Unfinished Business

The following opinion by O. Ricardo Pimentel was published by the San Antonio Express-News on May 23, 2013.

The photo of Gov. Rick Perry signing legislation that diminishes the chances of wrongful convictions in Texas is rich in irony. More important, it projects an indelible sense of job undone.

The irony is embodied in the now-deceased person of Cameron Todd Willingham, who also points to the unfinished work. Those intimately familiar with Texas' criminal justice history can tell you that Willingham, even more than Michael Morton — whose case prompted this legislation — is the state's prime example of wrongful conviction.

Morton's story is incredibly tragic. He spent nearly 25 years in prison after being convicted in the beating death of his wife. The prosecution withheld evidence that would have cleared him. Thanks to the work of the New York-based Innocence Project, Morton was exonerated by DNA evidence that pointed to another man, who has since been convicted.

But Morton is alive. Texas executed Willingham in 2004, convicted on the strength of highly flawed arson evidence for the deaths of his three daughters in Corsicana. The evidence actually points to no arson.

The photo shows Perry signing the bill at his desk, flanked by Morton and legislators. The irony: a report discrediting the evidence used to convict Willingham came across that desk or one similar in plenty of time for Perry to have spared Willingham's life.

It is likely — if not certain — that Texas executed an innocent man. At the very least, the new evidence pointed to the need for a new trial. But the state ignored the report. And the story might have ended ingloriously there but for Perry's actions in 2009, when he replaced three members of the Texas Forensic Science Commission as it was considering the flawed evidence used to convict Willingham. The governor obviously feared embarrassment as a primary challenge from then-U.S. Sen. Kay Bailey Hutchison seemed likely. His handpicked commission chairman squelched the Willingham investigation.

Understand, the bill Perry signed on May 16 was absolutely necessary. Sponsored by Sen. Rodney Ellis, D-Houston, the measure forces prosecutors to share all evidence relevant to the defense. Had it been around, Morton would have likely been spared those 25 years in prison. And, now, others will surely be spared that fate. Have I mentioned that Texas has a nation-leading 117 exonerations?

But about that unfinished business. Texas has undertaken other reforms of criminal justice. It's now easier, for instance, for inmates to get access to DNA testing.

But DNA evidence is not available in all cases. Even with this new requirement for sharing evidence, there will surely be convictions in the future based on circumstantial evidence, notoriously flawed eyewitness accounts, testimony from untrustworthy sources and other evidence of dubious scientific and factual merit. And even with the scare presented by the pursuit of criminal charges against the district attorney who prosecuted Morton, there will still be prosecutors for whom winning will be the most important thing. Some of these will be capital cases.

The unfinished business for Texas is to rid itself of the death penalty — an absolute sanction from which there is no remedy.

There can be no guarantee of error-free process in these types of cases and others. It will be legal due process, to be sure, scant comfort to someone wrongfully executed. If Morton's case involved the death penalty, he'd be dead. Willingham is, killed on the strength of invalid arson evidence. There will be errors in future death penalty cases. Since it cannot be otherwise, Texas — and all other states — must cease killing people.