Texas, the death penalty and science

Hard to know where the fault lies:  with Governor Perry who seems to like to execute people without seeming to inquire too much about the circumstances or with the anti-scientific cultural bias that seems to inhabit the state.  Both are at play with the pending execution of  Larry Swearingen for a murder he may not have committed.

Jordan Smith (a reporter for the Austin Chronicle) writes for the Nation

Just over a year ago, in January 2012, Texas Governor Rick Perry marked a gruesome milestone: with 239 executions under his belt, he had officially overseen half of all executions carried out in that state since the reinstatement of the death penalty. Since then, Texas has killed fourteen inmates, solidifying Perry’s position as the governor who has presided over the most executions in history. To date, 492 prisoners have been put to death since the state’s death chamber roared back to life in 1982. By the time this issue of The Nation hits newsstands, the number will likely be 493.

Amid so much state-sanctioned killing there is scant official acknowledgment that the state’s capital punishment system is fraught with problems. As the body count rises, nagging evidence points to the possibility that Texas has executed at least one innocent person, and may be poised to kill more. The arson-murder case of Cameron Todd Willingham, killed in 2004, is the best known, but there are many other cases that raise serious questions about the guilt of people on Texas’ death row.

As it moves down the roster of executions scheduled for this year, the state is perilously close to adding another name to its list of potential innocents: Larry Swearingen, whose case highlights a growing tension in Texas between science and the law. Add to that conflict the all-too-familiar problems of prosecutorial bias and tough-on-crime politics, and you’ve got a recipe for wrongful conviction that, when death is involved, can’t ever be remedied.

I’ve written twice about Cameron Todd Willingham, once in 2009 and again in 2010.  Most people who know about the Willingham case believe that this was a case where an man known to be innocent was executed.  According to Smith, it may well happen again.  Interestingly, both cases hinge on science.

In Swearingen’s case, the courts have demonstrated little tolerance for scientific questions that are not only central to his guilt or innocence, but that have implications for every single death investigation in the state. Until Texas courts— particularly the state’s highest criminal court, the Court of Criminal Appeals (CCA)—accept that understanding science is key to doing justice, the risk that innocent men and women will be locked up, or worse, is inevitable. And in the absence of such a eureka moment, Swearingen, whose latest execution date was February 27, will die despite serious unresolved questions about his guilt.

According to the story in the Texas Observer

When a dead body is discovered, investigators can work out the likely time of death in a number of ways. The first clue is the bugs. It can take no time at all for blowflies and house flies to home in, searching for open wounds and orifices in which to lay their eggs. Between 12 and 24 hours later, when the body is cold to the core, those eggs hatch and the larvae feed on the flesh. The insects offer important clues for forensic pathologists, but it’s also important that they note what the outside temperature was in the days and weeks preceding the body’s discovery. That’s because the higher the temperature, the faster the insects will develop and once entomologists have identified the species, they can determine when they hatched and therefore how long that body has been there.

By day four, bacteria have started to break down the tissues and cells, releasing fluids into the body cavities that produce gases and cause the body to bloat. In summer, a human cadaver in an exposed location can be reduced to bones in just nine days—particularly if there are wild animals around.

Decomposition science is morbid but it can help solve heinous crimes. And it could be the key to figuring out if a man sitting on Texas’ death row was the killer in the gruesome 1998 murder of 19-year-old Melissa Trotter.

In February, nine forensic experts took the stand at an evidentiary hearing for convicted murderer Larry Swearingen to explain that precisely because of this decomposition science, they were sure that Trotter hadn’t been dead very long when her body was discovered— as little as a day; as long as 14. Either way, Swearingen couldn’t have killed her, they said, because at the time of her death he was in jail.

Smith concludes his piece in the Nation

Had Melissa Trotter been killed today, it is hard to imagine that Swearingen would be facing execution without the alleged murder weapon or other evidence first being subjected to DNA testing. The use of science, and DNA in particular, in criminal cases has advanced greatly since 1999. “This is evidence that would routinely be tested if the case was investigated today, and any one of these pieces of evidence could produce a DNA profile that could lead to another perpetrator,” says Bryce Benjet, who is working with the Innocence Project on Swearingen’s behalf. “Regardless of where you stand on the death penalty, I think we can all agree that we should be absolutely certain of guilt before putting someone to death.”

Of course, Texas’ efficient death machinery doesn’t necessarily discriminate between the certainly guilty and the probably or even possibly so. Finality of conviction has long been the force driving justice in Texas, especially as practiced from the bench of the CCA. But DNA has already exonerated forty-seven inmates in Texas—one of them on death row—and inspired efforts to ensure better certainty in convictions, in the state and beyond. Whether the court will accept and apply such science in Swearingen’s case—or in the cases of any of the twelve other inmates scheduled for execution in 2013—remains an open question.

Larry Swearingen’s execution has been stayed until evidence can be reexamined.  Let’s hope this happens before the courts and the state get impatient.  Let’s hope the science is accepted before he is put to death, not after as with Willingham.

Larry Swearingen

Larry Swearingen

Photograph Alex Hannaford

Cameron Todd Willingham and the Death Penalty

I haven’t had the chance to read the article in the New Yorker Magazine by David Grann but Bob Herbert has written a powerful op-ed in today’s New York Times about Cameron Willingham’s execution by the State of Texas.

There is a long and remarkable article in the current New Yorker about a man who was executed in Texas in 2004 for deliberately setting a fire that killed his three small children. Rigorous scientific analysis has since shown that there was no evidence that the fire in a one-story, wood frame house in Corsicana was the result of arson, as the authorities had alleged.

In other words, it was an accident. No crime had occurred.

Cameron Todd Willingham, who refused to accept a guilty plea that would have spared his life, and who insisted until his last painful breath that he was innocent, had in fact been telling the truth all along.

The fire broke out on the morning of Dec. 23, 1991. Willingham was awakened by the cries of his 2-year-old daughter, Amber. Also in the house were his year-old twin girls, Karmon and Kameron. The family was poor, and Willingham’s wife, Stacy, had gone out to pick up a Christmas present for the children from the Salvation Army.

Willingham said he tried to rescue the kids but was driven back by smoke and flames. At one point his hair caught fire. As the heat intensified, the windows of the children’s room exploded and flames leapt out. Willingham, who was 23 at the time, had to be restrained and eventually handcuffed as he tried again to get into the room.

According to Grann and Herbert,  an incompetent arson investigator decided the fire was arson, witnesses decided that Willingham had not tried to rescue his children and there was a jailhouse snitch.   Herbert continues

Willingham was arrested and charged with capital murder.

When official suspicion fell on Willingham, eyewitness testimony began to change. Whereas initially he was described by neighbors as screaming and hysterical — “My babies are burning up!” — and desperate to have the children saved, he now was described as behaving oddly, and not having made enough of an effort to get to the girls.

And you could almost have guaranteed that a jailhouse snitch would emerge. They almost always do. This time his name was Johnny Webb, a jumpy individual with a lengthy arrest record who would later admit to being “mentally impaired” and on medication, and who had started taking illegal drugs at the age of 9.

The jury took barely an hour to return a guilty verdict, and Willingham was sentenced to death.

He remained on death row for 12 years, but it was only in the weeks leading up to his execution that convincing scientific evidence of his innocence began to emerge. A renowned scientist and arson investigator, Gerald Hurst, educated at Cambridge and widely recognized as a brilliant chemist, reviewed the evidence in the Willingham case and began systematically knocking down every indication of arson.

The authorities were unmoved. Willingham was executed by lethal injection on Feb. 17, 2004.

The fundamental problem with the death penalty is that you can’t take it back. 

Now comes a report on the case from another noted scientist, Craig Beyler, who was hired by a special commission, established by the state of Texas to investigate errors and misconduct in the handling of forensic evidence.

The report is devastating, the kind of disclosure that should send a tremor through one’s conscience. There was absolutely no scientific basis for determining that the fire was arson, said Beyler. No basis at all. He added that the state fire marshal who investigated the case and testified against Willingham “seems to be wholly without any realistic understanding of fires.” He said the marshal’s approach seemed to lack “rational reasoning” and he likened it to the practices “of mystics or psychics.”

Cameron Todd Willingham was executed by the State of Texas on no evidence.  Who will pay for his death?