OPEN LETTER TO JUSTICE SCALIA

Executing the innocent

Keith S. Hampton/Special to The National Law Journal
December 1, 2006


Dear Justice Scalia:

I think I am sorry that I read your concurring opinion this summer in Kansas v. Marsh, 548 U.S. (2006), in which you label all who are concerned that innocent people have been executed as "sanctimonious" and ignorant, and suggest that everyone with such a concern is merely part of an "abolition lobby." That's a pretty breezy generalization, and it is as wrong as your proposition that there has never been "a single case-not one-in which it is clear that a person was executed for a crime he did not commit." You are either blind, or you aren't looking very hard.

Texas alone has at least three such cases: Carlos DeLuna, Ruben Cantu and Cameron Willingham. DeLuna and Cantu were both executed on crime-scene identification that the witnesses now repudiate. Let me quote your own court: "The vagaries of eyewitness identification are well-known; the annals of criminal law are rife with instances of mistaken identification." U.S. v. Wade, 388 U.S. 218 (1967). When we base death sentences on such evidence, why would you find it so hard to believe that we've killed one or two innocent people?

Maybe you think it just happens in misidentification cases. Then take the execution of Willingham for torching his home with his three daughters inside. He was convicted because the fire investigators in his case assumed arson when every bit of evidence was consistent with an accident. Innocent people can be just as easily executed on junk science and incompetent investigators as eyewitness misidentification. So you can see why I also can't agree with your cheery conclusion that every exoneration "demonstrates not the failure of the system but its success."

You also claim that it was "the system" that uncovered cases of innocent people, and not some "outside force." Having been part of "the system" for many years, I can assure you that prosecutors and police do not investigate whether they "got it right" after they've sent someone to prison or to the death chamber. None of these cases would ever have come to light had not newspapers looked into them. Those who are part of "the system" (notably, police and prosecutors) react with denial and hostility when confronted with proof that they got it wrong. When the district attorney in the Cantu case learned that he was innocent, she promptly announced that she would prosecute the surviving victim, Juan Moreno, of "murder by perjury" because he succumbed to police pressure to misidentify Cantu at trial. This is the same guy who was shot nine times and clubbed half to death.

more: http://www.law.com/jsp/nlj/PubArticleNLJ.jsp?id=1164981798749