How much doubt is reasonable?

Earlier this week, the Columbia Human Rights Law Review published its Spring 2012 issue with an article that strongly suggests Carlos DeLuna was innocent of the crime for which the State of Texas executed him.

Today, Michael McLaughlin writes in The Huffington Post that

A Texas judge who reviewed the controversial 2004 execution of Cameron Todd Willingham planned to posthumously exonerate the father who was put to death for killing his three daughters in a house fire.

When the conversation turns to the possible execution of an innocent person, Willingham’s name and case is often cited. Willingham’s home in Corsican, Texas burned on 23 December 1991. His three daughters, trapped inside, died. He escaped. His wife was away at the time.

The investigation concluded the fire was deliberately set and an accelerant used. Two weeks after the blaze, the authorities arrested Willingham. He maintained his innocence and turned down a plea bargain that offered him life in prison.

At his 1992 trial, the fire investigators testified Willingham had set the fire. A jailhouse informant also asserted that he had heard Willingham admit to the act while they were in jail together. The jury convicted Willingham. His execution took place in 2004.

Doubts about Willingham’s guilt persisted through the years. The informant recanted in 2000. Forensic evidence has developed over the years.

Shortly before Willingham’s execution, his attorney contacted Gerald Hurst a fire science expert and chemist who does  pro bono arson defense work. In a 2010 interview related to a Frontline film titled Death by Fire, Hurst defines his role as seeing “that the defendant gets a fair trial; that all the cards are put on the table.”

Hurst submitted a report days before Willingham’s execution that stated the house fire was not arson although it did not identify a cause. He sums up the report in the 2010 interview:

But what I do know 100 percent is that there is not a single bit of evidence that this was an incendiary fire, that it was started by human hands.

Texas Gov. Rick Perry received the report. He denied a reprieve and the execution took place.

Michael McLaughlin, writing today in The Huffington Post, reports that the new arson evidence and the change in the testimony of the jailhouse witness convinced District Court Judge Charlie Baird in 2010 that “Texas wrongfully convicted” Willingham. Baird even went so far as to put together a document exonerating Willingham. The order “never became official, because a higher court halted the posthumous inquiry while it considered whether the judge [Baird] had authority to examine the capital case.” McLaughlin continues:

While waiting for permission to finish the case from the Third Court of Appeals, Baird put together the document that “orders the exoneration of Cameron Todd Willingham for murdering his three daughters,” because of “overwhelming, credible and reliable evidence” presented during a one-day hearing in Austin in October 2010.

“You can’t do anything for Willingham except clear his name,” Baird told The Huffington Post. “When they tried Willingham, I’m convinced that everyone worked in good faith. The problem is that up until the execution, everything had changed so dramatically that you realized the science relied upon at trial was not reliable enough to take a man’s life.”

Baird’s intended order never came to light because the court of appeals criticized his handling of the case  and prevented him from resuming work on it before he left the bench at the end of 2010 after choosing not to seek re-election. No one asked him for it after the court of appeals blocked him, he said.

Lawyers for Willingham’s family continue to pursue a pardon that would clear his name, working with The Innocence Project.

The revelations of the week lead me to wonder: does it take absolute proof that an innocent person has been executed to lead our society to ponder seriously the abolition of the death penalty? Or is reasonable doubt enough? If so, how much?

See you along the Trail.