Gov. Perry’s Capital Impropriety

Dr. Clarissa Pinkola Estés and I have been posting on a Texas criminal justice case that has now become an issue of national interest.

It is the now infamous case of Todd Willingham who was executed almost six years ago for the 1991 arson related death of his three children at his home in Corsicana, Texas.

The Texas Forensic Science Commission was reviewing the case and hired the noted fire scientist Craig Beyler to once again investigate the case

The Texas Forensic Science Commission was established in 2005 for the very purpose of investigating allegations of error and misconduct by forensic investigators, and the first cases to be investigated by the commission were those of Willingham and Ernest Ray Willis, another Texas man accused of a similar crime and sentenced to death.

Beyler completed his investigation in August and in a “scathing report,” he concluded, according to The New Yorker, that “…investigators in the Willingham case had no scientific basis for claiming that the fire was arson, ignored evidence that contradicted their theory, had no comprehension of flashover and fire dynamics, relied on discredited folklore, and failed to eliminate potential accidental or alternative causes of the fire.”

Other experts and Texas officials dispute the Beyler findings.

Two days before Beyler was to discuss his report with the commission, Perry abruptly replaced three commission members whose terms had expired. The new chairman, John Bradley, Williamson County’s district attorney, cancelled the meeting, ostensibly “to get up to speed.” A total of four members of the commission were replaced by Perry.

Critics suggest that both the firings of the commission members and the now inevitable delay in the release of the Commission’s final report—probably until after the upcoming Texas primary gubernatorial election in which Perry is a candidate—are politically motivated.

Perry strongly denies both suggestions and maintains that the execution of Willingham was appropriate and that Texas did not execute an innocent man. He calls the controversy “nothing more than propaganda from the anti-death penalty people across the country.”

Numerous judicial, legal, criminal and scientific experts have investigated this case and expressed contrary opinions.

I am no expert. However, like many Texans, I am puzzled by Perry’s recent actions and pronouncements with respect to this case.

While Willingham’s execution was number 320 of 441 killed since Texas resumed executions in 1982 and while Perry has presided over more than 200 such killings, the issue here, in my opinion, is not about the death penalty.

While some claim that Perry is obstructing a legitimate investigation, and while others claim that Perry has every right and authority to hire and fire commission members at will, the issue is not about whether he obstructed an investigation or violated any law—at least not for the moment.

The issue is about the appearance of political impropriety. But most important, the appearance that Governor Perry doesn’t care if a convicted and executed human being may in fact be innocent. Appearances that the governor could have so easily prevented or changed.

An Editorial in Perry’s (official) hometown newspaper, the Austin American-Statesman, this past weekend puts this entire fracas in perspective.

It starts out with the affirmation that,

There’s no doubt that Gov. Rick Perry has the authority to appoint Texas Forensic Science Commission members. And there’s no doubt that some members’ terms ended recently.

When Perry recently shuffled the board and — two days before a crucial meeting about a controversial execution — put a tough-on-crime prosecutor in charge of the panel, we supported his right to do so. And in the face of cries of protest, we counseled patience and expressed confidence the commission would do the right thing.

Now we wish Perry would have joined in that patience. His actions and intemperate comments in the intervening weeks make it look like everything the critics feared is true.

After revisiting the Willingham case, the replacement of the commission members and the cancellation of the Beyler meeting, the Statesman notes: “OK. A little suspicious. But OK. We are — or were — willing to await results and not get caught up in the politics of the moment.”

The Statesman continues, “We now wish our governor would have taken the same approach instead of proclaiming Willingham a ‘monster,’ an allegation that, as far as we know, does not carry the death penalty in Texas.”

And, “Perry, in the face of unavoidably important new input about the case, either reacted politically or, perhaps worse, evidenced an inability or unwillingness to think his way through the new material.”

Admitting its opposition to capital punishment the Statesman reminds us that “In many cases, new science has brought new doubt into convictions. DNA evidence not available at trial has led to post-conviction exonerations. It is a remedy not available to the executed.”

The Statesman also adds:

Instead of branding Willingham a “monster,” candidate Perry would have been better off acting as Gov. Perry and sticking with more measured comments about how the justice system has acted, how he is aware of the new doubts, how he awaits a full vetting of the report but remains convinced Willingham was guilty as charged.

Perhaps because it is campaign season, Perry doesn’t seem to have it in him to do anything other than act and react as a candidate. It is unattractive and invites discredit upon Texas and its death penalty.

Recalling former Texas Governor Mark White’s change of heart on the death penalty, the Statesman concludes:

White’s change of heart is admirable, and, as he noted, easy for a non-candidate to discuss.

Indeed, it would take more courage for someone else — perhaps an incumbent governor — to do something as relatively minor as to hold his tongue until legitimate doubts about an execution are fully vetted.

I agree; that is all we are asking from Governor Perry, a little restraint, a little less politics and a little more of an open mind to the possibility that a horrible, irreversible mistake was made.