In the latest episode of the Discussions with DPIC podcast, Emmy- and Oscar-winner Edward Zwick speaks about his new movie, Trial By Fire. The film, which Zwick co-produced and directed, tells the story of Cameron Todd Willingham, who was convicted and sentenced to death in 1992 for the deaths of his three children in a house fire that prosecutors wrongly claimed had been intentionally set. As Willingham’s execution approached in 2004, evidence came to light that arson investigators had relied on flawed and outdated methods. The trial prosecutor also withheld evidence that a jailhouse informant who claimed that Willingham had confessed to him had been provided favorable treatment in exchange for implicating Willingham.

Willingham’s case featured what Zwick called a “catalog” of problems: “it had the withholding of exculpatory evidence, it had junk science, it had jailhouse snitches who would testify in exchange for reduced sentences, [and] it had a piss-poor public defender.” In an interview with DPIC’s Managing Director, Anne Holsinger, Zwick describes why he decided to tell Willingham’s story, what he learned from the experience, and how he hopes the film will affect audiences. Trial By Fire opens on May 17, 2019.

Trial By Fire is largely based on an investigative article of the same name written by David Grann and published in The New Yorker in 2009. Zwick called Grann’s account of the case a “categorical denunciation of everything that was wrong with the prosecutions in death-penalty cases.” The movie focuses on the relationship between Willingham (Jack O’Connell) and his penpal, Elizabeth Gilbert (Laura Dern). Gilbert worked with the filmmakers and offered them access to her correspondence with Willingham. Zwick said he chose to portray that relationship because it was a “beautiful juxtaposition to the horrors of the case.” He expressed gratitude to Gilbert for sharing the letters, which he said showed the “internal workings and the value of a man’s life, so he was more than just a statistic.” He also said that the friendship between Willingham and Gilbert humanized the story and helped the film avoid being didactic. “People go to the movies because they want to invest in the characters and in the relationships. They don’t go to the movies to learn about issues, but that doesn’t say that they can’t have both.”

Zwick characterized Willingham’s story as embodying the systemic problems in the way the death penalty is carried out in the United States. “In a system that cannot be guaranteed to be infallible, if a single innocent person has been put to death, that more than justifies getting rid of the death penalty,” he said. Capital punishment, he said, is emblematic of the inequities in the criminal justice system at large: “The death penalty sits on top of the pyramid of charging and sentencing and trials, and that if it is so flawed and revealed to be unjust and if its absurdities can be so accepted, how then can we reform the rest of the system, before dealing with it?” The interview concluded with a discussion of the filmmaker’s hopes for how the audience will respond to the movie. “I know that it’s a Pollyanna-ish notion that a single film can do anything that affects policy itself. What it can do is add a set of images and a warm-bloodedness and a personal understanding of something that an audience might have only understood in more philosophical or political terms.” Storytelling can be part of cultural “paradigm shifts,” he said, noting that pop culture depictions of same-sex relationships helped shape public opinion on same-sex marriage. “Change happens," Zwick said, "but how it happens and when it happens, and the rate at which it happens is unpredictable, and all that one can do in any kind of activist cause is to keep your head down and keep doing the work that you do because you are committed to that change.”

In the wake of sharp criticism of several controversial death-penalty decisions, the five conservative justices of the U.S. Supreme Court issued three opinions on May 13, 2019, explaining their votes in those earlier cases. The opinions, issued in connection with the apparently inconsistent orders in religious discrimination claims brought by two death-row prisoners and a decision declining to review the case of an Alabama death-row prisoner who had challenged the state’s execution process, highlighted growing friction and fissures within the Court.

In a pair of opinions issued five weeks after the Court halted the March 28 execution of Buddhist death-row prisoner Patrick Murphy, the Court’s three far-right justices dissented from the order granting him a stay and Justice Kavanaugh and Chief Justice Roberts issued a statement seeking to explain why they voted to spare Murphy from execution while permitting the execution of Muslim prisoner Domineque Ray to go forward. The Court’s disparate treatment of Murphy and Ray—both of whom claimed religious discrimination because their states denied their requests to have non-Christian spiritual advisors present in the execution chamber—had generated widespread condemnation across the political spectrum. In a second contentious case, Justice Clarence Thomas wrote to “set the record straight” in response to criticism from Justice Breyer and the Court’s other moderate and liberal justices regarding a 5-4 late-night ruling on April 12 to vacate a lower court stay of execution for Alabama death-row prisoner Christopher Price.

In Murphy’s case, Justice Alito, joined by Thomas and Gorsuch, accused defense lawyers of “inexcusably dilatory litigation tactics” and complained that “the great majority” of applications for stays of execution “are almost all filed on or shortly before the scheduled execution date … [with] no good reason for the late filing.” Staying Murphy’s execution, Alito wrote, “countenance[es] the dilatory litigation [and], I fear, will encourage this damaging practice.” While acknowledging that “[t]he claims raised by Murphy and Ray are important and may ultimately be held to have merit,” Alito said that “[p]risoners should bring such claims well before their scheduled executions so that the courts can adjudicate them in the way that the claims require and deserve and so that States are afforded sufficient time to make any necessary modifications to their execution protocols.”

Justice Kavanaugh and Chief Justice Roberts defended the stay, saying that Murphy had not been dilatory. Murphy had made his request to have his spiritual advisor in the execution chamber 30 days before his scheduled execution, they wrote, and the delay in filing his court appeal was attributable to “the State’s footdragging” in response to his request. Kavanaugh also disagreed that the stay encouraged additional litigation, noting that within five days of the order Texas had revised its protocol to “allow religious advisers only into the viewing room.” The stay, he wrote, “facilitated the prompt resolution of a significant religious equality problem … [and] should alleviate any future litigation delays or disruptions that otherwise might have occurred.” Kavanaugh justified granting Murphy a stay while allowing Ray’s execution to proceed by saying the two had presented different legal claims to the courts. Murphy, he wrote, had argued that Texas treated prisoners of different religions unequally, permitting Christians and Muslims to have ministers in the execution chamber, while limiting other prisoners to “hav[ing] ministers of their religions only in the adjacent viewing room.” By contrast, he said, Ray had raised a claim under the Establishment Clause of the First Amendment and the religious discrimination claim had been raised on its own by a federal appeals court.

In his statement concurring in the Court’s denial of review in the Price case, Justice Thomas—joined by Justices Alito and Gorsuch—accused death-row prisoners of attempting to manipulate the legal process by “gamesmanship” by “bring[ing] last-minute claims that will delay the execution, no matter how groundless. The proper response to this maneuvering,” he wrote, “is to deny meritless requests expeditiously.” Price had challenged the constitutionality of Alabama’s lethal injection practices, offering execution by lethal gas as an alternative. However, the state argued he had missed the statutory deadline for electing that option and that his request was untimely. As the warrant to execute Price on April 12 was expiring, Justice Breyer urged his colleagues to leave the lower court stay in place until the Court could meet in person to discuss “substantial” procedural and substantive issues presented by the case. When the Court then lifted the stay with no discussion even after the execution had been called off, Breyer wrote: “To proceed in this way calls into question the basic principles of fairness that should underlie our criminal justice system. To proceed in this matter in the middle of the night without giving all members of the court the opportunity for discussion tomorrow morning is, I believe, unfortunate.”

Proponents of capital punishment have long argued for the death penalty on the grounds that it brings closure to family members of homicide victims. But science suggests that achieving closure through execution may be a myth, says family and child therapist Linda Lewis Griffith (pictured) in a May 6, 2019 column in the San Luis Obispo Tribune, and that capital punishment may actually make matters worse.

To underscore that point, Griffith cites studies in the Personality and Social Psychology Bulletin and the Journal of Personality and Social Psychology that found “subjects who were given the opportunity to vent their hostilities had higher levels of aggression and anger than those participants who did nothing at all” and “people who punish others in the hopes of making themselves feel better actually feel worse.” The death penalty, she says, “keeps victims involved in the tragedy for years, even decades, as multiple hearings, appeals and trials drag on.” As a result, family members “feel stuck in a time warp, being repeatedly re-traumatized by the legal system and accompanying media coverage.” In cases in which the death penalty is eventually carried out, “[e]xecutions do not offer emotional catharsis as many would suggest.” Instead, Griffith says, “executing perpetrators actually increased family members’ feelings of emptiness because it didn’t bring back their loved ones.”

A University of Minnesota study published in 2007 attempted to quantify the extent to which victims’ family members achieved closure as a result of capital punishment. The study found that only 2.5% of victims’ family members—roughly one in 40—reported achieving closure, while 20.1% said the execution did not help them heal. A 2012 study published in the Marquette Law Review compared the emotional well-being of survivors in Texas, a death penalty state, and Minnesota, a life without possibility of parole state. The study found that “victims in Minnesota experienced greater control over the sentencing process,” while the “drawn out, elusive, delayed, and unpredictable” capital appeals process in Texas “created ‘layers of injustice, powerlessness, and in some instances, despair’” for family members.

Given these studies, Griffin believes that life without possibility of parole offers “[a] more emotionally satisfying solution” for victims’ families than does the death penalty. “Instead of proceeding with archaic and inaccurate information, let’s consider the data and do what really works best” for victims’ families, she says.

A federal appeals court has declared that Virginia for many years housed its death-row prisoners in unconstitutional conditions and has barred the state from reverting to its prior practices. On May 3, 2019, the U.S. Court of Appeals for the Fourth Circuit ruled that the Commonwealth’s former policy of 23- or 24-hour per day solitary confinement of death-row prisoners constituted cruel and unusual punishment in violation of the Eighth Amendment. The 2-1 decision upheld a ruling by the U.S. District Court that found Virginia’s death-row conditions “created, at the least, a significant risk of substantial psychological or emotional harm” and that the state had been “deliberately indifferent” to that risk.

At the time the Commonwealth’s three current and two since-executed death-row prisoners filed suit, Virginia limited death-row prisoners to one hour of recreation per day five days a week and a ten-minute shower three days per week. During recreation, they “were confined to individual enclosures with concrete floors and enclosed by a steel and wire mesh cage.” At all other times, they were held alone in 71-square-foot cells, about half the size of a parking space, with lights on 24 hours a day. Contact visits with immediate family members could be granted at the warden’s discretion once every six months under “extreme circumstances.” In practice, this policy meant that prisoners were only granted contact visits as their execution date approached.

The appeals court decision cited overwhelming scientific research that has found serious detrimental effects of solitary confinement. A leading survey of such research stated “there is not a single published study of solitary or supermax-like confinement in which nonvoluntary confinement lasted for longer than 10 days, where participants were unable to terminate their isolation at will, that failed to result in negative psychological effects.” The court also relied upon a growing body of caselaw in which courts have found solitary confinement conditions to be unconstitutional. The court found particularly relevant “the empirical evidence … that solitary confinement poses an objective risk of serious psychological and emotional harm to inmates, and therefore can violate the Eighth Amendment.” Cate Stetson, who argued on behalf of the prisoners, praised the court’s action as “a landmark decision.” In a statement released to the media, she said: “The court was right to find that the severe isolation to which our clients were subjected for years on end put them at a substantial risk of severe psychological and emotional harm and violated their right to be free from cruel and unusual punishment.”

In August 2015, about a year after the suit was originally filed, Virginia revised its death-row regulations to allow weekly contact visits with family, in-pod shared recreation seven days a week and outdoor recreation five days a week, and daily showers. However, the Commonwealth repeatedly refused to rule out the option of reverting to its prior death-row housing practices. The death-row prisoners conceded that the new conditions do not violate the constitution, but persuaded the court that the state’s lack of “repentance” left the prisoners facing a “cognizable danger of recurrent violation.” The decision prohibits the state from returning to the earlier, unconstitutional conditions. Judge Paul V. Niemeyer dissented from the majority opinion because the unconstitutional conditions are no longer in effect.