Expert witness

A report by David Grann appearing in the September 7 New Yorker about the trial and execution of Todd Willingham reminds us of how thoroughly appalling our judicial system is, especially when faced with testimony about technical/scientific matters, and beyond that, how intransigent judges and all levels of appeal up to governors and the Supreme Court are once a verdict hes been passed.

The unwillingness to rescind the verdict of the hallowed, uncomprehending jury on the grounds "We have faith in the jury system," is utterly baffling and must make anyone wonder why a sane man would trust his fate to a trial in any of these United States, but most especially in Texas, where being accused of a capital offense appears to be the equivalent of conviction; you might as well write your will if you find yourself in jail in Texas.

Briefly, what Mr. Grann meticulously presents is the case of Mr. WIllingham who was convicted of setting fire to his own house, and the fire killed his children. The evaluation of the arson investigators Douglas Fogg and Manuel Vasquez sounded reasonable and well founded and thorough as Grann lays it out at the beginning of the article. I found myself thinking, yes, the accused is guilty.a I know next to nothing about arson or the science of investigation of arson, and given what "facts" I was, the case seemed clear enough.

But then the "facts" got challenged, or rather the science or lack of it underlying
the interpretation of the data emerged, once an arson expert who actually knew what he was doing, who questioned assumptions very clearly annihilated the prosecution's case, and in doing so, proved beyond any reasonable doubt.

Various groups concerned to correct wrongful convictions got involved. Appeals were made to the governor and to the Supreme Court of the United States but all appeals were rejected and the accused was duly executed.

During the course of this fiasco a forensic pathologist who routinely testifies to the guilt and homicidal streak in every defendant, Dr. James Grigson, proclaimed the accused was a homicidal maniac.

What is so astonishing about this case is not so much that junk science convicted an innocent man--any physician who has ever been drawn into that circus called a malpractice trial knows science ends at the courtroom door--but the most amazing thing is the unwillingness of the courts and the executive branch to admit an error.

The really galling aspect of all this is how determined the judges and prosecutors and governors are in their refusal to admit mistakes. The happy exception to all this is the governor of Illinois who put a hold on executions once he had reviewed enough cases where DNA exonerated clearly innocent men accused of rape, men who were on death row. He said what any citizen should have believed: If we make mistakes this often, if we make mistakes even rarely, we should not be burying our mistakes.

The most convincing argument against the death penalty is not that killers do not deserve to die. The most compelling argument is our judicial system is too often wrong about who gets accused and we ought to be humble about our own judgements.

Scientiss, doctors are accustomed to living with doubt. Diagnoses are made, hypotheses are proferred but everyone in the discussion knows the most convincing theory can and often does prove wrong. So the scientist does not tie up his ego too closely to his judgment. He is more concerned with the process--did I think this thing through well enough? He is not mortified when his theory is disproved.

This is not the ethos of the judge.

Antonin Scalia said in an opinion there has not been a "single case--not one--in which it is clear that a person was executed for a crime he did not commit."

How different is Justice Scalia from James Grigson, for whom every one accused in the docket is guilty?





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