Executing the Innocent
JUSTICE IS AN idea that is best understood in its absence. Throughout the ages, its substance has eluded the close study of scholars and the musings of poets, prophets, and philosophers. They were perhaps the wrong people looking in the wrong places. Experience tells us we can most easily identify justice in places where it never existed; we discern its nature in circumstances where it was applied too loosely or not at all. The ultimate irony is that justice is comprehended most clearly by those who have been denied its benedictions.
Even at its best, fine-tuned through a network of statutory and constitutional laws, viewed through a prism that refracts the light of evolving moods and shifting attitudes, justice is at best an inexact process. It depends on too many variables for it to function with precision: the quality of the defense attorneys, the intensity of the prosecution, the disposition of the judge, the reliability of witnesses, the makeup of a jury whose members rarely resemble the defendant’s peers. Guilt or innocence is determined in an atmosphere of competition, a contest in which each side is committed to a particular outcome rather than to a concept as abstract as justice. It is little wonder, then, that the judicial process is as quixotic and unpredictable as any other contest. What troubles one’s sleep is that here the stakes are so much higher.
It is no secret of course that the guilty are sometimes acquitted while innocent people are often convicted and sent to prison. The possibility of error is built into the system. But the random nature of the process becomes acute when the crime is a capital one and the innocent person is sentenced to death. It is not an uncommon occurrence. The Death Penalty Information Center, which gathers statistics on capital cases at its Washington, DC, headquarters, lists 154 cases between 1973 and 2015 in which innocent people were freed from death row. Many had spent more than a decade in isolated death-watch chambers before they were exonerated of the crimes with which they were charged. An unfortunate few suffered the torments of solitary for nearly four decades before being freed.
The problem of wrongful conviction is not a new one in America. The first documented case in the United States dates to 1820 when the presumed victim of a murder, for which two men had been sentenced to death, turned up alive and well in New Jersey. Since then, hundreds of additional cases, many of them involving a death sentence, have come to light. Not until recently, however, did the gravity of the issue attract sustained national attention. It had been ignored perhaps not because of public indifference but because the depth of the problem—the sheer volume of numbers—was unknown. The turning point came in the fall of 1998 when the National Conference on Wrongful Convictions and the Death Penalty was held at the Northwestern University School of Law in Illinois. The meeting featured the appearance of twenty-eight innocent former prisoners from all over the country who had been sentenced to death for crimes they did not commit.
A few months later, Illinois death-row prisoner Anthony Porter was exonerated just two days before his scheduled execution. The reprieve prompted Northwestern Professor David Protess and several of his students at the Medill School of Journalism to probe deeper into the circumstances surrounding Porter’s conviction, and they uncovered conclusive evidence of his innocence. The two events stirred further interest and the Center on Wrongful Convictions was launched with private funding at the start of the 1999–2000 academic year. Its mission was to identify and rectify wrongful convictions and other serious miscarriages of justice. Soon, a nationwide examination of the death penalty was under way.
The most compelling argument against capital punishment is that innocent people will inevitably be put to death. While few can doubt that such executions have occurred, it is difficult to document the cases. The courts do not entertain claims of innocence when the defendant is dead. Attorneys move on to new cases. They do not seek fresh evidence that would exonerate those whose fate has already been sealed. All the same, there are a significant number of cases in which subsequent findings strongly suggest that an innocent man has been executed. Often, such cases involve a defendant with a criminal background that makes him a likely suspect and might inure the jury, and even the judge, to the possibility of error. He is, in the end, convicted not by the evidence but by his past.
Dennis Stockton
North Carolina
Dennis Stockton insisted on his innocence from the very beginning. There was, after all, no physical evidence to tie him to the murder with which he was charged. In fact, he was convicted solely on the testimony of an ex-con who in many respects was a more likely suspect in the killing and who later championed a campaign to save Stockton when he was awaiting execution. But despite mounting evidence that he was innocent, Stockton was executed by lethal injection on September 27, 1995, more than ten years after his conviction.
The victim of the crime was a friend of Stockton’s, a young man named Kenny Arnder. Arnder’s body was found in a gully near a dirt road in North Carolina not far from the Virginia border, on a July day in 1978. His arms were splayed wide in the form of a cross and his hands were chopped off at the wrist. He had been shot between the eyes. The body was covered with branches and had begun to decompose, making identification difficult.
Stockton had been with Arnder shortly before he was murdered. Arnder had called him at his home and asked Stockton to drive him to Kibler Valley, a remote, wooded area in southwestern Virginia. Arnder said he was worried because a man he feared had seen him stealing tires off a car. Stockton drove him to Kibler Valley and dropped him off at about 6 p.m. Arnder’s body was discovered five days later. It was assumed that he had been killed in Virginia and his body moved across the border.
The police questioned Stockton because he was one of the last people to see Arnder alive. He was the type of suspect who was easy pickings for the authorities. At age thirty-eight, he had spent most of his adult life in criminal custody. As a juvenile, he was held in jail over a weekend for passing bad checks. At seventeen, he served three-to-five years on similar charges. When he was released, he was already prison-tough. He became involved with drugs, both as a user and dealer, and did time on a variety of charges including arson-by-contract, safecracking, and carrying a gun. He was at the top of the police’s “usual suspects” list. During one investigation, police said they found a human body part preserved in a jar in Stockton’s home. He told them he had gotten it from a biker gang and kept it to show to his friends. When police questioned him about the Arnder murder, he readily showed them the selection of guns he kept at home. None of them matched the murder weapon. The police left, apparently satisfied that Stockton was not their man.
His involvement in the case might have ended right there had he not responded to jailhouse rumors two years after Arnder’s death by going to the police. In prison on other charges, Stockton heard it bruited around the prison that the police suspected him of committing the murder. He believed he knew the source of the rumors and decided to act on his own. He went to the police and told them he had new information on the crime. The police accompanied him to his house where he showed them letters he had received from a prominent citizen offering to pay him to commit a murder. He said he had received $3,000 but never killed anyone and suspected that the man who paid him might be circulating the rumors as a means of taking revenge. The letters, in police custody, never surfaced again; they apparently had been lost. But Stockton, who had tried to deflect suspicion, was again a prime suspect.
Two years later, he was charged by the Commonwealth of Virginia with the murder-for-hire killing of Kenny Arnder. The basis for the charge was the offer of testimony by a convict named Randy Bowman who was serving a prison sentence for larceny and possession of firearms. Bowman claimed to have been at a meeting during which Stockton was hired to kill Arnder for a fee of $1,500 by a man named Tommy McBride. McBride allegedly was angry with Arnder for crossing him on a drug deal and wanted him killed as a message to other dealers.
Stockton was tried in the rural town of Stuart, Virginia in 1983. Bowman testified that he was at McBride’s house trying to sell some stolen goods when he overheard the deal being made. He also said he had not been promised anything in return for his testimony. His was the only evidence linking Stockton to the crime. Nonetheless, Stockton was convicted of murder-for-hire, a capital charge. At a separate sentencing hearing, he was sentenced to death.
In 1987, a federal judge set aside the death sentence when he learned that the jury deliberations had been tainted. The judge offered Stockton the choice of life imprisonment or a new sentencing hearing. Insisting on his innocence, Stockton opted for the new hearing. It was a mistake. Federal law does not allow evidence concerning guilt or innocence to be heard at a re-sentencing procedure, and Stockton again was sentenced to death.
During his twelve years on death row, Stockton kept a detailed diary on life in what he called “the monster factory.” He also helped plan the only mass escape from a death row in American history, although he did not take part in the plan’s execution. He remained in his cell during the breakout and documented the event carefully, still hoping he would someday be granted a new trial. It appeared that his hopes were not unfounded. Questions continued to emerge regarding the credibility of Bowman’s testimony. There was speculation that he had been offered incentives to testify against Stockton, but the prosecution denied it. Anthony Giorno, the prosecuting attorney, sent a letter to Stockton’s defense attorneys in 1990, in which he said: “I am not aware of any promises made to Bowman other than that I told him I would endeavor to see that he would be transferred [to a different penitentiary].” Giorno also enclosed a letter written by Bowman to the prosecution two weeks before the trial in which he said: “I am writing to let you know that I’m not going to court [to testify] unless you can get this 6 or 7 months I’ve got left cut off where I don’t have to come back to prison.” So it was clear that Bowman expected to be rewarded for his testimony, but the prosecution denied making any deal.
In 1994, Stockton’s attorneys obtained affidavits from law enforcement officials stating that Bowman had become angry after Stockton’s trial “because promises allegedly made to him were not kept.” According to the affidavits, Bowman said he had been promised a reduction in sentence or a transfer to another prison in return for his testimony.
Seventeen days after Stockton was sentenced to death, prosecutors dropped charges against Bowman for obtaining stolen property. Fourteen months after the trial, Bowman was released on parole.
On September 25, 1995, a district court judge ordered a sixty-day stay of execution when defense attorneys presented separate affidavits from Bowman’s former wife, his son, and a friend, stating that Bowman had admitted committing the murder. A Virginia newspaper reported that Bowman had confessed his guilt to a journalist. The Virginia federal court apparently found the new evidence to be unconvincing. The district court’s stay was lifted a day after it had been ordered. The following day Dennis Stockton was executed. Though it probably will never be known for certain, the likelihood is that an innocent man was put to death that day.
Cameron Todd Willingham
Texas
The same might be said of Todd Willingham, who was executed in February 2004 for murdering his three young children by arson at the family’s home in Corsicana, Texas. Ten months later, Gerald Hurst, a nationally known fire investigator, reviewed the case documents, including the trial transcriptions and an hour-long videotape of the fire scene and determined that not only was Willingham innocent but that no crime had been committed. “There’s nothing to suggest to any reasonable arson investigator that this was an arson fire,” he said. “It was just a fire.”
Relatives of Willingham decided to seek a posthumous pardon from state officials. The Innocence Project, a non-profit organization dedicated to exonerating wrongfully convicted people, kept the case alive. Founded in 1992 by Barry Scheck and Peter Neufeld and affiliated with the Benjamin N. Cardoza School of Law at Yeshiva University in New York City, the Innocence Project filed a lawsuit against the state of Texas seeking a judgment of “official oppression.”
In 2010, Judge Charlie Baird wrote an order that would have exonerated Willingham. It read: “This Court orders the exoneration of Cameron Todd Willingham for murdering his three daughters. In light of the overwhelming, credible, and reliable evidence presented by the Petitioners, this Court holds that the State of Texas wrongfully executed Cameron Todd Willingham.” However, Baird’s order never became official because, as reported in the Huffington Post, “a higher court halted the posthumous inquiry while it considered whether the judge had the authority to examine the capital case.”
In 2011, Texas Attorney General Greg Abbott responded to questions from the Texas Forensic Science Commission about jurisdiction and authority. His opinion prohibited the commission from investigating “specific items of evidence that were tested or offered into evidence prior to” September 1, 2005. Barry Scheck offered a rejoinder, saying that “the reasoning of the opinion is wrong and contrary to the clear intention of the legislature when it formed the Commission.”
The awareness that the judicial machinery is imperfect and that the consequences of the death penalty can never be remedied has led to a re-examination of capital punishment at both the federal and state levels. The Center on Wrongful Convictions (CWC) has proposed a series of reforms that would reduce the possibility of innocent people being executed. The reform measures include modifying eyewitness identification procedures, requiring police to videotape interrogations and confessions, and banning testimony by informants who will be rewarded for their cooperation. These procedures clearly would reduce the number of wrongful convictions but would not come close to eliminating them.
The justice system in the United States is complex and its many parts rub against one another in ways that are hardly conducive to finding the truth. The various parts—prosecution, defense, judiciary—not to mention law enforcement, where the process begins, each have their particular biases, and in every case the stakes are high. Elections must be considered, reputations protected, and, of course, prospects for a brighter future ensured. Convictions are the coin of the realm. Except for the defense attorneys, when they are not appointed by the state, few careers are advanced by finding suspects to be innocent. Wrongful conviction has a long history in the US, beginning in 1820 with the mistaken presumption that a Vermont farmhand who disappeared had been murdered. According to Rob Warden, Executive Director of the CWC, this early case violated virtually every precept of independent judgment.
The Boorn Brothers
Vermont
One day in 1812, Russell Colvin disappeared from his home in Manchester, Vermont, where he had worked on his father-in-law’s farm along with his wife’s two brothers, Jesse and Stephen Boorn. It was no secret that he and his brothers-in-law were not on the best of terms. The brothers had complained often and loudly that Colvin did not pull his weight and was taking advantage of their father’s largesse. Few who knew the family were surprised when Colvin didn’t return, and the Boorns were suspected of having a hand in his disappearance. But it took the specter of divine intervention to seriously raise suspicions of homicide.
The missing persons case lay dormant for seven years until Amos Boorn, an uncle of the brothers, claimed that Colvin appeared at his bedside during a recurring dream. The ghost informed Amos he had been slain but did not identify his killer. He did confide that his remains had been put into an old cellar hole in a potato field on the Boorn farm. The cellar hole was excavated and found to contain pieces of broken crockery, a button, a penknife, and a jackknife, but no body parts. Colvin’s wife, Sally, identified the items as having belonged to her husband. It was, in a sense, in her interest to do so. Sally had given birth to a child more than nine months after Russell was gone from the scene. Under Vermont law, a child born to a married woman was presumed to be fathered by her husband, making Sally ineligible for state financial support; unless, of course, her husband was dead. She may not have understood at the time that her husband’s demise would sharpen the focus of suspicion on her brothers.
Subsequent events kept the case under public scrutiny. Soon after the cellar hole had been searched, a mysterious fire destroyed the sheep barn on the Boorn property. A few days later, a dog unearthed several bone fragments beneath a nearby stump. Three local physicians said they were human bones. Seven years after he had vanished, it appeared clear to the local citizenry that Colvin had been murdered, his body buried and moved on several occasions, and the barn burned down to destroy evidence of the murder. On the basis of such speculation, Jesse Boorn was taken into custody and a warrant was issued for the arrest of Stephen, who had recently moved to New York.
In jail, Jesse shared a cell with a forger named Silas Merrill, who had a tale to tell the authorities. Merrill said that Jesse had admitted taking part in the murder after a visit from his father, Barney. As the story went, Jesse told him that during an argument, Stephen had knocked Colvin to the ground with a club. Barney then came by, and seeing that Colvin was still alive, slit his throat with Stephen’s penknife. They buried the body in the cellar hole, then moved it to the barn, and finally to the stump area when the barn burned down. Merrill agreed to tell his story to a jury in exchange for his immediate release. It sounded like a good deal to State’s Attorney Calvin Sheldon. Merrill was set free.
With a death sentence looming, Jesse decided to confess in order to minimize his own role in the crime while at the same time exculpating his father and placing the blame chiefly on his brother, whom he doubtless believed to be outside the reach of Vermont’s jurisdiction. However, when a Manchester constable visited Stephen in New York, he agreed to return in an effort to clear his name. Jesse immediately recanted, saying he had falsely confessed in an attempt to save himself and his father from execution. Confession or not, the state’s attorney chose to seek the death penalty.
During the trial, witnesses emerged to testify they had heard the Boorn brothers threaten to kill Colvin. Others recalled that after his disappearance, the brothers had said they knew Colvin was dead. But there was one bit of new evidence that had served the defendants’ interest. Before the trial started, the largest of the bones the dog had uncovered was compared with an actual human leg bone that had been preserved after an amputation, and the dissimilarities could not be ignored. The same three doctors who originally had deemed it to be a human bone now agreed it was of animal origin. But the damage had already been done. Were it not for the inaccurate identification of the bones, the brothers would not likely have been arrested, and the case would have continued to be little more than grist for the rumor mill.
The exclusion of the bone evidence now was of little consequence. The testimony offered at trial weighed heavily against the brothers. Stephen decided to follow his brother’s lead. Hoping to slip the hangman’s noose, he confessed that he had taken part in the killing but insisted that he acted in self-defense. It was to no avail. The jury quickly found the brothers guilty, and the three-judge panel sentenced them to death. In a specially convened session, the Vermont General Assembly considered a plea for clemency. Jesse’s sentence was commuted to life because he appeared to be less culpable. Stephen would be hanged.
The brothers had been convicted, as it were, on the basis of a tip provided by a ghost, the misidentification of a bone as being human, the trumped-up testimony of a jailhouse snitch, the seven-year-old recollections of some neighbors, and two false confessions. Nevertheless, justice sometimes finds a way of slipping back in through the cracks. If the spectral appearance of an unexpected visitor was, at least in part, responsible for the brothers’ arrest, a confluence of events almost as unlikely would lead to their salvation.
On a late November day in 1819, an item in The New York Evening Post, noting how divine intervention had helped bring Colvin’s killers to justice, was being read out loud by a guest in the lobby of a New York hotel. A traveler from New Jersey, Tabor Chadwick, overheard the story. Chadwick knew a man named Russell Colvin who often spoke of Vermont and who had worked the last few years as a farmhand in Dover, New Jersey. He immediately sent a letter to The Post and one to the Manchester postmaster. In each letter he described Colvin as “a man of rather small stature—round forehead—[who] speaks very fast, has two scars on his head, and appears to be between 30 and 40 years of age.”
Chadwick received no response from Manchester, perhaps because the postmaster, Leonard Sergeant, also happened to be the junior prosecutor in the case. The Post published the letter on December 6, 1819. James Whelpley, a native of Manchester living in New York at the time, read it and went to Dover where he found Colvin alive and well but unwilling to return to Vermont. Apparently familiar with the case, Whelpley knew Stephen’s execution was scheduled for January 28, 1820. He enlisted the help of an attractive young woman to lure Colvin back to Manchester. She enticed him to accompany her to New York, but once there she abandoned him and Whelpley found it necessary to devise a new scheme. The War of 1812 had left a British presence around New York, and Whelpley told Colvin, who now wanted to return to New Jersey, that British ships were offshore and they would have to take a circuitous route back to Dover. He then urged Colvin onto a stagecoach headed in the opposite direction. It was bound for Manchester.
They arrived on December 22, 1819. Having heard of his impending arrival, a crowd of Colvin’s former neighbors, including local officials, were waiting to greet him, no doubt interested to see if another ghost might be on the loose. Having convinced the authorities it was indeed the original Colvin who emerged from the stagecoach, the Boorn brothers were released. They had served seven years in prison; Stephen had come within a month of being hanged.
The first death-penalty exoneration in United States history had little overall effect. It was looked upon as a glitch in a criminal justice system that otherwise functioned pretty well. But as the years went by, it became apparent that the glitches were part of the system. Corrections were made, new laws were passed aimed at protecting the innocent from wrongful conviction, but each refinement turned a brighter light on the heart of the problem: it was not possible to achieve a high degree of certainty in a system that depended so heavily on the imperfections of human response and perceptions. Despite forensic advances, such as the use of fingerprinting in the latter part of the nineteenth century, the judging of guilt and innocence remained more an art than a science.
A significant shift in that balance occurred in 1989 with the awareness that DNA, which is in effect a molecular fingerprint, can be used to provide dead-certain evidence of a suspect’s innocence. Since then, the scientific technique of DNA comparison has been used to free hundreds of innocent persons, many of them from death row. Perhaps of even greater consequence, the certainty introduced by DNA evidence has exposed the inefficiencies imbedded in the system. For if the innocence of hundreds of suspects wrongfully convicted could be firmly established by the presence of DNA, dare we contemplate how many others, perhaps thousands, have been convicted on false grounds when no DNA was present?
The causes of wrongful conviction are many. Most studies place eyewitness error or false accusation at the head of the list. Others are the snitch testimony of jailhouse informants; false confession, false forensics, sometimes called junk science; lack of credible evidence; and some form of official misconduct—prosecutorial, judicial or police—and, not infrequently, the absence of an adequate defense. Each of these causes will be examined in what follows, though it should be noted that virtually every case, regardless of the proximate cause of wrongful conviction, contains the taint of official misconduct. The incentive to cheat, to bend the rules in favor of conviction, is built into the system.
The principal focus of this book is on the exoneration of prisoners who have been freed from death row as that is where the stakes are highest. A later section deals with cases in which the wrongfully convicted served long terms, perhaps part of a life sentence, before being freed. Many of those cases played out in states that have abandoned capital punishment, but nonetheless sent innocent people to the penitentiary for extended periods of time, more often than not a product of some form of official corruption. Every case is an illustration of the grim consequences that ensue when the legal mechanism has gone awry. Freeing innocent people who have been incarcerated unjustly is no indication that the system really works. It shows only that it is badly broken and in serious need of repair.