'Why Are You Defending a Murderer?'

The Willie Manning case raises some profound questions about capital punishment in America -- how it's perceived, and how it's covered.
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Robert Galbraith/Reuters

Before the Willie Manning case moves off your radar screen again, before the media circus moves on to another capital case and another flurry of last-minute appeals, I want to address a few themes that inevitably come up when a condemned prisoner, a convicted murderer, is given any measure of relief from the courts. These issues directly track the questions now raised in the Manning case -- the state's failure to test DNA, questions about the scientific evidence that was introduced at trial, the credibility of key witnesses, the impact of race on jury selection -- but they apply more broadly to other capital cases.

1. Why are you defending a murderer? Anyone who writes about capital cases, anyone who criticizes prosecutors or judges for failing to protect the due-process rights of death-row inmates, almost immediately faces this question from readers. The answer is simple, and I'll answer it for myself alone: I am not defending a murderer. I am instead pushing the men and women in public office who run our justice systems to do better and do right by a rule of law. You can push for the latter without embracing the former. Another way to put it is: I do not focus in my writing on whether a death row inmate "deserves" to live or die. That's not up to me. I try to focus instead on whether the government (which operates in my name) has lived up to its constitutional obligations.

Take Willie Manning as an example. I don't know him, and I obviously don't know whether he committed the 1992 murders for which he was almost executed yesterday. I am aware of the allegations of this case, which are gruesome, and of the fact that he's been convicted of other high crimes. It is entirely possible that he is guilty, beyond all doubt, but the point of focusing on his case, from among the hundreds of other capital cases in America today, is that the evidence against him is crumbling while prosecutors block the testing of other evidence which could definitively solve the case. In my view, executing someone based on dubious evidence reflects more on the executioner than it does on the condemned. I don't have to be willing to vouch for Willie Manning to argue that Mississippi should show more evidence before it is allowed to kill him.

2. Searching for purity in capital punishment. Another related question that is inevitably asked in cases like this is: How can one be in favor of capital punishment, or at least recognize it as a valid sentencing option, and yet be so critical of certain death penalty cases? Again, there is no reason for these two concepts to be mutually exclusive. Like many other people tolerant of capital punishment, I believe that it is legal and moral only when it is implemented in circumstances that are fair and just and based upon the sort of due process too often missing from the capital cases I cover. And so my criticism of these cases is designed not to undermine the concept of capital punishment itself, but to expose the wide gulf between how the death penalty is implemented and the way our judges and politicians like to pretend that it is implemented.

Take the Manning case again. He may be guilty. But whether he is or he isn't it doesn't excuse the conduct of the trial judge in the case, who allowed prosecutors to use peremptory challenges to remove black jurors from Manning's panel (he's black and was charged with murdering two white students) because they read "black" magazines. It doesn't excuse the FBI agent who testified inaccurately about the ballistics and hair fiber evidence in the case. It doesn't excuse the prosecution's use of an informant who now says that Manning never confessed to the crime. A murder defendant may indeed be beneath contempt. But it doesn't absolve the government from its responsibility to honorably prosecute cases. To say about a capital defendant "he deserves no better" diminishes our justice system far more than it diminishes the defendant.

3. The meaning of guilt and innocence. What is happening in the Manning case, what happens often in capital cases, is that the vested interest state officials have in defending an old conviction becomes more important than the interest they once had in searching for the truth of a criminal case. At a certain point, prosecutors and judges say "enough is enough" and close themselves off to the possibility that old cases can have new endings. It is human nature, I suppose. In the name of "finality," the "new" truth is sacrificed at the altar of the "old" truth, regardless of the relative merits of one over the other. There is value in respecting old judgments, of course. But, at a certain point, the emergence of new evidence, or revelations which cast doubt on old evidence, makes the old verdict hardly worth defending. It is the government's failure or refusal to recognize this changed calculus that I find objectionable -- even unconscionable.

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Andrew Cohen is a contributing editor at The Atlantic. He is a legal analyst for 60 Minutes and CBS Radio News, and a fellow at the Brennan Center for Justice.

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