Innocents Executed?

In Monday's Democratic Party gubernatorial debate, businessman Farouk Shami stated that Texas has executed innocent people.  (See transcript, here; news coverage, here.)  He's taken some criticism for that assertion, most notably the Dallas Morning News editorial, noted here.

It's true that no executed Texas death row inmate has been proved innocent beyond everyone's doubts.  However, three cases have been investigated by journalists and there is credible evidence that these three men were innocent of the crimes for which they were convicted and executed.

One is obviously Todd Willingham, about whom a great deal has been written lately.  The original reporting on his case was done by Steve Mills and Maurice Possley in a 2004 Chicago Tribune series on junk science.  Their December 9, 2004 report was titled,"Man executed on disproved forensics."

David Grann's September 2009 New Yorker article is noted here.  The Beyler report prepared for the Forensic Science Commission is here in Adobe .pdf format. The Innocence Project has a Todd Willingham resource page which provides a concise overview of the Willingham case with links to all relevant documents.

Ruben Cantu was executed in 1993. The original reporting on his case was done by Lise Oleson of the Houston Chronicle in November 2005.  Sam Millsap, then the Bexar County District Attorney,  authorized the capital prosecution.  Millsap has since said that he has no reason to doubt the recantation by the sole eyewitness; that the individual had more to lose by recanting than remaining silent after the fact. 

Millsap has also said of the Cantu case, “I fervently hope that there are only a few prosecutors and former prosecutors in America today who find themselves, as I do, in the position of having to admit an error in judgment that may have led to the execution of an innocent man.”  Once a staunch supporter of capital punishment, Millsap now speaks out against the death penalty.

Carlos DeLuna was executed in 1989, also likely the victim of mistaken identification.  The primary reporting on the DeLuna case was also done by Mills and Possley in a Chicago Tribune series of articles in June 2006.  Former death house chaplain Carroll Pickett has written about DeLuna in his memoir Within These Walls, and believes he was innocent.  The documentary, At the Death House Door, includes DeLuna's story.

In 2001, Texas Defender Service issued it's report, A State of Denial: Texas Justice and the Death Penalty.  The report's Chapter 9, Bitter Harvest, examined the cases of six men executed by Texas in spite of serious questions of innocence at the time of their executions: David Wayne Spence, Robert Nelson Drew, Gary Graham, Odell Barnes Jr., Richard Wayne Jones, and David Stoker.  You can look at the case summaries at the link, in Adobe .pdf format.

Gary Graham, executed in 2000, was identified by a single eyewitness.  Other crime scene eyewitnesses did not identify him, and at least one of those who saw the crime positively excluded him as being the wrong height of the killer.  Graham's court-appointed lawyer apparently never read the police report, however, and never interviewed any of the crime scene witnesses.  Graham was tried when the quality of appointed trial counsel was too often worse than a disgrace. 

In Graham's photo lineup, his was the only photo of an African-American male with short hair and no facial hair, as the suspect was described; all the other individuals in the photo lineup had bushy hair and/or facial hair.  Graham's execution came before a great deal of the recent research on problems with eyewitness identification centered around human memory and the need for proper law enforcement procedures.  From the 250 DNA exonerations (capital and non-capital) chronicled by the Innocence Project, we now know that faulty eyewitness ID is the leading cause of wrongful convictions.  Graham and his attorneys fought for meaningful review of his case for more than seven years until his June 2000 execution.
 
Since the TDS report A State of Denial, Frances Newton was executed in 2005.  Gov. Perry issued a reprieve to allow for forensics testing on evidence (the dress she wore the night her husband and children were murdered.)  At issue was whether the material detected on her dress was nitrates from gun powder residue or nitrates from fertilizer.  The dress had been improperly stored, however, and contaminated with other evidence thus making the testing issue moot.  In spite of a very bloody crime scene, she had no blood or trace of blood on her, her clothing, or shoes the evening of the murder.   Her execution came shortly after Hurricane Katrina hit New Orleans and the Gulf coast.  While her case had attracted media attention earlier, I believe that she was another victim of Katrina.

The Fall 2004 Scripps Howard Texas Poll showed that 70% percent of Texans believed that our state has executed innocent people.  That figure increased by 13 percentage points between 2000 and 2004.  Scripps Howard shuttered the poll shortly thereafter.

Some years ago retired State District Judge Jay Burnett, who presided over death penalty cases and was responsible for the creation of  the first standards for attorneys appointed to death penalty cases in Harris County, told NBC News Dateline: "There's no question in my mind that someone has slipped through the cracks and that there has been an innocent person executed."

One fact without dispute is that 11 former inmates of Texas' death row have been exonerated according to the Death Penalty Information Center. That's slightly more than one percent of the combined population of Texas death row and those executed in Texas.

I'm not writing to defend Shami's statement.  StandDown is nonpartisan and does not endorse political candidates.  His words, inelegantly stated, may have had more truth, however, than we can know or want to admit.