Author Archives: David Elliot

2002: Monty Allen Delk, in a Three-Pronged Failure

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(Thanks to David Elliot at Abolish the Death Penalty for the guest post -ed.)

Six years ago today the state of Texas executed an FBI agent, a state district judge, the president of Kenya and a war hero who commanded a nuclear-powered submarine during the Civil War. More aptly put, Texas executed a seriously mental ill inmate named Monty Allen Delk who, at varying times, believed he was all of these things.

Delk was convicted and sentenced to death for the murder of Gene “Bubba” Allen of Anderson County in East Texas. Although the state of Texas maintained that Delk was “malingering,” i.e., pretending to be mentally ill to stave off execution, the prison system’s former chief mental health officer stated that Delk suffered from a severe mental illness, one that had become progressive in nature since it was first noticed in 1989 –- years after Delk was tried and convicted.

A close examination of the Delk case reveals yet another significant flaw in the capital punishment system:

The U.S. Supreme Court has ruled that executing severely mentally ill inmates violates the U.S. Constitution.

The court also has held that a death row inmate must be mentally competent in order to drop his appeals.

But the court has not directly addressed the issue of whether a death row inmate must be mentally competent in order to pursue his state and federal habeas appeals. In fact, the Texas Court of Criminal Appeals, and the 5th Circuit Court of Appeals, which has jurisdiction over death penalty cases in Texas, have ruled that prisoner competence during state and federal habeas proceedings is not constitutionally required.

The question is fundamental to due process. Habeas is the first, last and often only avenue of appeal for death row inmates whose sentences have been upheld on direct appeal by the Texas Court of Criminal Appeals. But because Delk was unable to assist his attorney through his habeas appeals, he could not answer simple questions that were key to his case -– questions such as, did he commit the crime? Did he think his trial was fair? Did he think his trial lawyers adequately represented him? Were there circumstances about the crime or about his personal history that mitigated against a death sentence?

The fact that Delk’s execution was allowed to proceed represented a three-pronged failure on the part of Texas’ death penalty system. The first failure must be attributed to the courts, which failed to order a psychiatric evaluation of Delk, despite repeated requests by Delk’s very able attorney, John Wright of Huntsville.

The second failure lies with Texas’ executive clemency system. Because of his mental illness, Delk’s sentence should have been commuted to life in prison. Yet the Board of Pardons and Paroles as well as Texas Gov. Rick Perry did nothing. (It is important to note that four days before Delk’s execution, the Georgia Parole Board, acting in a similar case, commuted death row inmate Alexander Williams sentence to life in prison after pleas from human rights activists. Williams is a chronic paranoid schizophrenic who thinks Sigourney Weaver is God and that little green frogs are in his prison cell, staring at him.)

The third failure rested with the Texas media. While Williams’ case attracted comprehensive media coverage in Georgia and beyond, newspapers in Texas largely failed to investigate Delk’s case. Government -– including the criminal justice system –- works best under the glare of public scrutiny. Absent such scrutiny, abuses occur. In this case, no one outside Texas’ fervent anti-death penalty community took much notice of Delk’s execution.

The good news is Texas’ newspapers are beginning to sit up and take notice. If I am not mistaken, every major Texas newspaper has called either for abolition of the death penalty or for a moratorium on executions. The issue of capital punishment has advanced from the margins to the mainstream. In today’s climate, one wonders whether Texas officials could get away with executing a person as severely mentally ill as Delk.

Ultimately, the Supreme Court will have to directly confront the issue of whether a death-sentenced prisoner need be mentally competent during his habeas appeals. Until that happens, we simply will have to ask ourselves a key question:

Is executing someone who is so severely mentally ill he does not know who he is not the very definition of an insane act?

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2004: Cameron Willingham, for an accidental fire?

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(Thanks to David Elliot at Abolish the Death Penalty for the guest post -ed.)

Update: Heartbreaking New Yorker article shreds the state’s case.

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.”

In fact, a similar debunking of arson forensics by the same expert resulted in another Texas death row inmate’s exoneration and release — just seven months after Willingham was put to death.

Have innocent people been executed in the U.S.? Indeed they have. You can read more about other cases at www.InnocentAndExecuted.org

Update: After a 2009 New Yorker expose made Cameron Todd Willingham a byword for wrongful executions, our guest author’s former shop, the National Coalition to Abolish the Death Penalty, took a cue from Justice Antonin Scalia‘s scornful dismissal of the prospect.

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.”

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1992: Ricky Ray Rector, “a date which ought to live in infamy for the Democratic Party”

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(Thanks to David Elliot at Abolish the Death Penalty for the guest post -ed.)

The strange case of Ricky Ray Rector, executed by the state of Arkansas on Jan. 24, 1992, is what many observers of the death penalty system in the U.S. might call a trifecta.

First, Rector was African American. Of course, African Americans are disproportionately represented on death rows in the U.S., compared with their representation in the general U.S. population.

Second, Rector was severely mentally impaired. More about that in a couple of paragraphs.

Third, Rector suffered from a botched execution. It took a team of five executioners 50 minutes to find a suitable vein in which to inject the lethal cocktail. During this time, witnesses heard continued moaning from the inmate. (The process of repeatedly jabbing an inmate with a needle, over and over and over again, might not seem as torturous as, say, garroting or drawing and quartering. But it can hardly be described as painless.)

Now, on with the story.

According to Wikipedia, on March 21, 1981, Rector and some friends drove to a dance hall at Tommy’s Old-Fashioned Home-Style Restaurant in Conway. When one of Rector’s friends was refused entry after being unable to pay the three dollar cover charge, Rector became incensed and pulled a .38 pistol from his waist band. He fired several shots, wounding two and killing a third man. The third man, Arthur Criswell, died almost instantaneously after being struck in the throat and forehead. Rector left the scene of the murder in a friend’s car and wandered the city for three days, alternately staying in the woods or with relatives. On March 24, Rector’s sister convinced him to turn himself in. Rector agreed to surrender only to Officer Robert Martin, who he had known since he was a child.

Officer Martin arrived at Rector’s mother’s home shortly after three p.m. and began chatting with Rector’s mother and sister. Shortly thereafter, Rector arrived and greeted Officer Martin. As Officer Martin turned away to continue his conversation with Mrs. Rector, Rickey pulled his pistol from behind his back and fired two shots into Officer Martin, striking him in the jaw and neck. Rector then turned and walked out of the house. Once he had walked past his mother’s backyard, Rector put his gun to his own temple and fired. Rector was quickly discovered by other police officers and was rushed to the local hospital. The shot had destroyed Rector’s frontal lobe, resulting in what was essentially a self-lobotomy.

Rector survived the surgery and was put on trial for the murders of Criswell and Martin. His defense attorneys argued that Rector was not competent to stand trial, but after hearing conflicting testimony from several experts who had evaluated Rector, Judge George F. Hartje ruled that Rector was competent to stand trial. Rector was convicted on both counts and sentenced to death.

When Rector’s execution day approached, he was given the standard last meal. For dessert, he was offered a slice of pecan pie, which he moved to the window sill of his holding cell. When asked why he was not eating his pie, he remarked that he was “saving it” for “after the execution.”

If there had been any doubt that Rector did not understand his impending fate, that sealed it. His execution proceeded nonetheless – this was, after all, Arkansas in the early 1990s.

If that were the end of the story, we probably would not be writing about Rector today. (Then again, given the nature of this blog, maybe we would.)

But, completely unbeknownst to him, Rector would enter the annals of American presidential politics.

Back in 1988, at one time, Democratic nominee Michael Dukakis enjoyed a huge advantage in the polls over the Republican nominee, George H. W. Bush. Why he lost that lead is probably the focal point of another blog somewhere, but one reason is certainly due to The Question.

The Question came during a presidential debate between Bush and Dukakis when CNN Anchor Bernard Shaw asked Dukakis what his view on the death penalty would be if his wife Kitty were raped and murdered. To this day, pundits remember Dukakis’ tepid, emotionless and altogether inadequate response.

Enter Bill Clinton, 1992 presidential candidate. Clinton interrupted campaigning in New Hampshire to fly home to preside over the execution of the mentally challenged Rector. (Such an act was not necessary legally – the execution could well have proceeded without the governor’s presence in the state. But Clinton wanted to prove that he was a “new” Democrat, tough on crime.)

History has not treated Clinton kindly for this calculated and callous act of political opportunism. In 2002, a columnist for the San Francisco Chronicle wrote:

A date which ought to live in infamy for the Democratic Party is Jan. 24, 1992. That’s the day Ricky Ray Rector was executed in Arkansas while Gov. Bill Clinton stood by and did nothing. On that day in Arkansas, the Democratic Party also died. Its body is still with us, to be sure, but its heart and soul died 10 years ago.

There’s evidence this could be changing. Although no major Democratic candidate (sorry, Dennis) has come out against the death penalty, the fact of the matter is the death penalty, at least in Democratic circles, has lost its saliency as a political issue.

And that, at least, is a baby step.

On this day..