Huffpost Media
The Blog

Featuring fresh takes and real-time analysis from HuffPost's signature lineup of contributors

Rob Fishman Headshot

Trial by Firefight

Posted: Updated:

In The Life of David Gale, a 2003 film starring Kevin Spacey, an innocent man is put to death.

In real life, David Grann, a writer for the New Yorker, reported last month that an innocent man was put to death. While there are marked differences between the fictional account and the real-life execution it might have presaged—Spacey's character, for instance, is accused of rape and murder, while Cameron Todd Willingham, the man put to death in 2004, was convicted of killing his three children by arson—the similarities are eerie.

In the two stories, both are down-on-their-luck. Both drink. Both forge relationships with female advocates who work fruitlessly for their release. Both maintain their innocence until the end. Both are executed in Texas, where 18 inmates were executed in 2008. And after death, both lay claim to what Grann calls the "grisly Holy Grail among opponents of capital punishment": a verifiable case of wrongful execution, what Sandra Day O'Connor once decreed a "constitutionally intolerable event."

Life can imitate art, but only up to a point. A point breached last week, when Texas Governor Rick Perry replaced the chairman and two members of the committee that was to hear new evidence on the Willingham case. The new commissioner, John Bradley, has been called "one of the most conservative, hard-line prosecutors in Texas." Sam Bassett, the outgoing commissioner, worried, "I certainly hope this change is not about political concerns." Yet on the same day that a leading arson expert was set to testify, Bradley suspended the hearings. As Time reports, the expert testimony has "been put off until Bradley sets a hearing, and he has not indicated when, or if, he will, saying he needs to talk to state leaders about the role of the commission."

It's clear that Willingham was (mis)tried by a kangaroo court, but will justice be better served by the media zoo that's ensued?

Grann's exposé hasn't quite triggered a tipping point, but it has become a powerful rallying point for liberal pundits. New York Times columnist Bob Herbert resolved: "It was an accident. No crime had occurred." Dahlia Lithwick announced on Slate that "we have finally found one." Decided Barry Scheck, the Innocence Project co-founder who was interviewed for the New Yorker article, "He was innocent." Grann has since been interviewed on MSNBC and NPR. As in David Gale, it would appear to be an edifying finale.

But that's where the credits refuse to roll. For his part, Governor Perry has derided what he calls "latter day experts" for ignoring "clear and compelling, overwhelming evidence that [Willingham] was in fact the murderer of his children." Similarly, John Jackson, the original prosecutor, and now a Texas judge, issued a rejoinder to Grann, in which he reaffirmed the guilty verdict, and argued that Willingham "should not be anyone's poster child."

Grann's response seemed to crystallize the adversarial nature of the media storm: "The Prosecution Defends Itself."

The he said, she said becomes intellectually frustrating for readers. On the one hand, we want to believe Grann's deft, poignant and eminently compelling story. But on the other hand, we're stung by shards of evidentiary doubt, such as a news story from 2004 that attributes a string of epithets to Willingham in the moments before he died—in direct contradiction to the last words Grann reports.

Which is not to cast doubt on the reportage, but only to acknowledge the inherent limits of the medium.

"The one thing that I hope doesn't happen," Grann told me, "is that it becomes simply about blame, and that overshadows what's most important, which is what the case addresses."

As journalists, our job is to hold up the mirror, as Walter Cronkite famously put it. Grann has masterfully accomplished that task. Beyond that, a sustained media circus is an ill wind that blows no one but Rick Perry any good. The press cannot be jury, judge and exonerator. As Grann said, what's at stake here are "systemic issues," not just of truth and justice for one man, but of the American way.

The great danger is that Willingham will be doubly denied justice: found guilty in a drumhead court-martial, and innocent in a mock trial. Neither an act of God nor a piece of journalism will vindicate Willingham or confute the death penalty. The example that disproves the rule, the cinematic finish, the elusive Holy Grail is now, as before, a question of law.

Around the Web

Cameron Todd Willingham, Texas, and the death penalty : The New Yorker

Texas Governor Defends Shakeup of Commission

Texas panel reviews ruling that led to execution

Hutchison disagrees with Perry on commission move

Editorial: Perry's certainty about execution ignores science

Perry defends disputed '04 execution of Corsicana man

Bradley reportedly unsure about continuing Willingham probe

Forensic panelists urged Perry against a shakeup