Two Angry Men: Revisiting the Duke Lacrosse Case

By Robert Perkinson, The Nation. Posted March 11, 2008.

At the end of February 2004, I wrote a letter that would never be received. The intended recipient was Cameron Todd Willingham, a Texas prisoner on death row. Months earlier, Willingham had written me a ten-page, hand-printed essay about his life in solitary confinement and his last experience in the open air. In it, he recalled a cluster of "blazing purple flowers," the first he had seen in more than eight years.

The flowers were "gifts to the world," he wrote, reminding him of his own gifts, which had been "taken away." This was a reference to Willingham's daughters, and herein lay some of my hesitation in replying. In 1991 he had been convicted of torching his house and burning to death his three girls: Amber, 2, and 1-year-old twins, Karmon and Kameron. Normally, I make only passing note of individual offenses -- my interest is in prison conditions more than crime -- but Willingham's rap sheet struck me as so repugnant that I wasn't sure how to respond.

When I finally got around to drafting my letter, I logged on to Texas's offender locator service to verify the address and prisoner number, but the search came up blank. While I dithered, the State of Texas had taken Willingham outside one last time, transported him to Huntsville, strapped him to a gurney and killed him.

"I am an innocent man" were among Willingham's last words, but almost no one believed him. I didn't. My presumption of his guilt, in fact, mitigated my remorse for not having written back sooner. Almost a year later, however, an investigative feature in the Chicago Tribune revealed that Willingham had almost certainly been telling the truth.

At the trial, prosecutors had speculated that Willingham murdered his children so he would have more time to play darts and drink beer. Yet under scrutiny, this and other claims fell apart. A supposed confession turned out to be based solely on the word of a jailhouse snitch. An assessment of Willingham's "future dangerousness" had been provided by Dr. James Grigson, nicknamed Dr. Death, who was expelled from the American Psychiatric Association in 1995 for declaring defendants psychopathic with reckless abandon. Most important, an independent fire expert contacted by defense attorneys, then a team of them convened by the Tribune, concluded there was no evidence of arson and that the state's investigator had based his testimony on widely discredited junk science.

A preliminary report on the botched fire analysis had been provided to prosecutors, appellate judges and the governor in the weeks leading up to Willingham's execution, but to no avail. Like his predecessor, Governor Rick Perry barely glanced at the file before giving his fatal nod. Confronted by reporters after the execution went forward, the district attorney (now a judge) stood by his work. "Does it give me pause?" he mused. "No it does not. I have no reservations."

The same cannot be said, mercifully, of many other Americans. In recent years, cases like Willingham's -- which death penalty watchers say is one of the surest instances of what Sandra Day O'Connor once called a "constitutionally intolerable event," the "execution of a legally and factually innocent person" -- have opened a wide-ranging debate about wrongful convictions. Death row exonerations, in particular -- now 127 and counting -- have given rise to a nationwide network of innocence projects, which, in turn, have steadily turned up still more unjust convictions.

DNA testing has provided the surest means to release, but even freedom for a few individuals doesn't fix the systemic factors that put innocent people behind bars in the first place: among them anemic defense counsel, faulty witness identification procedures, unscrupulous expert witnesses, unrecorded confessions and special deals for witnesses willing to turn state's evidence. Running through almost all such cases is also the wont of many prosecutors to overstep their statutory role as impartial enforcers of the law. According to a long line of Supreme Court decisions, prosecutors, as agents of the people, are supposed to adhere to a higher standard than defense attorneys, whose duty is merely to advocate for their clients. The government's interest "in a criminal prosecution is not that it shall win a case but that justice shall be done," instructed the Court in Berger v. US (1935). A prosecutor "may strike hard blows," but "he is not at liberty to strike foul ones." All too often, however, prosecutors seek convictions before justice, sometimes by any means necessary.

No one knows how often prosecutors strike foul blows. Their power to bring or dismiss charges, to offer plea bargains or leniency to cooperating witnesses, to marshal police investigators and lab techs, and to present or suppress state evidence is unmatched by defense counsel and is "essentially unreviewable," observed James Vorenberg, former dean of Harvard Law School. Surprisingly little research exists on the subject, mainly for lack of access to sources, but most experts agree the problem is widespread. In 2003 the Center for Public Integrity catalogued more than 2,000 cases of prosecutorial misconduct grievous enough to overturn convictions, but this was only a sampling. Lawbreaking by prosecutors, says Bennett Gershman, a specialist on the topic at Pace Law School, is "a serious cancer in our system of justice."

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Robert Perkinson is the author of Texas Tough: The Rise of a Prison Empire, forthcoming from Metropolitan Books. He teaches American studies at the University of Hawaii-Manoa.

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