We Never Figure Things Out First

Now that it’s clear that Cameron Todd Willingham was executed for an arson/murder that wasn’t, there’s a question that demands an answer.  Scott Henson over at Grits for Breakfast asks it.  Bob Herbert at the New York Times asks it too.  Why is it that we convict people first, based on the hyperbolic claims of junk experts, and only put in the effort to vet the truth from the garbage after it’s too late?

Now comes a report on the case from another noted scientist, Craig Beyler, who was hired by a special commission, established by the state of Texas to investigate errors and misconduct in the handling of forensic evidence.

The report is devastating, the kind of disclosure that should send a tremor through one’s conscience. There was absolutely no scientific basis for determining that the fire was arson, said Beyler. No basis at all. He added that the state fire marshal who investigated the case and testified against Willingham “seems to be wholly without any realistic understanding of fires.” He said the marshal’s approach seemed to lack “rational reasoning” and he likened it to the practices “of mystics or psychics.”
Great.  A devastating report, ripping the prosecution’s theory to shreds, exposing the fire marshal as a fraud.  But only after Willingham, who turned down a plea that would spare his life and protested his innocence to the end, was put to death.  Where the heck was Craig Beylor when Willingham needed him?  Where are all the experts when the time to fight prosecution by voodoo needs to be made?

Let’s not mince words: The defendant’s best chance is at the trial of his case.  Thereafter, the legal presumptions work against him.  He’s no longer presumed innocent after a conviction, and evidence must be viewed in the light most favorable to the prosecution.  Only before trial, before conviction, does he possess the full panoply of rights afforded by the Constitution.  That’s when a defendant needs the help.  After he’s dead, it’s all academic.

The sad fact is that access to the level of interest and scrutiny doesn’t exist when it’s most needed.  There’s no money for the fight, and worse still, even if there was the chances of capturing the interest of world renown experts to debunk the prosecution’s payroll experts is slim to none.  Two points need be made.  At the time of trial, every cop suddenly becomes an expert beyond reproach as far as the prosecution, judge and jury are concerned.  They’ve got their act together and practiced it until it comes off very convincingly.  The only problem is that it’s almost always a lie, even when they have the right defendant and their accusations are accurate.  As the old-time columnist, Murray Kempton, used to say, “there they go again, framing the guilty.”

The second point, however, is the most disturbing.  Try getting an expert, and I mean a real expert, when you need one.  Aside from the cost (and these guys know how to charge, enough so that they make plumbers blush), they just aren’t interested.  They couldn’t care less about your case or your client; you would be lucky to get them on the phone at all.  It’s not until the case hits the front page of the paper that there is a sudden flurry of interest.  Suddenly, experts want to be the one who breaks the case wide open and gets their mug on Page 1.  That motivates them.

So Willingham is dead for an accidental fire.  And absolutely nothing has changed because of it.  Just another blip in the criminal justice system.  After all, it’s not perfect, but it’s the best there is.  I’m sure Willingham takes comfort in knowing this, as do all the other Willinghams who sit in prison because some prosecutorial expert scientifically proved their guilt as well.  But they aren’t front page news.

2 comments on “We Never Figure Things Out First

  1. John R.

    I think one of the reasons you can’t get an expert when you need one is that most of them – maybe all of them – have a lot more to gain in the long run by sticking to establishment litigants. If they like you they will come calling regularly. If you side with the upstart, the maverick, the criminal defendant, well, they don’t generate anywhere near as much regular paying business.

    It’s similar with investigators. They tend to be ex-police, which gives them a natural sympathy with the prosecution. They are often retired and don’t have the burning ambition they used to have when they thought they might be chief of police one day.

    It’s tough to get help out there.

  2. Mike

    So true; and so sad. Everyone wants to fight a wrongful conviction, but few want to prevent a wrongful conviction. There’s not a lot of status associated with keeping an innocent person out of prison. But if you can free a wrongfully convicted one, then you are someone special who will receive numerous media interviews.

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