Occasionally I stumble into a discussion of whether anywhere in the U.S. a government may have executed an innocent person. Generally I note the horrible Texas case in which Texas fought for years for the point that a convicted murderer whose three allowed appeals had been exhausted should not be allowed to reopen his case simply because new evidence of his innocence had emerged. In Herrera v. Collins (506 US 390, 1993), Texas won the right to not allow evidence of innocence to get a review of the case, and the man was executed.
Ladies and gentlemen I ask you: Why would a state fight for the right to execute an innocent man, to the Supreme Court, if it did not intend to use that right?
The question rises more frequently these days as Texas Gov. Rick Perry steams toward announcing he will run for the presidency.
I point out that Herrera came down nearly eight years before Perry stumbled into the governor’s chair, his having been standing outside the door as Lieutenant Governor when George W. Bush persuaded the Supreme Court — most of the same justices — to stop both the popular vote and change the electoral vote to give him the presidency. So we can’t blame that one on Perry.
But we can blame the execution of Todd Willingham on Rick Perry, even understanding that he was relying on what he assumed to be good evidence in his naturally uncurious waltz of destruction across Texas. Perry could claim he got bad advice. Though Texas’s governer really has little more than ceremonial power and some appointments, for someone like Perry it is a big job he can barely handle. People would cut him slack on letting an innocent man die, convicted of a capital crime that as the evidence showed at the time probably did not occur, if he’d just confess it.
Instead, Perry engaged in a four-year campaign to cover up the affair — a cover up that is so far successful.
Jonathan Chait blogging at New Republic cites Politico and The New Yorker on the way to painting all Texans as morally bankrupt for allowing the coverup to go on — justifiably, I think. While the newspapers cover the story, outrage does not rise from the drought-stricken populace. New Republic’s blog explained the cover-up, and Texas’s blase attitude:
Alexander Burns and Maggie Haberman have a story for Politico about Rick Perry’s limitations as a general election candidate. It’s a really excellent piece on its own terms, but at the same time, it’s a bit of a parody of a Politico story in that it takes a vital moral question, drains it of all its moral significance, and presents it in purely electoral terms. The thesis of the piece is that Perry appeals to very conservative white southerners, but not to anybody else, making him a questionable choice to head the Republican ticket. The piece bears out that thesis pretty well. In the middle it includes a glancing reference to one episode of Perry’s gubernatorial tenure:
Perry would also have to answer for parts of his record that have either never been fully scrutinized in Texas, or that might be far more problematic before a national audience.
Veterans of Sen. Kay Bailey Hutchison’s unsuccessful 2010 primary challenge to Perry recalled being stunned at the way attacks bounced off the governor in a strongly conservative state gripped by tea party fever. Multiple former Hutchison advisers recalled asking a focus group about the charge that Perry may have presided over the execution of an innocent man – Cameron Todd Willingham – and got this response from a primary voter: “It takes balls to execute an innocent man.”
The Willingham case is just one episode in Perry’s gubernatorial tenure that could be revived against him in the very different context of a national race, potentially compromising him in a general election.
If you’re not familiar with this episode, David Grann wrote about in for the New Yorker in 2009 in what may be the single greatest piece of journalism I have ever read in my life. (I am biased, as David is a friend and former colleague.) The upshot is that Perry is essentially an accessory to murder. He executed an innocent man, displaying zero interest in the man’s innocence. When a commission subsequently investigated the episode, Perry fired its members.
I’m a Texan, and I’m appalled. Dear Reader, what can a Texan do? Please advise.
Surely the rest of America would be concerned and shocked, no? We can excuse goofs in the histories of our presidential candidates. Especially since Nixon, we should be doubly wary of those who work hard to cover up their errors, rather than learn from them.
By the way, in the latest action, the office of the Texas Attorney General issued a report on the duties of the commission established to investigate Texas justice to make it more fair — the commission whose members Perry fired when they got close to the Willingham case. The report says that that Willingham case is water under the bridge, that the commission may not investigatet cases that predate the commission’s creation.
It’s a gross miscarriage of justice, and an attack on the democratic form of government which relies very much on continuous improvement of governmental processes, especially the due processes of criminal justice.
Posted by Ed Darrell 
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