Poisoned Logic

What is the difference between a judge who thinks the abstraction of following procedure is more important than stopping the execution of an innocent person—and someone who would go to the ends of the earth, applying every legal skill to not executing someone wrongly and unjustly?

Is it their basic humanity? Has the instinct for the humane care of others been expunged from certain legal and political philosophies? Has fear and prejudice seeped so deeply into our culture that being innocent until proven guilty is no longer the ultimate, golden rule principle of our legal system?

Capital punishment again emerged into public consciousness three weeks ago when executioners at the Ohio state prison in Lucasville failed in their grim task after two hours and 18 attempts at trying to find veins in the body of Romell Broom, 53, that they could use to inject him with lethal drugs. Broom even tried to help them. Some say he was driven half crazy by the attempt.

Broom was given a week’s reprieve, but his attorney filed suit in federal court claiming that to try to execute him again would violate his eighth amendment right against cruel and unusual punishment.

If Broom’s case gets to the Supreme Court, he’s not likely to find a sympathetic ear as far as the majority is concerned. And in a nation in which torture is no longer the mark of a totalitarian devil, I’d say the notion of cruel and unusual punishment is on the verge of being culturally erased in our country.

Broom also has legal precedent against him. In 1946, Louisiana failed in an attempt to execute a convicted killer by electrocution. The Supreme Court a year later said it was constitutional to try again. Executioners were successful the second time.

Apparently there’s no question about Broom’s guilt. He raped and murdered a young girl 25 years ago. It’s taken his case so long to move through the system that, in effect, he’s served a life sentence. Now he’s endured a botched execution, and will probably be put to death in the future.

The core argument against the death penalty is based on the belief that the state, as a representative of the people, should not act in ways that are similar to those who commit heinous crimes. The state, itself, should not be a murderer. State officials should not be required to act in ways that are normally committed by sadists, the insane, or people in the heat of rage. There’s just no way to compartmentalize killing.

And that has particular force with the chance that the state could kill an innocent person caught in a web of erroneous, but fatal, circumstances – as may have happened to Cameron Todd Willingham in 2004.

Willingham was executed in Texas in 2004, accused of committing arson in his own home and killing his three young children. A preponderance of new evidence, including an emphatic declaration by one of the nation’s most respected arson scientists and investigators that the fire was accidental, couldn’t sway Texas authorities.

In 1993, Leonel Herrera was executed in Texas for killing two police officers. He’d been on death row since 1981. Nine years before his execution, Herrera’s brother Raul was murdered. The brother’s attorney signed an affidavit saying that Raul told him he had killed the officers. Another man who had been in jail with Raul signed a similar affidavit. Two more people did the same, one claiming to be an eye witness. Leonel Herrera petitioned for a new trial based on this strong new evidence. He was eventually denied and took the case to the Supreme Court.

In 1993, an absurdity of illogic and deep injustice condemned Herrera to death. Chief Justice William Rehnquist wrote for the majority that federal capital trials “must rule only on procedural claims, not on errors of fact.” Rehnquist continued, saying that “actual innocence is not itself a constitutional claim.” And that once a person has been convicted in court, “the presumption of innocence disappears.”

In a dissenting opinion, Justice Harry Blackmun, a Nixon appointee and conservative justice, wrote “the execution of a person who can show that he is innocent comes perilously close to simple murder.”

Were race or poverty factors in Willingham’s and Herrera’s executions? That remains a haunting question at the core of the capital punishment debate.

If Herrera had gone to the Supreme Court this year he would have met with the spirit of Rehnquist still dishing out his absurdist, pedantic logic. Rehnquist, who died in 2005, would probably have voted with the 5-4 majority of the court that maintained suing for DNA testing was not a right guaranteed to a person convicted of a capital crime. Chief Justice John Roberts, Rehnquist’s replacement, held that ”A criminal defendant proved guilty in a fair trial does not have the same liberty interests as a free man.”

In the case of Troy Davis, on death row in Georgia, nine prosecution witnesses recanted their testimonies. This was sufficient for a 7-2 majority on the Supreme Court this year to require a federal court in Georgia to reconsider Davis’s innocence. In dissent, Justice Antonin Scalia echoed Rehnquist writing that the Supreme Court “has never held that the Constitution forbids the execution of a convicted defendant who has had a full and fair trial but is later able to convince” a lower court “that he is ‘actually’ innocent.”

How can one have a fair trial if the evidence is false, if witnesses lie, if prosecutors and judges allowed that to happen? Isn’t the basic truth of the testimony the deciding factor in whether or not a trial was fair?

If a president of the Unites States can be impeached for perjury, or lying under oath, is it logical to assert that the innocence of a person convicted of a capital crime on the strength of perjured evidence, or evidence that is otherwise false, isn’t protected by the Constitution, the chief instrument of justice in the United States?

When political philosopher John Rawls said that if slavery isn’t an injustice, nothing is an injustice, he constructed a logic that applies to Herrera, Williamham, Davis, and a dozens of others. If executing an innocent person when there is enough new evidence to conduct a fresh trial isn’t an injustice, nothing is an injustice.

I think it’s time for the federal government to follow the lead of New Mexico, Alaska, Hawaii, Iowa, Kansas, Maine Massachusetts, Michigan, Minnesota, New York, North Dakota, Rhode Island, Vermont, West Virginia, and Wisconsin in abolishing the death penalty.

The whole legitimacy of our government rests on the credibility of its claim to guarding and dispensing equal justice under law. If the Constitution doesn’t protect an innocent person from the injustice of execution based on false accusation and false information, what does it protect us from? And who can feel safe?

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