The cornerstone of the edifice of capital punishment in America -- the building block upon which public support for the death penalty rests -- is the accuracy of the result. Ask any pollster and she will tell you that the more convinced Americans are about the accuracy of a capital conviction, they more likely they are to support the execution of the condemned. Conversely, the more concerned Americans are about the reliability of capital cases, the less inclined they are to endorse the death penalty. The relevant question is not: "Did you get the right guy?" Instead it is: "Exactly how sure are you that you got the right guy?"
The answer to that question, in the case of Willie Jerome Manning of Mississippi, surely is: "Not very sure." There is no physical evidence linking Manning to the 1992 murders of two Mississippi State University students. The "jailhouse informant" who once told trial jurors that Manning "confessed" to the crime, has since recanted, telling defense lawyers he thought he would receive "consideration" from prosecutors for incriminating Manning. And Mississippi officials now are refusing to test DNA and fingerprints found at the crime scene -- evidence which did not directly incriminate Manning before, has never been tested using modern procedures, and which might definitely resolve the case one way or the other.
There is more. Although there was incriminating evidence against him at trial, Manning has always maintained his innocence. And jury selection during his 1994 trial -- wherein a black man was accused of murdering two white people in the Deep South -- was marked by the sort of racial attitudes over peremptory challenges that has since caused the United States Supreme Court, in Miller-El v. Dretke and Snyder v. Louisiana, to caution state lawyers about coming into appellate courts with "unreasonable" justifications for excluding black jurors from cases involving black defendants. Over and over again, Manning's prosecutors excluded black jurors from his trial, sometimes for no other reason than that they read "black" magazines.
Racial bias. A faulty confession. Untested scientific evidence. In these circumstances, one could reasonably argue that the "accuracy" of Manning's conviction and death sentence are in doubt. Even more rationally, one could argue that the state has at its disposal the relatively simple means to answer some of the most basic questions raised by the case -- test the evidence! But late last month, in a divided ruling, the Supreme Court of Mississippi declared that the time had come to end the debate over Manning's case and his cause. By a 5-4 vote, the justices rejected the defendant's attempt to test the evidence and for other relief.
So, despite serious questions about the credibility of the prosecution's most powerful witness, and without evaluating the scientific evidence that could supply a definitive answer, state officials plan to put Manning to death by lethal injection at 6 p.m. next Tuesday, May 7, at the state penitentiary in Sunflower County, Mississippi. He will be executed at ol' Parchman unless the Supreme Court in Washington, or the governor in Jackson, stops the execution and orders Mississippi officials, at a minimum, to undertake the testing that would help get to the truth of the matter.
The Scientific Evidence
The most important reason why the Manning case deserves a closer look before it is too late is the failure of state officials to use modern techniques to test DNA and fingerprints from the crime scene. Last month, in rejecting Manning's latest claims, the state supreme court's majority ruled that the defendant was not entitled to DNA testing because the absence of his DNA from the crime scene -- assuming the tests came back negative -- would not exonerate him given the other evidence introduced at trial.
That position, a form of which was argued by state lawyers in their briefs, is unsupported by common sense or Mississippi's history with DNA testing. Lawyers for the Mississippi Innocence Project, which as it often does has filed a brief urging DNA testing in this case, told the state justices late last week:
[O]f the seven people in Mississippi exonerated by DNA testing after being convicted and imprisoned. ... none were exonerated simply because their DNA was absent from the crime scene; they were exonerated because in each case the true perpetrator left their DNA at the crime scene. In six of those cases the true perpetrator was identified by the DNA testing and subsequent comparisons or DNA database searches, and in five cases the real perpetrator was charged with the crime after the wrongly convicted persons were exonerated.
That is what is at stake here; no more, no less. By testing the DNA evidence still available, Mississippi could achieve two goals at the same time -- resolving Manning's claims and, if those claims are valid, finding a person responsible for the crime. The state's justices may be in no mood to listen to the Innocence Project, but if they are they will hear something insightful about the way these cases unfold. "Simply put," the Innocence Project argued this week, "just because it's hard to imagine a scenario where DNA testing could exonerate Willie Manning doesn't mean there isn't one."
The same arguments, not incidentally, can be made about Manning's request, in recent court pleadings, to have "expert analysis and comparison of fingerprints found in the victim's car. Although the Crime Lab ruled out Manning as the source of the prints, it did not compare the prints found in the car to prints in any major database." The state says that this testing should not be done because Manning waited too long to ask for it and because there is no reason to believe that the "person who left those fingerprints is the real killer."
Four Mississippi justices dissented from the decision to proceed with Manning's execution. One of them, Justice James W. Kitchens, a Mississippian through and through, wrote that he would have permitted this testing:
The victims' families and the public at large deserve to know whether another, or an additional perpetrator was involved. If such a person can be identified, he or she should be prosecuted. Further examination of the fingerprints and biological evidence in this case could help achieve that end and/or significantly reinforce the basis for Manning's conviction.
Interests far beyond Manning's are at stake, and whatever the potential harm the denial seeks to assert is surely outweighed by the benefits of ensuring justice by the scientific analysis of all of the trace evidence that the authorities were able to collect from on or about the victims' bodies. Unless and until that is done, the investigation of these horrible crimes will remain incomplete.
The Witnesses Against Manning
There is the saga of Earl Jordan, the quintessential jailhouse informant. At trial, he was quick to tell jurors that Manning had told him that he, Manning, was the one who shot the two white victims. Surely that was enough to convict Manning and sentence him to death. But Jordan now says that Manning "never said he killed them." And on at least two other occasions, Manning's lawyers claim, Jordan lied under oath at trial. "Were you lying then, Mr. Jordan, or are you lying now?" is a question no one will ever ask this informant if the federal courts don't stop this execution.
And then there is the saga of Paula Hathorn. She incriminated Manning at trial but lied to jurors, Manning's lawyer say, when she understated the nature of pending criminal charges against her and denied getting help from prosecutors in exchange for her testimony. What she did do, Manning's lawyers allege, is try to incriminate Manning by asking him a series of leading questions which were secretly recorded by officials. Mississippi officials did not disclose the existence of these tapes to defense attorneys. That's not uncommon. The question you need to ask is whether you are going to countenance this kind of behavior in a capital case.
The unraveling of these prosecution witnesses long after trial is not unusual. And prosecutors have a good point when they argue that the criminal justice system would crumble if every criminal case were to be subject decades later to such a critical review. But that argument doesn't sound nearly as good in a capital case when the defendant asserts his innocence for two decades, when the scientific evidence has not incriminated him, and when there is ample proof that the deck was stacked to begin with because prosecutors ensured that a black man accused of the murder of white people would be judged by a jury of whites.
Race and the Jury
Peremptory challenges allow both sides in a case to get rid of a certain number of jurors they don't want on a panel without having to justify their choice with any legally-recognized "cause." Because the very purpose of these challenges is to give broad discretion to the lawyers to shape a jury prosecutors have long used them to eliminate black jurors from cases involving black defendants. And because of those abuses, the Supreme Court over the past few decades has consistently sought to narrow the racial discrimination practiced by state attorneys.
In dissent, Mississippi Supreme Court Justice Leslie D. King, who is black, gave today's readers a sense of what jury selection was like in the Manning murder trial back in December 1994. When "viewed in isolation. he wrote, "the reasons offered by the prosecution" in striking black jurors from the panel "are highly suggestive of pretextual motivations. And when viewed as a whole, a clear pattern suggesting pretextual reasons by the prosecution in the use of peremptory strikes appears." This pattern, he added, violated both Mississippi law and the federal commands of the justices in Washington.
There was Shirley Wooten, dismissed by prosecutors despite having given answers, the defense claims, that were similar to those given by white potential jurors. The same went for Ronald Henry, dismissed from the panel even though his responses about the death penalty were similar to responses by white jurors. There were James Graves and Joyce Merritt, dismissed because they regularly read Jet and Ebony magazine. White jurors who read Time and Newsweek were kept; a black juror who read those same magazines was struck. Justice King wrote:
It is not unusual to see multiple reasons given for a particular peremptory strike in hopes that one of them will be upheld as race-neutral. That appears to be what was done by the prosecution in this case. However, when it is clear that a pretextual reason for the exercise of a peremptory strike is included with a race-neutral reason, the strike should be disallowed...
In denying Manning's latest request, the state supreme court declared that the racial discrimination issue already had been resolved by the lower courts. But Mississippi law requires reviewing courts to evaluate old claims like these if the Supreme Court has created new legal standards that would apply. In Snyder v. Louisiana in 2008, Manning's lawyers argue, the justices in Washington declared that state courts must "review the entire record at trial" broadly and consider not just the arguments made at trial by defense counsel.
The frustration of Mississippi's attorneys practically leaps off the pages of their briefs. The state argues that Manning has been litigating his cause for decades now, his requests for relief having been denied over and over again at all levels of the state court system and in federal court, and that the time has come for some finality. There was substantial incriminating evidence introduced against Manning at trial, Mississippi argues, and the condemned man's lawyers were not always quick enough in raising their claims.
But what is absent from these court papers filed by state attorneys is any acknowledgment that the accuracy of the result will be enhanced by the testing Manning seeks. As a general matter, that's a dubious argument to make given the progress we've seen since 1994 in the reliability and accuracy of DNA and fingerprint testing. It's an even less supportable argument to make in the context of Mississippi's recent history of exonerations based upon DNA testing. Over and over again, men like Manning have been cleared because DNA testing has conclusively proven that other men committed the crime. Why not try it here?
We see here instead a state's strident defense of a jury verdict and death sentence we now know to be based upon an incomplete and in many ways inaccurate accounting of the facts of the case. The DNA and fingerprints that have not yet been tested could point to another culprit, or perhaps even the culprit. The appearance of Earl Jordan and Paula Hathorn in a Mississippi courtroom might undermine key testimony against Manning. A jury with more black people on it might have come to a different conclusion. The state long ago stopped being interested in a search for the truth. Now it just wants to defend the status quo.
It is precisely this kind of attitude from state officials that has weakened support for the death penalty in many parts of America. When the state's interest in "finality" is invoked at the expense of society's interest in "accuracy," when state officials stand up in court and say that it doesn't matter if relevant scientific evidence is evaluated because it is too late to get answers to vital questions, popular support for capital punishment crumbles. So long as a condemned man is alive, it is never "too late" to get to the truth of a capital case. So long as evidence exists which has not been evaluated, the result is neither accurate nor reliable.
It's hard to understand what Mississippi is afraid of. Either the testing will incriminate Manning, or it could help break the case in a new direction. Either way we'll know more than we do now about what happened that awful night in 1992. If Manning is executed next week without those results, if his sorry story ends here without us knowing whether that scientific evidence incriminates or exonerates him, his ghost won't just haunt Mississippi forever. It will surely impact the national debate over how much we are willing to know about the truth of these cases, and about the men we are condemning to death.