51

While reading about recent evidence that casts strong doubt on whether Cameron Todd Willingham, who was executed in Texas in 2004, was actually guilty I ran across the following statement in the Washington Post, quoting Supreme Court Justice Antonin Scalia:

As the Supreme Court upheld the death penalty in Kansas in 2006, Justice Antonin Scalia declared that the opposition could not cite “a single case — not one — in which it is clear that a person was executed for a crime he did not commit.”

Excerpt from a Washington post article

I was rather surprised to read this, my impression from various news articles was that there are multiple cases where it is pretty clear that an innocent was executed.

Are there no cases where it has been clearly shown that an innocent was executed in the United States?

Laurel
  • 30,040
  • 9
  • 132
  • 118
Mad Scientist
  • 43,643
  • 20
  • 173
  • 192
  • 5
    According to the [Innocence Project](http://www.innocenceproject.org/know/), there have been 18 death row inmates exonerated/pardoned via DNA evidence, but none actually executed. Since their platform is specifically targeted at *DNA evidence*, my assumption is that if there was a case involving DNA, they'd know about it. *However*, there may be cases of exoneration using other evidnece. – Is Begot Aug 04 '14 at 17:46
  • 4
    https://en.wikipedia.org/wiki/Wrongful_execution#United_States – ike Aug 04 '14 at 17:55
  • The quote is a bit miss leading it looks like the quoted part, “a single case — not one — in which it is clear that a person was executed for a crime he did not commit.” is from the decision while the remainder is from the newspaper itself. – rjzii Aug 04 '14 at 18:11
  • There is also a conflation in the question of "*for a crime he did not commit*, and *innocent*". This is discussed at footnote 7 of Justice Thomas's opinion in [*Kansas v Marsh*](http://www.supremecourt.gov/opinions/05pdf/04-1170.pdf): "[w]hile a not guilty finding is sometimes equated with a finding of innocence, that conclusion is erroneous". –  Aug 04 '14 at 18:31
  • 2
    @rjzii The quote is verbatim from the Washington Post article, so anything inside quotation marks is from Scalia, and anything else from the Washington Post. – Mad Scientist Aug 04 '14 at 18:46
  • 3
    Yes, I understand that, but maybe change "the following statement by Supreme Court Justice Antonin Scalia:" to "a Washington Post article that quoted Scalia as saying." This goes back to the could not/did not discrepancy that @Articuno pointed out in my the comments to my answer. – rjzii Aug 04 '14 at 18:56
  • 1
    It seems to me that if it were "clear" that the accused did not commit the crime, s/he would not have been convicted in the first place. The fact that someone has gotten far enough into the system to reach death row - whether s/he is guilty or innocent - suggests that it is in fact _not_ clear that s/he is innocent of the crime, and there is sufficient evidence to convince (likely multiple) juries of guilt. – Brian S Aug 04 '14 at 22:26
  • 2
    @BrianS: Unless new evidence (particularly newer DNA-fingerprinting technology or confessions by others) changed that position. – Oddthinking Aug 04 '14 at 23:31
  • Isn't there some difficulty to prove that an innocent man was executed, since there won't be a new trial? I've also heard that there was a case were they destroyed new DNA evidence, if that's true it seems really hard to prove that someone was innocent. – jinawee Aug 05 '14 at 17:21
  • 1
    Just as an aside, Frontline did a great episode based on the story of a man who was executed for a crime he *probably* did not commit. In fact, the crime itself probably didn't happen. The episode is called "Death by Fire" and it can be seen in its entirety [here](http://www.pbs.org/wgbh/pages/frontline/death-by-fire/) – Jolenealaska Aug 05 '14 at 21:37
  • 5
    I would suggest changing the title. The claim made was not that there was not one such case, but that the dissent didn't cite one. That's a really big difference. – reirab Aug 06 '14 at 15:31
  • I think you misread the quote. You say "my impression from various news articles was that there are multiple cases where it is pretty clear that an innocent was executed." I think that is true, but the article just says that the lawyers arguing against the death penalty could not cite a single instance. That's a very different claim. – Kip Aug 09 '14 at 21:09
  • @IsBegot, why would you assume that the Innocence Project is interested in (or would know all about) people who are *already dead*? That's an unjustified assumption; their stated mission is "to free the staggering number of innocent people who remain incarcerated, and to bring reform to the system responsible for their unjust imprisonment." So your comment is a form of selection bias. (They have limited resources to investigate cases and are likely only focusing on prisoners who are still alive.) – Wildcard Aug 29 '17 at 00:48
  • @Wildcard I don't believe the assumption is unjustified. Having a clear case where someone was actually executed and later found innocent using DNA evidence would be a *very* strong argument in their favor (as a martyr or "poster boy"), and I doubt they wouldn't look for something like that. While they may not expend the same amount of resources on it, I can't imagine they haven't had people look into it at all. – Is Begot Aug 29 '17 at 01:00
  • 1
    @IsBegot, there are at least two distinct questions there. One is, has anyone ever been *proven* innocent by DNA evidence after execution? I agree the answer to that is probably "no," for the reasons you state. The other is, has anyone ever been executed whose conviction *would have been* overturned by DNA evidence? The answer to that is probably "yes." A further question is, is anyone applying DNA evidence techniques *broadly* to investigate (and potentially overturn) wrongful convictions of prisoners *who are already dead*? I believe that's a "no." (cont'd) – Wildcard Aug 29 '17 at 01:12
  • 1
    (cont'd) In other words, I'm sure they've had people look into whether anyone *has been proven* innocent by DNA evidence after execution. I *highly* doubt they have attempted to actually do so. (It's like the difference between googling "How big is the largest crater on the back side of the moon?" and actually going to the moon to find out.) And the prisoners they've freed who *would have been* executed and are now alive and free with convictions overturned are surely "poster boy" enough? Please note that they help *people.* They don't just make some academic point—that's not their goal. – Wildcard Aug 29 '17 at 01:16
  • 1
    There is the basic problem that once someone has been executed there is likely no effective way to obtain a court decision of innocence for the person, since that person can no longer petition for a retrial. Any decision arising out of the court system would likely be a civil decision, not a "criminal" one which would reverse the original guilty verdict. – Daniel R Hicks Oct 20 '18 at 20:42

2 Answers2

54

When approaching this question there are two items that need to be resolved, if the quote accurately quotes what Justice Antonin Scalia said and the second of which if the quote in its current context is true.

With regards to wrongful executions in the United States, Wikipedia provides several well referenced examples of cases where serious doubt was raised after the execution and Samuel Gross provides another good summary from a legal perspective; however, in the case of Jesse Tafero (October 12, 1946 – May 4, 1990), was convicted of murder and executed via electric chair in the state of Florida. Walter Rhodes, later confessed to the shooting after Tafero's execution. Which discredits Justice Scalia's assertion of a single case.

However, is that exactly what Justice Scalia said? It turns out that this quote is from the Kansas v. Marsh case of the exact quote from his concurring opinion was,

It should be noted at the outset that the dissent does not discuss 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 by the abolition lobby. The dissent makes much of the new-found capacity of DNA testing to establish innocence. But in every case of an executed defendant of which I am aware, that technology has confirmed guilt.

Since the ruling was decided in 2006 and the Tafero case occurred in 1990 the question of if a gap sixteen years makes a case recent or not is best left to the reader.

Laurel
  • 30,040
  • 9
  • 132
  • 118
rjzii
  • 16,884
  • 4
  • 92
  • 102
  • 66
    The quote highlights a major discrepancy. The claim in the question was that the opposition *could not* cite a single case. Scalias actual claim is that the dissent *did not* cite a single case. –  Aug 04 '14 at 18:04
  • 1
    @Articuno True, but that implies that the Washington Post misquoted the decision which I think I covered already by questioning the full context of the quote. – rjzii Aug 04 '14 at 18:09
  • 1
    Yes, I agree. My point is that the discrepancy is a significant part the/your answer that could be highlighted better. –  Aug 04 '14 at 18:11
  • @Articuno I tagged the asker to modify the question to make it a it more clear what part was from the newspaper and what part from from Scalita. In the mean time it does still seem like there are two, maybe three parts to the question now: has there been a case, is the quote accurate, and is it correct in the context of the case proceedings. Sound fair? – rjzii Aug 04 '14 at 18:12
  • I agree with all of that. –  Aug 04 '14 at 18:13
  • @Articuno Cool. Reviewing the case transcript is going to take a bit of time so I'll try to get the answer updated tonight. Even then I might still miss something since there can be a lot of exhibits associated with these cases. – rjzii Aug 04 '14 at 18:16
  • 1
    The oral argument, reargument, and opinion announcement are here: http://www.oyez.org/cases/2000-2009/2005/2005_04_1170. Could see if post-execution determination of innocence was even raised by Marsh's side in oral argument. It might have not even been relevant to the case (I'm also not familiar with this case). –  Aug 04 '14 at 18:18
  • @Articuno Still going through the proceedings but I'm not finding any references to the Tafero case but the impression I'm getting from reading Scalia's writing and the transcripts is that he likely doesn't consider 1990 recent since he references exonerations that took place between 1989 and 2003. – rjzii Aug 05 '14 at 14:31
  • 5
    I've removed a comment that was attracting flags because of its wording, but I think its underlying point remains: it is not clear that people are going to the expense of proving executed people innocent, when the money is better spent on proving death-row inmates innocent. (Even if they did, they might not then spend the effort on having a conviction formally overturned.) If this is true, Scala's argument is flawed. – Oddthinking Aug 05 '14 at 22:08
  • 1
    i feel like the general idea the judge was trying to convey is that recent, means since dna testing has been around in cases, i believe that Dna tests starting being frequent in the mid to late 90's, and as such has drastically altered the easy in which to prove guilt and innocence, beyond a doubt. – Himarm Dec 12 '14 at 22:14
  • 2
    I would point out that Tafero was not innocent. He simply wasn't the person who actively shot the police officers. He was there and actively involved in the criminal activity. All three adults were convicted of murder. – Brythan Oct 21 '18 at 01:06
4

I just want to add a very recent article in the Guardian

... it would be unwise to assume that everyone condemned to death is guilty of a terrible crime: a new report from the Marshall Project explains how, only a decade ago, Texas executed a man who was almost certainly innocent – and did so in a way that makes it enormously unlikely that he was the only innocent man to die in the state’s high-volume execution chambers.

and raise the question: What means "clearly shown" with respect to "evidence"?

"Clear" is a relative term - clear for whom or from what kind of view - and furthermore is there no and can never be a status of absolute clearness! We live in a continuous world, where is always uncertainty involved - no matter what you do. Therefore, to apply such a black-and-white term, you can just reduce that uncertainty (in the eyes of the subject) to a level where the subject perceives something as clear based on his reality.

It is unclear to me what the subject involved here is. Is it clear in the eyes of

  • the commonality (in the sense of more than half of the statistical mean of the population - the average citizen)?
  • the average politician high enough to speak in the name of the government (yes, I do distinct here)?
  • the judge?
  • the jury?

I tend to believe that subject here is the judge but I also perceive it as a polemic.

Laurel
  • 30,040
  • 9
  • 132
  • 118
Suuuehgi
  • 151
  • 1
  • 4
    Welcome to Skeptics! If you can make it clear to us, that should be sufficient for now. However, your reference is to a newspaper article that cites another newspaper article that apparently cites a report that cites evidence. A good answer would cite primary sources rather tertiary ones. Show us how the Marshall Project know what they claim is true. – Oddthinking Aug 08 '14 at 10:49