Of Guilt and Execution

There has been no small amount of controversy here in Texas regarding our system of justice. The recent execution of Cameron Todd Willingham, whose guilt has come into question, has added to this controversy. Over the years, the release of prisoners, some of whom where on death row, whose verdicts were overturned or found not guilty after review, has become disturbingly common. Many are rightfully upset and demand changes in the legal system to ensure that only the guilty be convicted and punished. This is a special concern in states like Texas that have the death penalty. As bad as it is to convict and imprison an innocent man, it is many times worse to execute an innocent man.

The matter of determining guilt has a long, sometimes amusing, but more often disturbing history. Very few in history have been indifferent to the prospect of punishing or condemning an innocent man. Virtually every society has had some system for determining innocence and guilt. Here in the West, Trial by Ordeal was once popular. If someone was suspected of committing a grievous crime, they were threatened with a terrible peril, such as being burned alive or crushed with a stone. The theory behind this was that God would never allow the innocent to suffer and so would intervene if the accused was innocent. Indeed, the more gruesome the ordeal, the greater the opportunity for God to demonstrate His mercy and judgement. The often horrible death of the accused was taken as proof of their guilt. One of my favorites was a method adopted to sort out cases of suspected witchcraft. In these cases, a method was adopted where the accused woman would have a stone attached to her whereupon she would be dropped into a lake. The theory in this case was that, since witches were believed to float, those who somehow floated back to the top would be condemned of being witches. Those who drowned, or nearly drowned, were absolved. The confidence of the people in the efficacy of these methods allowed them to sleep peacefully, even after the most terrible of ordeals.

One system in particular that grew in favor was trial by combat. Here, the questions of right and wrong, truth and lie were to be settled in a feat of arms. Under this approach it was believed that right (good), would always triumph in a contest with wrong (evil). In cases where the combatants were manifestly unequal, such as if a woman or an elderly man was party to the dispute, a champion would be allowed to fight in their stead. In time, the use of champions grew in popularity to the point where few, if any, would fight in their own behalf. A lucrative trade developed for skilled men of arms to hire themselves out to settle disputes. These champions had little interest in the dispute they were hired to settle. There job was to win. It goes without saying that such a system was not a very reliable way of determining guilt and innocence. Nevertheless, it is this fine tradition that led in part to our modern adversary system. The men at arms who championed the claims of those seeking justice would eventually be replaced by lawyers. Swords and maces would be replaced by writs and motions. Nevertheless, the adversarial nature of the system, and the confidence that in a contest, right will prevail over wrong, and that truth will triumph over error, would endure.

The problem (and benefit) at the core of our legal system is its adversarial nature. The lawyer's job, like the champion of old, is to win. It is the prosecutor's job to convict and it the defense attorney's job to acquit. This system encourages zealousness on behalf of the prosecution and the defense, the result of which is that truth becomes only one factor to be considered among several. As Judge Jerome Frank once wrote,"the lawyer aims at victory, at winning the fight, not aiding the court to discover the facts." Like in the contests between champions of old, it is believed that amidst the struggle, the invisible hand of justice will prevail.

In regard to the state, prosecutors receive evidence from police and investigators, and when they believe that evidence has merits, they prosecute. It is part of their job assess the evidence they receive to determine its truthfulness and significance, but it is not the only part. Their primary job is that the suspect, once accused, is found guilty. It is the instances where prosecutors become so focused on proving the person they are prosecuting is guilty, rather than objectively assessing and weighing the evidence, that the most egregious errors occur.

A prosecutor's zeal for a conviction, and, or the ineptitude or indifference of a defence council, has on occasion lead to the conviction of an innocent man. The fact that the measure of good prosecutors is their conviction rate does little to temper their zeal. Defense attorneys, in their turn, are measured by their acquittal rate. No one is measured according to how many actually guilty people are convicted and how many actually innocent people are acquitted. There may be no way to know. The jury is there to decide whether the prosecution has made its case beyond a reasonable doubt and so decide whether the accused has been proved "guilty" or "not guilty." Innocence is a subject beyond their purview.

Perhaps in the future technology and forensics may advance to the point where guilt or innocence will be a simple matter of lab results. Yet, even in that case, trials would still be necessary to verify that the methods were used properly and applied appropriately. We have come a long way since sword fights, crushing people, and throwing them into lakes, but we are still well short of certainty. Until technology is able to advance to the point where its results are irrefutable, and, more importantly, its use, application, and interpretation are indisputable, doubt will, and should remain. And where there is doubt, there should be no death penalty.

In cases where evidence and procedure are questioned, or new facts brought to light, we should not hesitate to review them when a man's life is at stake. Legal systems have always been flawed and always will be flawed. This is why we should stop executing people, especially where there is any controversy whatsoever, legal or otherwise, surrounding the conviction. The execution of Cameron Todd Willingham may be a case where a guilty man was executed for his horrible crimes. But, due to the inherent flaws in our legal system, we cannot be assured that an innocent man might not be executed in the future. It is because of this possibility that we should cease executing people. If it has not already happened, it will happen that, someday, an innocent man will be executed. And because he will be executed in our name, that blood will be on all of our hands. We should not sleep peacefully, as our forbears did, so long as this is a possibility.