Monday, September 17, 2007

Innocence Matters, Chapter Two

Radley Balko, who describes himself as a "small-l libertarian," is a senior editor for Reason Magazine. Formerly associated with the Cato Institute, Balko holds the distinction of perhaps being the one and only blogger to have gotten somone off of death row as a result of breaking a huge story with his blog. (Corey Maye, until recently on Mississippi's death row, was wrongly death-sentenced and now faces a new trial.)

But today we're not discussing Corey Maye. No. We are discussing Claude Jones -- the last man executed under the administration of Texas Gov. George W. Bush.

Jones went to his death proclaiming innocence. I do not know if he was. I do not know if he wasn't. I do know that evidence exists that possibly could clear up this question -- if only the state of Texas would test it.

In Balko's words:

Did Texas Execute an Innocent Man? Who Cares!

A judge has blocked prosecutors from destroying a hair found at scene of
the murder for which Claude Jones was convicted, and executed in 2000. DNA
testing will now be done to determine if it matches Jones. It's not just
any hair. It's the hair that prosecutors matched to the defendant at trial
by way of a hair fiber analyst.

Hair fiber analysis is, to say the least, an imperfect science. It has led
to wrongful convictions before, and professional prosecution hair fiber
witnesses have a history of exaggerating the certitude of their findings.

I haven't read enough about this particular case to have an opinion on it.
I note it mostly because of the following passage, which I find absolutely

The groups, represented by attorneys at Mayer Brown LLP, filed the court
motions Friday after the San Jacinto District Attorney refused to agree to
DNA testing - and also refused to agree not to destroy the evidence while
courts consider whether DNA testing can be conducted.

Emphasis mine. Now, I can think of some reasons why a prosecutor would
want to destroy a piece of physical evidence that could prove that the
state executed an innocent man. But none of them are compatible a human being.

Perhaps, for example, the prosecutor was one of the prosecutors who worked
on the case, and doesn't want the stain on his career that might come with
a wrongful execution. Perhaps he wants to avoid the inevitable stain on
Texas' already execution-happy reputation that would come with proof that
the state executed an innocent man. Perhaps he knows that proof of a
wrongful execution will make it much more difficult for him to win death
penalty cases in the future.

But here's the thing: While I can perhaps see a prosecutor harboring such
sentiment deep down inside, I can't possibly conceive of anyone actually
making these sorts of arguments publicly. Or with a straight face.

Because, you see, if Texas did execute an innocent man, all of those
things should happen. Because...well...because Texas...would have executed
an innocent man.

And if Texas did execute an innocent man, that Texans might find out about
it-and subsequently raise understandable questions about the morality and
efficacy of the death penalty-isn't something to be avoided, it's
something that damned-well ought to happen. Because-at risk of repeating
myself--Texas would have executed an innocent man.

What possible not-devoid-of-all-morality argument could a prosecutor
possibly make for being permitted to destroy evidence that might prove an
innocent man was executed?

I really can't think of one.

(source: Radley Balko, Reason Online)

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