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Silence as Assent

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Something extraordinary is happening in Texas. A trial judge is holding hearings and listening to evidence about whether that state's death penalty is unconstitutional because of the risk of wrongful executions.

Lawyers for John E. Green Jr., who stands accused of murdering a woman in front of her children, are arguing that the death penalty as carried out in Texas in fact violates the Constitution because of the risk of executing innocent citizens. Those of us who defend death penalty cases do raise this issue in court, but it is routinely denied and evidence is not presented. Instead, trial courts say that the United States Supreme Court has said that the death penalty is not unconstitutional as being cruel or unusual. Strictly speaking, this is true, but nearly forty years ago, the Supreme Court struck down all then-existing death penalty statutes in Furman v. Georgia due to its freakish and arbitrary imposition. Four years after that, many states enacted new statutes that were supposed to end these problems by providing more safeguards. Well, not so much. We still keep getting it wrong. Yesterday, Richard Dieter, the executive director of the Death Penalty Information Center, discussed the 138 exonerations of death row inmates that have occurred in the U.S. since 1978, including 12 in Texas. He said that for every nine executions that have occurred in the U.S., there has been one exoneration.

What Mr. Green's lawyers are saying to the court, and what they intend to prove, is that it is luck, not the system, that saves the innocent, and this cannot comport with any notion of the heightened reliability required before we execute someone. I will talk about this in a moment, but I wanted to tell you first what the state is doing at this hearing: Nothing.

That is right, nothing. They are "protesting" even holding the hearing -- something a trial judge is certainly entitled to do -- because in their view, the law is clear. So there's no need to have that pesky evidence, right? The Supreme Court said we can have a death penalty and that is that, and the state of Texas has taken the Court's statement to heart by performing nearly a third of all executions since 1978. Judge Fine, the judge presiding in Mr. Green's case, has told both parties that he wants to hear more, that he wants to know if there is an unacceptable risk of wrongful executions. If there is such a risk, the death penalty in Texas -- the state that has executed considerably more than any other -- is unconstitutional. So lawyers for Mr. Green are presenting evidence.

But the prosecutors are not presenting anything, they are "standing mute" in protest of the novel idea that the evidence may actually matter, and that the previous precedent about the death penalty from 1976 may need to give way to what we have discovered about that error. They aren't presenting evidence, cross-examining witnesses, making arguments. They are just sitting there.

Maybe that is because there is nothing they really can say. What can they say about the unseemly role of luck comparing these two cases: luck proved the difference in the fates of Ernest Ray Willis and Cameron Todd Willingham. Texas convicted both men of murder by arson and sentenced both men to death -- Willingham in 1992, Willis in 1987. In neither case did the State rely on eyewitness testimony, confessions, or any type of valid forensics evidence. Instead, both men were convicted based merely on their alleged "indifference" to the suffering of victims at the scene of a fatal fire, and the testimony of investigators who what has now proven to be poor understandings of fire science and failure to acknowledge or apply the contemporaneous understanding of the limitations of fire indicators. In other words, both men were convicted and sentenced to death based on what we now know to be junk fire science. But their cases could not have ended more differently: Texas executed Willingham in 2004. That same year, Willis walked free. Willis was lucky, Willingham not. During Willis's post-conviction proceedings, Latham and Watkins, a giant New York based law firm, became his attorneys and spent nearly a million dollars proving his innocence. Mr. Willingham was appointed a lawyer with no resources to help him. Sometimes what I speak about the death penalty, I get asked what is the factor that determines the fate of a capitally charged accused person. And I say two things; what color is the victim and who is the accused's lawyer. If you have a good lawyer you live, and if you don't you die. If you are lucky and a big firm commits itself and its resources to showing the junk science in your case, you walk free, and if you don't, you die.

In some situations a court holds silence to be assent or agreement -- like when a judge asks a panel of jurors if any of them have a problem with a legal proposition and no juror says anything, the judge will often say "I take it from your silence you have no problem with this proposition" and move on to the next issue. Perhaps as Judge Fine listens to the evidence of error rates like one in nine, and cases like those of Willis and Willingham, and the state remains mute, perhaps he will come to the conclusion that we cannot have a constitutional death penalty system without being willing to accept the risk -- apparently a substantial one -- that we will execute the innocent, and that the state's silence is in fact assent to the proposition that one in nine is an acceptable margin of error.