domingo, 6 de setembro de 2009

Pena de morte nos Estados Unidos

Prof Farlei Martins, Ucam, doutorando em direito da puc-rio envia a seguinte matéria:

Published Sep 3, 2009

From the magazine issue dated Sep 14, 2009

Innocent Until Executed
We have no right to exoneration.
By Dahlia Lithwick

For years, death-penalty opponents and supporters have been working their
way toward a moment in which each side would rethink things. They were
seeking a case in which a clearly innocent defendant was wrongly put to
death. In a 2005 Supreme Court case that actually had nothing to do with the
execution of innocents, Justices David Souter and Antonin Scalia tangled
over the possibility that such a creature even existed. Souter fretted that
"the period starting in 1989 has seen repeated exonerations of convicts
under death sentences, in numbers never imagined before the development of
DNA tests." To which Scalia retorted: "The dissent makes much of the
newfound capacity of DNA testing to establish innocence. But in every case
of an executed defendant of which I am aware, that technology has confirmed
guilt." Scalia went on to blast "sanctimonious" death-penalty opponents and
a 1987 study on innocent exonerations whose "obsolescence began at the
moment of publication," then concluded that there was not "a single case—not
one—in which it is clear that a person was executed for a crime he did not

This suggested that if anyone found such a case, the Scalias of the world
would rethink matters. As of today, the Innocence Project, a national
organization dedicated to exonerating the wrongfully convicted through DNA
testing, claims there have been 241 postconviction DNA exonerations, of
which 17 were former death-row inmates spared execution. The gap between
their facts and Scalia's widens every year. And now we may have found that
case of an innocent put to death: Cameron Todd Willingham, executed by the
state of Texas in 2004 for allegedly setting a 1991 house fire that killed
his three young daughters.

David Grann, who wrote a remarkable piece about the case in last week's New
Yorker, sifted through the evidence against Willingham to reveal that the
entire prosecution was a train wreck. And at every step in his appeal,
Willingham's claims of innocence were met with the response that he'd
already had more than enough due process for a baby killer.

But you needn't take Grann's word for it. In 2004 Gerald Hurst, an acclaimed
scientist and fire investigator, conducted an independent investigation of
the evidence in the Willingham case and came away with little doubt that it
was an accidental fire—likely caused by a space heater or bad wiring. Hurst
found no evidence of arson, and wrote a report to try to stay the execution.
According to documents obtained by the Innocence Project, it appears nobody
at the state Board of Pardons and Paroles or the Texas governor's office
even took note of Hurst's conclusions. Just before Willingham was executed,
he told the Associated Press, "[T]he most distressing thing is the state of
Texas will kill an innocent man and doesn't care they're making a mistake."

Since Willingham's death, two other independent inquiries found no evidence
of arson. In 2007 the state of Texas commissioned another renowned arson
expert, Craig Beyler, to examine the Willingham evidence. Beyler's report,
issued two weeks ago, concluded that investigators had no scientific basis
for claiming the fire was arson.

One might think that all this would give a boost to death-penalty opponents,
who have long contended that conclusive proof of an innocent murdered by the
state would fundamentally change the debate. But that was before the
goalposts began to shift this summer. In June, by a 5–4 margin, the Supreme
Court ruled that a prisoner did not have a constitutional right to demand
DNA testing of evidence in police files, even at his own expense. "A
criminal defendant proved guilty after a fair trial does not have the same
liberty interests as a free man," wrote Chief Justice John Roberts. And two
months later, Justices Scalia and Clarence Thomas went even further when the
Supreme Court ordered a new hearing in Troy Davis's murder case, after seven
of nine eyewitnesses recanted their testimony. Justice Scalia, dissenting
from that order, wrote for himself and Thomas, "[T]his court has never held
that the Constitution forbids the execution of a convicted defendant who has
had a full and fair trial but is later able to convince a habeas court that
he is 'actually' innocent."

As a constitutional matter, Scalia's assertion is not wrong. The court has
never found a constitutional right for the actually innocent to be free from
execution. When the court flirted with the question in 1993, a majority
ruled against the accused, but Chief Justice William Rehnquist left open the
possibility that it may be unconstitutional to execute someone with a "truly
persuasive demonstration" of innocence. Now, in Scalia's America, the
Cameron Todd Willingham whose very existence was once in doubt is legally
irrelevant. We may execute a man for an accidental house fire, while the
Constitution itself stands silently by.

Lithwick also writes for

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