I’ve been meaning to write this piece for a while, either as a blog post or as the framework for a piece of speculative legal fiction. Cindy Henley’s and Jeff Gamso’s comments to my post about the Cameron Todd Willingham case prompted me to do it now, rather than later . . . .

If you think I have the law wrong and you can back it up with cites, let me know. But if you are a death penalty fan and wish to argue that the death penalty is morally justified, go do so elsewhere. This post is not about what Texas law should say, but about what it does say, which is:

A person commits murder if he intentionally or knowingly causes the death of an individual.

A person acts intentionally, or with intent, with respect to the nature of his conduct or to a result of his conduct when it is his conscious objective or desire to engage in the conduct or cause the result.

So when the executioner pulled the lever that started the flow of chemicals that killed Cameron Todd Willingham, he committed murder.
What about the guards that led Willingham to the death chamber? This is Texas’s law of parties:

A person is criminally responsible for an offense committed by the conduct of another if, acting with the kind of culpability required for the offense, he causes or aids an innocent or nonresponsible person to engage in conduct prohibited by the definition of the offense; or if, acting with intent to promote or assist the commission of the offense, he solicits, encourages, directs, aids, or attempts to aid the other person to commit the offense.

So everyone who, intending that Mr. Willingham die, caused or aided the executioner to kill Mr. Willingham—from the guy who stuck the needle in, to the judge who signed the death warrant, to the jurors who signed the verdict, to the prosecutor who argued for death—committed murder as well, as far as the law is concerned.

The executioner’s actions were arguably justified, and he could not be held criminally responsible, because he had a statutory duty to pull the lever:

The use of deadly force is justified if the actor reasonably believes the deadly force is specifically required by statute.

But if one person induces another to commit a crime, he can’t rely on the other’s justification. So the other players, if they are to be legally justified in their roles in causing Mr. Willingham’s death, must find their own legal justification.

The other law enforcement officers who took charge of Mr. Willingham after he was sentenced to death may well have had a statutory duty to do what they did in support of his killing.

But as to those whose intentional actions led to the death sentence, there is no legal justification. Execution is never specifically required by statute; the jury always has the option of a life sentence. In fact, a life sentence is the default outcome of a capital murder sentencing hearing.

As for other possible legal justifications, deadly force may only be used to protect persons or property when the actor reasonably believes the force is immediately necessary to protect the actor or his property.

So there is no legal justification defense impeding the prosecution of death-penalty jurors for murder.

But surely the State can’t cause jurors to return a verdict of death, and then prosecute them for doing what it asked. What about entrapment? Well, even if the prosecutor is a “law enforcement agent” (possibly), the jurors were death-qualified before they were chosen; that is, they displayed a predisposition to sentence people to death; the State just gave them an opportunity to do so.

What about the prosecutor? The prosecutor also acted as a party to a murder for which there was no legal justification. Like the jurors, the prosecutor is never statutorily required to seek death. And “just doing my job” is no kind of justification. So the prosecutor of a death penalty case is in line for prosecution for murder as well, as is any witness who takes the stand intending to help the prosecutor get a death verdict.

None of the above depends on the person’s execution having been wrongful. Legally, it’s as much murder to kill the worst of the worst as it is to kill an innocent man. And there’s no statute of limitations, so forty years from now, if standards of decency evolve so that the death penalty is seen as a barbaric relic of the past, everyone who has participated in a death penalty case could legally be prosecuted for murder.

So what about the wrongfully convicted? Does the execution of a person after a flawed trial change the criminal liability?

Only to broaden it. There are people who participate in the trial of a capital case without trying to get the accused killed. For example, defense counsel and, it is to be hoped, the judge and witnesses.

A person commits manslaughter if he recklessly causes the death of an individual.

A person acts recklessly, or is reckless, with respect to circumstances surrounding his conduct or the result of his conduct when he is aware of but consciously disregards a substantial and unjustifiable risk that the circumstances exist or the result will occur. The risk must be of such a nature and degree that its disregard constitutes a gross deviation from the standard of care that an ordinary person would exercise under all the circumstances as viewed from the actor’s standpoint.

A person commits an offense of criminally negligent homicide if he causes the death of an individual by criminal negligence.

A person acts with criminal negligence, or is criminally negligent, with respect to circumstances surrounding his conduct or the result of his conduct when he ought to be aware of a substantial and unjustifiable risk that the circumstances exist or the result will occur. The risk must be of such a nature and degree that the failure to perceive it constitutes a gross deviation from the standard of care that an ordinary person would exercise under all the circumstances as viewed from the actor’s standpoint.

The negligent or reckless conduct of anyone involved in a capital case might result in the accused’s death. Where the death sentence results from a flawed proceeding—where, for example, false forensic and snitch testimony are presented—the people who made mistakes might be on the hook for manslaughter (for example, Douglas Fogg, who gave incompetent forensic testimony, and who, even if he didn’t intend it, must have been aware that Mr. Willingham might die as a result; or, in another case, the lawyer who slept through parts of his client’s death penalty trial) or for criminally negligent homicide (for example, Johnny Webb, who might not have had the mental capacity either to intend that Willingham die or to be aware of the substantial risk that he would die as a result of Webb’s testimony).

Webb is off the hook—the statute of limitations for criminally negligent homicide is three years. But the manslaughter for which Douglas Fogg could be prosecuted has no statute of limitations.

Realize that we’re still not talking about executed innocents. While I’ve used some of the players from the Willingham case as examples, none of the law I’ve described relies on the dead guy being factually innocent. Nor does it depend on the players actually cheating.

Factual innocence and prosecutorial misconduct don’t change the law that applies, but they up the ante considerably. Still it ever happen that John Jackson is prosecuted for the murder, and Douglas Fogg for the manslaughter, of Cameron Todd Willingham? Probably not. Is it legally possible? Sure.

How about you: would you participate in a death penalty trial, knowing that, for the rest of your life, with the turn of a tide of public opinion you could be prosecuted for making what you believed to be the right decision? You may be betting your life.