Death Don’t Have No Mercy In This Land

David Grann in the New Yorker:

Buffie Barbee, who was eleven years old and lived two houses down, was playing in her back yard when she smelled the smoke. She ran inside and told her mother, Diane, and they hurried up the street; that’s when they saw the smoldering house and Cameron Todd Willingham standing on the front porch, wearing only a pair of jeans, his chest blackened with soot, his hair and eyelids singed. He was screaming, “My babies are burning up!” His children—Karmon and Kameron, who were one-year-old twin girls, and two-year-old Amber—were trapped inside.

Willingham told the Barbees to call the Fire Department, and while Diane raced down the street to get help he found a stick and broke the children’s bedroom window. Fire lashed through the hole. He broke another window; flames burst through it, too, and he retreated into the yard, kneeling in front of the house. A neighbor later told police that Willingham intermittently cried, “My babies!” then fell silent, as if he had “blocked the fire out of his mind.”

[…]

By now, both investigators had a clear vision of what had happened. Someone had poured liquid accelerant throughout the children’s room, even under their beds, then poured some more along the adjoining hallway and out the front door, creating a “fire barrier” that prevented anyone from escaping; similarly, a prosecutor later suggested, the refrigerator in the kitchen had been moved to block the back-door exit. The house, in short, had been deliberately transformed into a death trap.

The investigators collected samples of burned materials from the house and sent them to a laboratory that could detect the presence of a liquid accelerant. The lab’s chemist reported that one of the samples contained evidence of “mineral spirits,” a substance that is often found in charcoal-lighter fluid. The sample had been taken by the threshold of the front door.

The fire was now considered a triple homicide, and Todd Willingham—the only person, besides the victims, known to have been in the house at the time of the blaze—became the prime suspect.

[…]

During the interrogation, Vasquez let Fogg take the lead. Finally, Vasquez turned to Willingham and asked a seemingly random question: had he put on shoes before he fled the house?

“No, sir,” Willingham replied.

A map of the house was on a table between the men, and Vasquez pointed to it. “You walked out this way?” he said.

Willingham said yes.

Vasquez was now convinced that Willingham had killed his children. If the floor had been soaked with a liquid accelerant and the fire had burned low, as the evidence suggested, Willingham could not have run out of the house the way he had described without badly burning his feet. A medical report indicated that his feet had been unscathed.

[…]

He appealed to the U.S. Supreme Court, but in December, 2003, he was notified that it had declined to hear his case. He soon received a court order announcing that “the Director of the Department of Criminal Justice at Huntsville, Texas, acting by and through the executioner designated by said Director . . . is hereby DIRECTED and COMMANDED, at some hour after 6:00 p.m. on the 17th day of February, 2004, at the Department of Criminal Justice in Huntsville, Texas, to carry out this sentence of death by intravenous injection of a substance or substances in a lethal quantity sufficient to cause the death of said Cameron Todd Willingham.”

Willingham wrote a letter to his parents. “Are you sitting down?” he asked, before breaking the news. “I love you both so much,” he said.

His only remaining recourse was to appeal to the governor of Texas, Rick Perry, a Republican, for clemency. The process, considered the last gatekeeper to the executioner, has been called by the U.S. Supreme Court “the ‘fail safe’ in our criminal justice system.”

[…]

Willingham had asked that his parents and family not be present in the gallery during this process, but as he looked out he could see Stacy watching. The warden pushed a remote control, and sodium thiopental, a barbiturate, was pumped into Willingham’s body. Then came a second drug, pancuronium bromide, which paralyzes the diaphragm, making it impossible to breathe. Finally, a third drug, potassium chloride, filled his veins, until his heart stopped, at 6:20 P.M. On his death certificate, the cause was listed as “Homicide.”

After his death, his parents were allowed to touch his face for the first time in more than a decade. Later, at Willingham’s request, they cremated his body and secretly spread some of his ashes over his children’s graves. He had told his parents, “Please don’t ever stop fighting to vindicate me.”

In December, 2004, questions about the scientific evidence in the Willingham case began to surface. Maurice Possley and Steve Mills, of the Chicago Tribune, had published an investigative series on flaws in forensic science; upon learning of Hurst’s report, Possley and Mills asked three fire experts, including John Lentini, to examine the original investigation. The experts concurred with Hurst’s report. Nearly two years later, the Innocence Project commissioned Lentini and three other top fire investigators to conduct an independent review of the arson evidence in the Willingham case. The panel concluded that “each and every one” of the indicators of arson had been “scientifically proven to be invalid.”

In 2005, Texas established a government commission to investigate allegations of error and misconduct by forensic scientists. The first cases that are being reviewed by the commission are those of Willingham and Willis. In mid-August, the noted fire scientist Craig Beyler, who was hired by the commission, completed his investigation. In a scathing report, he concluded that investigators in the Willingham case had no scientific basis for claiming that the fire was arson, ignored evidence that contradicted their theory, had no comprehension of flashover and fire dynamics, relied on discredited folklore, and failed to eliminate potential accidental or alternative causes of the fire. He said that Vasquez’s approach seemed to deny “rational reasoning” and was more “characteristic of mystics or psychics.” What’s more, Beyler determined that the investigation violated, as he put it to me, “not only the standards of today but even of the time period.” The commission is reviewing his findings, and plans to release its own report next year. Some legal scholars believe that the commission may narrowly assess the reliability of the scientific evidence. There is a chance, however, that Texas could become the first state to acknowledge officially that, since the advent of the modern judicial system, it had carried out the “execution of a legally and factually innocent person.”

Jonah Lehrer at Sully’s place

Patrick Appel at Sully’s place

More Lehrer:

These stories of a failed justice are important, and not just because they expose specific errors. (Such as: arson investigators who got every important fact wrong, psychiatric diagnoses based on music posters and juries that should have been more skeptical.) Instead, I think these harrowing tales need to be told because they contradict a powerful moral intuition we all share, which can unfortunately lead us to turn a blind eye: Because we believe in justice, we ignore stories of injustice.

I’m talking about the Just World Hypothesis, a scientific theory first developed by the social psychologist Melvin Lerner. Consider this clever experiment, conducted in 1965: Several volunteers are told that they are about to watch, on closed circuit television, another volunteer engage in a simple test of learning. They see the unlucky subject – she is actually a graduate student, working for Lerner – being led into the room. Electrodes are attached to her body and head. She looks a little frightened.

Now the test begins. Whenever the subject gives an incorrect answer, she is given a powerful jolt of electricity. The witnesses watching on television see her writhe in pain and hear her scream. They think she is being tortured.

One group of volunteers is now given a choice: they can transfer the shocked subject to a different learning paradigm, where she is given positive reinforcements instead of painful punishments. Not surprisingly, the vast majority of people choose to end the torture. They quickly act to rectify the injustice. When asked what they thought of the “learner,” they described her as an innocent victim who didn’t deserve to be shocked. That’s why they saved her.

The other group of subjects, however, isn’t allowed to rescue the volunteer undergoing the test. Instead, they are told a variety of different stories about the victim. Some were told that she would receive nothing in return for being tortured; others were told that she would be paid for her participation. And a final group was given the martyr scenario, in which the victim submits to a second round of torture so that the other volunteers might benefit from her pain. She is literally sacrificing herself for the group.

How did these different narratives affect their view of the victim? All of the volunteers watched the exact same video of torture. They saw the same poor woman get subjected to painful shocks. And yet the stories powerfully influenced their conclusions about her character.

Here the most disturbing data point: the less money the volunteer received in compensation for her suffering the more the subjects disliked her. The people explained the woeful injustice by assuming that it was her own fault: she was shocked because she wasn’t paying attention, or was incapable of learning, or that the pain would help her perform better. The martyrs fared even worse. Even though this victim was supposedly performing an act of altruism – she was suffering for the sake of others – the witnesses thought she was the most culpable of all. Her pain was proof of her guilt. Lerner’s conclusion was unsettling: “The sight of an innocent person suffering without possibility of reward or compensation motivated people to devalue the attractiveness of the victim in order to bring about a more appropriate fit between her fate and her character.”

Kathryn Jean Lopez at The Corner, here and here. K-Lo:

I should note that the debate over facts is not my moral argument against the whole execution business. I think the man shouldn’t have been killed, period, with or without the New Yorker. Capital punishment isn’t intrinsically evil, there are times when it may be necessary. But those strike me as rare — if not inconceivable — instances in the U.S. in 2009.

Hon. John Jackson, the prosecutor in the case, now a judge:

Always omitted from any examination of the actual trial are the following facts:

1. The event which caused the three childrens’ deaths was the third attempt by Todd Willingham to kill his children established by the evidence. He had attempted to abort both pregnancies by vicious attacks on his wife in which he beat and kicked his wife with the specific intent to trigger miscarriages;

2. The “well-established burns” suffered by Willingham were so superficial as to suggest that the same were self-inflicted in an attempt to divert suspicion from himself;

3. Blood-gas analysis at Navarro Regional Hospital shortly after the homicide revealed that Willingham had not inhaled any smoke, contrary to his statement which detailed “rescue attempts;”

4. Consistent with typical Navarro County death penalty practice, Willingham was offered the opportunity to eliminate himself as a suspect by polygraph examination. Such opportunity was rejected in the most vulgar and insulting manner;

5. Willingham was a serial wife abuser, both physically and emotionally. His violent nature was further established by evidence of his vicious attacks on animals which is common to violent sociopaths;

6. Witness statements established that Willingham was overheard whispering to his deceased older daughter at the funeral home, “You’re not the one who was supposed to die.” (The origin of the fire occured in the infant twins bedroom) and;

7. Any escape or rescue route from the burning house was blocked by a refrigerator which had been pushed against the back door, requring any person attempting escape to run through the conflagration at the front of the house.

Michael Landauer at Dallas Morning News attempts to rebut Jackson point by point:

1. It’s an enormous stretch to say that Willingham’s beating of his wife when she was pregnant constituted previous attempts at murder.

2. The new evidence debunks the thought that his burns were minor.

3. New evidence backs up Willingham’s version of events. A test hours later that says he did not suffer from smoke inhalation doesn’t prove anything.

4. So Willingham cursed when offered a polygraph test. So what?

5. So Willingham was a violent man. So what?

6. Who knows what this statement means. Maybe he meant he should have died.

7. There’s no evidence that the refrigeraor had been moved there by Willingham for this purpose. Besides, the official report on the scene says escape was possible from that door.

Cy Vance at HuffPo:

Anyone who has spent real time defending the accused in criminal court knows without a shadow of a doubt that flaws in our justice system — from human error during investigations to legal misconduct to jury prejudices — create an imperfect system that leaves open the possibility of sending innocent men and women to prison. It can be difficult in high-profile cases like Willingham’s, when the accusations shock and horrify us, to remember that in the United States defendants are innocent until they are proven guilty. And that as the state is making its case the defendant has the inalienable right to the strongest defense.

Although some would argue that a man who would kill his children does not deserve anything more than a cold cell or an electric chair, we do not have a double standard for justice in our country that dissolves the rights of defendants when the details of a case are sensational enough to grab our attention — and headlines. In fact when guilt has been presupposed by the public, when the accused are looked upon as guilty until proven innocent, is when our justice system is most likely to fail us.

Bob Herbert in the NYT

Grits For Breakfast

UPDATE: Two Ta-Nehisi Coates posts, here and here.

Mark Kleiman

UPDATE #2: Dahlia Lithwick in Slate

UPDATE #3: Alex Massie

UPDATE #4: Scott Lemieux

UPDATE #5: Rod Dreher

UPDATE #6: Christopher Orr at TNR

UPDATE #7: Scott Lemieux

UPDATE #8: Zachary Roth at TPM

UPDATE #9: Publius

By now, you’re probably familiar with the New Yorker article showing that Cameron Todd Willingham was almost certainly wrongly executed for arson and murder.   In 2005, after the execution, Texas established a commission to investigate forensic errors, and the commission started reviewing the Willingham case.  In the course of its review, the commission hired a nationally recognized fire expert who ultimately wrote a “scathing report” concluding that the arson investigation was a joke.

The expert was originally set to testify about his report on Friday, October 2.  On Sept. 30, however, Perry suddenly replaced three members of the panel, including the chair, against their wishes.  The new chair promptly canceled the hearing.  More recently, Perry replaced a fourth member (he can only appoint four — other state officials appoint the remaining five members).

What’s amazing is not so much that Perry replaced the panel members, but that he felt secure enough to be so brazenly corrupt about it.  It’s a sad reflection on the state of politics in Texas that a governor could commit such blatant whitewashing two days before the hearing.

Of course, his motive is fairly clear.  Perry contributed to the execution of an innocent person.  And the formal recognition that Texas executed an innocent man would trigger a massive political earthquake — one that would clarify to an inattentive public the utter barbarity and immorality of Texas’s criminal justice system.

So yes, I can understand Perry’s motives.  But it doesn’t change the fact that he is acting in a profoundly immoral way.  The whole thing reminds me of a banana republic dictator clumsily covering up his crimes.

Megan McArdle:

Yes, I’m opposed to the death penalty.  But even if you’re not, you can’t possibly think that it’s okay to avoid investigating whether your state’s forensic methods risk putting innocent people in jail, or sending them to their death.  No matter how strongly you favor the death penalty, I’m sure that you agree that its purpose is not to execute people; it’s to execute justice.  A value which Rick Perry seems determined to butcher.

John Cole:

As it is, this story already reads like a Grisham novel- allegations of murder and arson, the execution of an innocent man, corrupt politicos What exactly does the media need before they cover this?

Seriously, there is a Pulitzer in this story.

UPDATE #10: More McArdle

UPDATE #11: DiA at The Economist

UPDATE #12: Mark Kleiman and Steven Teles at Bloggingheads

UPDATE #13: Rod Dreher