On this date in 2008, Mexican national Jose Medellin was executed by Texas, pleasurably sticking its thumb in the eye of the International Court of Justice.
U.S. state and local officials have often displayed the ugly-American tendency to view binding treaty obligations as a Washington thing of no moment to the likes of a Harris County prosecutor. So when Medellin was arrested for the 1993 rape-murder of two teenage girls in a Houston park, the idea of putting him right in touch with Mexican diplomats to assist his defense was, we may safely suppose, the very farthest thing from anyone’s mind.
Yet under the Vienna Convention, that is exactly what ought to have occurred. The idea is that consular officials can help a fellow on foreign soil to understand his unfamiliar legal circumstances and assist with any measures for his defense — and by common reciprocity, every state is enabled to look after the interests of its nationals abroad.
A widespread failure to do this, in death cases and others, has involved the United States in a number of international spats over the years.
Jose Medellin was among more than 50 Mexican prisoners named in one of the most noteworthy of these: the Avena case, a suit by Mexico* against the United States in the International Court of Justice.
In its March 31, 2004 Avena decision, the ICJ found that U.S. authorities had “breached the obligations incumbent upon” them by failing in these instances to advise the Mexican nationals it arrested of their Vienna Convention rights, and of failing in almost all those cases likewise to advise Mexican representatives that a Mexican citizen had been taken into custody.
“The appropriate reparation in this case,” the 15-judge panel directed, “consists in the obligation of the United States of America to provide, by means of its own choosing, review and reconsideration of the convictions and sentences of the Mexican nationals.”
If you think the Lone Star State’s duly constituted authorities jumped right on that “obligation,” you must be new around here.
Several years before, the United Nations Special Rapporteur on Extrajudicial, Summary or Arbitrary Executions visited the United States and filed a report complaining “that there is a generalized perception that human rights are a prerogative of international affairs, and not a domestic issue.”
“Domestic laws appear de facto to prevail over international law, even if they could contradict the international obligations of the United States,” the Special Rapporteur noted.
Texas, famed for not being messed with, took a dim view indeed to being bossed about from The Hague. Indeed, the very concept of foreign law and international courts is a gleefully-thrashed political pinata among that state’s predominant conservative electorate.
U.S. President George W. Bush — a former Texas governor who in his day had no time at all for appeals based on consular notification snafus — in this instance appealed to Texas to enact the ICJ’s proposed review.† In fact, he asserted the authority to order Texas to do so.
Texas scoffed.
“The World Court has no standing in Texas and Texas is not bound by a ruling or edict from a foreign court,” a spokesman of Gov. Rick Perry retorted.
This notion that America’s federalist governance structure could insulate each of her constituent jurisdictions from treaty obligations undertaken by the nation as a whole naturally seems preposterous from the outside. But in the U.S., this dispute between Washington and Austin was resolved by the Supreme Court — and the vehicle for doing so was an appeal lodged by our man, Medellin v. Texas.
The question at stake in Medellin was whether the treaty obligation was binding domestic law on its own — or if, by contrast, such a treaty required American legislative bodies to enact corresponding domestic statutes before it could be enforced. The high court ruled for the latter interpretation, effectively striking down Avena since there was zero chance of either Texas or the U.S. Congress enacting such a statute.
Medellin, the decision, spelled the end for Medellin, the man — and, at least for now, the end of any prospect of effectual intervention in American death penalty cases by international tribunals.
* Mexico, which no longer has the death penalty itself, has the heavy preponderance of foreign nationals on United States death rows at any given time.
** The Texas Attorney General’s press release announcing Medellin’s execution included a detailed appellate history of the case which pointedly excluded anything that happened in the ICJ.
† The Bush administration did take one effective step to avoid a similarly embarrassing situation in the future: it withdrew the U.S. from the consular notification convention.
That’s far and away the most for governors under the modern US death penalty regime. But is it an all-time record?
Rick Perry is number one.
The answer appears to be “yes”: a review of state execution data reveals no other governor throughout the U.S. constitutional era who even approaches Perry’s body count, at least not when it comes to peacetime civilian cases. Only two other men — Perry’s predecessor George W. Bush, and Depression-era New York chief executive Herbert Lehman* — appear to have signed off on as many as one hundred executions.
In attempting to explore this question, I compiled this rough list of the U.S. governors who have overseen a large number (35+) of executions. Emphasis on rough. The method I’ve used here is just a quick manual comparison of the historical U.S. executions recorded in the Espy file to U.S. governor terms as reported on Wikipedia. Then, I backed out known federal executions, which for most of U.S. history took place in various state prisons. (For instance, Ethel and Julius Rosenberg were electrocuted at Sing Sing in New York … but not by authorities of the Empire State.)
I would not suggest sourcing anything one depends on to the figures in this chart without further investigation and qualification; the list is certain to contain errors, including:
Omissions or mistakes by the Espy file itself.
Miscalculations or misdating on my part.
Governors who served non-consecutive terms who I’ve failed to identify.
Any consideration of governors who might have been temporarily incapacitated or absent during their term with another party exercising the relevant powers in their stead
Civil War executions, which I simply steered around
Beyond attributing numerical counts to date ranges, this list reflects essentially no state- or period-specific research: it’s worth bearing in mind that the legal context and gubernatorial authority relative to the death penalty vary over time and between states. A name and a number on this list is not the same as judging a governor personally “responsible” for all or any of those executions, not even necessarily to the extent of having signed off on a death warrant. It’s only in the late 19th century and into the early 20th century that states centralized all executions away from localities and into state penitentiaries, with the familiar appeal-for-clemency ritual. A given governor’s personal involvement in a given local execution prior to that (and particularly in antebellum America) is not to be assumed. Even now, some states (present-day Texas included) limit the ability of the governor to extend clemency, or vest that power in an agency.
Caveats aside, here’s that rough (rough!) list:
The large numbers here predictably map to large states (with lots of people to commit lots of crime and generate lots of death cases) and/or long-serving governors. Rick Perry is about to start his 13th year as Texas governor, and this is actually a remarkably long tenure. Most governors in U.S. history have held the office for surprisingly brief periods, just 2-4 years.
For example, post-Reconstruction Jim Crow Georgia executed at a terrific pace (routinely ten or more executions per year, for decades on end) and several of its governors therefore appear on this list … but those governors had what you might call limited upside, as they were term-limited to two consecutive two-year terms. Had Georgia ever put an executive kingpin in the governor’s mansion for a decade or more, that person would easily rank up there with Bush and Lehman. (Not with Perry, though.)
Typical office tenures have somewhat lengthened into the 20th and 21st centuries, but this is just when the execution rate itself has fallen off. Many of the larger (50+) execution totals come from the period when those two trends crossed in the first half of the 20th century, with men (Ann Richards, George W. Bush’s predecessor, is the only woman to show) running large states for five-plus years.
This confluence also leads to the interesting appearance of liberal lions among the 20th century’s most prolific American executioners:
Liberal “Rockefeller Republican” Thomas Dewey, with 95 executions as New York’s governor.
Dewey’s running mate in the “Dewey Defeats Truman” presidential election, Earl Warren: he sent 82 to the gas chamber in a decade as California governor before he was appointed to leave his lasting legacy heading a left-leaning Supreme Court
Franklin Delano Roosevelt, who okayed 51 executions as governor of New York (and then 16 more federal executions as president)
Gifford Pinchot, who’s best known as the progressive-era father of the Forest Service, but also spent eight years as Pennsylvania’s governor and oversaw 81 executions.
Feel free to chime in with corrections, data points, musings, and bootless speculations in the comments.
* Herbert Lehman was the son of one of the founders of Lehman Bothers investment bank. Bush was the son of the founder of the inexplicable Bush political dynasty. We’re guessing nobody thought of their prolific-executioner connection when the Bush administration let Lehman Brothers go bankrupt in 2008.
Polling data reveals interesting things about U.S. public opinion and the death penalty. If you ask an open-ended question about the death penalty –- for example, “Do you feel the death penalty is appropriate for certain egregious crimes?” –- then you usually see somewhere around a 65 to 35 percent split in favor. On the other hand, if you ask which is preferred – the death penalty or life in prison without parole, the results tend to be closer to 50-50.
Upon occasion, another question is asked: Do you feel an innocent person has been put to death in the U.S.? The results are pretty emphatic: Americans don’t trust their government to get it right, and they do believe innocent people have been executed, by a ratio of about three to one.
So the question fairly arises: Have innocent people been executed in the U.S. in what we sometimes refer to as the “modern era,” i.e., since executions were allowed to resume in 1976?
Enter Cameron Todd Willingham.
On Feb. 17, 2004, Cameron Todd Willingham was strapped to a gurney in a Texas death chamber as he declared his innocence for the last time. Minutes later, he was executed by lethal injection. In December of the same year, the Chicago Tribune uncovered secrets behind the Willingham case, addressing questions left unanswered and raising doubts left unacknowledged.
The Fatal Fire
Cameron Todd Willingham with one of his purported victims — his daughter, Amber.
On Dec. 23, 1991, Willingham was at home with his three daughters. His wife, Stacy, left their home in the morning to pay the bills and shop for Christmas gifts at a Salvation Army store. The family had been struggling that year; Todd, as everyone called him, had recently been laid off, and Stacy was supporting the family with her wages from a bar. The Willinghams were two months behind on rent, and they had even stopped paying some bills in order to save money for Christmas.
Willingham recalled waking up briefly as his wife was leaving the home around 9 a.m. When he heard their one-year-old twins, Karmon and Kameron, crying, he woke up to feed them and went back to sleep. About an hour later, his two-year-old daughter Amber woke him with her cries, and the house was already full of smoke. Willingham remembers not being able to see “anything but black” toward the front of the house.
The circuits were popping throughout the home as Willingham frantically went to his daughters’ bedroom. At this point, his hair caught on fire, and he was able to see little more than the glowing of the ceiling. Willingham called out for his children and felt along the floor and bed for them, but he could not find them. This is when debris began falling from the ceiling, causing him to burn his shoulder. He fled the home through the front door.
After fleeing his house, he asked his neighbors to call the fire department and screamed to them, “My babies is in there and I can’t get them out.” A neighbor, Mary Barbee, then asked other neighbors to place the call because her own telephone was disconnected. Willingham reported that, while this was happening, he tried to re-enter his home, but it was too hot. Then, he knocked out two bedroom windows with a pool cue, but could not get into the bedroom.
Buvin Smith arrived on the scene after hearing the neighbor’s call over a radio scanner. Smith remembered restraining Willingham from going onto the porch, and heard him yelling that his “babies were in the house” and noticed that he was “acting real hysterical.”
A Circumstantial Case
Almost immediately, Willingham became a suspect. According to the Chicago Tribune, prosecutors often are able to rely on circumstantial evidence in cases when a child dies and the parent survives. In this case, the prosecution convinced the jury that Willingham killed his children because they interfered with his beer-drinking, dart-throwing lifestyle. The jury believed it.
Neighbors told investigators that they did not believe Willingham tried hard enough to save his children. In fact, Barbee said that she saw Willingham standing by the fence as heavy smoke came out of the windows. Also, she told investigators that Willingham seemed more concerned with moving his car away from the burning house as the windows blew out than with saving his children.
Willingham’s wounds were treated shortly after the fire. Firefighters did not think that his burns were severe enough had he indeed searched for his daughters in the manner he described. His shoulder, back, and hair were burned, but his bare feet were not burned at the bottom.
Police stated that, the day after the fire, Willingham complained about not being able to find a dartboard in the wreckage of his home. Others mentioned hearing loud music and laughter in the following days as the couple attempted to salvage their belongings.
A police chaplain grew suspicious that Willingham’s hysterics during the fire were not genuine. The chaplain, George Monaghan, noted that Willingham seemed “too distraught.”
In addition to these evaluations of Willingham’s behavior, fire investigators reported over 20 indicators of arson. These include the “crazed glass,” or the web-like cracks in the glass. Until more recent research was completed, arson specialists believed this to be a clear indication that an accelerant had been used in the fire. The fire experts also noted that the fire had reached a stage known as flashover, when a fire reaches such a high temperature that an explosion results. This further supported their reasoning that an accelerant had been used.
Willingham was charged with murder on Jan. 8, 1992, just two weeks after the fire. In August of the same year, his trial began, after Willingham turned down a deal from the prosecution and insisted that he was innocent. During the trial prosecutors presented inmate Johnny E. Webb as a witness. He testified that Willingham confessed at the county jail to killing his children in order to cover up the fact that his wife, Stacy, had been physically abusing them. Webb, a recovering drug addict, was taking psychiatric medication to relieve post-traumatic stress syndrome. The prosecution also presented as witnesses the neighbors who claimed that Willingham should have done more. Fire investigators Doug Fogg and Manuel Vasquez also testified at Willingham’s trial. Both of these investigators testified in court that the fire was caused by arson.
Both of these investigators testified to assumptions about fire that have been scientifically proven to be wrong.
Forensic Evidence Reconsidered
When the Chicago Tribune investigated the case, several experts reviewed documents, trial testimony, and video documentation of the fire scene and concluded that the original investigation was terribly flawed. Gerald Hurst, a Cambridge University-educated chemist, and John Lentini, John DeHaan, both private consultants specializing in fire investigation, along with Louisiana fire chief Kendall Ryland, examined the materials. They suggest that this fire may have been simply accidental.
After the Chicago Tribune investigation, Lentini worked with the Innocence Project to assemble an independent, peer-review panel of arson experts. The five-member panel –- with a combined 138 years in high-level fire investigation experience –- issued a 44-page report (.pdf) on the case.
They determined that “each and every one” of the forensic interpretations made by the state’s experts at Willingham’s trial was not scientifically valid. For example, the original investigators determined that an accelerant was used because wood cannot burn hot enough to melt aluminum. In fact, according to these leading experts, it can.
The 1991 investigators also claimed that the brown rings on the Willingham’s front porch indicated accelerant usage. Experts called this “baseless speculation,” explaining that fire-hose water often leaves brown rings on surfaces after evaporation.
Was it Known Before the Execution?
This information didn’t only come to light recently. Shortly before Willingham was executed, Hurst reviewed the case and issued a report that dismissed every single indicator of arson Fogg and Vasquez had originally cited. What was done with this report? Texas judges and Gov. Rick Perry turned it aside, confident of Willingham’s guilt.
Jury members are less confident now. One jury member asked, “Did anybody know about this prior to his execution? Now I will have to live with this for the rest of my life. Maybe this man was innocent.”
There has not been “a single case—not one—in which it is clear that a person was executed for a crime he did not commit. If such an event had occurred in recent years, we would not have to hunt for it; the innocent’s name would be shouted from the rooftops.”
Jose Medellin was among more than 50 Mexican prisoners named in one of the most noteworthy of these: the Avena case, a suit by Mexico* against the United States in the International Court of Justice.
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