Wrong on Wrongful Executions

By Theodore M. Shaw
Sunday, July 2, 2006

Last Monday, the Supreme Court upheld the death penalty in Kansas by a vote of 5 to 4 in the case of Kansas v. Marsh . In concurring with the majority, Justice Antonin Scalia wrote that the decision was justified because, in recent American history, there has not been "a single case -- not one -- in which it is clear that a person was executed for a crime he did not commit. If such an event had occurred in recent years, we would not have to hunt for it; the innocent's name would be shouted from the rooftops."

Unfortunately, Scalia is wrong. Public concern about wrongful convictions has been growing since DNA evidence started exonerating death row inmates in recent years -- a fact most exemplified by the decision of then-Illinois Gov. George Ryan to declare a moratorium on executions in 2000. Over the past few years, major media outlets and the Legal Defense Fund, which I lead, have investigated several questionable executions, reexamining forensic evidence and re-interviewing witnesses. In at least four of the cases, it is now clear that the individuals executed almost certainly did not commit the crimes for which they were convicted.

Although none has been officially exonerated, the evidence that has come to light since they were put to death points overwhelmingly to their innocence, and two of these cases are being reinvestigated. The names of the executed may not have been "shouted from the rooftops," but the turn in their cases has been reported by major newspapers and television networks.

Cameron Willingham, a 36-year-old white father of three from Corsicana, Tex., was executed in February 2004 for murder by arson. In December 2004, the Chicago Tribune reported that new scientific knowledge proves that the testimony by arson experts at Willingham's trial was worthless, and that there is no evidence that the fire was caused by arson. A panel of the nation's leading arson experts confirmed that conclusion in March. In a strikingly similar case, Ernest Willis, a white oilfield worker from New Mexico, was convicted on the same sort of evidence and sentenced to death for murder by arson in Pecos County, Tex., in 1987. Willis was exonerated and freed in October 2004, eight months after Willingham was put to death.

Ruben Cantu, a 26-year-old Hispanic man from San Antonio, was executed in August 1993 for a robbery-murder committed in 1985 when he was 17. The Houston Chronicle followed up on our initial exploration and published the results of its own investigation last November. The newspaper reported that another defendant, who pleaded guilty to participating in the crime but did not testify at Cantu's trial, has signed an affidavit swearing that Cantu was not with him that night and had no role in the murder. More important, the only witness who did testify -- a second victim, who was shot nine times but survived -- now says that police pressured him to identify Cantu as the shooter, and that he did so even though Cantu was innocent.

Larry Griffin, a 40-year-old black man from St. Louis, was executed in Missouri in June 1995 for the drive-by shooting of a drug dealer in 1980. The only evidence against him was a witness who claimed to have seen Griffin at the crime scene. This witness was a white career criminal with several felony charges pending against him. In July 2005, our investigation revealed that the first police officer on the scene and the victim's sister both agreed that this supposed witness -- who would have stood out in the all-black neighborhood -- wasn't there when the shooting occurred. In addition, there was a second victim who was injured in the shooting. He knew Griffin and says that Griffin was not in the car from which the shots were fired, but he was not called to testify at Griffin's trial.

Last week, the Chicago Tribune (following up on initial inquiries by the Legal Defense Fund) published a detailed reexamination of yet another case, that of Carlos DeLuna, a young Hispanic man from Corpus Christi, Tex., who was executed in December 1989 for stabbing a convenience store clerk to death in 1983. DeLuna, who was convicted on the basis of a quick on-the-scene witness identification, claimed that the killer was a man named Carlos Hernandez.

The prosecution argued that Hernandez was a "phantom." The Tribune found that Hernandez (who died in prison in 1999) was not only no phantom, but also no stranger to law enforcement. In fact, one of DeLuna's prosecutors knew Hernandez well from an earlier homicide investigation. Hernandez and DeLuna were strikingly similar in appearance but, unlike DeLuna, Hernandez had a long history of knife attacks similar to the convenience store killing and repeatedly told friends and relatives that he had committed the murder for which DeLuna was executed.

The court's review of Kansas's death penalty statute seemed to stir more emotion than almost any other case the justices considered this term. In his dissent, Justice David H. Souter called the Kansas law "morally absurd," especially in light of DNA exonerations. Souter's words prompted Scalia's response, but Scalia and those who joined him in upholding the death penalty would do well to consider the cases of Cameron Willingham, Ruben Cantu, Larry Griffin or Carlos DeLuna.

It's too late to save those men -- or the victims of other erroneous executions that have not yet come to light. But it's time to recognize that, regardless of our views on the death penalty, any future debates must proceed with the knowledge that we have put innocent people to death.


Theodore M. Shaw is president and director-counsel of the Legal Defense Fund.

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