The Question of When

It is a sev­en­teen page arti­cle, but the writ­ing is good and it goes fast: Tri­al by Fire by David Grann in The New York­er.

It real­ly has nev­er been a ques­tion of if, but only of when. When an inno­cent would be exe­cut­ed, and when we will final­ly do away with the death penalty.

It appears that the first ques­tion has an answer.

hat tip:  The New Republic

One thought on “The Question of When”

  1. Cameron Todd Will­ing­ham: Media melt­down & the death penalty:
    “Tri­al by Fire: Did Texas exe­cute an inno­cent man?”, by David Grann(1)
    Dud­ley Sharp, con­tact info below

    I could spec­u­late that David Grann was an objec­tive reporter who made the sol­id, unbi­ased case for an inno­cent exe­cut­ed. But, I think that is already being done, around the globe, with edi­to­r­i­al writ­ers and jour­nal­ists and oth­er anti death penal­ty activists, quot­ing exten­sive­ly from Grann’s arti­cle, with lit­tle or no fact check­ing and absent crit­i­cal thinking.

    So, why not do some­thing different? 

    I’ll spec­u­late this: “David Grann, anti death penal­ty activist/​member of the defense team”.

    I list the page num­ber in the arti­cle, fol­lowed by Grann’s com­ments then, my REPLY, underneath.

    p 3 (Will­ing­ham) hollered, “Oh God— Amber, get out of the house! Get out of the house!’ ”He nev­er sensed that Amber was in his room, he said. Per­haps she had already passed out by the time he stood up, or per­haps she came in after he left, through a sec­ond door­way, from the liv­ing room.” 

    REPLY: Folks, think about this. Grann says “Per­haps (Amber) had already passed out by the time (Will­ing­ham) stood up”. Yeah, right. “Already”. What, the mil­lisec­ond it took Will­ing­ham to stand up, right after Amber’s screams woke him up? Grann, sure­ly you can’t do much worse than that. Let’s buy Grann’s non­sense. If Amber passed out, then and there, Amber is with Will­ing­ham in his room, where Amber was found. There is no fire in that room. Will­ing­ham just leaves her. 

    Or, per­haps Will­ing­ham should have found Amber and got­ten her out of the house. Who would leave their 2 year old to their own devices to get out of a burn­ing house? No one, who want­ed to save them. 

    Or per­haps, Will­ing­ham asked Amber to wait for him in his bed­room, where she was found, alive, but uncon­scious because of smoke inhala­tion, while dad­dy went to save the twins. Then dad­dy skipped out of the house.

    p 6 Dozens of stud­ies have shown that wit­ness­es’ mem­o­ries of events often change when they are sup­plied with new con­tex­tu­al infor­ma­tion. Itiel Dror, a cog­ni­tive psy­chol­o­gist who has done exten­sive research on eye­wit­ness and expert tes­ti­mo­ny in crim­i­nal inves­ti­ga­tions, told me, “The mind is not a pas­sive machine. Once you believe in some­thing — on you expect some­thing — it changes the way you per­ceive infor­ma­tion and the way your mem­o­ry recalls it.” 

    REPLY: Grann pre­sumes, with­out evi­dence, that some ear­li­er state­ments, more sym­pa­thet­ic to Will­ing­ham, were more cred­i­ble. Grann would­n’t spec­u­late that folks reflect­ed and said, lat­er, hey, Will­ing­ham, in real­i­ty, act­ed sus­pi­cious. Or they always were sus­pi­cious. Grann, for the defense.

    Oth­er facts, revealed, lat­er, in Grann’s arti­cle, found that the more sus­pi­cious the wit­ness­es became of Will­ing­ham’s behav­ior, the clos­er to the truth they were. In oth­er words, Grann’s spec­u­la­tion on page 6, was the oppo­site of the real­i­ty that Grann lat­er revealed on page 16. Grann for the defense.

    Maybe Grann could have looked up some stud­ies on increased fam­i­ly vio­lence dur­ing Christ­mas­time and played up that angle. Or what about the mon­ey issues at Christ­mas, non work­ing dad, work­ing mom. Poor. Has that ever caused stress with­in a fam­i­ly? Have fathers “with­out motive” mur­dered their chil­dren under those cir­cum­stances? Or under much less stress? Or have father’s with known, vio­lent ten­den­cies ever mur­dered their chil­dren? It’s not uncom­mon for vio­lent peo­ple to mur­der, with no motive. They’re just mean. 

    Could Grann so spec­u­late? No. Grann, for the defense.
     — — — — — —

    p 9 In recent years, though, ques­tions have mount­ed over whether the sys­tem is fail-safe. Since 1976, more than a hun­dred and thir­ty peo­ple on death row have been exon­er­at­ed. DNA test­ing, which was devel­oped in the eight­ies, saved sev­en­teen of them, but the tech­nique can be used only in rare instances.

    REPLY: I know of no one that thinks any gov­ern­ment pro­grams are fail­safe. Does Grann? Of course not. He is just using it as sar­casm, so he can tram­ple it.

    But Grann did buy it, hook, line and sinker, that anti death penal­ty claims are fail­safe. Why? Because he only wants to show how fal­li­ble the death penal­ty is. It may not be true, but, it’s good anti death penal­ty theater. 

    The anti death penal­ty, non fact checked lit­er­a­ture told Grann what he want­ed to hear, so, why fact check it? Cred­i­bil­i­ty? Grann, anti death penal­ty activist.

    Many reporters, blind­ly par­rot these same anti death penal­ty morsels of non­sense, below A‑E, with­out fact check­ing. So trav­els Grann.

    (A) Grann says “Since 1976, more than a hun­dred and thir­ty peo­ple on death row have been exonerated.” 

    It’s total nonsense. 

    The 130 (now 135) death row “inno­cents” scam

    (B) On the DNA front, Grann says DNA “saved” 17 death row inmates. Grann wants us to believe those 17 would have been exe­cut­ed, absent that DNA exclusion.

    Can Grann prove that those 17 ever would have been exe­cut­ed, absent the DNA find­ing? Of course not. 

    Some real­i­ty. About 13% of death row inmates have been exe­cut­ed. About 44% have been removed from death row for oth­er reasons. 

    8 – 9 of those 17 had already been tak­en off death row, pri­or to the DNA exclu­sion. Those were “saved” pri­or to DNA test­ing. Grann works the good anti death penal­ty dra­ma. But, accuracy?

    Mr. Grann, do you need proof, evi­dence or fact check­ing to make claims? Isn’t that, alleged­ly, what the arti­cle was con­cerned with? Oh well. Grann, anti death penal­ty activist.

    Grann may have spec­u­lat­ed that inno­cents are more pro­tect­ed with the death penal­ty than they are with less­er sen­tences. But, why would an anti death penal­ty arti­cle so spec­u­late? It would­n’t, of course. But, maybe it’s true.

    The Death Penal­ty: More Pro­tec­tion for Innocents”
     — — — — — — — -

    p 9 © In 2000, after thir­teen peo­ple on death row in Illi­nois were exon­er­at­ed, George Ryan, who was then gov­er­nor of the state, sus­pend­ed the death penalty.

    REPLY: Why can’t Grann fact check and tell us how many of those 13 “exon­er­at­ed” are actu­al­ly inno­cent? Maybe there is a rea­son why. The term “exon­er­at­ed” has been high­ly mis­used by anti death penal­ty activists, to the point where exon­er­at­ed has no con­nec­tion to its real mean­ing. See the 130 “exon­er­at­ed” above and this:

    Grann, review: “The Death Penal­ty Debate in Illi­nois”, JJKin­sel­la, 6/​2000,

    Mr. Grann, fact check­ing? Yes, some of the reviews with­in the Kin­sel­la arti­cle are very incom­plete, dat­ed and in error. How­ev­er, the point is that the 13 were not exon­er­at­ed. And Grann just used it, anyway. 

    Is fact check­ing such a bad thing? No. But, Grann, anti death penal­ty activist.
     — — — — — — — — — — -

    p 9 (D) In 1993, Ruben Can­tu was exe­cut­ed in Texas for fatal­ly shoot­ing a man dur­ing a rob­bery. Years lat­er, a sec­ond vic­tim, who sur­vived the shoot­ing, told the Hous­ton Chron­i­cle that he had been pres­sured by police to iden­ti­fy Can­tu as the gun­man, even though he believed Can­tu to be inno­cent. Sam Mill­sap, the dis­trict attor­ney in the case, who had once sup­port­ed cap­i­tal pun­ish­ment (“I’m no wild-eyed, pointy-head­ed lib­er­al”), said that he was dis­turbed by the thought that he had made a mistake. 

    REPLY: Fact check­ing would be nice. The only pres­sure was for Moreno to iden­ti­fy the man who mur­dered Moreno’s best friend and almost mur­dered Moreno. The police had noth­ing on Moreno to pres­sure him. Grann for the defense. 

    Mr. Grann, read this:

    Ruben Can­tu: In the Mat­ter of Juan Moreno: Inves­ti­ga­tion Relat­ing to The State of Texas v. Ruben Can­tu, Cause No. 85-CR-1303, 6/​26/​2007

    (E) Instead of play­ing the bluff, using Grann’s imag­i­na­tion style of report­ing, where Grann wrote that Mill­sap “thought he had made a mis­take.”, why not be a lit­tle less neb­u­lous and sug­ges­tive. How about — One could safe­ly call Mill­sap an anti death penal­ty activist, who had rad­i­cal­ly changed his state­ments on Can­tu. Explain that Mill­sap has gone from Can­tu was inno­cent to, well maybe, he did­n’t get ade­quate due process, or var­i­ous ver­sions of that. Grann was­n’t try­ing to get us to imag­ine that Mill­sap thought Can­tu was actu­al­ly inno­cent, was he? Mill­sap “thought he had made a mistake.”

    And Grann left all of that out because … he only had 17 pages for his article?

    Why did Grann stick all of this anti death penal­ty “inno­cence” non­sense (A‑E) into his arti­cle? It was to influ­ence the read­er into turn­ing them toward an “inno­cent” Will­ing­ham. It was set­ting the stage. But, it was fiction.

    NOTE: I sent a fact check­ing inquiry to New York­er on these on 9/​4/​09, to,,, Then on 9/​14, I sent to the same group with Grann, added. 

    So far, no reply or correction.
     — — — — — — — — –

    p 15 With­out hav­ing vis­it­ed the fire scene, (fire expert Ger­ald) Hurst says, it was impos­si­ble to pin­point the cause of the blaze. But, based upon the evi­dence, he had lit­tle doubt that it was an acci­den­tal fire — one caused most like­ly by the space heater or faulty elec­tri­cal wiring. 

    REPLY: “IMPOSSIBLE.” Keep that in mind. 

    Impos­si­ble” to pin­point. But, “(Hurst) had lit­tle doubt it was an acci­den­tal fire”. “impos­si­ble to pin­point the cause”. But, Hurst says it’s “most like­ly” that “the space heater or faulty wiring” was the cause. 

    Is “most like­ly” or “lit­tle doubt” sci­en­tif­ic, or is it a game of chance, where 20% doubt is lit­tle doubt or “most like­ly” means 51% like­ly? Dr. Hurst?

    How does “IMPOSSIBLE” rec­on­cile with “lit­tle doubt” or “most like­ly” the space heater or the elec­tri­cal wiring rec­on­cile, sci­en­tif­i­cal­ly? They don’t rec­on­cile. The sci­en­tif­ic method? Clair­voy­ant? Soothsayer?

    Dr. Hurst, would that be a 26% vote for space heater, 25% for the elec­tri­cal wiring and 49% for arson? That would give the space heater and elec­tri­cal wiring a 51% “most like­ly”, over the “less like­ly” 49% for arson. 

    Or are we look­ing at 34% for heater, 34% for wiring and 32% for arson?

    Dr. Hurst, which sci­en­tif­ic method works best?

    It has been report­ed that the gas was turned off 4 days pri­or to the fire. What does that do for Hurt’s “most like­ly”, if true? Dr. Hurst? “IMPOSSIBLE?”

    Let’s go back to the (maybe) valid crit­i­cism of the state “experts” at tri­al, that imag­i­na­tion, opin­ion based upon fantasy/​bad sci­ence and faulty judge­ment were their call­ing cards. You know “more like­ly than not” “most like­ly”. Not science. 

    The state arson “experts” agreed that the fire was not caused by the space heater or the elec­tri­cal wiring. Has any­one con­tra­dict­ed their tes­ti­mo­ny on that top­ic, based upon the facts? “Impos­si­ble.”

    Fur­ther­more, two of the state experts, Fogg and Hens­ley, are, now, blast­ing the con­clu­sions of the newest foren­sics report by Beyler.

    There are, cur­rent­ly, 3 foren­sic reviews, high­ly crit­i­cal of the court­room tes­ti­mo­ny, The reviews are Hurst, Inno­cent Project and Beyler. Briefly, they say, that the tri­al tes­ti­mo­ny was false, that arson could not have been detect­ed, based upon the flawed knowl­edge of the tri­al’s fire “experts” and that flashover may have caused the arson evi­dence, if any, to become indis­tin­guish­able from a non arson fire. 

    “A lot of this stuff (in Beyler’s report) is mis­spo­ken or mis­in­ter­pret­ed,” Fogg said. “We elim­i­nat­ed all acci­den­tal caus­es.” “Beyler acknowl­edges that one sam­ple did have accel­er­ant in it, but said it was uniden­ti­fied, a claim Fogg disputes.”“Beyler the­o­rized it was a flashover, and said inves­ti­ga­tors didn’t see the dif­fer­ence between the intense heat of a flashover and an accel­er­ant-dri­ven fire.”“Fogg laughed at the notion.” ” If it had been a flashover, it would have tak­en out the thin lay­er of sheetrock on the walls, he argued.” “That house was box con­struc­tion,” Fogg said. “The only sheetrock that came down was what was hit with water. The paper back­ing wasn’t even scorched.”

    “For Hens­ley, the most damn­ing evi­dence came from Will­ing­ham, who told offi­cers that 2‑year-old Amber woke him up. Fire­fight­ers lat­er found her in his bed, with burns on the soles of her feet.” ” Yet, Will­ing­ham didn’t take the girl with him when he fled, nor did he receive burns walk­ing down that same hall­way, Hens­ley point­ed out.” “Will­ing­ham “had no more (car­bon monox­ide) than some­body who had just smoked a cig­a­rette,” Hens­ley said. “Hens­ley has since become a cer­ti­fied arson inves­ti­ga­tor. In hind­sight, he insists they took the right steps with the evi­dence in the Will­ing­ham case.” “We did every­thing we were sup­posed to do,” he said.

    Hens­ley also dis­miss­es Beyler’s report, point­ing out that Beyler didn’t talk to the inves­ti­ga­tors, and read­ing the tes­ti­mo­ny can’t replace first-per­son obser­va­tions.” “You can find expert wit­ness­es every­where, and if you pay them enough they’ll tes­ti­fy to any­thing,” Hens­ley said. “They’re to be bought.” “You can’t just look at a lit­tle part. Look at the whole pic­ture, and that’s what the jury did,” Hens­ley said. “If a 2‑year-old wakes you up and there’s smoke and fire every­where, aren’t you going to at least get that one out? It couldn’t pos­si­bly have hap­pened the way (Will­ing­ham) said.” “Willingham’s behav­ior after­wards did not help his case. Todd Mor­ris was the first police offi­cer on the scene and he found Will­ing­ham try­ing to push his car away from the house to save it from the fire, while his chil­dren were inside burn­ing up, Hens­ley said.”

    Grann, could Fogg and Hens­ley have been impor­tant for your arti­cle? Of course not, they don’t help the case that Grann was pre­sent­ing. Grann, for the defense.

    Grann, try read­ing this:
    “No doubts: Those clos­est to case shed no tears for Willingham”

    Hurst said it was IMPOSSIBLE to pin­point the ori­gin of the fire. 

    That means the cause of the fire is inde­ter­mi­nate. The fire could have been arson or could have been accidental.

    Grann could­n’t spec­u­late that such is what “IMPOSSIBLE” means. Grann for the defense.
     — — — — — — — —

    p 15 It explained why there had nev­er been a motive for the crime. 

    REPLY: No motive?! Get rid of the kids. They’re both­er­ing me. Just because Will­ing­ham denied it, does­n’t mean that was­n’t the motive. Have fathers “with­out motive” mur­dered their chil­dren? Or have father’s with known, vio­lent ten­den­cies ever mur­dered their chil­dren? It’s not uncom­mon for vio­lent peo­ple to mur­der, with no motive. They’re just mean. Grann? Motive? Grann, for the defense.

    Please refer to my page 6 REPLY, above.
     — — — –

    p 15 (Ger­ald) Hurst con­clud­ed that there was no evi­dence of arson, and that a man who had already lost his three chil­dren and spent twelve years in jail was about to be exe­cut­ed based on “junk science.” 

    REPLY: Remem­ber “With­out hav­ing vis­it­ed the fire scene, Hurst says, it was IMPOSSIBLE to pin­point the cause of the blaze.” 

    Cer­tain­ly, the tri­al tes­ti­mo­ny of the arson “experts’ at tri­al may have been junk sci­ence. Although, today, with all of this addi­tion­al knowl­edge, they still con­clude is was arson.

    Did any­one notice that the state experts agreed in their tes­ti­mo­ny that there were alter­nate sce­nar­ios for the fire and alter­nate pos­si­bil­i­ties for the arson­ist, but that they both believed Will­ing­ham to be the arson­ist? The jury heard the state arson “experts” state that there were alter­nate sce­nar­ios for the fire, that it may not have been arson, and that any­one could have set the fire. 

    Yet, those arson “experts” and the jury, with the knowl­edge of all of the alter­nate pos­si­bil­i­ties, still found for Will­ing­ham’s guilt. Now, spec­u­late that there was a rea­son for that. And those rea­sons were cov­ered at tri­al and Grann “missed” a lot of them. Grann for the defense.

    NOTE: I have not read the tri­al tran­script. I got the infor­ma­tion on the tri­al tes­ti­mo­ny from oth­er arti­cles, which may or may not have fact checked.
     — — — — — — — — — —

    p 16 Ear­li­er, (Will­ing­ham) had con­fessed to his par­ents that there was one thing about the day of the fire he had lied about. He said that he had nev­er actu­al­ly crawled into the children’s room. “I just did­n’t want peo­ple to think I was a cow­ard,” he said. Hurst told (Grann), “Peo­ple who have nev­er been in a fire don’t under­stand why those who sur­vive often can’t res­cue the vic­tims. They have no con­cept of what a fire is like.”

    REPLY: Hurst (?) and Grann for the defense. 

    Nei­ther Hurst nor Grann has evi­dence that Will­ing­ham did not set the fire and mur­der his chil­dren. Period.

    Let’s spec­u­late.

    Will­ing­ham’s con­fes­sion is the clos­est Will­ing­ham could get to admit­ting he mur­dered his chil­dren. He did­n’t try to save them. He made up why he had burns. Amber, Will­ing­ham’s two year old, only had burned feet. She was found in a dif­fer­ent room. She was in the mas­ter bed­room with Will­ing­ham when she “woke” him because of the fire. Will­ing­ham had the oppor­tu­ni­ty to grab Amber and take her out of the house, with him. If we use Grann’s spec­u­la­tion, maybe Amber passed out in Will­ing­ham’s bed­room, with her dad, and he just left her there. Remem­ber, the only rea­son Will­ing­ham gave, that he left Amber, was that he told Amber to get out, as Will­ing­ham tried to save the twins — he was crawl­ing on his hands and knees to get the twins. 

    But, we know he lied. He nev­er did that. 

    He sim­ply aban­doned Amber in the fire, along with the twins. Why? Maybe because he had no inten­tion of sav­ing them. Maybe, his intent was to mur­der them. 

    Amber was found, un-burned, except for her feet, in the mas­ter bed­room, alive. She lat­er died of smoke inhala­tion. The fire nev­er entered the mas­ter bed­room or the back of the house.

    We will nev­er know how much time Will­ing­ham had to save all of his chil­dren. But we do know, he nev­er tried.

    Why did­n’t Will­ing­ham just grab Amber, run down the hall­way and exit the house? Or go out the win­dows, with Amber, in the back, or the back door? She was alive when he left her. Maybe the twins were alive, too.

    We, now, know, that he was­n’t stop­ping to save the twins. Why not save Amber? Maybe his inten­tion was to mur­der her and them, not save anyone.

    After Will­ing­ham left the house, he had plen­ty of time and plen­ty of doors and win­dows to got into where there was no fire, to, at least, save Amber. He had no inten­tion of doing so. How do we know? Because he had every oppor­tu­ni­ty to do so and didn’t.

    Will­ing­ham’s inten­tion was to fab­ri­cate a hero­ic father, with burns, scream­ing and yelling, when an audi­ence was there. “I have to save my children.” 

    He, lat­er admits, he was nev­er going into that house, not even at the begin­ning of the fire, not even when most of the house had no flames — which was the entire time of the fire. 

    No won­der he had no signs of smoke inhalation.

    He is yelling and scream­ing, hand­cuffed to the fire truck, the des­per­ate father, strain­ing to get into the flames to save his babies. It was all a con­scious, delib­er­ate deception.

    He says he had no such inten­tions of ever sav­ing his chil­dren because he was a coward.

    As his chil­dren are burn­ing up, Will­ing­ham has the fore­sight, calm­ness and grotesque cal­lous­ness to cre­ate an entire dra­ma, a com­plete fraud and Will­ing­ham admit­ted it.

    How about this? Will­ing­ham had no inten­tion of res­cu­ing his chil­dren because he was a mur­der­er, not a coward. 

    Why could­n’t Grann make such a spec­u­la­tion? It does­n’t help the defense or the anti death penal­ty position.

    Maybe my spec­u­la­tion is just based upon “I have lit­tle doubt” or “most like­ly”, you know, like Ger­ald Hurst’s.

    (Note: I have emailed Hurst, twice, for clar­i­fi­ca­tion on his com­ments. So far, no reply.)
     — — — — — — — — — — -

    p 17 “Just before Will­ing­ham received the lethal injec­tion, he was asked if he had any last words. He said, “The only state­ment I want to make is that I am an inno­cent man con­vict­ed of a crime I did not com­mit. I have been per­se­cut­ed for twelve years for some­thing I did not do. From God’s dust I came and to dust I will return, so the Earth shall become my throne.”

    REPLY: How pro­found. Do you think Grann left the fol­low­ing out on purpose?

    Before Will­ing­ham received the lethal injec­tion, he addressed Sta­cy Kuyk­endall, his ex-wife and moth­er of the three chil­dren he had killed, who was watch­ing about 8 feet away through a win­dow. He said “Fuck you bitch” and I hope you rot in hell, bitch.” He attempt­ed to maneu­ver his hand, strapped at the wrist, into an obscene gesture. 

    Leaves you with a slight­ly dif­fer­ent impres­sion. Does­n’t it? Or what Grann did­n’t want you to read. 

    Grann, for the defense. Maybe the whole arti­cle was writ­ten that way. 

    But world­wide media and anti death penal­ty activists (often the same) bought into it, with­out fact check­ing and with­out any addi­tion­al knowl­edge. Why? Because they WANT to believe it and they want you to, as well.

    Is that pos­si­ble? Like­ly? Sure?
     — — — — — — — — — — — —

    NOTE: The final chap­ter in this case is, nowhere, close to being concluded.

    (1) “Tri­al by Fire: Did Texas exe­cute an inno­cent man?”, by David Grann, A Reporter at Large, The New York­er, Sep­tem­ber 7, 2009

    Dud­ley Sharp
    e‑mail, 713 – 622-5491,
    Hous­ton, Texas

    Mr. Sharp has appeared on ABC, BBC, CBS, CNN, C‑SPAN, FOX, NBC, NPR, PBS , VOA and many oth­er TV and radio net­works, on such pro­grams as Night­line, The News Hour with Jim Lehrer, The O’Reil­ly Fac­tor, etc., has been quot­ed in news­pa­pers through­out the world and is a pub­lished author.

    A for­mer oppo­nent of cap­i­tal pun­ish­ment, he has writ­ten and grant­ed inter­views about, tes­ti­fied on and debat­ed the sub­ject of the death penal­ty, exten­sive­ly and internationally.

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