Beyond Shadows of Doubt

“Justice? What do you care about justice? You don’t even care whether you’ve got the right men or not. All you know is you’ve lost something and somebody’s got to be punished.”

(1943, The Ox-Bow Incident, Dir. William A. Wellman, Donald Martin played by Dana Andrews.)

This is a classic “wrong man” film. Among my favorites along with several Alfred Hitchcock films. Hitchcock was a master not only of suspense, but of the “wrong man” theme. What I think about, when I think of Hitchcock, beyond suspense, is this theme of “the wrong man”. To me, that theme of “the wrong man” is what makes the suspense, well, so suspenseful, particularly in films like The Wrong Man, Suspicion, Saboteur, North By Northwest, To Catch A Thief, and the “wrong woman” in Dial M for Murder. While this makes for good suspense in drama, accusing “the wrong man” or “wrong woman” can have terrible consequences in reality, even leading to our society legally executing a “wrong man” or “wrong woman” for a crime he or she has not committed. It happens.

As a child, I remember once being wrongly accused of something…I remember less what the accusation was (actually, were I not a pre-teen, it was probably kind of trivial) but the feeling of someone believing I had done something I had not done infuriated me, it is my strongest memory of an emotion I cannot fully articulate today. I remember feeling both deeply enraged and utterly helpless at the same time. Even today I find none of these words captures what a horrible feeling it was. That feeling remains with me today when I detect even a hint that someone might suspect I’ve done something I’ve not–no matter how trivial–it sets my teeth on edge and if I had hackles, they’d go up. I can’t even imagine the nightmare of being wrongly accused and convicted of a crime I have not committed, let alone the horror of being sentenced to death for something I’d not done. It happens.

What if we accuse the wrong man or woman? What if we convict the wrong man or woman? What if we execute the wrong man or woman? That “what if” is the very basis of my opposition to the death penalty. In reality it is not simply a “what if”. It happens. Mistaken identity, a miscarriage of justice, railroaded, false confessions…they all lead to the possibility of convicting, even executing the wrong man or woman.

As we see more cases where new evidence results in exonerating people convicted of crimes they did not commit, many former proponents of the death penalty now oppose it, or some who still don’t oppose it at least recognize that we have made mistakes and we will continue to make mistakes. According to the Death Penalty Information Center (DPIC, founded in 1990), between 1973 and 2015 at least 156 people have been sentenced to death, then later exonerated. This may be a conservative number as DPIC adheres to strict criteria for inclusion on the list. In order to be included on DPIC’s Innocence List, defendants “must have been convicted, sentenced to death and subsequently either

a. Been acquitted of all charges related to the crime that placed them on death row, or
b. Had all charges related to the crime that placed them on death row dismissed by the prosecution, or
c. Been granted a complete pardon based on evidence of innocence.”

DPIC Innocence List: Freed From Death Row

In a 2001 analysis of 86 death row exonerees the Center on Wrongful Convictions at Northwestern Law School “found a number of reasons why innocent people are wrongly convicted in capital cases. The reasons included:

error – from confusion or faulty memory.
government misconduct – by both the police and the prosecution
junk science – mishandled evidence or use of unqualified “experts”
snitch testimony – often given in exchange for a reduction in sentence
false confessions – resulting from mental illness or retardation, as well as from police torture
other – hearsay, questionable circumstantial evidence, etc.”

DPIC Wrongful Convictions

Putting an innocent man or woman to death? It happens. This is at the core of why I cannot come to terms with capital punishment–the death penalty. However, even if we could know for a fact, beyond a shadow of a doubt that the person is guilty, I would still have a hard time with it, with taking someone’s life. “Two wrongs don’t make a right”, but it goes deeper than that. And don’t get me wrong, I have no problem with “life without parole” sentencing for heinous offenders. If someone is not fit or safe to be in society, let us keep him or her out of society, let’s keep society safe, AND, if the person convicted turns out to be wrongly accused? Well, they have been locked up wrongly, sometimes for years, but at least they still have their life.

There is more though. I’m not sure it can be called a “reason”. There is an element that goes deeper than thinking about it, it is a deep-seated feeling that taking a life is wrong. I believe taking a life harms us. It doesn’t bring the innocent back to life. There is an aspect to it that I cannot articulate… But what does articulate it, for me at least, is a song. A particular song which brings me beyond “the wrong man or woman” and beyond the “two wrongs don’t make a right” thinking. Thinking still allows for those exceptions of believing “we really have absolutely no doubt about this one, so maybe execution is OK, just this once…”. This song goes deeper than reason. It goes straight to the soul, the gut, the heart of the matter. “Ellis Unit One” (Steve Earle, 1966) struck me deeply about the death penalty, and its inhumanity, not just to the inmate facing it, but to “we the people”, and to those who have to assist in the execution. I first heard and saw this song performed by Earle on a show called Sessions at West 54th recorded October, 1998. This song goes beyond any “death row” song that I’ve heard. It speaks to me about about the damage done to those whose job it is to carry out this act. Take a look and a listen: Steve Earle at Session, Ellis Unit One.

It wasn’t until I saw and heard this Steve Earle performance of “Ellis Unit one” that deep in my soul I felt it was wrong and inhumane to all, yes, including “we the people”, and the people that need to carry it out. That feeling has remained to this day. Unlike many “death row” songs, “Ellis Unit One” does not focus on one particular person sentenced to death. This is a chronicle of a prison guard, just back from Vietnam and there is tremendous power in it. He’d left

“to be all I could be, Come home without a clue”

Upon his return he

“hired on at the prison”

…just like his dad and uncles before him. He’d worked on every cell block and

“Now things’re goin’ good, Then they transferred me to Ellis Unit One”.

Ellis Unit One, at the time, was a death row unit. The guard is part of the team that helps walk a criminal to his death. He sees their family, he sees the victim’s family:

“Well, I’ve seen ’em fight like lions, boys
I’ve seen ’em go like lambs
And I’ve helped to drag ’em when they could not stand
And I’ve heard their mamas cryin’ when they heard that big door slam
And I’ve seen the victim’s family holdin’ hands”

He has nightmares:

“Last night I dreamed that I woke up with straps across my chest
And something cold and black pullin’ through my lungs
‘N even Jesus couldn’t save me though I know he did his best
But he don’t live on Ellis Unit One”

This song that seals it for me.

Well, watch this clip of Henry Fonda as Gil Carter reading Donald Martin’s letter to his wife. Donald Martin was wrongly accused of cattle rustling and hung by the men in this scene. He was later proved innocent.
Henry Fonda’s Monologue, The Ox-Bow Incident

(1943, The Ox-Bow Incident, Dir. William A. Wellman)

Justice Ruth Bader Ginsburg:
“I have yet to see a death case among the dozens coming to the Supreme Court on eve-of-execution stay applications in which the defendant was well represented at trial.”
Justice Ruth Bader Ginsburg, from her April 9, 2001 speech “Pursuit of the Public Good: Lawyers who Care” at the, David A. Clarke School of Law, University of the District of Columbia.
Justice Ginsburg Speech, April 9, 2001

A couple “death row” songs worth mentioning:

“Jonathan’s Song” (“Over Yonder”), 2000, Steve Earle, Transcendental Blues, E-Squared
Steven Earle, “Jonathan’s Song”

“Sing Me Back Home”, 1968, Merle Haggard, Sing Me Back Home, Capitol Records
Merle Haggard:
Merle Haggard Live, 1978, “Sing Me Back Home”

Grateful Dead cover:
Grateful Dead, “Sing Me Back Home” cover

Both of these songs were written for people Steve and Merle knew who were executed. Steve was present at Jonathan Wayne Nobles death by lethal injection at Jonathan’s request. “A Death In Texas” by Steve Earle

“In a 1977 interview in Billboard with Bob Eubanks, Haggard reflected, “Even though the crime was brutal and the guy was an incorrigible criminal, it’s a feeling you never forget when you see someone you know make that last walk.” Sing Me Back Home Wikipedia article

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