TOOLS OF THE TRADE
Until 1923, with the exception of four men executed by firing squad during the Civil War, Texas sent condemned men to the gallows. In 1977, lethal injection was chosen as the means of execution, and in 1982, Charlie Brooks, Jr. became the first man in Texas to die by the needle. His last words, duly recorded by the state that would kill him, praised Allah: “Verily unto Allah do we belong; verily unto him do we return. Be strong.” Seven minutes later, if all went according to plan, he would be dead.
In most states, lethal injection is a three-step process. It begins with the injection of a sedative, usually sodium thiopental—a drug that, as Rachel Maddow points out, is better known as truth serum. Then the prisoner is injected with pancuronium bromide, a muscle relaxant that collapses the diaphragm and lungs. Finally potassium chloride is administered to stop the heart.
In late 2010, the nation faced a shortage of sodium thiopental. In January of that year, the only American manufacturer of sodium thiopental stopped production. In response, the state of Georgia illegally bought the drug from “Dream Pharma,” which, according to the BBC, is based out of a London driving school. The state used the drug in two executions before the DEA intervened. If they hadn’t stepped in, the state of Georgia would have used the illicitly purchased sodium thiopental in the recent execution of Troy Davis.
"WE ARE A LOT OF THINGS"
The star of the Republican primary debates hasn't been Republican frontrunner Mitt Romney; it hasn’t been the flavor of the month Newt Gingrich, either. It hasn’t been Rick Perry (despite his best efforts), Michelle Bachmann, Herman Cain, or Ron Paul. The star of the Republican debates is the audience: It’s the Republican base. In the first primary debate on May 5, Chris Wallace asked Congressman and presidential hopeful Ron Paul if he thought that using heroin was an expression of liberty. Paul responded yes and continued, “How many people would use heroin if it were legal? I bet nobody … Oh yeah, I need government to take care of me; I don’t wanna use heroin, so I need these laws.” The crowd went wild and Wallace gaped. “I never thought heroin would get applause here in South Carolina,” he said. On September 12, in a California debate, the moderator asked if someone who chose not to purchase health insurance should be allowed to die, and a member of the audience shouted, “Yeah!” On September 23, at yet another debate, Stephen Hill, a gay soldier serving in Iraq, asked in a taped message if the Republican nominees would try to reenact Don't Ask Don't Tell. The crowd booed him, loudly. And on September 7, Brian Williams asked Texas Governor Rick Perry, “Your state has executed 234 death row inmates—more than any other in modern times…” Williams wasn't able to finish the question. The crowd erupted with applause.
On the left, the reaction was one of shock and horror. Glenn Greenwald, a columnist at Salon raged, “Wildly cheering the execution of human beings as though one's favorite football team just scored a touchdown is primitive, twisted, and base.” Will Bunch at the Philedelphia Daily News laments that this is “a pathetic new low in American politics … It was bloodlust, pure and simple.” Andrew Sullivan notes that this is “why I find it impossible to be a Republican: Any crowd that instantly cheers the execution of 234 individuals is a crowd I want to flee, not join.”
Of course, Republicans didn't see anything wrong with what they saw as cheering for justice. James Toranto at the Wall Street Journal explains,
It seems to us that the crowd's enthusiasm was less sanguinary than defiant. The applause and the responses to it reflect a generations-old mutual contempt between the liberal elite and the large majority of the population, which supports the death penalty.
He has a point. After all, according to an October Gallup poll, a nearly two-thirds majority of Americans—61 percent—supports the death penalty. While that number is down from its 1994 high of about 80 percent, the fact remains that this country is unequivocally pro-capital punishment.
Indeed, Toranto and other death penalty supporters take pride in the persistence of American capital punishment. Other industrialized countries—countries that don't regularly execute their own citizens—don't ban the death penalty because their populations are revolted by the practice, the argument goes; rather, they ban it because their leaders are anti-democratic. Relying heavily on a decade-old piece in the New Republic, Toranto points out that the populations of a number of European countries in fact support capital punishment. In 2000 Italy, for example, a country whose government is vociferously opposed to the death penalty, the New Republic reports, “roughly half the population wants [capital punishment] reinstated.” One of anti-death penalty activists’ “most ludicrous tropes is to liken the U.S. to authoritarian regimes that also practice capital punishment,” Toranto opines. “America still has the death penalty because it is less authoritarian than Europe. Thus whenever someone makes that argument, we feel a tinge of patriotic pride. We believe a similar sentiment lay behind last night's applause.”
But things have changed considerably since 2000. Some countries, like Britain, remain split on the issue, according to recent reports by the BBC. But many more, poll data reveals, oppose the reinstatement of capital punishment. And it's more than a little facile to claim that support in the U.S. is at all on par with support in Europe. There's something rather exceptional about the U.S. In the early naughts, Gallup had support hovering around 70 percent, a healthy amount higher than anything contemporary Europe ever achieved.
America, despite conservative protestations, remains unique among industrialized countries in its overwhelming support for capital punishment, which makes it not altogether surprising that Republicans would cheer executions. Ta-Nehisi Coates is even less surprised. “Apparently people were shocked by the applause here,” the Atlantic editor writes. “The only thing that shocked me was that they didn't form a rumba line. … This is still the country were we took kids to see men lynched, and then posed for photos. We are a lot of things. This is one of them.”
We are, indeed, many things. We are a country that until 2002 allowed for the execution of the mentally retarded. We are a country that until 2005 allowed for the execution of juveniles We are a country that, to this day, according to studies by the federal Government Accountability Office, allows race to play a role in the charges and convictions of the death penalty.
Since 1976, when the Supreme Court reinstated the death penalty after a four-year hiatus, Texas, more than any other state, has perfectly reflected the American fascination with the death penalty. It has been home to almost 40 percent of all executions in the United States since 1976, and Governor Perry has overseen nearly half of them—nearly 20 percent of the national total. Since 1976, Texas has executed thirteen juveniles. Perry oversaw six of them. And despite the Supreme Court ruling against the execution of the mentally retarded, Bobby Wayne Woods was executed under Governor Perry in 2009. The Court set the standard for metal retardation at an I.Q. of “around 70.” Woods scored, according to the New York Times, between 68 and 86 over the years.
After the crowd applauded for Governor Perry’s “ultimate justice,” Williams asked if he ever lost sleep over the possibility that he oversaw the execution of an innocent man. Perry, by his own admission, sleeps just fine.
INTERLUDE: LAST WORDS
The last words of Kevin Scott Varga, executed May 12, 2010 for beating a man to death during a robbery:
I am going to start with the victim's family. I know I took someone very precious to you. Myself and Mr. Galloway who you will see tomorrow. Please forgive me. God has given me peace. I love each and every one of you. You have to forgive me for you to gain the kingdom of Heaven. I wish what was torn from you was not. I do know how it feels to have lost loved ones. This was the only way God could save me; I would pay it back a thousand times to bring back your loved ones. I would pay it gladly. I love each and every one of you and hope you can find forgiveness for me. I don't require your forgiveness, because God has forgiven me. Sorry, I hope you find peace. God's love is infinite. If you hate me, please give it up. I forgive you and I hope you can forgive me. Mom, you are my strength. Kathy, we've had some good memories, you are still the monkey. Mom, this is nothing, I am going to go to sleep and wake up with Jesus. This is the only way God could save me. Stefanie, she is my heart, say goodbye to Stefanie. I do not want anybody to mourn my death, celebrate my life. God loves me and God loves you. Mom, you didn't do anything wrong. Thank you, Warden. Thank you Chaplain. Thank you God. I am ready to go. God please take me home. I am ready Warden. Thank you Jesus. I am going, mom.
Cameron Todd Willingham loved his car. When his burning house finally blew out and flames licked through the windows and doors, he would run to his car and back it away from the fire. He loved his daughters, too—his “babies,” he called them—two-year-old Amber, and one-year-old twins Karmon and Kameron. “Our kids were spoiled rotten,” his then-wife, Stacy Kuykendall, told prosecutors, according to the New Yorker. He had loved his wife too, though he beat her, and with his last words cursed her.
On December 23, 1991 in Corsicana, Texas, Willingham’s neighbor, Mary Diane Barbe, was chaperoning her daughters’ sleepovers. At 10:00 am, Bob Barker came on with The Price is Right, and the kids were out on the back patio, playing. Ten minutes later, Ms. Barbe’s youngest daughter, eleven-year-old Buffy, screamed. The house two doors down—The Willingham house—was on fire. Smoke was pouring from the windows, and Willingham was crouched on the porch. When he saw Mary Barbe running toward the house, he began screaming. Buffy Barbe remembered Willingham’s words: “My babies are inside burning up. Help me.”
Ms. Barbe told her three daughters to stay put and ran down the street trying to get someone to call 911—her own phone was broken. It took her five minutes to find a neighbor with a working phone and get back to Willingham’s house. When she returned, her children, who had run down the street, were trying to convince Willingham to go back inside. Ms. Barbe would later tell a courtroom, “We couldn’t get him to do anything, couldn’t get him to go in the house or anything.” He just screamed.
Hearing the shouts, other neighbors began running toward commotion. The house erupted in flames. “It blew up,” Ms. Barbe would say. “It blew out.”
Jerry Long, another neighbor, arrived about ten minutes after the screaming began. By the time he got there, the house was, in his words, “boiling smoke and flames out of the top.” He told the fire marshal that Willingham was crying. At the trial, though, Long had forgotten that. By then, he remembered Willingham’s behavior with suspicion: “He just—he wasn’t real excited,” he told the court. “He would stop and look at his self [sic]. He would holler. He would tell me that his kids were in the house, and then he would look at himself, his arms, and he would check his self to see if he was, I guess, burnt or whatever.” According to Long, what excitement Willingham could conjure would “come in spurts. It wasn’t continuous. It was—it’s like he would stop and think about it.”
By the time the firefighters arrived, they were too late. No one had reentered the house to get the girls—Willingham’s babies. All three were dead.
INTERLUDE: LAST WORDS
You're not about to witness an execution; you are about to witness a murder. I am strapped down for something Marcus Rhodes did. I never killed anybody, ever. I love you, Mom. I love you, Tali. This is wrong. This whole thing is wrong. I can't believe you are going to let Marcus Rhodes walk around free. Justice has let me down. Somebody completely screwed this up. I love you too, Mom. Well Warden, if you are going to murder someone, go ahead and do it. Pull the trigger. It's coming. I can feel it coming. Goodbye.
"THE FIRE DOES NOT LIE"
The next day, Christmas Eve, Todd and Stacy went back to their burnt out home. They rooted through the debris. The car radio blared. They had a “laughing, cutting-up type attitude,” John Bailey, another neighbor, remembered.
The Corsicana Fire Department, meanwhile, was busy with their investigation. By Christmas Day, Fire investigator and Assistant Fire Chief Douglas Fogg's suspicions had been aroused. He had, he believed, already ruled out accidental causes of the fire—electrical shorts, gas leaks, space heaters, etc. He had found “pour patterns” on the floor of the children’s bedroom and hallway. This “pouring effect,” Fogg would say, is evidence of “what we would consider a liquid being used to accelerate a fire.” In the hallway, he found burn patterns that crossed the threshold plate of the front door and staining on the concrete floor of the front porch. The burn patterns and the staining, Fogg thought, were more evidence that a liquid accelerant had been used, had worked its way under the door and out onto the porch.
The day after Christmas, Fogg called the state Fire Marshall. Deputy State Fire Marshall Manuel Vasquez, a fire investigator with over 1,200 fire investigations under his belt, came down to Corsicana and immediately had the same suspicions as Fogg.
Vasquez found the same puddle configurations—pour patterns. And in some of them, he believed he could discern a deeper meaning; he believed he saw meaning in the patterns in the hallway. “The intent,” he would tell a jury, “was to prevent people from coming in through that place or delay this entrance.” It was a “fire barrier.” He believed he had found three points of origin, another characteristic of a man-made fire. Further, Vasquez saw that the aluminum threshold of the door was melted, and, he reasoned, wood fire doesn't go hotter than 800 degrees, yet aluminum melts at 1,200 degrees. The “only thing,” he would say, "that can cause that to react is an accelerant."
"Man made it hotter—or woman or whatever," he said. "Human being made it hotter."
On December 27, the children were put to rest. Later that day, Willingham went again to his burnt out home. This time, the fire department was there, investigating. Ron Franks, a lieutenant paramedic with the Corsicana Fire Department told the court that Willingham came to look for his dart set. He asked the fire marshal to escort him inside so that he could look for it.
Vasquez interviewed Willingham, and his suspicions about the fire were confirmed. Willingham, Vasquez would say, “just talked and he talked, and all he did was lie.” Willingham’s account of his escape from the fire didn’t match Vasquez’s interpretation of the evidence. Vasquez believed there to be three points of origin—the fire would have essentially boxed Willingham in—so, if Willingham were to be believed, he should be dead. Furthermore, Willingham's injuries didn't match. The placement of the three putative points of origin meant that Willingham would have had to walk through the fire, but he had only superficial burns, and none on his feet. “If he was inside a hot, very hot house,” Vasquez said, “he would certainly have received [more] injuries.” Willingham was lying. Vasquez believed he had set his house ablaze.
By January 8, the Corsicana Fire Department had finished its investigation. Vasquez would testify that the fire was “intentionally set by human hands.” The prosecution charged Willingham with capital murder. They alleged that Willingham poured a combustible liquid in his children’s room and down the main hallway and then lit it on fire.
The prosecution began its case in earnest in August of 1992. They began with the only evidence of motive they had: the testimony of jailhouse snitch Johnny Everett Webb, who would claim that Willingham confessed to him in the middle of a highly-trafficked cellblock. Willingham, Webb said, was trying to cover up the accidental injury or death of one of his children by setting the house on fire. “When he came in the house,” Webb recounted at the trial, “one of the babies were injured or dead or something like that, and he freaked out.”
With motive in place, the prosecution moved on to eyewitness accounts of the fire. They called neighbor after neighbor, firemen, and paramedics, who testified that Willingham had not gone back into the house or that he had made untrue statements. (For example, Mary Barbe remembers Willingham saying that he ran out the back of the house, but he couldn't have since a refrigerator had been blocking the door.) They testified that his burns were largely superficial. The prosecution speculated that they were self-inflicted.
But the core of the prosecution’s case was the forensic evidence presented by Deputy Vasquez. “The fire tells a story,” he told the jury. “I am just the interpreter. I am looking at the fire, and I am interpreting the fire. That is what I know. That is what I do best. And the fire does not lie. It tells me the truth.”
The jury believed him—how could they not?—and Willingham was convicted of murder. The heinous nature of his crime was compounded by testimony arguing that Willingham was a sociopath. Pointing to art that hung on Willingham’s wall, which included a Led Zeppelin poster of a falling angel, a counselor speculated that interest in those types of pictures indicated a focus “on death, dying. Many times individuals that have a lot of this type of art have an interest in a satanic-type of activities or interests.” To add to it, neighbors and acquaintances testified that Willingham beat his wife. And of course, there was the murder of his three babies. The jury decided to give Willingham Texas’s ultimate justice: He would be executed by lethal injection twelve years later.
Texas allows witnesses to executions. Since 1996, close friends and relatives of the victim can watch as the offender takes his last breath. The media is invited as well. Texas keeps careful records of all executions, including the names of those who witnessed the death. The same names come up over and over again—a reporter for the Associated Press, a reporter for the Huntsville Item, a reporter for the Dallas Morning News. Since 1986, the AP representative has witnessed over 300 executions.
Texas also maintains a website with interesting “Death Row Facts.” Did you know that the State of Texas executed brothers on six occasions? First Frank and Lorenzo Noel in 1925, and lastly Jessie and Jose Gutierrez in the nineties. Until recently, Texas published the last meals of executed offenders.
The lynch mobs of the late 1800s and early 1900s often kept souvenirs. Sometimes cloth from the victims’ clothes, sometimes, Dora Apel writes in her book, Imagery of Lynching, “the rope, cut into small pieces and taken home by dozens of spectators,” sometimes just simple souvenir postcards. In 1906, the New York Times reported,
souvenir postal cards bearing pictures of Gillespie and Dillingham, two negroes, as they appeared swinging to a limb of a tree on the morning after they were lynched have been prepared and mailed from the Salisbury Post Office.
The Post Office ordered an investigation to determine in those pictures were mailable.
In October of 1991, two Georgia prosecutors were unhappy with their arson case. They asked fire investigator John Lentini to run a test. They bought the house next door to the suspect’s house, which had, according to a paper by Lentini, an “identical floor plan, and was apparently built at the same time by the same builder.” They bought duplicate furniture, resurfaced the home with the same kind of sheetrock, and recarpeted with same kind of carpet; “eyewitnesses were brought in to verify that our reconstruction in fact looked like the suspect’s residence.”
Then they lit the couch on fire. Four and a half minutes later, the rest of the room went up in flame— the room went to “flashover.” Flashover is the moment when the heat from a local fire ignites the rest of a room. If you, for example, light a couch on fire, and it's left to burn, it can cause a “hot cloud of smoke,” chemist and noted fire expert Gerald Hurst told PBS. That smoke can reach incredible temperatures, and,
when that cloud reaches a temperature of about 550 degrees Celsius, the radiation from that cloud becomes so intense that it sets everything in the room on fire simultaneously. Everything that's combustible bursts into flames, and areas it would not normally burn in the self-sustaining fashion, such as a carpeted floor or a wooden floor, begin to burn.
After the room went to flashover, "they let it burn until it had reached about the same level of destruction that had been reached in the original fire," Hurst says, and then they put it out. The investigators were shocked; the burn patterns on the floor matched the original scene, which was supposed to have been an accelerant-fueled arson. Within days, the prosecution dropped the case.
The Lime Street fire, as this case was called, would eventually turn the world of fire investigation on its head. The burn patterns that the Lime Street investigators had taken to be pour patterns—signs of accelerant—were simply caused by the radiant heat of the flashover. But, as Hurst notes, “like a lot of new information, it was not absorbed by the fire investigation community in general.”
Two years later, NFPA 921, Guide for Fire and Explosion Investigations was published. It is, according to the National Association of Fire Investigators, the “definitive standard on fire investigation, methodology, technology, and science.” NFPA 921 modernized fire investigation, bringing in a rigorous methodology and contemporary scientific information. It was first published in 1992, shortly after Deputy Vasquez finished his investigation of the Willingham house fire. It helped to disseminate the fact that, among other things, “pour patterns” in a room that hit flashover shouldn't be taken as evidence of liquid accelerant.
Dr. Hurst, in February of 2004, shortly before Willingham was set to be executed, reexamined the report prepared by Deputy Vasquez, and found it didn't match NFPA 921 and other advances in fire science. "Post-flashover burning," the report reads, "even of relatively short duration, makes in impossible to identify accelerant burns visually." Hurst went on to decimate Vasquez's testimony. It wasn't just that Vasquez and Fogg had seen evidence of liquid accelerant in the burn patterns, Vasquez had also thought he had evidence of multiple origins. Hurst saw something different. “In this post-flashover fire,” he writes, “all of the burn areas were clearly contiguous in the sense that they were at least joined by obvious radiation and/or conduction mechanisms.” Most damningly, “the finding of multiple origins was inappropriate even in the context of the state of the art in 1991.”
His report continued along these lines, dismissing point after point of Vasquez's report and trial testimony. The burning underneath the tiles and doorway thresholds could have easily been caused by flashover radiation. So, too, could have the melted aluminum. The staining on the cement porch could have been caused by the efforts to put out the fire. “When the puddles of fire hose water evaporate,” Hurst notes, “they often leave brown material trapped in the surface pores of the cement. The presence of an accelerant can only be established by chromatographic analysis in the laboratory.” As was noted at trial, "mineral spirits of kerosene"—the only chemical evidence of accelerant—was found in a sample of wood from the doorway just inside the front porch, but as Hurst's report notes, "a burned can of charcoal lighter was also found on the [porch]," near to where the defense had shown a charcoal grill was kept. "Fluid," Hurst continues, "from the can would be dispersed and floated across the concrete by the action of the immiscible water from the fire hoses."
Vasquez, who at trial, had claimed that in 1,200 to 1,500 cases of fire, most had been arson; Vasquez, who claimed that he, “to his knowledge” had never been wrong, employed what Hurst called “old wives’ tales” and faulty scientific analysis in his determination of arson.
Later that February, Willingham's appeals attorney asked for a stay of execution, based primarily on Hurst’s report. The State of Texas fired back that this isn't really new evidence at all. In the State's response to Willingham's request, they wrote, “The Petitioner’s own ‘expert’ [scare quotes in original] cites multiple sources in his affidavit that have been available for many years. In fact, the key source upon which the ‘expert’ seems to rely is NFPA 921, which has been available since 1992. … This is certainly not a discovery of any new evidence.” The State went on to claim “overwhelming corroborating evidence.” They pointed again to Webb's claim that Willingham had confessed that he had set fire to house in order to cover up the injury or murder of one of the children. They added to this confession a statement from Ronnie Kuykendall, Willingham's brother-in-law, claiming that Willingham had confessed to his then-wife Stacy Kuykendall that he had murdered his children “in a desperate attempt to keep her from divorcing him.” In short, Hurst's report shouldn't be taken as new evidence, and even if it were, Willingham's confessions should be enough.
The court agreed, and the motion was denied. The New Yorker's David Grann notes that though Hurst's report was sent to both Governor Rick Perry and the Texas Board of Pardons and Paroles, they both declined to intervene. Indeed, Grann writes, “between 1976 and 2004, when Willingham filed his petition, the State of Texas had approved only one application for clemency from a prisoner on death row.”
On February 17, Willingham was executed. The execution went off without a hitch, and seven minutes after the chemicals began their work, he was dead.
His last words: “The only statement I want to make is that I an innocent man convicted of a crime I did not commit. I have been persecuted for 12 years for something I did not do. From God's dust I came and to dust I will return, so the earth shall become my throne.” Then, to his ex-wife, “I hope you rot in hell, bitch; I hope you fucking rot in hell bitch. You bitch; I hope you fucking rot, cunt. That is it.”
By 2009, interest in the Willingham case reached flashover, and holes kept appearing in the prosecution's case. David Grann’s seminal piece, “Trial by Fire,” appeared in the New Yorker and the Chicago Tribune published a hard-hitting piece of investigative journalism. They were both extremely critical of the execution of Willingham.
There were now two different motives, one from the Webb confession and the other from the Kuykendall confession, but they didn't match up. To make things worse, not only were both confessions disputed by Willingham, but neither one was credible. According to Grann, in March of 2000, "Webb unexpectedly sent Jackson [the prosecutor] a Motion to Recant Testimony, declaring, 'Mr. Willingham is innocent of all charges.'" He soon after recanted his recantation. But when Grann spoke with Webb in 2009, Webb seemed to recant again. “After I pressed him,” Grann writes, “he said, ‘it’s very possible I misunderstood what he said … being locked up in that little cell makes you kind of crazy … My memory is in bits in pieces. I was on a lot of medication at the time. Everyone knew that.’ He paused, then said, ‘The statue of limitations has run out on perjury, hasn’t it?’”
And David Grann notes in a piece published after "Trial by Fire," that Stacy Kuykendall has been remarkably inconsistent. The same day that her brother claimed that she had told him of Willingham's confession, Grann writes, "the Corsicana Daily Sun published an interview with Stacy Kuykendall. She said that during her visit with Willingham in prison, he maintained that the fire was accidental." Even John Jackson, Grann further notes, the initial prosecutor has his doubts as to the veracity of Kuykendall's claims. Grann quotes him as saying, "She's given very different stories about what happened on this particular day right up to the date of his execution ... It's hard for me to make heads or tails of anything she did or didn't say."
Meanwhile, the Texas Forensic Science Commission (TFSC), an organ of the State of Texas, decided to review the Willingham case. In 2009, they were set to discuss the report of a Dr. Craig Beyler, whom they had hired to reexamine the original fire investigators' findings. Beyler, like Hurst before him, was extremely skeptical. Beyler writes that Vasquez's ideas are "often inconsistent with modern fire science." He notes that Vasquez's opinions about Willingham's injuries are so wrong as to be "remarkable." He even likens Vasquez's performance on the stand to that of "mystics or psychics." He concludes, "Their methodologies did not comport with the scientific method or the process of elimination. A finding of arson could not be sustained based upon the standard of care expressed by NFPA 921, or the standard of care expressed by fire investigation texts and papers in the period 1980–1992."
INTERLUDE: LAST WORDS
The last words of Lawrence Brewer, executed September 21, 2011 for dragging a black man behind his pickup truck until he died; Brewer was motivated, in part, by the race of the victim:
No, I have no final statement.
In late September of 2009, shortly before the TFSC was set to review the Willingham case, Governor Rick Perry dismissed three of its members, including the chairmen. Perry told the AP that this was "pretty standard business as usual," but, according to interviews conducted by the Corsicana Daily Sun, the members who were removed were surprised by their dismissal.
It's hard to escape that the timing of the dismissal coupled with Beyler's incendiary report could have been politically motivated. Perry was in the midst of an election, running against another Republican, Senator Kay Bailey Hutchison, and a Democrat, Bob Schiffer. Had the TFSC determined that mistakes were made in the case, that there was no forensic evidence of murder, that would have been a stinging rebuke to the popular governor. Hutchison, for her part, told the AP that she disagreed with Perry's decision to remove the members of the commission, bringing more attention to the controversial move, and forcing Perry onto the defensive. Chris Cutrone, a deputy press secretary to the Governor told the Corsicana Daily Sun at the time that this was a “routine matter.” Cutrone went further, too, saying, “Governor Perry has reviewed the totality of the facts of the case, and has stood by the conclusions reached by the courts and the Texas Supreme Court that Mr. Willingham was guilty and no further review was necessary.” Governor Perry, himself,told reporters, “Willingham was a monster. He was a guy who murdered his three children, who tried to beat his wife into an abortion so that he wouldn’t have those kids.”
When the TFSC reconvened in 2010, the new chairman decided to put off looking at the Willingham case. In July of 2010, the panel tried to thread the needle, finally determining that Vasquez and Fogg had used “flawed science,” but were not negligent or guilty of misconduct.
The report was buried. Perry won his election and Cameron Todd Willingham, aside from a handful of death penalty activists, was all but forgotten.
INTERLUDE: LAST WORDS
First of all I would like to give my sincere apology to Amy's family. We caused a lot of heartache, grief, pain and suffering, and I am sorry. I know it won't bring her back. I would like to sing; I would like to sing for that person's dead. The old is gone. I am not the same person that I used to be, that person is dead. It's up to you if you would find it in your heart to forgive.
As for my family, I am sorry I let you down. I caused a lot of heartache, and I ask for your forgiveness. I am not crying for myself, I am crying for the lost and those that are dying for their sins, those that are committing suicide, those that don't know God and have never been set free. I've been locked up 13 years. I am not locked up inside, all of these years I have been free. Christ has changed me. Even though I have to die for my mistake, he paid for mine by wages I could never pay. Here I am a big strong youngster, crying like a baby. I am man enough to show my emotions and I am sorry. I am sorry for everything. I wish I could take it back, but I can't.
WE ARE NOT TROY DAVIS
On September 21, 2011, thousands masked themselves with the face of a convicted cop killer and set the face of someone who pistol-whipped a homeless man as their profile pictures. The words, "I am Troy Davis," were on all their lips. I am as guilty of it as anyone—those desperate acts of liminal solidarity. When Troy Davis died at the hands of his government for a crime he may not have committed, what else was there to do but speak the same shibboleth?
Davis was sentenced to death in 1991; he was executed by the state of Georgia twenty years later. "Davis spent half of his life on death row," Roxane Gay writes at the Rumpus—"spent that half-life knowing he was on a slow, agonizing march to an unrelenting end." In August of 2010 at his last best hope for a reprieve, he presented affidavits from seven witnesses who spoke at his original trial. Those seven had all, at least in part, recanted their testimony. The judge ripped them apart, calling their disavowals incredible or immaterial or both. The defense's case, he said, "was smoke and mirrors."
"We are not Troy Davis," Gay writes. "Saying it a hundred thousand times could not ever make it so." No, we are not Troy Davis. How could we be? Most of us aren't black men caught in a system that, according to the GAO, is most likely to punish killers of white victims with the death penalty. Most of us didn't have a last meal to refuse. Most of us weren't trussed up and injected with pet tranquilizer.
No, we are not Troy Davis. But we wanted to be. I'm still not sure why. If you believe the worst about the radical left, then the Troy Davis phenomenon isn't so curious. Don't we leftists make our bones with impotent expressions of solidarity with the vulnerable? And who could be more vulnerable than a black man on death row? And what could be more impotent that shouting "I am Troy Davis" in the face of our monolithic criminal justice system? This crude hypothesis might explain why the editorial board of the Nation was all-to-happy to wear a Troy Davis mask. It doesn't, however, explain the breadth of the movement, nor does it explain the youthfulness of the outcry. It doesn't explain the likes of Sean "Diddy" Combs adding his voice to the clamor. No, there was something more at work.
For most of us, the gears and machinations of the criminal justice system remain hidden. The rose-colored lens of Cops and Law and Order obscures what little of it sees the light of day. But Troy Davis revealed the violence, the sickness, in our system. Some organ of our representative body wasn’t behaving as it should. A cancer had grown and taken hold, and now it wasn't working right. Our anger was the anger of betrayal and bewilderment and there was, really, nothing we could have done. Bodies don't respond to vigils, and graffiti doesn't change a judge's mind. So, why were we so desperate to be Troy Davis?
Ambient intimacy, Gay calls it. It's the "connectedness we feel when we participate in social networks." It's acquaintances from high school, celebrities you wouldn't expect, second cousins removed a few times. Something about the days leading up to the execution of Troy Davis made that ambience intimate. They were all speaking together—we were all speaking together, and we were all Troy Davis.
In that brief moment of communion, we felt that maybe, just maybe, we could challenge fate. Maybe if 100,000 people like this group, Troy Davis wouldn't be executed, and we could go back to seeing the world through the eyes of police procedurals. That's still an option, I suppose. Ignorance, even when it's the cover-your-eyes-and-scream ignorance of children, is still bliss—for a time. "We do not suffer from a lack of knowledge," Gay tells me. "We are not Troy Davis. We are not innocent."
"MAY GOD HAVE MERCY ON ALL YOUR SOULS"
At the height of the Salem Witch Trials, a poster by the name of Increase Mather told his flock that "it were better that ten suspected witches should escape than one innocent person should be condemned." I wonder what he's have to say about Cameron Todd Willingham or Troy Davis or this system that, from time to time, executes the men as well as the monsters.
It is a hopeful sign that while the death of Cameron Todd Willingham went by without much notice, the outcry over the death of Troy Davis captured the country. Could it be that we are beginning a slow awakening to the flippancy with which our government is willing to inflict violence? I'm reminded of the warning with which a member of the Oberlin Prison Justice Project left me. "People focus on the death penalty a lot because it's like the umpteenth degree of state violence through the prison system," he said.
What worries me about focusing so much on the death penalty is that, well, even if the state isn't killing people, they're still locking [them] up for lifetimes. Even if they get out of prison, they're still kept with this record and put into a second-class citizenship for the rest of their life. State violence includes a lot more than just capital punishment."
In the discussions that began the night Troy Davis died, or in the aftermath of the Willingham revelations, it's easy to forget that their executions are only a byproduct of a broken system—a system whose grasp is silent and far-reaching.
THE LAST WORDS OF TROY DAVIS
Well, first of all I'd like to address the MacPhail family. I'd like to let you all know that despite the situation—I know all of you still are convinced that I'm the person that killed your father, your son and your brother, but I am innocent. The incidents that happened that night was not my fault. I did not have a gun that night. I did not shoot your family member.
But I am so sorry for your loss. I really am—sincerely.
All that I can ask is that each of you look deeper into this case, so that you really will finally see the truth.
I ask to my family and friends that you all continue to pray, that you all continue to forgive. Continue to fight this fight.
For those about to take my life, may God have mercy on all of your souls. God bless you all.
NB: This is taken from my forthcoming piece in Wilder Voice.