The Liberty Papers

Hank Skinner is scheduled to be executed by the State of Texas on March 24th. Despite more than a decade of requests to have his DNA tested, Texas courts have denied him every step of the way. The Medill Innocence Project has even offered to pay for the testing to no avail. Skinner’s attorneys have appealed to the U.S. Supreme Court to force the issue before it’s too late. Given the recent ruling in Osborne, I’m not optimistic that Alito and Roberts would put their slavish allegiance to process aside long enough to allow the truth of Skinner’s guilt or innocence to see the light of day…at least until after Skinner is executed (maybe).

Former Texas prosecutor Sam Millsap wrote an op-ed piece in The Houston Chronicle explaining why he believes the courts should grant Skinner’s request, if for no other reason, to learn the truth. He also pointed out that only a week ago, Gov. Rick Perry pardoned Tim Cole posthumously some 9 years after he died while in prison. Why wouldn’t the same governor want to avoid making the same mistake again?

Millsap:

I’m not an advocate for Hank Skinner. I’m an advocate for the truth. If DNA tests could remove the uncertainty about Skinner’s guilt — one way or the other — there’s not a good reason in the world not to do it […]

[…]

It is cases like Skinner’s that ended my lifelong support for the death penalty. Any system driven by the decisions of human beings will produce mistakes. This is true even when everyone — judges, prosecutors and defense attorneys — is acting in good faith and working as hard as he or she can to get it right.

From there Millsap gets personal and explains why he, acting in good faith, may have been responsible for prosecuting an innocent man who was executed in 1993.

Why the change of heart? Millsap explained that one of his star witnesses against Ruben Cantu recanted his testimony 20 years later. Millsap said he believes the witness’s latest version of the events because the witness had nothing to gain from changing his testimony “except a whole lot of trouble.”

Beyond Cantu, Millsap also believes Texas has executed at least two other men he says “were almost certainly innocent”: Carlos DeLuna, executed in 1989 and Cameron Todd Willingham, executed in 2004.

Millsap is by no means the only individual inside the Texas criminal justice system who recognizes inherent flaws in the system which kills more people every year than any other state. State District Judge Kevin Fine recently granted a pretrial motion declaring the death penalty unconstitutional due to his belief that innocent people have been executed in Texas and elsewhere:

“Based on the moratorium (on the death penalty) in Illinois, the Innocence Project and more than 200 people being exonerated nationwide, it can only be concluded that innocent people have been executed,” state District Judge Kevin Fine said. “It’s safe to assume we execute innocent people.”

Fine said trial level judges are gatekeepers of society’s standard for decency and fairness.

“Are you willing to have your brother, your father, your mother be the sacrificial lamb, to be the innocent person executed so that we can have a death penalty so that we can execute those who are deserving of the death penalty?” he said. “I don’t think society’s mindset is that way now.”

The article goes on to point out that Judge Fine’s ruling will likely be overturned on appeal and is more symbolic than anything else (i.e. a way to force people to discuss the issue of the death penalty). Fine is taking quite the career risk in a very pro-death penalty state which elects its judges. His critics, who like to point out that Judge Fine is a former cocaine addict, argue that his ruling has no basis in the law.*

And maybe Judge Fine’s critics are technically right** about his “judicial activism,” but can anyone really argue with the judge’s logic? Is it possible for sates to execute only guilty individuals 100% of the time when states have admitted to wrongfully convicting others for lesser charges? If not, what is the acceptable margin of error when we are talking about allowing the government to kill?

These are the kinds of questions which I hope keep Gov. Perry up at night with the scheduled execution of Hank Skinner and those who will undoubtedly follow.

* Though I would point out that the state killing an innocent person would certainly be contrary to Natural Law if not Constitutional Law.

** Though this point could be debated at this blog ad nauseam among The Liberty Papers contributors and readers without coming to a satisfactory consensus. I default to life, liberty, and property interests and therefore would agree with how the judge has handled the death penalty case that came before him. WWJAND (What would Judge Andrew Napolitano do?)