Willingham review is put on hold

Cameron Todd Willingham with one of his daughters

A three-judge pane representing the 3rd Court of Appeals in Austin has ordered Judge Charlie Baird to put an immediate stop to a hearing into the case of Cameron Todd Willingham. 

Here’s the good news: Judge Baird’s hearing concluded just before the order arrived.

Now the bad news: Judge Baird will not be able to hand down a formal ruling until the stay is lifted.

The hearing in Austin was a one-sided affair.  Navarro County District Attorney R. Lowell Thompson was asked to defend the forensic evidence he used to convict Willingham, but he declined to participate.  Instead, he filed a recusal motion arguing that Judge Baird had a conflict because he previously sat on an appeals court that upheld Willingham’s conviction (huh?) and had an obvious pro-defendant bias because he had received an award from a group opposed to the death penalty (come again,now?).

Not surprisingly, Judge Baird was unimpressed with Thompson’s arguments. 

Undeterred, the Navarro County DA filed a writ of mandamus asking for a stay in the Willingham inquiry.  Here he was successful.

Willingham’s ex-wife, Stacy Kuykendall, showed up outside Baird’s courtroom on Monday to assure reporters that, on the verge of his execution, her ex-husband confessed to her that he had killed their daughters.  Any parent can identify with the grief of a mother who lost three children in such a tragic way.  Ms. Kuykendall was asked to tell her story at the hearing, but she too declined.  It’s one thing to pour your heart out to a gaggle of reporters eager for a plaintive sound bite; it’s quite another thing to explain to opposing counsel why you have given contradictory accounts of Willingham’s alleged confession over the years.

A cynic might chalk up this increasingly bizarre to a constantly evolving debate over the death penalty.  Governor Rick Perry, perhaps the most enthusiastic proponent of capital punishment in the Union, remains convinced that Willingham is a monster.  Why, because he killed his own children.  And why does Perry believe Willingham is guilty when the conviction was based on now-discredited forensic science?  Because, like he said, Willingham is a monster. 

A long list of fire experts have debunked the forensic testimony presented at Willingham’s 1992 trial.  David Grann’s 17-page article in the New Yorker reduced the state’s case to a smoking heap of rubble.  Last week, Tarrant County Medical Examiner Nizam Peerwani (one of the men Rick Perry recently appointed to the state Forensic Science Commission) opined that none of the conclusions reached by the experts who testified at trial squared with the physical evidence.

At this week’s hearing in Judge Baird’s court, it was Florida fire expert John Lentini’s turn to trash trial testimony.  In 112, Manuel Vasquez told jurors that his team had twenty separate pieces of evidence proving that the fire at Willingham’s home was deliberately set.  Almost right.  According to Lentini, not a single shred of evidence suggests that the fire was an arson.

If you can’t prove arson, you can’t tie Willingham to the crime.  In fact, there is no crime.  Which means the state of Texas executed an innocent man.

None of this helps Cameron Todd Willingham, of course, but it should undermine public confidence in the criminal justice system. 

Ex-governor, Mark White, remains a staunch death penalty supporter (it would be difficult to find a politician in Texas, apart from Lon Burnham, who isn’t).  But White thinks capital punishment should be reserved for cases where evidence of guilt is overwhelming

Prosecutors are already following this advice, at least in theory.  But how do we define “overwhelming”?

Is the evidence against Hank Skinner overwhelming?  How about the evidence against Troy Davis?  What about Kelvin Kaigler, a Slidell, Louisiana resident convicted on the uncorroborated word of an inmate desperate for a plea deal, or Jace Washington, another young black male from Slidell convicted on the perjured testimony of a co-defendant who has since recanted his testimony.  Is the state’s case against these men overwhelming?

Of course, Kaigler and Washington are doing time in Angola, they aren’t on death row.  So perhaps we can resolve the problem by sending folks who might be innocent to prison while obviously guilty murderers get the needle.  Does that make sense?

If only it were that simple.

This evidentiary conundrum explains my interest in the case of Curtis Flowers.  Mr. Flowers, a mild-mannered gospel singer, doesn’t fit the killer m.o.  And yet he is accused of pumping a bullet into the heads of four innocent people at close range.  It sounds like a hired hit.  None of the family members of the victims were ever seriously questioned.  None of the state’s evidence comes close to the “overwhelming” standard, but they have so much of it.  Sure, the state’s key eye-witness was just convicted by the feds on fraud charges, but the state of Mississippi has eight more witnesses besides her.  There are huge problems with all these people; but doesn’t quantity trump quality?  Can we say that Mr. Flowers is guilty because nine people agreed to say they saw him walking to or from the scene of the crime.  Does it matter that all these people were either harassed by the police or offered a $30,000 reward?  How do you solve this equation? 

You see the problem.  Most murder cases are never solved due to insufficient evidence.  At the same time, most of the folks on death row are guilty as charged.  It’s the cases that fall into the intermediate category that should make us uneasy about the death penalty.  How do we distinguish between cases where the evidence of guilt is overwhelming, cases where the evidence is strong but a bit ambiguous, cases where the evidence is entirely circumstantial but there’s a lot of it, and cases where the case for innocence is as strong as the case for guilt?

There are no objective standards for making any of these distinctions.

If the alleged crime is bone-chilling and the evidence is ambiguous, what is a prosecutor supposed to do?  You can’t call it manslaughter–the crime is far too heinous for that.  If anyone deserves the death penalty it was the person who killed four good people at the Tardy Furniture store in Winona, Mississippi in 1996; but what if prosecutors got the wrong man?

Say you’re a juror.  The crime at bar is unspeakably horrible.  The evidence is circumstantial, but plentiful.  Are you really going to put the defendant back on the street just because the state’s case has some holes?  The authorities certainly think they have the actual killer, and they know their business.  Besides, your fellow jurors are all ready to convict, so . . .

It is commonly suggested that the Cameron Todd Willingham case has nothing to do with capital punishment.  I disagree.  The case is primarily about bad science in the courtroom, agreed.  But this is also a story about the ambiguity of evidence and the hard choices prosecutors and jurors are frequently forced to make.  There can be no certainty.  No matter what your decision, the consequences are catastrophic.  Guess wrong and the victim’s family watches a killer walk free; either that or an innocent man goes to his death. 

The criminal justice system is too fraught with ambiguity and guesswork to justify the death penalty.