower the impact the better their chances. But even if the prisoners here end up with more reasonable sentences, it fundamentally seems like an evasion of the real issues. For the same reason, I can't imagine why people got so exercised about Roper v. Simmons. I suppose it's nice that zero rather than maybe one or two 17-year-olds will get executed per decade, and the outcome of the case is defensible (even if Kennedy's opinion is typically shaky.) But it allows the Court to pat itself on the back for its humanity, while leaving in place a system in which innocent people with buffoonishly inept counsel can get railroaded to the death chamber based on tarot card readings. Window dressing doesn't make this structure much less ugly.

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Death Penalty blogging

At the horror show that is death penalty jurisprudence in the state of Texas has been getting some attention around here, I remember that I have been remiss in not giving a plug to a unique and excellent blog on the death penalty, Executed Today. Every day, the anniversary of a historical execution (or occasionally near execution) is noted and detailed. (Their post on Willingham predated The New Yorker piece by 18 months). They've been working away at this project for two years this halloween, and managed to put together detailed posts just about every day.

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"This verdict is written on a cocktail napkin. And it still says guilty. And guilty is spelled wrong."

"With Me As Your Law...Talkin' Guy, Your Railroad to the Death Chamber is Ready!"

It's bad enough that various state officials conspired to murder Cameron Todd Willingham based on worthless junk science and the implausible testimony of a mentally ill jailhouse snitch. But apparently one reason that they were able to get away with it is that Willingham's attorney seems inept and slaveringly authoritarian even by the standards of Texas death penalty attorneys:

Now, via Ta-Nehisi Coates, I see that Willingham's defense attorney, David Martin, has been interviewed by CNN's Anderson Cooper, and his belligerent insistence on Willingham's guilt is, if anything, more shocking than Jackson's blase acceptance of having sent a man to death on the basis of faulty evidence.

Martin, who is in no way a trained arson investigator--let alone a fire scientist--explains that he bought some carpet, poured lighter fluid on it, and set it aflame and it looked "just exactly like the carpet in Todd Willingham's house." On this basis, he concluded, "There was no question whatsoever he was guilty," adding, "That's why they found him guilty, I think, in under 30 minutes." (The quality of his defense obviously couldn't have played a role.)

As Orr says, "see how many times you have to remind yourself that this man was Willingham's defense attorney:"



Can something be unsurprising and still shocking?

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More On The Texas Death Panel

A couple news items on Texas's murder of Cameron Todd Willingham. First, Chris Orr points us to this video of Willingham's prosecutor, John Jackson, reiterating his theory that although we no longer have any idea if a crime was committed we can be sure that Willingham was guilty:



Hey, sometimes your horoscope comes true, and that's good enough for a death penalty conviction!

Meanwhile, Rick Perry continues to assiduously cover up the murder he committed, firing more members of the insubordinate state commission who have the strange belief that murders of innocent people should be investigated. And while I doubt anybody enough here is naive enough to buy Perry's explanation, but just in case Perry pressured the chairman of the commission before firing him. And, amazingly, Perry's actions may well be politically beneficial.

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"Well, Your Honor. We've plenty of hearsay and conjecture. Those are kinds of evidence. "

"Mr. Perry, don't you worry. I watched Matlock in a bar last night. The sound wasn't on, but I think I got the gist of it."

In comments, Matt points us to this remarkable op-ed from one of Cameron Todd Willingham's murderers, former prosecutor John H. Jackson. Essentially, Willingham was convicted based on two things: junk-scientific non-evidence that the fire was arson, and the ludicrously implausible testimony of a mentally ill jailhouse snitch. Amazingly, Jackson concedes that the central forensic junk science was "undeniably flawed" and doesn't mention the snitch's testimony at all, but continues to assert that Willingham was guilty. Nina Morrison systematically dismantles the remaining "evidence" Jackson cites. To summarize:

• The vast majority of the potentially damning stuff (assertions that Willingham was a sociopath, assumptions that a fridge blocking the rear entrance was placed there intentionally, ambiguous statements at his daughter's funeral) inextricably bootstraps from the assumption that the fire was arson. A claim for which there is now, as Jackson admits, no evidence.
• Remaining is stuff that obviously isn't evidence of anything (refusing to take an inadmissible polygraph), assertions that he tried to cause a miscarriage that were denied by his wife, evidence that makes clear we wasn't a saint but don't constitute anything remotely resembling evidence that he would burn his three daughters alive, and evidence that if anything points to his innocence rather than his guilt (his vehement -- indeed, heavens to betsy, "vulgar" -- rejection of a plea agreement.)
• And, finally, the punchline: " I am convinced that in the absence of any arson testimony, the outcome of the trial would have been unchanged, a fact that did not escape the Texas Court of Criminal Appeals." Well, if the country's favorite conveyor belt to the death chamber refused to overturn his conviction, I'm convinced!
  

It would be a disgrace if Willingham was even prosecuted based on this crap. That he was executed...

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Perry Moves To Protect Arbitrary Death Panel

Murderer

Not surprisingly, in response to a Forensic Science Commission that had the temerity to hear evidence about the execution of an innocent man he allowed to proceed after a less-than-cursory review, Rick Perry has responded by firing three of the insolent subjects who might bring actual evidence to bear against his royal prerogative to arbitrarily kill people. But, don't worry, he's convinced about the evidentiary value of tarot cards astrology arson analysis that can't distinguish between intentionally set and accidental fires. And, besides, evidence of arson is beside the point:

Even without proof that the fire was arson, [Perry] added, the court records he reviewed before the execution of Cameron Todd Willingham in 2004 showed 'clear and compelling, overwhelming evidence that he was in fact the murderer of his children.

So, even if there's no evidence of a crime, we can be sure Willingham was guilty of it! Well, that certainly improves my confidence that Perry's review of the case was rigorous. Meanwhile, I hope authorities will start questioning Perry about the deaths of Molly Ivins and Ann Richards. Sure, I don't have any evidence that they were homicides, but still, Perry must be guilty somehow...

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Texas: Executed Innocent Man

Murderer

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.

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State Courts: The Darker Side

For less encouraging news about state judiciaries, we can turn to the state of Texas, where a man was sentenced to death in a trial in which the prosecutor and presiding judge were having an affair. You don't have to be a legal scholar to see the, ah, rather obvious due process problems with a trail in which the state's representative is literally having sexual relations with the allegedly neutral arbiter, and indeed even the Texas Court of Criminal Appeals can't quite bring itself to deny it. Rather, it falls back on the tool so beloved by reactionary jurists everywhere, the arbitrary procedural Catch-22:

But Wednesday’s decision overturned the findings of a district court judge who had found that Mr. Hood should be allowed a hearing on a new trial. The decision did not discuss whether the affair had prejudiced his first trial; instead, the court rejected Mr. Hood’s claim on the ground that he should have raised it when he first appealed his 1990 conviction.

Yes, if Mr. Hood wanted to contest his unfair trial, he should have acquired a time machine, obtained the evidence that emerged 18 years later, returned, and presented it to the courts. If he was too lazy to do that, we can't help him. The logic is impeccable.

If you submitted a novel based on the injustices of the Texas Court of Criminal Appeals, I'm sure it would be rejected as just too crude and implausible. Maybe this will be the sort of thing that shocks Tony Kennedy's sporadic conscience....

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