(This commentary appears as a sidebar to my article in this week’s Arkansas Times about state Death Row prisoner Tim Howard. Damien Echols believes that Howard is innocent, and three justices of the Arkansas Supreme Court have expressed concern that there was not enough evidence to convict Howard, let alone sentence him to death. Like Echols, Howard has asked the state supreme court to grant an evidentiary hearing. That plea is still before the court. Read the full story about Howard.)
I oppose the death penalty. But I know that even people who support it want to believe that those we execute are actually guilty of the crime for which they’re being killed.
Since 1973, 138 prisoners have been released from death rows in 26 states because new evidence—often based on DNA—proved they were innocent. So far, no Arkansas inmate has walked from Death Row to freedom. But a few cases may be moving in that direction.
By now, most Arkansans have heard of Damien Echols, the member of the trio known as the West Memphis Three who was sentenced to die for a triple murder in 1993. Last August, 17 years after their trials, the Arkansas Supreme Court ordered an evidentiary hearing to determine whether Echols and the two other men deserve new trials.
Their case and the case of Tim Howard bear uncomfortable similarities. In both, lawyers argue that new evidence related to DNA might have changed the jury’s verdict, had it been known at the time. Howard’s lawyers contend that state officials knew about flaws in the testing of DNA that was used to convict Howard but withheld that information.
In the West Memphis case, bloody paper towels recovered after an unidentified man cleaned up in a public restroom on the night the victims disappeared and near where their bodies were found were never sent for analysis. Police said they were “lost.”
With regard to Echols, Arkansas Attorney General Dustin McDaniel recently said: “Our office knows that there are concerns about this case, but be assured that we take the utmost care in handling the appeals of death sentences handed down by Arkansas jurors.”
The question that arises, however, in that case, Howard’s, and others, is: How hard must the attorney general fight to resist a reexamination of cases where flaws are evident? Negotiation is an alternative.
Last August, when the Supreme Court’s hearing in Echols’ case was broadcast on the Internet, I received e-mails from around the country asking if I could translate into plain English what the assistant attorney general had said. His arguments against allowing a court review were that technical.
In Howard’s case, that same assistant AG argued that Howard had taken too long to present evidence that even he did not dispute had been improperly “withheld.”
Timeliness is, indeed, important to courts. But it is also important to men like Howard and Echols, who together have now spent decades in solitary cells on Death Row.
If we are going to execute, the reasons ought to be clear enough for citizens to understand. And, where there is reason to suspect that a verdict was not based on honest or complete evidence, decency should compel us to encourage—rather than resist—a second look.