Nope, No Balm in Gilead. Sorry.

 Posted on March 23,2010 in Uncategorized

Nobody knows for sure whether Texas has executed an innocent person. Insiders recognize that the odds are excellent, but there hasn't been the sort of thoroughgoing review of the evidence that would be required to exonerate an executed person. Cameron Willingham is looking like a good candidate, but the State of Texas is in no hurry to conduct that review in Willingham's case.

This is understandable: many powerful people have invested a good deal in their belief that the State of Texas does not execute innocent people. Their confirmation bias leads them to avoid acquiring any information that challenges their preconceptions. There's no benefit to anyone in reevaluating Willingham's case in light of modern science. Cameron Willingham is not going to get any less dead.

We've seen confirmation bias in Hank Skinner's case, too. In that case, there is untested biological material-blood, skin from under fingernails, a rape kit, hair-that contains DNA. This DNA, if tested, might show that a man named Robert Donnell left his blood on the probable murder weapons and his skin, hair, and semen at the scene of the killings. While this itself mightn't conclusively prove (because nothing short of a smiting by God will convince the DA) that Skinner didn't do the killing, it would tell a story very different than the State's theory, and would raise vast doubt about Skinner's guilt.

The prosecutor in Skinner's case, after Skinner was sentenced, sent some biological material off to "put a few more nails in that man's coffin." The results of the tests exculpated Skinner. So the State, to avoid further exculpation (confirmation bias), will not allow the testing of any other biological material-in fact, will fight to avoid it, and will destroy the material as soon as it legally can.

Before Skinner's conviction, Skinner's lawyer didn't ask that the biological material be tested-because some had been, and had inculpated Skinner. In interviews, he has said that he didn't ask that more be tested because he though it would further incriminate his client. More confirmation bias.

Now Hank Skinner is about to get a whole lot deader. He's scheduled for execution tomorrow, Wednesday, March 24, 2010, and it doesn't look like anything is going to stop that train.

The public conception of the accuracy of the death penalty process (when people are exonerated from death row, it's proof that "the system works") is based on the perception that the facts of the case are given a thorough airing. As Skinner's case illustrates, this is simply not so. After the jury has decided that the accused needs killing, the courts are limited to legal-and not factual-challenges to the conviction and the sentence. A claim of actual innocence is not reviewable on direct appeal or habeas absent some accompanying constitutional violation; the execution of a factually innocent person is not itself a constitutional violation.

Just as death penalty fans are heavily invested in the idea that the system works to keep factually-innocent people off the gurney, people who believe in the U.S. criminal justice system want to believe that the system is self-correcting-that, even though it is flawed, it does what it can to minimize errors-are heavily invested in that idea.

For example, here's part of an email about the Skinner case that I received from a reader, a young Texas lawyer:

Here's my question: how do I come to grips with the possibility that they very likely are going to kill him without allowing those tests? I've been in denial, mostly. Surely this isn't the big f'n farce it so often appears to be, surely when the stakes are big and it's not a matter of "procedure" (like sleeping lawyer) then someone will be a grown up. They'll behave responsibly.Right? Right?I don't have any connection to the case at all, other than geographic proximity to the trial jurisdiction. But I've got all this investment in the idea that there's balm in gilead.

Up through law school, we're taught that the American criminal justice system is a wonderful thing. The organized bar-the ABA, local and state bar associations-pushes the same propaganda. It's a lie.

The truth is that, while it may be better than any other system yet created, the U.S. criminal justice system objectively sucks. Factually-innocent people get punished every day. Pleas are coerced. Insane people get punished for doing insane things. Crappy lawyers take people's lives in their hands. Children get treated as adults. Adults with the minds of children get treated as adults. Wealthy defendants get more justice than poor defendants.

The U.S. criminal justice system was developed by the rich and politically powerful for the benefit of the rich and politically powerful. Criminal defense lawyers stand up for the poor and the forgotten, the disenfranchised and damned.

The system is designed to be self-perpetuating. Part of its scheme is to take smart men and women of conscience and make them think they are obligated to support it. In law school we're taught that we have a duty to the legal system. The Texas Lawyer's Creed says, "I am entrusted by the People of Texas to preserve and improve our legal system." But what if we can't both preserve and improve the system?

How do you come to grips with the likelihood that the State of Texas is going to kill Hank Skinner without allowing the tests that might conclusively show Skinner's guilt or might suggest that he was not the killer? You accept that this is indeed the big farce that it appears to be. "They" will not behave responsibly because they are determined to avoid or ignore any evidence that they might have made a mistake.

What if a system that shouldn't be preserved refuses to be improved? Don't we have an ethical and moral duty-a duty higher than any that can be imposed on us by the system in its own defense-to obstruct and destroy?

Welcome to the revolution.