Court Overturns Death Sentence, Ruling Prosecutors Knew Witness Was Lying


NY Times Editorial Slams GOP and Governor Perry on the Death Penalty –

Last week the Ninth US Circuit Court of Appeals overturned the death sentence of an Idaho man convicted of killing a coworker in 1981 at a gas station near Boise, Idaho.  The victim was repeatedly shot and stabbed.

Lacey Mark Sivak, for whom the court found no doubt that he was guilty of the crime, will either be re-sentenced to prison or given a new penalty trial.

According to court records, both Mr. Sivak and Randall Bainbridge were present at the time of the killing, but each blamed the other.  Prosecutors claim that the motive was robbery and that Mr. Sivak held a grudge against the victim.

The key piece of evidence was several prison witnesses who claimed to have heard Mr. Sivak confess while in jail awaiting trial, including Jimmy Leytham, who testified that Mr. Sivak admitted to shooting the victim because “he holds grudges against people” and “he used to work at the place” and the victim had “fired him.”

California recently passed and signed legislation by Senator Mark Leno that would avoid a stricter penalty based solely on the uncorroborated testimony of an in-custody informant.

Mr. Leytham has acknowledged that, following his testimony, two criminal charges were dismissed.

Furthermore, another inmate witness, Duane Grierson, said that Mr. Sivak implicated both himself and Mr. Bainbridge as having participated in the robbery, murder and sexual assault of the victim.

However, on cross-examination, Mr. Grierson testified that prosecutors had promised that if he “testified in court in certain murder cases,” he would not receive state prison time.

He later wrote to Mr. Sivak’s sentencing judge that he was “a chronic liar,” and “lying was a way of life” for him.

The defense had initially argued that Mr. Sivak should be spared in part because “his guilt was not disproportionate to that of Bainbridge,” who was given a life sentence.

The Idaho Supreme Court would affirm the sentence, however defense attorneys “discovered letters in the prosecutors’ files suggesting that Leytham had actively sought their assistance, not only in getting his pending charges dismissed but also in seeking parole release and cash assistance once he got out.”

Judge Milan D. Smith Jr. said “prosecutors violated the defendant’s right to a fair trial by failing to disclose exculpatory evidence prior to trial and by allowing false testimony during trial.”

Furthermore, “The letters also established that prosecutors knew Leytham was lying when he said he had not sought help from prosecutors and did not know whether they were involved in the dismissals of his pending cases.”

Judge Smith found the constitutional violations harmless with respect to guilt.  He wrote, “Although the evidence of Sivak’s guilt was not quite as ‘overwhelming’ as the State repeatedly contends in its brief,” nevertheless, any reasonable trier of fact would have found that he either killed the victim or aided and abetted the co-defendant. In doing so, either way would have been sufficient for a conviction.

“But since Idaho law requires that at least one aggravating circumstance be sufficient in and of itself to outweigh the totality of the mitigating circumstances in order for the death penalty to be imposed, it is at least possible the judge would have imposed a life sentence if he knew that Leytham, like Grierson, was not a credible witness.”

NY Times Editorial Slams GOP and Governor Perry on the Death Penalty

Much has been made of the GOP debate response to a question on the death penalty posed to Texas Governor Rick Perry, and Mr. Perry’s apparent indifference to the magnitude of his state’s executions under his tenure, and the possibility he has sent several innocent individuals to their state-sanctioned deaths, as well as several more of questionable mental status.

This past weekend the NY Times noted, “Even supporters of the death penalty used to consider execution a solemn state responsibility, not an occasion for celebration. But the crowd of Republicans who gathered at the Reagan Library last week to watch their presidential candidates debate actually applauded and cheered when a moderator noted that Texas had executed 234 inmates under Gov. Rick Perry, by far the most under any governor in modern times.”

“Then came Mr. Perry’s blithe denial that he had ever struggled with a single one of those state killings,” the NY Times noted.

NBC’s Anchor Brian Williams asked Mr. Perry the question about the death penalty and pointed to the 234 executions, the most executions by any governor in the history of this nation.

Before he could even answer the question, the Republican audience erupted in applause at the very idea that he had executed so many.  The Governor, for his part, suggested that the audience response was an indication that the vast majority of Americans support capital punishment.

“I’ve never struggled with that at all.  The state of Texas has a very thoughtful, a very clear process in place,” Mr. Perry said.  “When someone commits the most heinous of crimes against our citizens, they get a fair hearing, they go through an appellate process, they go up to the Supreme Court of the United States if that’s required.”

Governor Perry said he supports the decision of Texas to uphold the death penalty, calling it the “ultimate justice,” but felt overall the issue should be left to the states rather than the federal government.

Writes the NY Times, “It may not trouble Mr. Perry, but any clear-eyed observer would be shocked at the grim momentum of his state’s death machine, which stops for no suggestion of error.”

They cite the Willingham case, calling it “the clearest and best-known illustration.”

“In the face of serious questions, Mr. Perry refused to grant a reprieve for Mr. Willingham, and years later replaced the members of a state forensic commission that was about to hold hearings on the execution,” the Times wrote.

And as we noted this weekend, “That is hardly the only questionable case during his tenure, as shown by a database developed by The Texas Tribune, a partner of The New York Times.”

“In a recent report, The Tribune described the case of Kelsey Patterson, who was executed for two 1992 shootings despite a recommendation to Mr. Perry for clemency by the Texas Board of Pardons and Paroles on the grounds of clear mental incapacity.”

The Times continues, “He has also approved the execution of a man whose lawyer suffered from mental illness and was repeatedly disciplined; a man involved in a fatal robbery who did not kill the victim; and a man who was 17 at the time of a murder and received clemency recommendations from the trial judge and several legislators.”

“Mr. Perry is well known for being extremely parsimonious with his clemency authority. His attitude about death may make sense in the hard-edged Republican primaries, but other voters should have serious doubts about a man who seems to have none,” the editorial concludes.

Our chief concern, as we have written several times now, was not just that the Governor may have executed an innocent person, but that for political purposes he may have tampered with the membership of the Texas Forensic Science Commission to avoid scrutiny and a judgment.

At issue with the execution was the fact that Mr. Willingham’s conviction was based on forensic techniques, determining that the fire was arson-related, that are now considered scientifically invalid and inconsistent with current accepted scientific standards of the National Fire Protection Agency (NFPA).

Without arson, there was no murder in his case, and thus the possibility is raised that an innocent man was convicted and executed.

—David M. Greenwald reporting

About The Author

David Greenwald is the founder, editor, and executive director of the Davis Vanguard. He founded the Vanguard in 2006. David Greenwald moved to Davis in 1996 to attend Graduate School at UC Davis in Political Science. He lives in South Davis with his wife Cecilia Escamilla Greenwald and three children.

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  1. E Roberts Musser

    [quote]They cite the Willingham case, calling it “the clearest and best-known illustration.”[/quote]

    Here is another view:
    Corsicana Daily Sun, Corsicana, Texas
    September 7, 2009
    (09-06-09) No doubts
    Those closest to case shed no tears for Willingham
    By Janet Jacobs
    The undeniable facts of the Cameron Todd Willingham case are these:

    • On Dec. 23, 1991, 2-year-old Amber Louise Kuykendall, and 1-year-old twins Karmon Diane Willingham and Kameron Marie Willingham died in a mid-morning house fire at 1213 W. 11th Ave. in Corsicana.

    • Willingham, 23, the children’s father, and the only adult home at the time of the fire, was found guilty of murder and sentenced to death on Aug. 21, 1992.

    • After five appeals and 12 years on death row, he was put to death by lethal injection on Feb. 17, 2004.

    Everything else is controversial.


  2. E Roberts Musser

    [quote]Carrying the torch

    To people opposed to the death penalty under any circumstances, the holy grail is an innocent man who was executed, preferably in Texas, home of the nation’s busiest death row. Some argue Todd Willingham is that innocent man.

    The latest argument for Willingham’s innocence comes from a report by Craig Beyler, of Hughes Associates in Baltimore, Md., and submitted Aug. 17 to the Texas Forensic Science Commission, a panel formed in 2005 to deal with forensic errors.

    Beyler was contracted to review the case following a complaint by the Innocence Project. The Innocence Project is best known for using DNA analysis to exonerate wrongly convicted men.

    The report claims the Texas investigators didn’t understand fire science, and didn’t use modern methods in the Willingham case. Because one of the investigators was with the Texas fire marshal’s office, the marshal’s office will have a chance to respond to Beyler’s findings, and the commission should deliver a verdict next spring.

    This week, the New Yorker published an article by David Grann which condemns the science and the system which sent a seemingly innocent man to his death. Part of the article is based on Willingham’s relationship with a woman who visited him on death row, and became an amateur sleuth on his behalf. Previous articles questioning the Willingham verdict have also appeared in the Dallas Morning News and the Chicago Tribune.

  3. E Roberts Musser

    [quote]Leaders of the Innocence Project say this is proof of a failed death-penalty system.

    “There can no longer be any doubt that an innocent person has been executed,” said Barry Scheck, co-director of the Innocence Project, in a release. “The question now turns to how we can stop it from happening again.

    “As long as our system of justice makes mistakes — including the ultimate mistake — we cannot continue executing people,” Scheck stated.

    In Corsicana, the attempts to make Todd Willingham into a martyr aren’t well-received.

    “He’s not a poster child for anybody,” said Sgt. Jimmie Hensley of the Corsicana Police Department.

    First impressions

    Doug Fogg, a Corsicana firefighter for 31 years, was the first responder to arrive at 1213 W. 11th Ave. in Corsicana that Monday morning. He conducted the local arson investigation.

    Fogg calls Beyler an “armchair quarterback” and riles at the accusation that Corsicana and state detectives used nothing more than folklore to come to their conclusions.

    “A lot of this stuff (in Beyler’s report) is misspoken or misinterpreted,” Fogg said.

  4. E Roberts Musser

    [quote]The report accuses state arson investigator Manuel Vasquez, now deceased, of not securing the scene, of missing or mishandling crucial evidence that might have exonerated Willingham, and not using scientific fire analysis.

    Willingham had a lot of excuses for the fire, Fogg recalled, including that a stranger entered the house and set the fire, that the 2-year-old started it, that a ceiling fan or squirrels in the attic caused an electrical short, or the gas space heaters in the children’s bedroom sparked it.

    The investigators searched for electrical shorts, but found none; the gas-powered space heaters were off because the family’s gas supply had been cut off at the meter; and “we didn’t find a ceiling fan. Willingham said there was one, but we didn’t find any signs of one,” Fogg said.

    The other explanations just didn’t add up, Fogg said, adding: “We eliminated all accidental causes.”

    Evidence of accelerants was found, but Willingham had an excuse for that, too. Willingham told investigators he poured cologne on the children’s floor “because the babies liked the smell,” he blamed a kerosene lamp for any accelerant in the hallway, and said spilled charcoal-lighter fluid happened while he was grilling, Fogg recalled.


  5. E Roberts Musser

    [quote]Fogg agreed that there was a damaged bottle of charcoal lighter fluid on the other end of the porch away from the door, but the grill was in the side yard not on the porch when firefighters arrived. Fogg remembered four empty bottles of charcoal lighter were found just outside the front door.

    Beyler acknowledges that one sample did have accelerant in it, but said it was unidentified, a claim Fogg disputes.

    Local investigators didn’t leave the house until midnight, spending over 12 hours sifting through the debris by hand, taking videotape and more than 80 photographs of the scene, cutting up flooring for the lab, bagging and dating each sample and recording where it came from in the house, Fogg said. Samples were contaminated by melted plastic toys, fire-damaged carpet and floor tiles, but it wasn’t because of investigator’s incompetence, Fogg said.

    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.”

    As well, the fire damage was worse at the floor level than at the ceilings, which is the opposite of typical fire, Fogg said.

    “(Beyler) thought we were total idiots,” Fogg said.


  6. E Roberts Musser

    [quote]Beyond the fire

    Sgt. Jimmie Hensley of the Corsicana Police Department was the lead investigator on the Willingham murder case back in 1992.

    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 was taken to the hospital where doctors did a blood-gas analysis on him, a standard test for someone who’s been inside a burning house.

    “He 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.”

    Willingham was tried for murder, not arson, and the guilty verdict was based on the whole picture, not just part of it, he said.


  7. E Roberts Musser

    [quote]“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.

    Dr. Grady Shaw and his team spent an hour at the emergency room trying to resuscitate Amber while next door Willingham complained about his own suffering, Shaw said.

    “I remember this case very clearly,” Shaw said. “She was in Trauma Room 1, and her father was placed in Trauma Room 2, and only a curtain separated those. He was whining and complaining and crying out for a nurse to help him because of the pain from his extremely minor burns while we were trying to resuscitate this child.”

    Willingham’s first-degree burns on the backs of his hands and on the back of his neck were the kind that might come from accidentally touching an oven rack, or having a small ember pop up from a campfire, Shaw said.

    “He was not hurting that bad from these minor burns,” Shaw said. “It was clearly audible what was going on next door, but to hear him doing all that complaining and asking for attention when everybody was trying to save the little girl’s life was grossly inappropriate.”

  8. E Roberts Musser

    [quote]Friends of the family testified that Willingham had beaten his wife in an attempt to abort the pregnancy of the twins, and many people assumed the murder of the children was more of the same, said John Jackson, former district judge and the lead prosecutor of the Willingham case.

    “We really just believed the children inhibited his lifestyle,” Jackson said.


    Hensley came away deeply disturbed by the case, and he’s angry that anti-death penalty proponents ignore the children’s deaths in trying to make Willingham into a martyr.

    “In my opinion, justice was served,” Hensley said. “And it’s a shame he couldn’t have died three times, one for each of the little girls.”

    Alan Bristol, who helped prosecute the case for the district attorney’s office, said Willingham was “one of the most evil people I’ve ever come in contact with in my life.”

    “The guy was a sociopath,” he said. Willingham refused a polygraph, tortured and killed animals as a child, abused his wife repeatedly, thought more about losing his car than his children, and clearly lied about what happened in the deadly fire, Bristol said.

    “None of the stories he told us panned out,” Bristol said. “He tried to make himself out to be a big hero, that he tried to go in and save the children, but there was no smoke in his lungs and he had only minor injuries.”

    Bristol said the science for investigating fires may have changed over the last two decades, but the accelerant was there, and that evidence remains valid.

    “I don’t have any doubt he did it, or was guilty,” Bristol said. “I think he would have been convicted whether we had the arson evidence or not.”

    Willingham appealed his case, but the verdict was upheld. In the end, he asked for clemency that never materialized.

  9. E Roberts Musser

    [quote]“The only statement I want to make is that I am an innocent man convicted of a crime I did not commit,” Willingham said in his final moments. “I have been persecuted for 12 years for something I did not do.”

    The article in the New Yorker quoted Willingham’s protest of innocence as his final words, but Loyd Cook of the Daily Sun was one of three media witnesses at the execution. Willingham’s actual final words were a venom-filled curse at his ex-wife as he attempted an obscene gesture, Cook reported.

    “I hope you rot in hell, b—,” Willingham said before dying.

    Stacy Kuykendall, who still lives in Navarro County, said she doesn’t talk about the case anymore. However, she did talk to Cook shortly before Willingham’s execution.

    She refuted her ex-husband’s attempts to blame Amber, and came to her own conclusions that he killed their daughters. Kuykendall divorced Willingham while he was in prison, and married again. She did not have more children.

    “Maybe some of the fear of him will leave me, but I’ll never get over what he did to my kids,” she said in 2004.

    From his seat at the defense table, attorney David Martin’s job was to fight tooth and nail for Willingham. Once it was over, though, Martin became convinced his client was guilty. He dismisses the Beyler report as propaganda from anti-death penalty supporters.

  10. E Roberts Musser

    [quote]“The Innocence Project is an absolute farce,” Martin said. “It’s a bunch of hype, in my opinion.”

    The defense team couldn’t locate an arson expert back then willing to say the house fire was accidental.

    “We never could find anybody that contradicted Vasquez,” Martin said.

    As for motive, Martin agreed with investigators about Willingham’s character.

    “He had no conscience,” Martin said. “Why do monsters kill? They like killing.”

  11. J.R.

    Thanks Elaine, for presenting some of the evidence that the jury saw.

    I waver on the wisdom of the death penalty, but burning children alive is surely a crime deserving death.

  12. rdcanning

    Elaine – have you read the article in the New Yorker? And if you have, what about the case that it presents? Most of the article above is simply a rehashing of statements by those who have the most to gain by defending the verdict. The fact that he was “an evil person” is beside the point – we don’t execute people simply because they are not nice. To be frank, I don’t know “the truth” and yet find the process of imposing the death penalty in Texas to be deeply troubling. This is a state that has executed 473 people since executions resumed in 1976 (fully 37% of all executions in the US since then; the closest rival is Virginia with 109).

  13. biddlin

    A licensed attorney is comfortable with the conviction and execution of a human being based on faulty, if not fabricated evidence ? Would you be comfortable voting for a candidate who had actively participated in the execution and subsequently tried to cover up his knowledge of improprieties in the process ?

  14. David M. Greenwald

    I have removed Elaine’s posts for legal reasons – it violates copyright to simply copy and paste an entire article. I have invited her to repost the link and some key passages, but the entire article is a violation of the law.

    In terms of the substance, the problem with that article and what the jury saw is that none of it matters if the cause of the fire is not arson. And all evidence is that there was no arson.

  15. E Roberts Musser

    [quote]Elaine – have you read the article in the New Yorker? And if you have, what about the case that it presents? Most of the article above is simply a rehashing of statements by those who have the most to gain by defending the verdict. The fact that he was “an evil person” is beside the point – we don’t execute people simply because they are not nice. To be frank, I don’t know “the truth” and yet find the process of imposing the death penalty in Texas to be deeply troubling. This is a state that has executed 473 people since executions resumed in 1976 (fully 37% of all executions in the US since then; the closest rival is Virginia with 109).[/quote]

    All I was attempting to do is point out there are different points of view on the Willingham case. He may not have been as innocent as some people seem to think. That is the problem with trying to rehash evidence/trials many years after the fact. It appears there was other circumstantial evidence that indicates it was arson. I wouldn’t presuppose anything about this particular case – I don’t think it is a good example for arguing there should be no death penalty. There are other more glaring examples that could better make the case. I cited one on a previous post, but the name escapes me at the moment… and I personally am opposed to the death penalty by the way…

    [quote]I have removed Elaine’s posts for legal reasons – it violates copyright to simply copy and paste an entire article. I have invited her to repost the link and some key passages, but the entire article is a violation of the law.

    In terms of the substance, the problem with that article and what the jury saw is that none of it matters if the cause of the fire is not arson. And all evidence is that there was no arson.[/quote]

    Many apologies for my brief lapse in reprinting entire article. It has been a very long few weeks and fatigue has gotten the better of me.

    Here are several links to different points of view than the Vanguard’s:

    The third one is the article pulled from the Vanguard.

  16. David M. Greenwald

    [quote]He may not have been as innocent as some people seem to think. That is the problem with trying to rehash evidence/trials many years after the fact.[/quote]

    I understand the facts that were introduced in trial, but forensic fire experts have examined this thing independently of each other and reached the same conclusion (A) the original investigation was flawed and (B) the fire was not intentionally started but rather an electrical fire. Based on that, the circumstantial evidence introduced at trial is irrelevant. That’s the nice thing about physical evidence, you can review it twenty years later and it’s still good.

  17. rusty49

    Here’s a fact for you Biddlin. For the first time ever a Republican has won the House seat that spans Queens and Brooklyn and was former Anthony Weiner’s. The district is 3 to 1 Democrat and the GOP still won. This is just a preview of 2012.

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