'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.

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.

As we see in the Manning case, the result of this changing calculus renders absurd many of the government's arguments. Why is it more important to execute Manning than it is to find out whether someone else may have committed the crime? Why is it more important to execute him than find out whether the jailhouse informant who incriminated him in 1994 was (as he now says) lying to get a deal from prosecutors? Why is it more important to execute Manning than it is to find out whether he would be convicted today without the benefit of the inaccurate trial testimony provided by FBI "experts"? Capital cases in particular require a level of accuracy -- the integrity of the result, you could call it -- which is missing here.

4. The role of DNA. The growing accuracy and use of DNA testing has transformed the landscape of criminal law. It has resulted in the exoneration of thousands of innocent people, including 306 who had been convicted. And its use in criminal cases -- its use in objectively answering questions the justice system cannot objectively answer for itself -- resonates broadly with readers. Whenever I write about a judge's failure or a prosecutor's refusal to test DNA the response is nearly universal: If the testing is available, why don't they just do it? Indeed, why not. When prosecutors and judges contort themselves with technical justifications not to conduct such testing, as they have in the Manning case, it's unacceptable. In these circumstances, what really chaps me is the willingness by public officials to be so willfully satisfied with not knowing what the best evidence available might tell them.

That said, it is entirely possible that the DNA and fingerprint testing of the evidence in the Manning case will definitively incriminate him. I don't think that any lawyer on either side of the case can discount that possibility. I know I haven't. It would not be the most illogical result here. But if that happens it won't mean that critics of the Manning verdict were wrong to challenge it. It won't mean that the criminal justice system has been cheapened or that we all were fooled by the defendant. It will mean instead that Manning's capital conviction can at last be fully respected. Everyone with a stake in the outcome of these cases -- prosecutors, witnesses, jurors, victims, and defense attorneys -- should aspire to having such confidence in a verdict before an execution.

5. The larger view. As I have written before, there is coming soon in the law a reckoning on capital punishment in America. Either there is going to be more fairness and accuracy in death penalty cases, either prosecutors and lower court judges are going to do more to protect the rights of capital defendants, or the United States Supreme Court is again going to preclude it as a sentencing option. The Court is one vote away from such a remedy, and if that happens it will be largely because of cases like the Manning case. It's not just about the law and the facts of these particular cases. It's not just about standards of appellate review. It's about the attitudes of the men and women whose job it is to implement the law.

For example, look at the reaction yesterday from Mississippi Justice Michael Randolph. Confronted with the Justice Department's recent conclusions that unreliable scientific evidence was introduced at Manning's 1994 trial, Justice Randolph did not acknowledge how such grim revelations might undercut the accuracy of Manning's conviction. He did not vote to delay the execution to better evaluate the new development. Instead, he ranted about the Justice Department's role in the "Fast and Furious" gun scandal. This reaction says a great deal about him as a person and as a judge, of course, but it says even more about why polls tell us that more Americans are becoming uncomfortable with the death penalty. Go figure: Willie Manning may end up being a poster child after all, but for reasons few would have guessed 20 years ago.