It has long been the conventional wisdom on both sides of the death penalty debate that if a state or the federal government were ever shown to have executed an innocent person, we'd see a dramatic drop in support for state executions. In the 2006 case Kansas v. Marsh, Supreme Court Justice Antonin Scalia, a death penalty supporter, called the search for a wrongly executed person the "Holy Grail" of death penalty opponents.
But a little less than two years after David Grann made a convincing argument in The New Yorker that the state of Texas had done just that, public support for capital punishment hasn't wavered. In October 2009, Grann wrote about Cameron Todd Willingham, executed in 2004 for setting the fire that killed his three young children. Willingham was convicted because of forensic testimony from fire officials that arson experts call junk science.
Grann's story was widely discussed and distributed, but the predicted sea change in public perceptions of the death penalty didn't happen. According to Gallup polling, support for the death penalty dropped just a point between 2009 and 2010, from 65 percent to 64 percent, well within the margin for error. And about half the country still believes the death penalty isn't used often enough.
As we saw last week with the execution of Troy Davis in Georgia, the Willingham case doesn't even seem to have made state governments less willing to execute even when there are strong doubts about the defendant's guilt. In fact, the only fallout from Willingham may in fact have been to strengthen the resolve of death penalty supporters. When the crowd at a GOP primary debate cheered the number of executions carried out in Texas earlier this month, the Willingham case and Gov. Rick Perry's handling of it was the clear subtext of the question.
There's still no political price to pay for defending executions, for carrying out questionable ones or, in the case of Perry, for stifling attempts to investigate whether an innocent person has been put to death. The states of California, Arkansas, Tennessee and Kentucky recently even resorted to purchasing sodium thiopental on the black market to ensure they could continue carrying out lethal injections.
Consider also the case of Hank Skinner, currently on death row in Texas for the murder of his ex-girlfriend and her two sons. Skinner merely wants to conduct DNA testing on several major pieces of biological evidence collected at the crime scene that were never examined. The evidence includes blood from the murder weapon; blood on a jacket found near the victims; the rape kit performed on Skinner's former girlfriend; the skin cells found under her fingernails; and the hair she was clutching at the time of her death.
On a 2000 episode of Nancy Grace's Court TV show "Closing Arguments," one of Skinner's attorneys actually challenged his prosecutor to conduct the testing, even offering to pay for the tests himself. The prosecutor agreed. But when preliminary mitochondrial testing on the hair did not match Skinner or the victim, the prosecutor put a halt to any further testing. Texas officials, including Perry, have since fought any additional tests.
Even after the Willingham debacle, Texas officials are arguing in court and in public statements that knowable facts that could prove a defendant's innocence -- or confirm his guilt -- should remain unknown. That isn't a quest for truth. It's a reckless effort to protect a conviction.
And yet there's little evidence that voters will punish them for it. Nor, likely, will anyone in Georgia pay a political price for the execution of Troy Davis. Just why is that? More than 270 people have been cleared by DNA testing in the last 30 years, a strong indication that our criminal justice system is more error-prone than much of the public likely believes. Most of the rest of the developed world has done away with capital punishment. And there's now strong evidence that at least one state executed an innocent man.
Why, after all of this, do more than six in 10 Americans still support the death penalty?
Jerry Hobbs was one of those slam-dunk death penalty cases, a guy with a criminal record guilty of a brutal crime that even hardcore opponents of capital punishment would have a difficult time sparing.
Shortly after he was released from prison on assault charges, Hobbs was arrested in 2005 in Zion, Ill., accused of brutally murdering his own daughter and her best friend. According to prosecutors, Hobbes went out looking for the 8-year-old girl in a fit of anger because she had left the house after he had grounded her. When he found the girls, prosecutors say, Hobbs stabbed them more than 30 times with a kitchen knife. Hobbs' daughter had been stabbed once in each eye, and autopsy results later revealed the presence of semen in her mouth, vagina and rectum.
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