On Saturday, February 20th, I participated in a lively event at the University of Texas in Austin sponsored by the Campaign to End the Death Penalty.  I thought you would be interested in this review from the CEDP website.  I didn’t have time to deliver the last few paragraphs of my talk in Austin, so here they are:

Most Americans don’t understand how the integrity of the criminal justice system is undermined by these abuses. Furthermore, they don’t want to learn. The recitation of statistics, while valuable for those already convinced, won’t change the folks on the other end of the ideological spectrum.

The new civil rights movement will be fueled by true stories rooted in actual cases as they unfold. We can no longer restrict our focus to judges and appeals courts; our target audience must be mainstream white America. Like it or not, these folks control public policy. If you can’t win over a sizable chunk of this group you cannot succeed.

We can raise money and motivate the faithful by pimping the culture war and repeating the usual talking points; but those who change America in the next decade will be the people who tell the best stories.

To tell stories you have to hit the streets and live with the hurt. It’s hard work. It calls for a high degree of social flexibility. It means living a heartbeat away from despair. It means making common cause with people who don’t think, believe or behave like we do. But if we’re looking for stories that can fundamentally alter the American debate, there is no other way.

Austin’s Tour Stop went great!

The Lynching Then, Lynching Now Tour came to Austin, Texas on February 20th. The event featured Alan Bean from Friends of Justice, a civil rights organization active in Texas, Louisiana and Mississippi. University of Texas Associate Professor Edmund Gordon participated as well. Dr. Gordon has been active in getting a new Department for African and African Diaspora Studies at UT. We also had Sandra Reed, mother of Texas death row prisoner Rodney Reed. And the event was rounded out by a live call in from Stanley Howard, a member of the Death Row 10 in Illinois, who is still in prison, despite his death sentence having been commuted.

Our event began with a workshop in the late afternoon, featuring Alan Bean and Lily Hughes of the CEDP. Over 40 people attended this workshop, which laid out in depth the history of racism, lynching and the death penalty in the US, and talked about the role racism still plays in the (in)justice system today. This session had a good amount of time for question and answer from the audience.

The evening panel featured all the speakers mentioned above. The speakers were very moving, especially Stanley Howard, who mesmerized the crowd during his live phone call. Dr. Bean also has many incredible stories of injustice to share. For anyone looking for a tour speaker, consider Alan Bean, because the work he is doing speaks directly to this issue and his way of sharing these stories and giving a call to action is powerful and persuasive.

After the event, many people commented that it was really different to hear race discussed so in depth and tied so concretely to the justice system – as one attendee said “you never hear frank discussions of racism these days”. Both Dr. Bean and Dr. Gordon commented on how President Obama has had to avoid overt discussion of racial problems, especially with the use of the death penalty and in the justice system. So folks really appreciated being able to talk at length about this issue.

Especially now, with the death penalty in Texas under constant fire, it is important for abolitionists to take on all aspects of what is wrong with our system and expose politicians, like our current governor Rick Perry, for their role in the continued shameful practice of death penalty, and in hiding the truth about who the justice system is targeting and why.

A great success in the “belly of the beast”, and we thank Alan Bean and all the speakers for participating in this important event.

In 1963 (about the year my father snapped this picture) Canada entered a long period of decline as a hockey power.  You can’t appreciate the chauvinistic excesses on display in Vancouver yesterday unless you grew up playing hockey on a frozen backyard rink.  The picture was taken in Yellowknife in the Canadian Northwest Territories.  It’s twenty below zero, my toes have turned to ice, snot is running down my face, the wind is in my teeth, and I’m in heaven.  Like I say, you had to be there. 

In 1963, I was listening to radio (we didn’t have television in Yellowknife) when the Trail Smoke Eaters lost to the Soviet Union.  Canada used to send real amateurs to international hockey competitions and the Soviets were virtual professionals who played for the Red Army. 

It wasn’t supposed to happen.  Hockey was our game, it defined us.  We weren’t just a sparsely populated British colony or a mouse sleeping next to the American elephant (as Prime Minister Pierre Trudeau once described our national plight); we were the greatest hockey players on earth.  We invented the game and we owned it.

I cried when the Smoke Eaters went down to defeat.  I cried because the kid in the picture is lost in fantasy.  It’s game 7 of the Stanley Cup final or the gold medal game at the Olympics and Bean breaks in on goal.  He shoots . . . he scores (as Foster Hewitt, the voice of Hockey Night in Canada, used to say).  And when Canada (or the Maple Leafs) won the big game, every Canadian kid who ever laced up a pair of skates imagined himself right there in the mad scrum with all the toothless heroes.  When Canadian teams started losing in international competition it was a blow to our national psyche.

Then Sidney Crosby took a poke pass and fired the puck into the net to give Canada an overtime victory over the United States.  Every true Canadian shared his elation.  Hockey was our game again.  We had our identity back.

I watched the game yesterday with my sons, Adam and Amos.  They were both born in Canada but grew up in the United States.  Like every good Canadian, I was behaving like a total idiot; moaning, gasping, wriggling and twitching.  When the Americans tied the game with 24 seconds on the clock I was devastated.  I prepared myself for the worst.  Then Crosby put the game on ice and I went dancing around the room (something Canadians rarely do). 

None of this makes a lot of sense, of course.  I knew it was foolish to invest my happiness in a bouncing puck I could not control.  Team USA could have won the game just as easily as Team Canada.  But there is nothing rational about Canadians and the game of hockey.  You inherit this national madness as a toddler and, for better or worse, it never lets you go. 

This morning I read a high-minded column by an American journalist lamenting the flag-waving chauvinism on display in Vancouver (he compared it to the 1936 Olympics in Berlin).  “The first Olympics I ever attended were also in Canada,” Gil Lebreton wrote, “the 1976 Summer Games in Montreal. For a kid not long out of college, it was a profound experience . . . one of the speakers at that Olympics used a phrase that lingers with me still: the family of man. There is no earthly event that reinforces that notion as well as an Olympic Games . . . It persists, despite the overwhelming chauvinism of the past two weeks. They showed us Canadian Games, all right. And in most cases, nothing but Canadian Games.”

How ironic to hear an American lecturing Canadians on the sin of national pride!

Of course, he’s right; but there is nothing specifically Canadian about pride of place.  The brotherhood of man is a grand notion.  It originated as the second clause of an ideal framed by social gospel theologians around the turn of the 20th century: “The fatherhood of God and the brotherhood of man.”  A marvellous concept.  In fact, for Americans, the brotherhood of man (or a less masculine equivalent) remains the only alternative to the dogma of American exceptionalism currently embodied by the Tea Party movement.  

The better angels of our nature dream of the brotherhood of man, but our deep emotional place (what Freud called the “id”)  is controlled by us-against-them visions of conquest and glory.  When these visions capture the rational and the emotional mind we’re in real trouble.  The 20th century was dominated by such demonic visions.  Martin Luther King and the Kennedy Brothers were martyrs to this ghastly vision, as were the untold millions slaughtered on the battlefields of Europe, Africa, Latin America and Asia.   Adolf Hitler was the walking embodiment of the “we’re number one” mentality.

Yesterday, I listened to a splendid sermon on loving our enemies.  Here’s Luke’s version of Jesus’ message:

If you love those who love you, what credit is that to you?  For even sinners love those who love them.  If you do good to those who do good to you, what credit is that to you?  For even sinners do the same.  If you lend to those from whom you hope to receive, what credit is that to you?  Even sinners lend to sinners, to receive as much again.  But love your enemies, do good, and lend, expecting nothing in return.  Your reward will be great, and you will be children of the Most High; for he is kind to the ungrateful and the wicked.  Be merciful, just as your Father is merciful.

What would the Olympics look like if all the athletes followed the advice of Jesus?  How would American foreign policy be altered if Barack Obama adopted a love-your-enemies mindset?  And, most importantly for this blog, how would our criminal justice system change if we took our lead from a merciful God who is kind to the ungrateful and the wicked?

We are not supposed to ask these questions, of course.  You can’t apply the radical values of Jesus to the world of real politic.  You can’t apply them to the business world, the political arena or even the push and shove of parish politics.  In fact, the non-violent, enemy-loving teaching of Jesus can’t be applied in a meaningful way to any human endeavor.  Human nature being what it is, you’d be crazy to expose the jugular like that.

That’s the whole idea.  Jesus wasn’t dishing out helpful hints for living life in the real world; he was introducing an entirely different mode of life rooted in the nature of God.  Jesus makes no sense unless we shift our attention away from the demon-haunted world of human nature to the pure heart of a loving and merciful God.  When Christians talk about being converted or born again, that’s what we have in mind.  At least, that’s what Jesus wanted us to have in mind. 

In reality, we incorporate Jesus and his God into our us-against-them fantasies.  God is on the side of the good and opposed to the bad.  We are good; they are bad.  Therefore, God is on our side. 

The criminal justice system is rooted in precisely this Manichean vision.  Love and mercy have nothing to do with what happens in our courts and prisons.

Does God give a damn who scored the winning goal yesterday?  Of course not.  Did God share my joy and relief when Sidney Crosby broke free from his check for a split second and fired a rubber disc into hockey immortality?  Maybe just a little bit.  In fact, I think God was celebrating right alongside Mr. Crosby, just as God would have been exulting with the American kid who could just as easily etched his name in the annals of sports legend, just as God was on the streets of New Orleans a few weeks back celebrating with the Saints fans. 

God knows our irrational and emotional sides.  God knows how badly we need to belong to something bigger than ourselves.  God knows that, at heart, we are all incurably selfish and that identifying with a regional entity can be a step in the right direction.  In a world crowded with outrageous fortune we need our little victories.  If a rubber puck crossing a red line in the ice can meld an entire nation into one glorious unit for a split second, God has no problem with that.  God made us this way, after all.

But God also knows how dangerous these can be.  So long as we admit the silliness of our celebrations–even as we are celebrating–we’re okay.  But how easily we slip inside the jaws of death and hell.  chauvinism can be fun; but it is always dangerous.  Canada, like the Katrina survivors in New Orleans, needed a confidence booster.  Don’t we all.  But our feeble attempts at self-glorification always look embarrassing, and more than a little scary, when viewed from the outside.  And God, let us remember, stands on the outside looking in.  God is the Other.  God will have no part of our domination fantasies or purity delusions.  In God’s eyes, we’re all just silly kids skating around the backyard ice rink dreaming of glory. 

Nothing wrong with that, but we were created for so much more.

 

This talk was given by Friends of Justice Director Alan Bean at a Restorative Justice Conference held at St. John the Apostle United Methodist Church, February 24th 2010.

The headline in the local paper nearly knocked me off my chair: “Tulia’s streets cleared of garbage.”  Forty-seven local “scumbags” had been arrested by dozens of Panhandle police officers.  These “known drug dealers”, the article said, were a “cancer on the community” and it was time for local juries to give them a little “chemotherapy behind bars.”

I didn’t know much about the “scumbags” in question and I suspected the newspaper editor didn’t either.  But they were children of God.  They were American citizens.

My wife and I were attending a Sunday school class dominated by retired farmers and agribusiness managers and when it was “prayer and share” time I shared my outrage about the “scumbag editorial” in the paper.

“They are scumbags!” the man across the table from me roared, molten rectitude smoldering in his eyes, “and they’re all going to jail.”

When a hog farmer named Joe Moore went to trial in December of 1999, we learned that all 132 indictments on 47 people rested on the uncorroborated word of a single police officer, Tom Coleman.  A few weeks later, we learned that Coleman had been arrested on theft charges in the middle of the 18-month operation, that he had been fired from every law enforcement job he ever held, that he had a reputation for racism, had once kidnapped his own children, and had left every town he ever worked in owing local merchants thousands of dollars. 

Those of us who didn’t like what was happening had a tough decision to make.  Either we ignored what was happening around me or we dedicated our lives to fighting it—there was no middle ground. 

 Several months after we started our struggle for justice, my wife Nancy and I took three children into our home: Kayla, La Kendra and Laramie.  Their mother and step-father were both in Texas prisons for selling drugs to Tom Coleman.  One evening, I saw six-year-old Kayla hurling little Lego people into a windowless Lego-room.  “What are you doing?” I asked.

“They’s all goin’ to jail,” Kayla replied.

“And why is that?” I queried.

“Cause they’s bad.”

“What did they do?” I asked.

Kayla tossed another Lego person into her Lego-box as if to make a point.  “They’s just bad,” she said.

Imagine that you are seven years old and half the people in your social world suddenly disappear behind bars.  You either conclude that folks are getting what they deserve, or you abandon hope.  You can’t deal with the thought that the authorities aren’t there to protect you and people like you.  That’s too threatening for a six year-old.

If you lived in Tulia it was impossible to think and speak clearly without committing social suicide.  Tulia was typical.  People of faith are called to live outside the parameters of the possible, but it takes a kind of miracle to make it happen.

Eventually, we were able to attract media attention and world class legal talent to the cause, Tom Coleman was convicted of aggravated perjury, Governor Perry pardoned the defendants and the city of Amarillo paid them $6 million.

I am currently working on the case of Curtis Flowers, a black resident of Winona Mississippi accused of killing four people in a local furniture store in 1996.  In June of this year, Curtis will go to trial for an unprecedented sixth time.  The first three trials were overturned by sustained charges of prosecutorial misconduct or ended in hung juries.

Now state Senator Lydia Chassaniol, a resident of Winona, is pushing a bill that will allow prosecutors to expand the jury pool into neighboring counties.  Her bill sailed through the Senate with the vast majority of white senators voting yea and all but one black senator voting nay. 

What created this profound perception gap between black and white citizens of Mississippi?

A short history lesson.  In 1963, Fannie Lou Hamer and several other civil rights activists were arrested at the Trailways depot in Winona when they tried to eat at an all-white diner.  A few hours later, Hamer was beaten half to death by two black inmates working under the supervision of Sheriff Earl Wayne Patridge and his deputies.  When Bobby Kennedy’s Department of Justice tried to prosecute the officers responsible for assaulting Ms. Hamer and her friends, not a single district attorney in the state of Mississippi would take the case.

In 1963, when the Mississippi criminal justice system was for whites only, Senator Lydia Chassaniol was attending Winona’s all-white public schools.  Like little Kayla in Tulia, she was too young to discern right from wrong so she took her cues from her elders. By the time Ms. Chassaniol graduated from Ole Miss with a degree in education, little segregation academies were popping up all over the state.  She spent several decades teaching in Winona’s all-white private school (now called a “Christian” school) then went into politics.

When Trent Lott was associated with an overtly racist organization called the Council of Conservative Citizens, his political career was over.  This summer, when Lydia Chassaniol admitted that she belonged to the same ardently racist organization no one in Mississippi was surprised or seemed to care. 

Lydia Chassaniol was born into a culture committed to the principle of white supremacy, a commitment that has never been rescinded.  Like most of us, she lives and works within social parameters she did not create and for which she is not personally responsible.

A few years ago, Mark Peffley with the University of Kentucky and Jon Hurwitz of the University of Pittsburgh asked 600 white adults and 600 black adults if they believed the death penalty should be an option for people convicted of premeditated murder.  65% of the white folks thought it should be compared to 50% of the black participants.

Then each participant was read a statement: “Some people say that the death penalty is unfair because most of the people who are executed are African Americans.” Black support for the death penalty fell by 12 percentage points, but this argument increased white support by 12 percentage points, from 65% to 77%.

The researchers concluded that “Many whites begin with the belief that the reason blacks are punished is because they deserve it, not because the system is racially biased against them.  So when these whites are confronted with an argument against the death penalty that is based on race, they reject these arguments with such force that they end up expressing more support for the death penalty than when no argument is presented at all.”

There is a strong relationship between support for the death penalty and civil rights resentment. 

During the glory days of the civil rights movement, support for the death penalty plunged from 68% in 1953 to a record low of 42% in 1966.  Then widespread rioting, the rise of the black power movement and agitation over the war in Vietnam created a powerful backlash against the civil rights movement.  By 1994, support for the death penalty had soared to an unprecedented 80%.

There was more involved than resurgent racism, however.  During this period, bipartisan support for neo-liberal economics created an ever-expanding gulf between the wealthy (who were doing better all the time) and the poor (who were being negatively impacted by globalization, and the shift of manufacturing from inner cities to the suburbs).

Between 1983 and 1998, average household net worth increased by 25% for families in the upper 40% of income.  For families in the bottom 40%, household net worth dropped by 76%.

This widening disparity created a crisis of conscience for those at the positive end of the continuum.  It was in this context that British Prime Minister Margaret Thatcher made an amazing claim.  “There is no such thing as society,” she said.  “There are individual men and women, and there are families. And no government can do anything except through people, and people must look to themselves first.”

Skyrocketing crime rates in the eighties and early nineties encouraged this fixation on personal responsibility.  The crack epidemic hit America’s poorest neighborhoods like a sledgehammer.  Competition among street dealers for market share sent the homicide rate into the stratosphere and property crime perpetrated by desperate addicts swelled the overall crime rate. 

Murder rates for white males showed little fluctuation during this period, and rates for black males over 25 fell dramatically. But for black males 24 and younger, the homicide rate almost tripled.  Anyone who seemed to be making excuses for “the thugs” was shouted down. 

These conditions created a perfect storm for tough on crime politicians.  The Texas prison population soared from 39,000 in 1988 to 151,000 in 1998—an increase of 387%.  Mass incarceration became the order of the day and every little rural community in Texas had its own prison. 

But there were problems.  Mass incarceration encouraged prosecutors and judges to avoid the time and expense of jury trials.  Asked to choose between a virtual life sentence if convicted at trial and a plea offer of five or ten years, most defendants took the plea. 

Unfortunately, these tough bargaining techniques worked just as well with the innocent as with the guilty.  In recent years, improvements in DNA testing have reversed over 250 felony convictions.  If these cases are representative, African-American defendants are more than 12 times as likely to be wrongfully convicted as white defendants.

As rehab centers and mental hospitals downsized or closed their doors, prisons were flooded with folks whose major problem was a chemical dependency, mental illness, or a severe learning disability.  Eventually, the crack epidemic ended and crime rates returned to normal levels, but the mills of mass incarceration continue to grind.

What we see, what we think and what we say is usually defined by the parameters of the possible.  Too often, the price of peace is silence.  When Jesus considered his social world, God’s words to Isaiah came to mind:

This people’s heart has grown dull,

and their ears are hard of hearing,

and they have shut their eyes;

so that they might not look with their eyes,

and listen with their ears,

and understand with their heart and turn—so I could heal them.

I am not asking you to accept my analysis of our shared history, nor am I challenging you to see things as I see them.  But if you are a person of faith, I ask you to pray for the grace to see what only Jesus can see, to think the unsearchable thoughts of the Spirit and to echo the unspeakable words of a just and loving God.

This compelling story in the New York Times slipped past me.  I was on the road in Louisiana for eight days and didn’t have the luxury of surfing the net.  Non-DNA exoneration is becoming the primary focus of the criminal justice reform movement.   For one thing, we are rapidly running out of testable DNA.  Jeff Blackburn with the Innocence Project of Texas believes that good DNA cases will be difficult to find within a year.  Barry Scheck, director of a national Innocence Project, thinks good cases will be available for another decade if advocates are willing to move beyond their own backyards. 

The truth, I suspect, lies somewhere in between these perspectives.  The DNA-exoneration phenomenon will slow from a torrent to a trickle over the next five years, then fade from view altogether.  

The Times article focuses on Plan B, non-DNA exoneration projects that build on the foundation established by DNA exonerations.  “Criminal justice experts say exonerations have shed light on two circumstances once thought to be extremely rare or even inconceivable: Witnesses are sometimes wrong, and people sometimes confess to crimes they did not commit.”

But why do witnesses get it wrong, and why do people sign false confessions?  The article doesn’t get into that, so I’ll give you a quick run-down.  More often than not, it is because witnesses feel pressured by investigators and prosecutors.  Weak-minded people who have been badgered for hours will often sign whatever is placed in front of them just to make the ordeal stop. 

As we have seen, inmates facing virtual life sentences will admit to almost anything if there is a dramatic time cut on the table. 

Tragically, even well-intentioned witnesses get it wrong.  An excessive eagerness to help the prosecution, especially in cases involving horrifying violence, prompts witnesses to remember whatever the authorities need them to remember. 

Memory isn’t like a snap shot or a video reconstruction of an actual event.  We remember scattered impressions which the mind weaves into a coherent narrative.  Memories are thus subject to suggestion and manipulation.  Let a witness know the right answer and the mind works overtime to produce a memory consistent with that answer.  As the face of the perp du jour becomes firmly imbedded in the mind witness confidence grows.  Witnesses no longer remember the actual event; they remember an artificial reconstruction of the event shaped by suggestion.

The Times article notes that non-DNA exoneration projects are rare.  In New York State, for example, not a single innocence project focuses on non-DNA cases.  The reason is obvious.  “Cases that lack what many call the “magic bullet” of DNA often require cumbersome investigations, including finding and re-interviewing witnesses or poring over thick files to find anything vital that a trial lawyer might have missed. Even when crucial evidence is uncovered — witness recantations or exculpatory statements that were ignored by prosecutors — judges, juries and prosecutors often treat it with skepticism.”

One compelling case of non-DNA exoneration, the article notes, “came six years after a panel of federal judges, having considered much of the same evidence, ruled that though it had ‘a nagging suspicion that the wrong man may have been convicted of capital murder,’ it could not overturn the conviction of the man, Darryl Burton, because of numerous procedural impediments.

Those working for non-DNA exonerations work to change the judicial culture.  The Times article highlights the work of Dallas County DA, Craig Watkins.  Unlike his infamous predecessor, Henry Wade, Watkins believes that “The duty of the district attorney is to seek justice.  Justice means we right the wrongs of the past.”

If every DA operated out of that philosophy there would be no need for groups like Friends of Justice.  We focus on jurisdictions where a very different prosecutorial mindset prevails.  Our challenge is to alert the public to what is happening, and we do that by allowing normal folks to peer behind the smoke and mirror show presented at trial to the process of manipulation and intentional distortion that all too often passes for an investigation.

Investigation is part of that process–that’s why I spend so much time on the road.  But getting the facts straight is only part of the process.  Locating the wrongfully accused and wrongfully convicted in space and time is also part of the story.  Who are these people, we ask, and how did they get caught up in the machinery of wrongful conviction?  We introduce you to the family and friends of the wrongfully accused.  We talk about the history of a particular jurisdiction and the unique culture at work in the courtroom.  We try to get the mainstream and alternative media to ask the right questions and pursue the right answers. 

Work this narrative strategy long and hard enough and the truth breaks free. 

The Times article ends with a disturbing quote from Daniel S. Medwed, a professor at the University of Utah who studies wrongful convictions: “One thing we’ve learned by studying these cases and litigating these cases is it could really happen to anybody. Nobody is immune.”

That’s kind of true and kind of misleading.  DNA exonerations suggest that wrongful conviction impacts people of color to a grossly disproportionate degree.  According to the Innocence Project, the 249 people exonerated on the basis of DNA included 150 African Americans,71 Caucasians, 21 Latinos, 2 Asian American and 5 whose race is unknown.  Poor people, the unemployed and underemployed, and folks with a history of drug dependency are also at heightened risk. 

Hopefully, future articles on the exoneration issue will pay more attention to the racial dynamics at work in these cases.

This in-depth report in the New York Times Magazine asks just how Christian America’s founding fathers really were.  It’s an important question in the Lone Star State where the religious right is pushing the idea that America is a Christian nation founded by evangelical Christians for evangelical Christians.  Below, I have pasted a few quotations that recreate the gist of Russell Shorto’s ten-page article, but I encourage you to read the entire piece.  My own (highly unorthodox) take on the debate follows. 

Christian conservatives contend that Christianity has been written out of the public school curriculum:

Some conservatives claim that earlier generations of textbooks were frank in promoting America as a Christian nation. It might be more accurate to say that textbooks of previous eras portrayed leaders as generally noble, with strong personal narratives, undergirded by faith and patriotism. As Frances FitzGerald showed in her groundbreaking 1979 book “America Revised,” if there is one thing to be said about American-history textbooks through the ages it is that the narrative of the past is consistently reshaped by present-day forces. Maybe the most striking thing about current history textbooks is that they have lost a controlling narrative. America is no longer portrayed as one thing, one people, but rather a hodgepodge of issues and minorities, forces and struggles. If it were possible to cast the concerns of the Christian conservatives into secular terms, it might be said that they find this lack of a through line and purpose to be disturbing and dangerous.

Folks like Texas State Board of Education member Mark McLeroy place great emphasis on the founding documents of states like Connecticut and Massachusetts which were founded as unabashed Christian utopias.

Merely weaving important religious trends and events into the narrative of American history is not what the Christian bloc on the Texas board has pushed for in revising its guidelines. Many of the points that have been incorporated into the guidelines or that have been advanced by board members and their expert advisers slant toward portraying America as having a divinely preordained mission. In the guidelines — which will be subjected to further amendments in March and then in May — eighth-grade history students are asked to “analyze the importance of the Mayflower Compact, the Fundamental Orders of Connecticut and the Virginia House of Burgesses to the growth of representative government.” Such early colonial texts have long been included in survey courses, but why focus on these in particular? The Fundamental Orders of Connecticut declare that the state was founded “to maintain and preserve the liberty and purity of the Gospel of our Lord Jesus.” The language in the Mayflower Compact — a document that McLeroy and several others involved in the Texas process are especially fond of — describes the Pilgrims’ journey as being “for the Glory of God and advancement of the Christian Faith” and thus instills the idea that America was founded as a project for the spread of Christianity. In a book she wrote two years ago, Cynthia Dunbar, a board member, could not have been more explicit about this being the reason for the Mayflower Compact’s inclusion in textbooks; she quoted the document and then said, “This is undeniably our past, and it clearly delineates us as a nation intended to be emphatically Christian.”

The religious right wants American school children to see themselves as God’s chosen instument, a city set upon a hill.

One recurring theme during the process of revising the social-studies guidelines was the desire of the board to stress the concept of American exceptionalism, and the Christian bloc has repeatedly emphasized that Christianity should be portrayed as the driving force behind what makes America great. Peter Marshall is himself the author of a series of books that recount American history with a strong Christian focus and that have been staples in Christian schools since the first one was published in 1977. (He told me that they have sold more than a million copies.) In these history books, he employs a decidedly unhistorical tone in which the guiding hand of Providence shapes America’s story, starting with the voyage of Christopher Columbus. “Columbus’s heart belonged to God,” he assures his readers, and he notes that a particular event in the explorer’s life “marked the turning point of God’s plan to use Columbus to raise the curtain on His new Promised Land.”

The concept of the “separation of church and state” lies at the heart of the current debate.  Christian conservatives reject the idea as a dangerous heresy. 

If the fight between the “Christian nation” advocates and mainstream thinkers could be focused onto a single element, it would be the “wall of separation” phrase. Christian thinkers like to point out that it does not appear in the Constitution, nor in any other legal document — letters that presidents write to their supporters are not legal decrees. Besides which, after the phrase left Jefferson’s pen it more or less disappeared for a century and a half — until Justice Hugo Black of the Supreme Court dug it out of history’s dustbin in 1947. It then slowly worked its way into the American lexicon and American life, helping to subtly mold the way we think about religion in society. To conservative Christians, there is no separation of church and state, and there never was. The concept, they say, is a modern secular fiction. There is no legal justification, therefore, for disallowing crucifixes in government buildings or school prayer.

Mainstream scholars disagree, sometimes vehemently. Randall Balmer, a professor of American religious history at Barnard College and writer of the documentary “Crusade: The Life of Billy Graham,” told me: “David Barton has been out there spreading this lie, frankly, that the founders intended America to be a Christian nation. He’s been very effective. But the logic is utterly screwy. He says the phrase ‘separation of church and state’ is not in the Constitution. He’s right about that. But to make that argument work you would have to argue that the phrase is not an accurate summation of the First Amendment. And Thomas Jefferson, who penned it, thought it was.”

Historians argue that the founding fathers were intellectual hybrids who had been influenced by both traditional Christianity and a rational worldview called “Deism”, then popular in Europe, that rejected most of the claims of “revealed” religion.  The Deist God created the world and set it in motion, but has little interest in political affairs and no master plan for individual humans or the human race.

In fact, the founders were rooted in Christianity — they were inheritors of the entire European Christian tradition — and at the same time they were steeped in an Enlightenment rationalism that was, if not opposed to religion, determined to establish separate spheres for faith and reason. “I don’t think the founders would have said they were applying Christian principles to government,” says Richard Brookhiser, the conservative columnist and author of books on Alexander Hamilton, Gouverneur Morris and George Washington. “What they said was ‘the laws of nature and nature’s God.’ They didn’t say, ‘We put our faith in Jesus Christ.’ ” Martin Marty says: “They had to invent a new, broad way. Washington, in his writings, makes scores of different references to God, but not one is biblical. He talks instead about a ‘Grand Architect,’ deliberately avoiding the Christian terms, because it had to be a religious language that was accessible to all people.”

The curious thing is that in trying to bring God into the Constitution, the activists — who say their goal is to follow the original intent of the founders — are ignoring the fact that the founders explicitly avoided religious language in that document.

The folks who are injecting a religious vision into Texan textbooks know they enjoy widespread public support.

Americans tell pollsters they support separation of church and state, but then again 65 percent of respondents to a 2007 survey by the First Amendment Center agreed with the statement that “the nation’s founders intended the United States to be a Christian nation,” and 55 percent said they believed the Constitution actually established the country as a Christian nation. The Christian activists are aware of such statistics and want to build on them . . .

The article hints that religion, per se, may not be the controlling issue in this debate.  Consider this:

“BROWN BEAR, BROWN BEAR, What Do You See?” It’s not an especially subversive-sounding title, but the author of this 1967 children’s picture book, Bill Martin Jr., lost his place in the Texas social-studies guidelines at last month’s board meeting due to what was thought to be un-American activity — to be precise, “very strong critiques of capitalism and the American system.” Martin, the creator of 300 children’s books, was removed from the list of cultural figures approved for study by third graders in the blizzard of amendments offered by board members.

I wish Shorto had chosen to elaborate on this theme.  Conservative revisionists embrace a worldview organized around the semi-divine status of the free market.  America, to this way of thinking, was created and commissioned to share the gospel of free market capitalism to a lost and benighted world.  America is a chosen and exceptional nation because she keeps the corrupting hands of government off the free market.  Americans are blessed when they adhere to free market orthodoxy and punished when they stray into the thickets of socialistic reform. 

It is very difficult to find a place for the Jesus of the New Testament in free market fundamentalism, of course.  The itinerant preacher and healer who had nowhere to lay his head has his adherents in the great state of Texas, but they aren’t the folks calling the shots in Austin.  The true religion of America is the power of positive thinking, a doctrine deeply rooted in the tenets of free market fundamentalism.  Here’s how it works.  If you conform to the dictates of the market (get a marketable college degree, enter a hot field and work hard) you will be blessed.  Sure, there will be a little turbulence along the way (such as the current turmoil on Wall Street), but the free market will bless you in the long run.  This is God’s way in the world.

The downside to this doctrine is troubling.  If you refuse to conform to the dictates of the free market (you fail to obtain a marketable degree, you can’t find a place in the job market, and you don’t work hard) the markets will punish you.  You may get by okay for a short while, but the wheels will inevitably come off.  This reality check is designed to teach you the error of your ways and call you back to the dictates of the free market.

Socialist reformers (and in this view, all reformers are socialists) damage the po0r by softening the market’s proper punishment.  When we help the poor, the reasoning goes, they will never learn the error of their ways.

How does free market fundamentalism impact the criminal justice system?  It’s simple.  Positive thinkers who live in accordance with free market principles are true Americans (also known as “Real Americans”); losers who skirt the harsh realities of the free market have rejected their birthright as free Americans and forfeit the constitutional protections that citizenship confers.  Poverty is unAmerican.  When a poor man is arrested he is guilty by definition.  He may be innocent of the alleged crime, but he is guilty of flouting the God-ordained principles on which this great nation was founded.  Otherwise he wouldn’t be poor.  If he can’t afford to hire a lawyer, that’s as it should be.  When he dies, the fires of hell will provide a fitting postscript to a ruined life.

Free market fundamentalism is the sworn enemy of grace.  Grace is for Americans only.  The statement “God is love” cannot be squared with this religious vision.  God is love if you are a Real American who shows his faith in Jesus by trusting in the free market system.  No one else need apply.

I am giving you the blunt, uncut version of free market fundamentalism, something you rarely see in print.  I am intimately acquainted with this religion because I have spent thousands of hours in evangelical Sunday school classes (where the dictates of free market fundamentalism were cobbled together free from biblical constraint) and because I have spent the past ten years immersed in the ruthless rhythms of the criminal justice system. 

The American justice system, in theory, is a marvel.  The gap between theory and reality is created by the heartless doctrine described above. 

I was a bit annoyed by Russell Shorto’s tendency to describe the Christian Right as representatives of the “Christian” position.  Shorto knows that mainstream church historians are harsh critics of the Texan campaign to inject a peculiar version of “Christianity” into the textbooks of Texas (and the 46 other states that follow the Lone Star state’s lead when purchasing textbooks).  The Religious Right may speak for Texas (that remains to be seen); but they don’t speak for Jesus and they don’t speak for me.

As the article posted below suggests, the “Flowers bill” designed to expand the jury pool from a single county to a five-county district has passed by a comfortable margin.  

There are several pertinent facts this article mention.   First, among white senators the bill passed 33-4; among black senators it was rejected 11-1.  This suggests that the racial divide so evident in Winona and Montgomery County is reflected in the Mississippi Senate.

Secondly, the article doesn’t mention that the bill’s sponsor, Senator Lydia Chassaniol (R-Winona) is a proud member of the Council of Conservative Citizens and addressed the groups’ state convention in Jackson last June.  The picture to the left is taken from a brief report on the Jackson event on a white supremicist site called Stormfront.org.  Under the picture you will find a charming quotation from the late-great Charles Lingbergh that nicely sums up the CCC attitude toward diversity: “We can have peace and security only as long as we band together to preserve that most priceless possession, our inheritance of European blood, only so long as we guard ourselves against dilution by foreign races. It is time to turn from our quarrels and to build our White ramparts again. This alliance with foreign races means nothing but death to us. It is our turn to guard our heritage . . . before we become engulfed in a limitless foreign sea.”

In the comments box below the Linburgh screed there is an endearing comment from a person who attended the CCC conference.  “During the supper break, I rode over to a KFC just up the street. While there I was approached by one, then another scuzzy looking hood rats asking: “Hey man, ya got any spare change?” Prompting me both times to snarl out a definate NO. Upon reflection, I think that I should have at least tried to have a little by by having the bros earn their chump change by doing something such as crawl around & squeel like a pig.”

These people aren’t subtle, folks. 

Lydia Chassaniol would have you believe that the Council of Conservative Citizens is just a group of well-intentioned school-boosters.  The Mississippi media must buy this explanation because Miss Lydia’s link to the CCC has sparked little negative publicity.   

Or could it just be that, in a state with a traumatic racial history, references to gross racism in high places is considered indelicate?

Chassaniol’s bill, if it becomes law, could create a slight uptick in the number of white jurors serving on Curtis Flower’s next jury, but that is a secondary issue.  In the fourth of five trials in this amazing saga, five black jurors voted to acquit while all seven white jurors voted to convict.  This was the only Flowers trial in which African-American representation on the jury rose to the one-third level that many experts cite as the point at which minority jurors begin to take their cues from one another instead of the majority group. 

But the real issue in Winona is familiarity with the social facts apart from which this case cannot be understood.  Black residents in Winona associate the Flowers family (Curtis included) with gospel singing and church life.  In addition, black jurors are in a much better position to evaluate the credibility of the largely black witnesses the state is using in this case.  On the black side of Winona, these folks aren’t generally taken seriously.  White jurors, on the other hand, easily buy the state’s portrayal of Flowers and don’t know enough about the witnesses to judge their credibility.  We are talking about witnesses who had no information until police officers showed up offering a $30,000 reward for anyone who remembered seeing Curtis Flowers on the day of the Tardy murders. 

If folks from outside Montgomery County dominate the next jury pool it will be much easier for the prosecution to sell its theory of the crime.  American defendants, in theory at least, have a right to be tried by a jury of their peers.  The Chassaniol bill denies that right to Curtis Flowers.

February 4, 2010

Slayings trigger jury pool expansion bill

The Associated Press

Mississippi lawmakers are considering a bill that could have an impact on the long-running capital murder case of a Montgomery County man accused of killing four people at a furniture store nearly 15 years ago.

Curtis Flowers is set to be tried a sixth time later this year for the 1996 murders at Tardy Furniture store in Winona.

The case has nearly depleted Montgomery County’s jury pool, and is one of the reason legislators have been asked to approve a proposal to expand the area from which jurors are selected, said Circuit Court Lanelle Martin.

The Senate on Wednesday approved a bill that would allow counties to pull prospective jurors from an entire multicounty circuit district. Currently, jurors are sought from the county in which the crime occurred.

Flowers is charged with capital murder in the shooting deaths of Winona furniture store owner Bertha Tardy, 59; store employees Derrick “BoBo” Stewart, 16, and Carmen Rigby, 45; and delivery man Robert Golden, 42.

Flowers has had three trials in Winona, one in Tupelo and one in Biloxi. Two resulted in mistrials and three in convictions that were later overturned. Prosecutors have said they will seek the death penalty in the trial scheduled for June at the Montgomery County Courthouse.

Martin said the county has fewer than 8,000 registered voters. The jury pool shrinks with the exclusion of those who choose not to serve and anyone who’s under the age of 21.

“You’re depleting the pool even more with relatives of the victims and relatives of the defendants,” she said. “That is one of the things that brought that bill on.”

Senate Judiciary A Committee Chairman Joey Fillingane, R-Sumrall, said Montgomery County has spent $300,000 on the case so far. He said the costs are higher when the case is heard outside the county.

Sen. David Jordan, D-Greenwood, and Sen. Johnnie Walls, D-Greenville, opposed the measure.

Walls said there’s already a mechanism in place to ensure defendants are treated fairly because judges can order that the cases be heard outside of the county in other areas of the state.

“The biggest problem I see is that we’ve been asked to do it because of one case because a person could not be convicted in the way the prosecution wanted the case to go,” Walls said. “They seem to be trying to get a special consideration for this case.”

Walls said the proposal would have statewide implications even though it’s been filed for only one situation. A similar bill filed last year passed the Senate, but was killed in the House.

Jordan said he’s concerned about limiting the potential of placing blacks on the jury in Flowers’ case. Flowers is black. Three of his victims were white. One was black.

Jordan said if the entire district is considered, jurors from Carroll and Grenada counties could be pooled. He said those areas have a small black population.

Census figures show Montgomery County has a 46 percent black population. The other counties in the circuit court district and their black population percentages are: Carroll County with 35 percent; Grenada County with about 42 percent; Webster County with about 21 percent; Attala County with 41 percent; Choctaw County with 31 percent and Winston County with 45 percent.

“For some reason, New Orleans chooses to coddle criminals in that area that tend to get away with a great deal,” Strain told a local news reporter while the camera rolled.  “We will not coddle that trash in St. Tammany Parish. If they come to St. Tammany Parish, we’re gonna pursue them, we’re gonna arrest them, our prosecutors are gonna prosecute them, and our judges are gonna convict them.”  

Technically, of course, judges don’t do the convicting unless you waive your right to a jury–but, no matter.  The Sheriff was just getting warmed up.

“If you’re gonna walk the streets of St. Tammany Parish with dreadlocks and chee wee hairstyles, then you can expect to be getting a visit from a sheriff’s deputy,” Strain advised.  “You can guarantee that things that you got away with in the city will not be tolerated in this Parish.”

Strain’s anti-dreadlock rant quickly caught the attention of advocacy groupls. “As you are no doubt aware,” the ACLU’s Katie Schwartzmann wrote in a letter of formal protest, “the vast majority of persons wearing dreadlocks, twists or braids are African American. Your stated policy of targeting persons with these hairstyles is overtly racist and we request a retraction stating that you will comply with the requirements of the law.”  Furthermore, Schwartzmann noted, “Your comments routinely equate ‘trash’ and ‘thugs’ with ‘evacuees’ and ‘public housing residents.’ It is neither fair nor accurate to intimate that all New Orleans evacuees are thugs and criminals.”

Sheriff Jack was unrepentant.  His comments about folks in dreadlocks were inspired by a horrific quadruple murder that has just taken place in the Tammany Parish town of Slidell, and Strain was certain that trashy people from New Orleans were responsible.

That explanation satisfied Britt Hume of Fox News and the Jack Strain controversy receded rapidly.

While it is difficult to understand how context sanitizes such a god-awful screed, Strain was right about the murder investigation.  On June 27, 2006, short days before Strain’s bigoted Jeremiad, known heroin dealer Roxann Agoglia, her daughter Erika Agoglia,  Andrew Perreand and his uncle, Eric Perreand, had all been found murdered, execution style in a Slidell trailer park.  All the victims were white.

A young girl who had survived by hiding in a bedroom reported that the assailants were two black men, one with short hair, the other sporting dreadlocks and a tattoo on his arm.

Anthony “Tiger” Schwankhart, a neighbor who lived across the street from Roxann Agoglia’s trailer, told police that two black men left the car engine running and the doors open when they entered the home.  They then raced back to the vehicle and raced from the scene.

Progress on the case was slow.  Police claim they conducted hundreds if not thousands of interviews with drug dealers and street hustlers of every description, but their hard work failed to generate leads.

In retrospect, there is little doubt that Jack Strain was thinking of the dreadlocked murderer his deputies were searching for when he made his revealing comments about New Orleans trash.  In fact, Strain had a special word for anyone interested in defending the eventual suspects in the case.  “I know you have some slick lawyers on both sides of the Lake (Pontchartrain),” the Sheriff observed, “who make a tremendous living off of getting these people out of jail. We’ve proven in this Parish that’s it’s pretty difficult challenge for them to make a good livin’ (defense attorneys, that is). My personal opinion is that’s the first people we should put on a rail and get out of here.”

In July of 2007, over a year after the quadruple murders in Slidell, state trooper Gustave Bethea (a former Tammany Parish deputy) had an intriguing chat with Frank Knight, a habitual criminal with a long string of drug-related convictions.  Bethea figured that a street hustler like Knight might have an interesting story to impart.  It didn’t hurt that the notorious drug dealer was looking at a virtual life sentence (60 years, hard time) as a repeat offender. 

Sure enough, Knight had a story.  He hadn’t pulled the trigger of course (everybody knew the killers were black guys), but he was sitting in the back seat of James “Scarface” Bishop’s Honda Accord when the deal went down.  It was Bishop and Kelvin “Dreads” Kaigler that did the shooting.

On August 2, 2007, Kelvin Kaigler was arrested while vacationing with his family.  Jack Strain told reporters that Kaigler opened the motel door and surrendered without incident. 

Two and a half years would pass before District Attorney Walter Reed (not to be mistaken for Jena’s Reed Walters) had the case ready for trial.  In mid-January, 2010, a Tammany Parish jury found Kelvin Kaigler and James Bishop guilty on all four murder counts.  The jury wasn’t unanimous, but in Louisiana the state needs only eleven cooperative jurors to convict.

“The evidence in this case was centered around the admissions of one of the perpetrators, Frank Knight,” Assistant DA Rick Wood told reporters shortly after the verdict was announced.  “The jury was satisfied with his testimony, and we believe he was credible and truthful during his two hours on the witness stand.”

 But what was it about Frank Knight that so impressed eleven jurors?  He repeatedly failed to get his story straight, changing the color of the car and the time of day the shooting took place. 

Besides, investigators were well aware that a reputed drug dealer named Michael Coates had a tattoo on his arm and wore his hair in dreadlocks.  Reportedly, Coates shaved the dreads the day after the quadruple murders.  Local officials showed no interest in Coates–they already had Kaigler.

According to Martin Regan, Kelvin Kaigler’s silver-haired attorney, the case comes down to simple self-interest.  Frank Knight faced a simple choice: a lifetime in prison or few years behind bars.  Knight accepted a fifteen-year plea bargain that made him eligible for parole after half that time elapsed.  Moreover, the man had already served two and a half years, so he would be back on the streets in less than five years. 

All Knight had to do was admit to being an accessory after the fact and a lifetime of incarceration disappeared.  

Anthony “Tiger” Schwankhart told the jury that he saw the car parked across the street from the murder scene with the doors wide open and there was no white man in the back seat.  Nobody took poor Tiger seriously.  Police had discovered that their inconvenient witness had a history of mental illness and had bullied him into silence.  Prior to trial, Schwankhart signed a statement admitting that he sometimes makes things up.  At trial he was back to his original story, but no one was listening. 

As usual, the regional media swallowed the prosecution story–the alternative is too disturbing.  Consider this comment from Benjamin Alexander-Bloch of the New Orleans Times-Picayune: “While Regan threw punches with his black and blue markers, holding one or the other in his right hand, like a gun, ready at a moment’s notice to scurry to an easel and shoot, Bishop’s attorney John Lindner largely stayed in his corner, taking a silence-is-golden approach. Regan has an impressive record with New Orleans juries, but several local defense attorneys filtering in and out of courtroom’s gallery questioned whether north shore jurors will take offense to such intense grilling of St. Tammany’s boys in blue.”

This bit from a Times-Picayune story drips with pro-prosecution bias.  “Both admitted Slidell drug dealers, Kaigler and Bishop were largely convicted through their co-perpetrator’s testimony, Frank Knight, 33, who cut a plea agreement a week before the seven-day trial.”

First of all, Kelvin Kaigler has never admitted to being “a  Slidell drug dealer”; he has admitted using drugs–a fact that hardly distinguishes him from his peers.  Kaigler was once convicted of possessing drug paraphernalia when the police pulled over a car with several occupants and found a crack pipe; but he has never been convicted of dealing drugs. 

Secondly, the word “co-perpetrator” assumes the guilt of the accused.  In a strict legal sense, the Times-Picayune writer is on solid ground: post-conviction, a defendant is technically guilty.  But it isn’t a journalist’s job to side categorically with the prosecution in cases where the sufficiency of the “evidence” is highly questionionable.   

Sheriff Jack Strain reflects his community.  After all, the good people of St. Tammany Parish elected the man and they like his style.  Strain was preaching to the choir when he launched into his bigoted rant.

Is Sheriff Jack an old-time, unreconstructed, Jim Crow era racist? 

Not exactly.  Last year, in the wake of the Obama election, a lost soul named Cynthia Lynch made her way to Tammany Parish to join up with a Ku Klux Klan-related group called The Sons of the Dixie Brotherhood.  half way through an increasingly bizarre initiation rite, Lynch decided she didn’t want to join up after all.  Enraged,Brotherhood leader Raymond Foster knocked Lynch to the ground and shot her dead with a handgun. 

Jack Strain held a news conference a few days later with racist paraphernalia confiscated from the Sons of the Dixie Brotherhood draped over folding tables for the media’s viewing pleasure.  The Sheriff dismissed the Brotherhood boys as a group of dimwit losers that weren’t a threat to anyone.  He didn’t explain why a harmless group of imbeciles killed a woman in cold blood.

While the Klan once ruled places like Tammany Parish, their glory days are now ancient history.  Well, perhaps not ancient, exactly.  Former Grand Dragon (and neo-Nazi) David Duke calls Tammany Parish home.  Duke’s website proudly proclaims that he was “Elected in 1996 to the Parish Executive Committee of the largest Republican Party District in Louisiana, St. Tammany Parish where the other elected members chose him unanimously to serve as chairman of the District. He served as chairman until 2000.”

I suspect that, like Jack Strain, David Duke would renounce the violent tactics of groups like the Dixie Brotherhood.  But that’s as far down the road to tolerance as Jack and David care to travel.

On the other hand, Jack Strain’s famous rant wasn’t just about race–it was about the association between social status and human rights.  Trashy people, in Strain’s view, have surrendered the right to due process.  They can be profiled by the police and, even if they are fortunate enough to afford a first-class attorney like Martin Regan, they will be convicted.  They are guilty of occupying the lower rungs of the social ladder as that ladder is defined by the good people of Tammany Parish.

Benjamin Alexander-Bloch, the Times-Picayune reporter, was surprised by the composition of the jury.  “Unusual for St. Tammany,” he noted, “there were two black females and two black males on the jury. Typically, a black defendant in St. Tammany is lucky to have one black juror.”  The bias on display in this case goes deeper than race.  It’s about the “thug narrative” that makes it difficult for people like Kelvin Kaigler to get a fair trial.  Once defendants are defined as “trashy” by the prosecution and the media, the evidence (or lack thereof) doesn’t matter. 

Attorney Martin Regan and Kelvin Kaigler’s family aren’t finished.  This case is bigger than a single defendant; it exposes the mechanics of wrongful conviction with a clarity that is seldom seen.  Kelvin Kaigler is suffering the same fate as Troy Davis and Curtis Flowers and Friends of Justice will have much more to say about this grotesque miscarriage of justice in the weeks and months to come.

In September, Texas Governor Rick Perry was scared to death that the Texas Forensic Science Commission was about to denounce the questionable science used to convict and execute Cameron Todd Willingham.  So the governor hastened the departure of several board members while appointing board members (like the aggressively conservative prosecutor John Bradley) who were favorable to his side of the Willingham debate. 

No one could believe that a sitting Governor could manipulate the composition and priorities of a state commission with such shocking audacity.

He’s getting away with it. 

According to an AP story, when the commission reconvenes this evening, “The Willingham case is not on the agenda . . . Nor is Craig Beyler, the renowned fire expert who authored the report in question”.

According to Barry Scheck, co-director of the New York-based Innocence Project that focuses on overturning wrongful convictions, this is “an agenda that deflects attention from what everybody wants answered.”

But is anybody paying attention?  In September, the Willingham story was national news; now it’s just an afterthought.  By this summer, when chairman Bradley insists they will finally evaluate the forensic science utilized in the Willingham case, will any one care?

The Willingham case played a minor role in the hotly-contested Texas Republican primary back in September, but Kay Bailey Hutchison, Perry’s most prominent opponent, has largely dropped the subject.  That’s likely a good move.  Evidence suggesting that the state of Texas executed an innocent man isn’t welcome in the conservative slice of the electorate Hutchison and Perry are wooing. 

The Willingham case demonstrates the need to move beyond a single-minded focus on actual innocence cases.  Willingham may have set the fire that killed three of his children; or he may be as innocent as he always claimed.  But was the evidence the state of Texas used in the case, properly evaluated, sufficient for a conviction?  Or did a state prosecutor employ junk science to mislead the jury? 

Willingham’s guilt or innocence shouldn’t be the issue in this case.  If junk science was used to convict Willingham, we’ve got a problem. 

Too often, advocacy groups look only for cases where innocence can be empirically demonstrated.  When DNA evidence proves a convicted man is innocent, no one dispute that a miscarriage of justice has occurred.  DNA-innocence cases have made important contributions to the reform fight.  They have demonstrated that far more defendants are wrongfully convicted than most Americans thought possible.  They have shown that misguided and coerced witness testimony is the number-one culprit in wrongful convictions.  Finally, these cases have shown that people of color are disproportionately victimized by wrongful conviction.

But our infatuation with actual innocence comes at a price.  For one thing, there aren’t a lot of DNA cold cases in the pipeline.  The exoneree torrent will soon slow to a trickle.

Secondly, in the 85% of criminal cases that involve no meaningful DNA evidence, it is virtually impossible to prove actual innocence.    We know wrongful convictions are widespread, but apart from a DNA smoking gun, we have a hard time proving it.

Finally, DNA cases raise more questions than they can answer.  They show that some species of racism is at work in the justice system, but they can’t tell us what kind.  The dynamics of prejudice hasn’t been traced.

That’s why the future lies with cases like Tulia, Todd Willingham, Troy Davis and Curtis Flowers.  If we simply use these cases as a soapbox for our pet opinions little of value will be gained.  But if we sift and dissect these narratives with objective persistence, patterns will emerge and lessons will be learned.