The question is not whether you will execute an innocent person in a state that executes criminals. Oklahoma and Texas are engaged in a competition right now, a sort of Red River Shootout off the football field, to address the real question.
For context, remember that Texas has the fourth largest Indian population among the states in the 2010 Census. Oklahoma is number two. Since the death penalty was reinstated in 1976, 16 Indians have been executed, a percentage of executions over twice the percentage of Indians in the general population. Of those, Oklahoma killed one and Texas killed two, which would put Texas ahead if the competition were simply how many Indians do you kill.
There are currently 31 Indians on death row. Twelve are from California and the rest are distributed among Arizona, Florida, Oklahoma, Oregon, Tennessee, Utah, and there is one federal prisoner under sentence of death. There are no identified Indians currently on the Texas death row.
Can an innocent man be convicted of capital murder in these United States? Since 1973, 155 people have been exonerated off of death row after an average stay of 11.3 years. Only 20 were exonerated by DNA, but to make the list, the defendant must have been (1) acquitted after a new trial or (2) had all charges dropped or (3) gotten an absolute pardon based on new evidence of innocence. No American Indians appear among the 155 exonerations, but since only 60 of the innocent death row residents were white, the dearth of Indians is a combination of luck and the fact that only one tribe has opted in to the federal death penalty.
Texas is gearing up for Mark Norwood’s capital murder trial. If that name is too obscure, try Michael Morton, the man who got life in prison for the murder of his wife and served 25 years before DNA evidence that exonerated him pointed to Norwood, who has been convicted and is serving the sentence he put off on Michael Morton. Six of those years were served during the legal battle to get the DNA testing.
Besides the tragedy of an innocent man serving 25 years, another woman, Debra Baker, was killed with the same modus operandi, leading to speculation that Baker died because of a now-deceased sheriff and a district attorney named Ken Anderson too lazy to follow the evidence beyond the obvious suspect in a criminal homicide, the spouse.
DA Anderson was later appointed a district judge by Governor (and presidential candidate) Rick Perry, but after the Morton exoneration Anderson lost his judgeship, his law license, and did 10 days in jail, reduced to five for good behavior. While this pales before the 25 years his victim served, the fact that Anderson’s misconduct caught up with him and destroyed his career is an exceedingly rare and therefore welcome result.
Anderson’s protégé John Bradley, the district attorney appointed by Perry to replace Anderson and who opposed the DNA testing that freed an innocent man for six years, was defeated in the next election.
Besides keeping Michael Morton behind bars for an extra six years, John Bradley made history when Gov. Perry replaced the head of the Texas Forensic Science Commission with Bradley just two days before it was scheduled to review an expert report on Cameron Todd Willingham’s case. Willingham was executed for homicide by arson after Perry refused to stay the execution on the ground that the first real expert investigation showed there was no arson. The expert Perry ignored would not be the last to opine on the Willingham evidence.
Huffpost published the narrative that is the Willingham story:
Willingham was executed by lethal injection on Feb. 17, 2004. Yet the efforts to exonerate Willingham only intensified, and in 2005, the Texas Forensic Science Commission decided to re-examine the case. The commission hired a nationally known fire scientist, Craig Beyler, to evaluate the evidence, and in his report, he came down on the same side as the scientists who had evaluated the case prior to Willingham's execution: there was no credible scientific basis for the conclusion that arson had been committed.
Beyler was eventually scheduled to testify before the commission on Oct. 2, 2009. Two days before Beyler's appearance, however, Rick Perry put a stop to it.
There was speculation at the time that Perry did not wish to grant a stay of Willingham’s execution because he was locked in a serious battle for reelection against former Senator Kay Baily Hutchinson. Perry’s appointee Bradley called off the review, but in spite of their best efforts, the Willingham case has come to represent a political execution of an innocent man, since the science did not go away when Bradley stopped the hearing.
Governor Perry, to be fair, was elected in a state that has been rabid about killing killers. Former Gov. Ann Richards took a political bath when she gave a man on death row a thirty-day stay to being forward evidence of innocence. Even former Gov. George W. Bush was criticized when he commuted the death sentence of a known serial killer who was shown to have been on a job site in Florida when the crime he was about to be killed for was perpetrated in Texas. In the Texas political context, the fact that the man was innocent of the crime for which Texas was about to take his life was “a technicality.”
After Bradley’s two run-ins with innocence in homicide cases—Morton and Willingham—he found himself unable to find a job. At last notice, he was an assistant attorney general in the Republic of Palau, an island in Micronesia of about 20,000 souls that is a former U.S. territory independent since 1994.
Then-Gov. Rick Perry, who had previously appointed Bradley first district attorney and then chair of the Texas Forensic Science Commission, visited Palau shortly before Bradley landed the job. Perry was on a political photo op mission to search for the remains of missing WWII airmen. The government of Palau declared Perry an “Honorary Consul” during his visit. The Houston Chronicle questioned whether Perry had interceded on Bradley’s behalf, but Perry had no comment.
Since Cameron Todd Willingham, the innocent man, was killed by Texas in 2004 and the innocent Michael Morton was released back in 2011, it’s important to demonstrate Texas is still in the game of convicting innocent people of serious crimes if it’s to be compared to Oklahoma.
This year, Charles Sebesta, a Texas district attorney for 25 years, followed ex-Judge Ken Anderson in losing his law license for using testimony he had reason to know was false to put a man on death row for 12 years.
I can’t report this without noting that I had cases against Sebesta when practicing law, and while he was pretty tightly wrapped, he did not strike me as the kind of man to kill for political reasons. He continues to deny it, but his denials do not cover everything in the judgment taking his law license.
Sebesta did not handle the case that got him disbarred in a manner fitting for taking a man’s life, but I believe to a moral certainty that Sebesta believed then and believes now that he was doing his best to kill a killer, a fool’s errand demanded by the voters. As long as the voters make that irrational demand, it’s hard to blame elected officials for catering to it.
Texas has so far 13 exonerations from death row. But remember, the question is not if a death penalty state will kill an innocent person.
Oklahoma racked up some extra points for brutality when it botched the execution of Clayton Lockett on April 29, 2014. Oklahoma Gov. Mary Fallin had ignored an Oklahoma Supreme Court order to stay the execution, but that bit of lawlessness slipped from notice when Lockett was injected with the first drug in a three drug “cocktail” that was supposed to render him unconscious for the drugs that would first paralyze him and then stop his heart. If he were conscious, the second drug would cause major panic and the third would cause excruciating pain.
Lockett was not rendered unconscious by the first drug, midazolam. He gasped and struggled for over 40 minutes as the executioners first closed the curtain to take the debacle out of view of the legal observers and then, finally, decided to stop the attempt to kill Lockett—who then, they claimed, died of a coincidental heart failure.
If the public was fascinated by this debacle, another audience was positively riveted: the other residents on Oklahoma’s death row, and other death rows in states cued up to try midazolam for the ultimate off-label use.
The objection was to becoming human subjects in a painful science experiment and the case was styled Warner v. Gross, but Charles Warner was executed and it got to the Supreme Court as Glossip v. Gross, where the Court made Richard Glossip an involuntary lab rat by a 5-4 vote.
Ironically, the case that will have Richard Glossip’s name on it is about whether the method used to kill him is “cruel and unusual punishment” and so unlawful under the Eighth Amendment. Glossip would rather dispute his guilt and ask about the propriety of executing an innocent man, apparently not having gotten my memo that the question is not whether a death penalty state will kill an innocent man.
Is it possible that Glossip is in fact innocent? It’s not only possible, it’s likely. There is no question that another individual killed the victim or that the guilty person is mentally challenged, although it’s unclear if his challenges are severe enough that he cannot be executed.
The killer is not on death row because he was offered his life in exchange for saying that Richard Glossip hired him to kill the victim. In return for his testimony to that effect, Oklahoma did not seek the death penalty. He is now serving life without possibility of parole.
The legal and moral problem is that the self-serving testimony of the admitted killer did not lead to any corroborating physical evidence and there is no credible motive for Glossip to kill the victim, who employed both Glossip and the killer.
To call the case against Glossip “weak” is almost being charitable. His impending execution is set for what is a major holiday in much of the Southwestern Borderlands, Diez y Seis de Septiembre—September 16—which commemorates the Grito de Dolores that kicked off the war for Mexican independence.
Sullying a holiday with the execution of an innocent man is one of the ways you know you are in Oklahoma. Glossip’s impending death by homicide for a homicide he probably did not commit has motivated lots of supporters, including Sister Helen Prejean of Dead Man Walking fame and the actor who played Prejean when the book was filmed, Susan Sarandon.
Among the people who have spoken up for Glossip’s innocence is the admitted killer’s daughter, who has written her opinion that Glossip is innocent and her father wants to recant but fears that would lead to joining Glossip on death row.
Oklahoma Governor Mary Fallin has a record of doing politics with convicted killers without regard for the quality of the conviction that rivals Rick Perry’s.
As Mexican politicians perform the Grito de Dolores in public places and Texas indulges a more low key celebration with barbacoa, Indian Territory (now Oklahoma) marks September 16 by executing a man who is probably innocent, or at least by conducting a deadly science experiment even if he’s guilty.
All of which leads to the question that goes begging in the death penalty debate, where so many people want to pretend the issue is whether a death penalty state will kill an innocent person.
Of course it will. Rick Perry and Mary Fallin are not outliers. The real question, and the subject of this ersatz Red River Shootout, is how many innocent people in each death penalty state will be a sacrifice to political ambition.