By THEODORE M. SHAW
First published: Wednesday, July 5, 2006
Late last month, the Supreme Court upheld the death penalty in
Kansas by a vote of 5 to 4 in the case of Kansas vs. Marsh. In
concurring with the majority, Justice Antonin Scalia wrote that the
decision was justified because, in recent American history, 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. 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."
Unfortunately, Scalia is wrong. Public concern about wrongful
convictions has been growing since DNA evidence started exonerating
death row inmates in recent years -- a fact most exemplified by the
decision of then-Illinois Gov. George Ryan to declare a moratorium
on executions in 2000. Over the past few years, major media outlets
and the Legal Defense Fund, which I lead, have investigated several
questionable executions, re-examining forensic evidence and
reinterviewing witnesses. In at least four of the cases, it is now
clear that the individuals executed almost certainly did not commit
the crimes for which they were convicted.
Although none has been officially exonerated, the evidence that has
come to light since they were put to death points overwhelmingly to
their innocence, and two of these cases are being reinvestigated.
The names of the executed may not have been "shouted from the
rooftops," but the turn in their cases has been reported by major
newspapers and television networks.
Cameron Willingham, a 36-year-old white father of three from
Corsicana, Texas, was executed in February 2004 for murder by arson.
In December 2004, the Chicago Tribune reported that new scientific
knowledge proves that the testimony by arson experts at Willingham's
trial was worthless, and that there is no evidence that the fire was
caused by arson. A panel of the nation's leading arson experts
confirmed that conclusion in March. In a strikingly similar case,
Ernest Willis, a white oil-field worker from New Mexico, was
convicted on the same sort of evidence and sentenced to death for
murder by arson in Pecos County, Texas, in 1987. Willis was
exonerated and freed in October 2004, eight months after Willingham
was put to death.
Ruben Cantu, a 26-year-old Hispanic man from San Antonio, was
executed in August 1993 for a robbery-murder committed in 1985 when
he was 17. The Houston Chronicle followed up on our initial
exploration and published the results of its own investigation last
November. The newspaper reported that another defendant, who pleaded
guilty to participating in the crime but did not testify at Cantu's
trial, has signed an affidavit swearing that Cantu was not with him
that night and had no role in the murder. More important, the only
witness who did testify -- a second victim, who was shot nine times
but survived -- now says that police pressured him to identify Cantu
as the shooter, and that he did so even though Cantu was innocent.
Larry Griffin, a 40-year-old black man from St. Louis, was executed
in Missouri in June 1995 for the drive-by shooting of a drug dealer
in 1980. The only evidence against him was a witness who claimed to
have seen Griffin at the crime scene. This witness was a white
career criminal with several felony charges pending against him. In
July 2005, our investigation revealed that the first police officer
on the scene and the victim's sister both agreed that this supposed
witness -- who would have stood out in the all-black neighborhood --
wasn't there when the shooting occurred. In addition, there was a
second victim who was injured in the shooting. He knew Griffin and
says that Griffin was not in the car from which the shots were
fired, but he was not called to testify at Griffin's trial.
Also last month, the Chicago Tribune (following up on initial
inquiries by the Legal Defense Fund) published a detailed re-
examination of yet another case, that of Carlos DeLuna, a young
Hispanic man from Corpus Christi, Texas, who was executed in
December 1989 for stabbing a convenience store clerk to death in
1983. DeLuna, who was convicted on the basis of a quick on-the-scene
witness identification, claimed that the killer was a man named
The prosecution argued that Hernandez was a "phantom." The Tribune
found that Hernandez (who died in prison in 1999) was not only no
phantom, but also no stranger to law enforcement. In fact, one of
DeLuna's prosecutors knew Hernandez well from an earlier homicide
investigation. Hernandez and DeLuna were strikingly similar in
appearance but, unlike DeLuna, Hernandez had a long history of knife
attacks similar to the convenience store killing and repeatedly told
friends and relatives that he had committed the murder for which
DeLuna was executed.
The court's review of Kansas' death penalty statute seemed to stir
more emotion than almost any other case the justices considered this
term. In his dissent, Justice David Souter called the Kansas
law "morally absurd," especially in light of DNA exonerations.
Souter's words prompted Scalia's response, but Scalia and those who
joined him in upholding the death penalty would do well to consider
the cases of Cameron Willingham, Ruben Cantu, Larry Griffin or
It's too late to save those men -- or the victims of other erroneous
executions that have not yet come to light. But it's time to
recognize that, regardless of our views on the death penalty, any
future debates must proceed with the knowledge that we have put
innocent people to death.
Theodore M. Shaw is president and director-counsel of the Legal
Defense Fund. He wrote this article for The Washington Post