Lethal Overconfidence
Jaws dropped when the governor of Texas, running for president, said on national television that he was “100 percent sure” everyone who had been executed on his watch was guilty. The governor was George W. Bush, appearing on NBC’s Meet the Press, during his first presidential run. Six months before Bush’s election, Texas executed Gary Graham, who continued to protest his innocence even as the lethal injection was killing him and whose objections were almost certainly true. Then, just before Bush moved to the White House, Texas executed Claude Jones. Last year, new DNA testing on a hair found at the crime scene cast doubt on Jones’s guilt.
Rick Perry likes to say that while President Bush went to Yale, he went to Texas A&M, which I guess is meant to imply that Bush is smarter than he is. But when it comes to their confidence in Texas’s executions, the two are equally idiotic. Asked at Wednesday night’s presidential debate if he ever worried that Texas had executed an innocent person on his watch, Perry answered, “I’ve never struggled with that at all.”
Certainty is cheap if one achieves it by ignoring the actual facts, and indeed, Perry’s answer to the death-penalty question asked of him Wednesday night reflected a staggering inattentiveness to the facts. As the founder of the Texas Innocence Project, I’ve had a couple of dozen clients executed during Perry’s tenure as governor. There are some I think could well have been innocent—Frances Newton, for example, who supposedly killed her husband and two children without getting even a spot of blood or speck of gunpowder on herself; or Charles Nealy, who did not remotely match the description of the person who killed the convenience store clerk. But there was no DNA in either case, and so I am left being unsure.
It is not weak to be unsure. It is the only reasonable position in those murder cases—and it is the vast majority of them—that lack DNA evidence. Without DNA, certainty is usually impossible. Murderers get convicted on the basis of confessions, which can be coerced; eyewitness identifications, which can be mistaken; and pseudo-science like fiber analysis, which is often junk.
Perry, however, continues to voice his confidence despite widespread evidence that the system is flawed. Anthony Graves spent 14 years on death row before being exonerated and released in 2010. He’s not the only one: Ernest Willis, Michael Toney, Michael Blair, and Robert Springsteen are just a few of the others who have been released from death row during Perry’s tenure. Maybe Perry has a good reason for believing that these are Texas’s only mistakes, but if he has such a reason, I don’t have any idea what it is.
Then there’s Cameron Todd Willingham, whose case suggests we probably don’t catch errors all in time. He was executed in 2004–on Perry’s watch–for killing his three children by setting fire to their house. The problem is, every national arson expert to have reviewed the facts (there have been at least four) has concluded that the fire was accidental. A committee investigating the case was preparing to hear from the nation’s leading arson expert who intended to explain why there was no evidence that Willingham had committed any crime. On the eve of the expert’s testimony, Perry dissolved the committee.
As Perry prepares for his presidential run, he’s showing no signs of doubts. It’s not just his debate answer. Next week, the state is set to execute my client, Duane Buck. At Buck’s trial, the prosecutor urged the jury to sentence him to death on the basis that because Buck was black, he would be dangerous in the future. Earlier this summer, I had a client executed whose lawyer neglected to raise any issues during the very appellate process Perry lauded during Wednesday’s debate as a safeguard against mistakes. Two years ago, I had a client executed after prosecutors had removed all the blacks from the jury. One of my intellectually disabled clients was executed because his previous lawyer neglected to inform the court of the inmate’s IQ score. Another client was executed because the court of appeals refused to stay open past 5 p.m. so we could file a last-minute appeal. I don’t know of any definition of fair that could be applied to these cases.
Despite Perry’s certainty, and his characterization of a broken and racist regime as fair, the people of Texas seem to have developed a different view. Twenty years ago, there were 35 or sometimes 40 new death sentences a year. Last year there were nine. The year before that there were eight. The very people who have to decide whether someone should live or die seem to know there is no such thing as certainty. The bad news for Perry is that those same people vote for president.
