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The end of death row?

interior-willinghamnewThis article was published in the Sunday Herald on October 25, 2009.

Every October, a few hundred opponents of the death penalty gather in Austin, Texas, to demand a moratorium on executions. It’s a hopeless cause, in a state where more than two-thirds of the population supports capital punishment. But this year, in the case of Cameron Todd Willingham, abolitionists believe they have found a glaring miscarriage of justice that could tip the scales in their favour.

Former death row inmate Curtis McCarty, who spent more than a decade in jail for a murder he didn’t commit, led the march. “Even ardent supporters of capital punishment, when confronted with issues of innocence, tend to take a humanitarian position,” he said. “The Willingham case is bringing people together who can find common ground that it’s simply unacceptable to execute innocent people. It’s changed the tone of the conversation right across America.”

Willingham was convicted of murdering his three young daughters in a house fire, two days before Christmas in 1991. The most damning evidence came from arson investigator Manuel Vasquez, who testified that the blaze could only have been started deliberately. A jailhouse informant with a history of mental health problems said Willingham had confessed, and a forensic psychiatrist, later expelled from his professional association for misconduct, called him an “extremely severe sociopath” on the basis of his tattoos, heavy metal posters and charge sheet of petty crimes. The jury took less than an hour to find him guilty.
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Teacher Elizabeth Gilbert corresponded with Willingham for several years while he was on death row. As she gradually came to believe that he was innocent, she started campaigning on his behalf. A month before he was due to be executed, she persuaded world-renowned fire expert Dr Gerald Hurst to examine the evidence. Racing against time, he submitted a report to Texas Board Of Pardons And Paroles, demolishing the Vasquez testimony claim by claim. The petition was denied, as was a final appeal for clemency to the Governor, Rick Perry.

Willingham had turned down the offer of a life sentence in return for pleading guilty. He was executed by lethal injection on February 17, 2004.

Since then, nine prominent arson investigators have concluded that the prosecution’s case was fatally flawed. The latest analysis was commissioned by the Texas Forensic Science Commission. In his report, Craig Beyler wrote that fire marshals who testified at the trial seemed to be “wholly without any realistic understanding of fires and how fire injuries are created,” adding that their findings were “a collection of personal beliefs that have nothing to do with science-based fire investigation.”

The case has become a political issue in Texas, where Perry is up for re-election next year. Two days before Beyler was scheduled to present his report, the Governor installed a key ally, John Bradley, to head the commission. The hearing was postponed indefinitely. When this caused an outcry, Perry described Willingham as a “monster” who “tried to beat his wife into an abortion” before murdering his children.

Perry’s opponent in the Republican primary, Senator Kay Bailey Hutchison, has objected that this is a cover-up, although, as a true Texan, her gripe is that it provided ammunition to liberal opponents of capital punishment. “I think people who believe in the death penalty would want to know we are using the best technology in all the fields to determine if a person is rightfully convicted,” she said.

At yesterday’s march, Gilbert struck a note of wary optimism. “This has to be a catalyst, because whether you’re for or against the death penalty, this was definitely a miscarriage of justice,” she said. “I think this could be the change, but in the USA, not in Texas. We like vengeance down here. We like people to pay for their sins.”

Organiser Scott Cobb told me: “I’ve heard people say ‘well, maybe Todd Willingham was innocent. So what? The cost of having a death penalty and being able to execute people who’ve committed heinous murders of children is that occasionally you will execute an innocent person.’ That’s why this march is important because we have exonerated people here that would be dead if you followed this argument to its logical conclusion.”

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At least 130 men and women convicted of capital crimes have been freed before their sentence could be carried out. Supporters of the death penalty say this shows that the lengthy appeals process is an adequate safeguard. To McCarty, who was cleared when a forensic scientist was found to have falsified evidence, that is a disingenuous argument.

“Supporters of capital punishment are trying to streamline the appeals, saying it’ll be more effective if we hurry up and kill these men,” he said. “The men like me who spent decades on death row are an aberration. Most guys are executed fairly quickly. People get out in spite of the system, not because of the system.”

Whether Willingham’s case proves to be a turning point or not, it will almost certainly be too late to save British citizen Linda Carty, who was found guilty of killing the mother of a baby she abducted eight years ago in Houston. Her final appeal was rejected last month. She is scheduled to be executed early next year.

Abolitionists hope Willingham’s story will have a similar effect on public opinion as the Ten Rillington Place scandal in Britain, in which Timothy Evans was wrongly convicted of killing his wife, and hanged, only for John Christie to confess to the murder, along with several others. Evans was posthumously pardoned and the death penalty suspended.

Former Supreme Court judge Sandra Day O’Connor has said that the “execution of a legally and factually innocent person would be a constitutionally intolerable event.” Her conservative colleague, Justice Antonin Scalia, wrote that there has not been “a single case – not one – in which it is clear that a person was executed for a crime that he did not commit.” The burned out shell of Willingham’s house, in the small town of Corsicana, could be the beginning of the end of death row.

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