Behind Bars

Another Priority for the President and Congress:
Stopping the Execution of the Innocent

By Norman C. Hile

On February 17, 2004, the State of Texas executed Cameron Todd Willingham for murdering his two infant daughters, who died when his house burned down. Willingham was convicted based on the testimony of a prosecution expert witness whose “report” concluded Willingham set his house afire. We now know that, tragically, Willingham was innocent. A post-conviction investigation determined that the prosecution’s “expert” based his report on junk science, and Willingham’s jury should never have heard, much less believed the report.

What makes Willingham’s execution all the more regrettable is that, before his execution, the Texas Board of Corrections and Governor Rick Perry were shown that the expert “report” was flawed, but neither halted the execution.

Willingham’s exoneration based on post-conviction revelations is not an isolated instance. Last September, based on evidence developed post-trial, Bruce Lisker was released after serving 26 years in prison for the murder of his mother—a murder he did not commit. In fact, according to the Innocence Project, over the past 20 years, over 250 prisoners have been exonerated based on post-conviction investigations.

Why are innocent people convicted? Prosecutors and law enforcement sometimes break rules to get convictions. Public defenders are underfunded and overworked. Juries believe law enforcement.

Why is post-conviction exoneration so difficult and why does it take so long? In part, it’s because prosecutors fight any investigation of their convictions and put every roadblock in the way of reopening cases. But also it’s because the law turns on the convicted. “Innocent until proven guilty” no longer applies, and to thwart post-conviction litigation, Congress has placed insurmountable burdens on those seeking exoneration. They must show “clear” error. For a second post-conviction attempt, the burden is even higher: proof by “clear and convincing evidence that . . . no reasonable fact-finder would have found applicant guilty.”

Consequently, even when post-conviction evidence points to innocence, and even though the defendant would not now be convicted at a fair trial, a conviction stands. For Cameron Todd Willingham, the result was what Justice Sandra Day O’Connor called the “constitutionally intolerable” event: the execution of an innocent person.

There are four African-American men currently facing this dilemma. Troy Anthony Davis, Mumia Abu-Jamal, Reginald Clemons and Kevin Cooper. All four were convicted of murder and sentenced to death, and now, after post-conviction investigations, their guilt has been thrown into grave question. In each case, we now know the prosecution relied on false evidence and manufactured false testimony, and juries imposed death sentences without hearing significant exonerating evidence. None would now be convicted at a fair trial under the “beyond a reasonable doubt” standard. Nevertheless, because of the post-conviction burden, they may suffer Cameron Todd Willingham’s fate.

Kevin Cooper’s case is a prime example. Cooper was sentenced to death in 1985 for the stabbing and hatchet deaths of a family in their home in Chino Hills, California.

Convicted largely on circumstantial evidence, Cooper has since uncovered evidence showing that the police presented false evidence at trial, and that in three different instances the police hid or destroyed exonerating evidence. Based on such facts, in a 100 page dissent, Court of Appeals Judge Willie Fletcher, joined by four other appellate judges, wrote: “The State of California may be about to execute an innocent man.” Yet recently the U.S. Supreme Court denied Cooper’s last appeal, and he now faces execution.

As Americans, we extol our Bill of Rights’ protections of the accused. We like to believe that our justice system prevents innocent persons from being convicted, much less executed. Yet faced with hundreds of exonerations, and most horrible, the example of Cameron Todd Willingham, can we trust that system? Should we execute someone even though the police hid exonerating evidence the defense only discovered after trial? Starting with cases like those of Troy Davis, Mumia Abu-Jamal, Reginald Clemons and Kevin Cooper, can we permit our post-conviction laws to stand? Should the innocent face a time limit on justice?

Perhaps it’s time for a new legal concept for post-conviction challenges: we don’t execute anyone when there are significant doubts about guilt, and certainly not where a defendant wouldn’t be convicted now at a fair trial. While the President and Congress have lots on their plates, it’s time to add death penalty reform to their to-do list. There can be no higher priority than stopping the execution of the innocent.

Norman C. Hile is the lead attorney defending Kevin Cooper.