If there was a bright spot in yesterday’s regrettable Supreme Court decision in Glossip v. Gross, it’s that at least two current justices — Stephen G. Breyer and Ruth Bader Ginsburg — are open to the idea that the death penalty is unconstitutional. It seems at least possible that Sonia Sotomayor may move in that direction as well. Unfortunately, that bright spot was overwhelmed by opinions from Clarence Thomas, Antonin Scalia and Samuel A. Alito Jr. that indicate they are as adamant as ever about keeping capital punishment around, and, at least in the case of Thomas, open to expanding it to include juveniles, and for crimes other than murder.
As my colleague Mark Berman pointed out, there was an interesting and sad footnote to yesterday’s decision. In his dissent, Breyer noted the case of Glenn Ford, a Louisiana man who spent 30 years on death row before he was finally exonerated and released. Ford died of lung cancer just hours before the Glossip decision was released. Despite his exoneration, Ford was never compensated for his wrongful conviction or for the unfathomable amount of time he spent not only locked up but also awaiting his execution. He was released just in time to succumb to lung cancer, all while fighting the state of Louisiana for recompense. The man who prosecuted Ford, Mark Stroud, has since apologized, asked Ford’s forgiveness and declared the death penalty to be an “abomination” that “continues to scar the fibers of this society.”
Of course, Ford isn’t the only death-row inmate to be exonerated. There are more than 100 others, just since 1973. He isn’t even the only one in Louisiana. In Orleans Parrish alone, during the reign of notorious District Attorney Harry Connick, four death-row inmates were exonerated, representing 11 percent of the capital convictions during his tenure. Others were released without being granted full exonerations.
On the surface, yesterday’s decision in Glossip was about the constitutionality of a specific drug now used in some states for lethal injections. But the case touched off a broader and contentious discussion among the justices about lethal injection and the death penalty in general. Scalia in particular wrote a scathing, abrasive opinion that mocks “abolitionists” and bizarrely concludes that in opposing capital punishment, Breyer and like opponents of the death penalty “oppose the Enlightenment.”
Capital punishment presents moral questions that philosophers, theologians, and statesmen have grappled with for millennia. The Framers of our Constitution disagreed bitterly on the matter. For that reason, they handled it the same way they handled many other controversial issues: they left it to the People to decide. By arrogating to himself the power to overturn that decision, JUSTICE BREYER does not just reject the death penalty, he rejects the Enlightenment.
Of course, lots of Enlightenment thinkers were well aware of the perils of subjecting basic rights to the whims of democracy. (Or as James Bovard once put it, “Democracy must be something more than two wolves and a sheep voting on what to have for dinner.”) The driving principle behind the Enlightenment was the rejection of blind deference to tradition and authority and instead embracing reason, individualism and empiricism. Both Scalia’s and Alito’s opinions are not only dismissive, they’re also downright contemptuous of Breyer’s use of data to show that the death penalty is unequally applied, racially biased and ineffective. They reject Breyer’s long list of cases in which prosecutors and/or police were shown to have manufactured evidence, hidden exculpatory evidence and committed other egregious misconduct. Instead, they simply point out that the Supreme Court has upheld the constitutionality of the death penalty for 40 years, so they aren’t about to consider it now. Here, for example, is Scalia:
A vocal minority of the Court, waving over their heads a ream of the most recent abolitionist studies (a superabundant genre) as though they have discovered the lost folios of Shakespeare, insist that now, at long last, the death penalty must be abolished for good. Mind you, not once in the history of the American Republic has this Court ever suggested the death penalty is categorically impermissible.
This is about as thorough a rejection of Enlightenment principles as one can imagine a Supreme Court justice articulating. It’s a abrupt dismissal of empirical data (not even an attempt to grapple with it) in favor of an appeal to tradition.
The most compelling argument against the death penalty has always been innocence. Scalia undoubtedly knows this, which is why he over the years has attacked this argument by both insisting that it’s extremely unlikely an innocent percent has ever been executed and that, even if it has happened, the execution wouldn’t be unconstitutional so long as the innocent person was afforded due process. The latter argument doesn’t tend to go over well. Most of us intuitively believe that if the right to due process means anything at all, it means you won’t be executed for a crime you didn’t commit. Or put another way, any system that not only allows an innocent person to be executed, but also is okay with it after the fact is, by definition, a system unconcerned with due process.
But Scalia’s first claim is increasingly under fire, too. Several journalists — most notably David Grann in the New Yorker — have made a compelling case for the innocence of Cameron Todd Willingham, who was executed by Texas in 2004. The sheer volume of DNA exonerations of death-row inmates suggests that there are serious flaws in how we try these cases. Common sense suggests that these same flaws also exist in cases for which DNA isn’t a factor and therefore doesn’t provide a safety net for wrongful convictions.
Scalia’s vituperative opinion in yesterday’s lethal-injection case is particularly brazen given the case of Henry Lee McCollum. In the February 1994 case Callins v. Collins, Justice Harry Blackmun famously announced in his opinion that he was fundamentally opposed to the death penalty and that “From this day forward, I no longer shall tinker with the machinery of death.” In a concurring opinion, Scalia mocked Blackmun, and in doing so invoked McCollum.
Justice Blackmun begins his statement by describing with poignancy the death of a convicted murderer by lethal injection. He chooses, as the case in which to make that statement, one of the less brutal of the murders that regularly come before us–the murder of a man ripped by a bullet suddenly and unexpectedly, with no opportunity to prepare himself and his affairs, and left to bleed to death on the floor of a tavern. The death by injection which Justice Blackmun describes looks pretty desirable next to that. It looks even better next to some of the other cases currently before us which Justice Blackmun did not select as the vehicle for his announcement that the death penalty is always unconstitutional–for example, the case of the 11-year old girl raped by four men and then killed by stuffing her panties down her throat. See McCollum v. North Carolina, No. 93-7200, cert. now pending before the Court. How enviable a quiet death by lethal injection compared with that! If the people conclude that such more brutal deaths may be deterred by capital punishment; indeed, if they merely conclude that justice requires such brutal deaths to be avenged by capital punishment; the creation of false, untextual and unhistorical contradictions within “the Court’s Eighth Amendment jurisprudence” should not prevent them.
Later that year, the court rejected McCollum’s petition. The passage above is a common tactic with the Supreme Court’s death penalty hawks — they’ll counter data about innocence, bias and arbitrariness with descriptions of particularly brutal crimes. It’s a response to data-driven arguments with an appeal to emotion.
Henry McCollum was not only Scalia’s figurative poster case for lethal injection, he became the literal poster case, too. In 2010, the North Carolina Republican Party distributed a flier with McCollum’s picture in an effort to depict longtime state Rep. Hugh Holliman as “soft on crime.” It worked. Holliman lost to Republican Rayne Brown.
Last year, DNA testing exonerated McCollum of the crime for which he was convicted. He spent more than 30 years on death row, including more than 20 after Scalia declared him the prime example of the justness of the lethal injection. Breyer mentioned the McCollum case is in his dissent yesterday but was kind enough not to mention Scalia’s embarrassing history with the case. For his part, Scalia seems unchastened for having advocated for the execution of a man who was likely innocent.
I’ve recently been reading about another case that I think underscores why Scalia’s opinion yesterday was so misguided. In 1997, the state of Texas executed David Wade Spence for the 1982 murders of three teenagers near Lake Waco, Tex. The case is incredibly bizarre, convoluted and outrageous, and I can’t possibly do justice to it in a blog post. For the thorough narrative of what happened, I recommend this 2014 investigation in Texas Monthly by Michael Hall. It’s a stunning piece of journalism, meticulously reconstructing a story that has been unfolding for more than three decades. But here’s a quick summary:
Spence and three other men were convicted for the murders despite the fact that no witnesses saw them near where the bodies were found. Other suspects were seen, including some with violent criminal records. But a local deputy named Truman Simons got a hunch that a Jordanian immigrant convenience store owner named Muneer Mohammad Deeb hired Spence and brothers Anthony and Gilbert Melendez to murder a teen girl named Gayle Kelley. Under Simons’ theory, Spence and the Melendez brothers mistook victim Jill Montgomery for Kelley, killed her, then killed the two teens who were with her because they were witnesses.
The evidence against Spence was sparse. There was no hair or blood evidence to link him to the crime. There were no eyewitnesses. At first, the case consisted only of statements from other inmates who claimed he had confessed to them. Some of those inmates later recanted their statements, and some later revealed that they gave their statements in exchange for leniency on their own charges, or for privileges like conjugal visits. The jailhouse snitch testimony alone wasn’t enough to persuade prosecutors to charge Spence at the time. It wasn’t until an assistant DA was able to get one more piece of evidence that the DA moved forward. From Hall’s piece:
It was April 1983; in a few months, the local media would mark the one-year anniversary of the murders, and yet the investigation was still floundering. Then Simons got a surprise visit from Ned Butler, an assistant DA who had recently been hired to try capital cases. He gave Simons a cryptic message: soon, Butler said, he’d be able to tell the deputy whether his theory that Spence had killed the teenagers was correct.Butler, it turned out, was a big believer in forensic odontology, or the study of bite marks. He’d made use of the discipline two years earlier to help solve a violent Amarillo murder in which the killer had bitten his victim. When Butler first saw the lake murders file, he immediately asked Salinas if they’d checked the bodies for bite marks. After studying the autopsy photos himself, he determined that several of the wounds on the girls’ bodies did, in fact, look as if they’d been made by human teeth. He had a mold taken of Spence’s teeth, then personally delivered it and the photos to Homer Campbell, a forensic odontologist in Albuquerque who had helped solve the Amarillo case. Within days, Butler got remarkable news: Campbell was certain that Spence’s teeth had made the marks.
I wrote a bit about Homer Campbell in my February series on bite mark analysis.
[I]n 1978 . . . the Arizona Supreme Court heard arguments to overturn a conviction based on bite mark testimony from Homer Campbell Jr., a ABFO-certified forensic odontologist. Campbell told the jury that that the odds of anyone other than the defendant leaving the marks he found on the victim’s breast were “eight on one million.” On cross examination, Campbell conceded that he didn’t compute those odds personally. Rather, they were a rough estimate of his memory of “articles written in the journals of the American Academy of Forensic Sciences.” In truth, there was no scientific basis for his estimation whatsoever. The court nevertheless found his testimony admissible, and upheld the conviction.
Despite the complete lack of scientific research to verify his methods, Campbell went on to become a renowned and sought-after expert witness. He would later serve as president of the American Board of Forensic Odontologists. He worked with the FBI. By the time of Spence’s trial he had testified as an expert witness in at least 12 states.
Campbell’s testimony was critical in winning and preserving both Spence’s conviction and his death sentence. From Hall’s description of the trial:
But the state’s case was entirely circumstantial until Campbell, the bite-mark expert, took the stand. Using electronically enhanced autopsy photos, the odontologist testified that Spence was “the only individual” to a “reasonable medical and dental certainty” who could have bitten the women. Hunt and Fuller promptly called their own expert, who said the quality of the photos was too poor to make a valid comparison. However, though he couldn’t say Spence was the biter, he also couldn’t exclude him. (The medical examiner said she had not recognized the bite marks at the autopsy, but she was now certain that some of the victims’ wounds had a pattern that suggested teeth.) Campbell’s words had a distinct impact. “We had life-size pictures of the marks and a cast of [Spence’s] teeth brought into the jury room,” remembered one juror afterward. “The testimony—‘everyone’s bite mark is different, like a fingerprint’—was very convincing.”
Today, even advocates for bite mark analysis eschew such comparisons to fingerprinting. (And even claims about the uniqueness of fingerprints are being questioned.) But there was particular reason to be suspect of Homer Campbell. Again from Hall’s article:
[I]n August 1984, just two months after Campbell had testified against Spence, he made a mistake that called his expertise into question: he positively identified the remains of a woman alongside a highway in Arizona as those of a missing Florida teenager by comparing the dead woman’s teeth with an enhanced photo of the teenager’s teeth. “They matched exactly,” Campbell told a reporter. Two years later, the teenager turned up alive.
In 1993, Spence’s lawyers cast further doubt on Campbell’s testimony.
Krauss, the odontology expert that Schonemann and Owen hired for their first writs, had suggested back in 1991 that the [Spence’s attorneys] set up a blind panel of odontologists and do a two-part study: analyze the autopsy photographs for marks, then compare the marks with dental molds from Spence and four other subjects. Now Driggs asked Krauss to set up the study. Krauss did, choosing five experts around the country. He sent them molds and five-by-seven autopsy photos, refusing to enhance the images as Campbell had done because, according to other experts, doing so could produce false or misleading results.The results, as they came in, proved astonishing. Though the experts identified several patterns that were possibly bite marks, they couldn’t go much further. One said the photos were of such poor quality that he refused to compare them against the molds. A second wrote that the marks were “more likely than not made by insects or artifacts.” If the purpose of the exercise, he continued, was to match these marks to a set of teeth, “it borders on the unbelievable.” A third thought that some contusions on one body were “probable human bite marks,” but he couldn’t match any of the molds to them. Two others did match a mark to one of the molds, but it was not Spence’s. It belonged to a housewife from Phillipsburg, Kansas.
Beginning in the early 1990s, the state’s case against Spence began to fall apart. Muneer Deeb was eventually given a new trial due to the unreliability of the evidence against him. In 1993, 10 years after his conviction, a jury acquitted him. He was set free.
But of course the law doesn’t require separate jury verdicts to be consistent. So even though the man who allegedly hired him to commit the murders had been acquitted, Spence was still condemned to die. Some of the jailhouse informants who testified against Spence then began to recant as well. The Melendez brothers, who had previously confessed and testified against Spence, retracted their confessions, claiming that they had been pressured and that they confessed to avoid the death penalty. Several officers involved in the initial investigation also began to question the conviction. A local millionaire named Brian Pardo — who described himself as a Republican and a death penalty advocate — took up Spence’s cause and funded a separate investigation into his conviction. That investigation uncovered yet more troubling behavior by police and prosecutors. Spence’s case later attracted the attention of “Dateline” and New York Times columnist Bob Herbert.
Little of this mattered. Spence was still executed in April 1997. He was executed mostly because of Homer Campbell. In rejecting one of Spence’s last-ditch petitions, one Texas appeals court explained that, “[O]ur research has not yet led us to a reported case where bite mark evidence has been ruled not to be admissible evidence.” Or because other courts had admitted bite mark evidence, it would admit it, too. In March 1996, the U.S. Court of Appeals for the Fifth Circuit upheld Spence’s conviction on similar grounds. Judge Edith Jones’s opinion cited the strength of the bite mark evidence and rejected Spence’s challenges of its validity. From the opinion:
. . .the State’s forensic odontological expert concluded that the bite marks on Jill’s and Raylene’s bodies were inflicted by Spence. Even Spence’s rebuttal expert in this field could not rule out the possibility that Spence’s teeth caused the wounds, although he believed there was too little evidence to support a firm conclusion.
. . . Spence’s argument that Dr. Campbell had misidentified the remains of another woman likewise does not expose his testimony against Spence as false.
Spence is simply trying to relitigate this aspect of his defense eleven years too late. At trial, Spence introduced his own forensic odontologist, Dr. Gerald Vale, a leading expert in the field. Dr. Vale spiritedly criticized Dr. Campbell’s methodology and conclusions, although, critically, Dr. Vale admitted he could not rule out Spence’s teeth as the source of the bite marks. Because this evidentiary issue was fully and competently aired in the state courts, no violation of fundamental fairness under the due process clause has been shown.
The court also rejected the blind test Spence’s lawyers had given the other bite mark analysts, apparently because the attorneys were late in filing the results.
Spence argues that the federal district court erred in excluding reports from five other expert odontologists who concluded that Dr. Campbell’s testimony was unreliable. But because Spence filed these reports after the district court’s discovery deadline, without explanation for his untimely filing, the district court did not abuse his discretion in refusing to admit the reports.
Finally, Spence’s attorneys had proposed alternate theory that the teens had been killed in a drug deal gone bad. The prosecution countered that theory by introducing bite mark testimony that excluded the suspected drug dealer as the teens’ killer. The trial court allowed that testimony, a decision that a federal district court upheld. The federal appeals court then upheld the district court, and included this quote from the opinion:
[t]here is, however, unanimous agreement in the field of scientific odontology that if even one point of dissimilarity is found between the suspect’s dentition and the bite mark, it may be said with certainty that the suspect did not make the bite mark. Thus, that suspect may be eliminated.
The problem, of course, is that though there may be “unanimous agreement” within the field of odontology about dissimilarities between a suspect’s teeth and a bite mark, the field of odontology itself has come under fire from the broader scientific community. And in this particular case, there was far from unanimous agreement among the odontologists consulted by Spence’s attorneys that the marks found during the autopsy were even human bite marks.
Nearly 20 years after Spence was executed, Campbell’s credibility took yet another hit — this time due to a truly bizarre series of events. About a year after the Lake Waco murders, Spence’s mother was raped and murdered in her home. Hours after the crime, someone then broke into the home again and rifled through some boxes and papers in Spence’s old room. Spence’s mother had recently begun her own investigation into her son’s conviction. Some, including a local police officer named Jan Price, believed the crimes may have been connected. But Simons and the local DA quickly took over the case. And again they brought in Homer Campbell. He claimed to have found bite marks on Spence’s mother that were “consistent with” a man named Joe Sydney Williams. In 1987, thanks to Campbell’s testimony, Williams and his friend Calvin Washington were convicted of raping and murdering Spence’s mother. Neither had a direct connection to the Lake Waco murders.
There was no real DNA testing back in 1987. And the semen samples in the rape kit taken of Spence’s mother mysteriously disappeared. But a journalist later discovered that vaginal and anal swabs had been taken and preserved in a crime lab. In 2000, DNA tests on those swabs excluded both Williams and Washington as her rapist. Both men were released from prison.
Within about a year of his testimony against Spence, then, Homer Campbell had both mistakenly identified a corpse as a woman who was still living and mistakenly matched bite marks to a murder suspect, resulting in the wrongful conviction and 13-year imprisonment of two innocent men. And yet if all this happened again today, it’s a near-certainty his or similar testimony would have been allowed.
This is why the execution of David Wayne Spence is so relevant to Justice Scalia’s concurring opinion in Glossip. Bite mark evidence has been roundly criticized by the National Academy of Sciences. Competency tests have found over and over again that bite mark analysis lacks the predictability, peer verification and objectivity to be a bona-fide science, including a recent test administered by the leading advocacy group for bite mark analysts. Another series of tests have found no scientific evidence to support the fundamental underlying assumption of bite mark analysis about the uniqueness of human dentition and the ability of human skin to preserve bites in a useful way. To date, at least two dozen people wrongly arrested or convicted due to bite mark analysis have been exonerated, including four who had been sentenced to death — and that’s not including David Wayne Spence. Currently, there are at least two men awaiting execution who were convicted primarily because of bite mark analysis.
And yet as of today, no court in the United States has ruled bite mark evidence inadmissible. Homer Campbell died with his reputation intact, and his fellow bite mark analysts have continued to testify in courts all across America.
Scalia might call the courts’ slavish devotion to precedent in the face of a growing mountain of evidence about bite mark analysis an important legal tradition. He might call the Fifth Circuit’s willingness to allow the execution of a man for a crime he likely didn’t commit because his attorneys didn’t file the results of their study by a prosecutor’s deadline a necessary adherence to the rules. He might argue that because all the proper rules and procedures were followed, the execution of David Wayne Spence because of a man now known to be a fraud gave testimony now known to be scientifically unsound was not a violation of Spence’s constitutional rights. He may make a similar claim about the pending executions of Eddie Lee Howard and Jimmie Duncan.
Scalia can claim all of these things. But what he can’t claim — at least not convincingly — is that any of this is enlightened.