New York Times Video Op-eds Highlight Systemic Flaws in the Capital Punishment System, Including Mistakes from Junk Science and Lack of Closure for Victims’ Families

In the sec­ond and third videos of The New York Times’ three-part series, ​“The Fallibility of Justice,” Brett Malone, whose mother’s killer remains on Louisiana death row, and Texas death-sen­tenced pris­on­er Charles Don Flores pro­vide their per­spec­tives on cap­i­tal pun­ish­ment. The New York Times has con­sis­tent­ly called for abo­li­tion of the death penal­ty, describ­ing it as ​“full of bias and error, moral­ly abhor­rent, [and] futile in deterring crime.” 

Mr. Malone describes his per­son­al jour­ney from want­i­ng vengeance, and from see­ing the per­son who killed his moth­er be tor­tured, to now want­i­ng to ​“save his life” by sup­port­ing a com­mu­ta­tion of Jeremiah Manning’s death sen­tence to a term of life with­out parole. He attrib­ut­es his path towards for­give­ness to the family’s ​“moral com­pass,” his grand­moth­er Mimi. ​“For there to be heal­ing, there has to be mer­cy. Killing Jeremiah will not bring us any clo­sure. It will not heal the wounds that were cre­at­ed,” said Mr. Malone. ​“Rather, that action by the state will result in more harm and more pain and more suf­fer­ing and not just for my fam­i­ly but for his fam­i­ly, which is some­thing that peo­ple for­get about.” Mr. Malone views the state exe­cut­ing Mr. Manning as ​“tak­ing away any oppor­tu­ni­ty for repair­ing the dam­age that’s been done.” 

“You have to be fair before you take someone’s life. And that’s the evil of the death penal­ty,” said Mr. Flores, whose legal team is plan­ning on fil­ing a request for a new tri­al based on detec­tives’ use of the now inad­mis­si­ble tech­nique of foren­sic, or inves­tiga­tive, hyp­no­sis, where­by an eye­wit­ness is hyp­no­tized to alleged­ly recall or clar­i­fy mem­o­ries. Mr. Flores was con­vict­ed as an accom­plice under the state’s law of par­ties’ statute and sen­tenced to death based on the eye­wit­ness tes­ti­mo­ny of Jill Barganier, who failed to select Mr. Flores — who did not fit her ini­tial descrip­tion of the per­pe­tra­tors — out of a pho­to line­up. After 13 months, dur­ing which time she saw Mr. Flores’ image on the news and under­went hyp­no­sis, Ms. Barganier tes­ti­fied in court that Mr. Flores was indeed the sec­ond per­pe­tra­tor. Critically, there is no oth­er evi­dence, foren­sic or oth­er­wise, that ties Mr. Flores to the crime. University of California San Diego Psychology Professor John Wixted, whose research on eye­wit­ness tes­ti­mo­ny is ref­er­enced in this case, told Kera News that Ms. Barganier’s ini­tial fail­ure to iden­ti­fy Mr. Flores is indica­tive of his inno­cence. ​“We’re not just impeach­ing the wit­ness’ tes­ti­mo­ny,” he said. ​“We’re talk­ing about new, sub­stan­tive evi­dence of inno­cence that was nev­er con­sid­ered by any­body, and now he’s out of appeals and head­ing for execution.” 

In an August 11 op-ed pub­lished in the Austin American-Statesman, retired judge Elsa Alcala and Texas Defender Services’ (TDS) Director of Special Projects Estelle Hebron-Jones explain how the imple­men­ta­tion of the Texas’s junk sci­ence law, enact­ed in 2013 as the first of its kind nation­wide, has ​“fall­en dis­turbing­ly short in prac­tice.” Highlighting find­ings in a recent TDS report, the op-ed explains that 80% of peo­ple seek­ing relief under this law, which estab­lished a pro­ce­dure for pris­on­ers con­vict­ed on the basis of flawed foren­sic evi­dence to seek new tri­als, have lost their appeals despite ​“incred­i­bly com­pelling claims backed up by sci­en­tists and oth­er experts.” The two con­clude by urgent­ly call­ing for change: ​“For inno­cent peo­ple, the con­se­quences of leav­ing the law as-is can mean endur­ing years of unjust pun­ish­ment or — as in the case of Mr. Roberson — fac­ing the irre­versible penal­ty of death. … The past ten years have shown that the junk sci­ence law is not work­ing as intend­ed. We hope that dur­ing this next ses­sion, the Texas leg­is­la­ture will take action to pro­tect the innocent.” 

In the first video in The New York Times’ tril­o­gy, lead detec­tive in Mr. Roberson’s case, Brian Wharton, explains how the inves­ti­ga­tion cen­tered on the now-debunked the­o­ry of shak­en baby syn­drome and why he now believes Mr. Roberson to be inno­cent. ​“We as human beings are inca­pable of pro­duc­ing the kind of fair­ness and jus­tice required to take someone’s life,” said Mr. Wharton, who now believes that the death penal­ty should be abol­ished. Mr. Roberson is sched­uled to be exe­cut­ed on October 17, 2024.