There are roughly 2.3 million people incarcerated in the U.S. prison system.


In 2018, the Chicago Tribune reported that anywhere from 2 to 10 percent of those people are innocent. This estimate means that between 46,000 and 230,000 innocent people are languishing in American prisons for crimes they did not commit.


In 2014, the National Academy of Sciences (“NAS”) reported that roughly 4.1 percent of the nation’s death row inmates are innocent.


The Criminal Justice Project of the NAACP reported earlier this year that there were 2,673 on the nation’s death rows as of April 1, 2019.


That means, based on the NAS analysis, there are roughly 110 innocent condemned people waiting to die for crimes they did not commit.


Record Number of Exonerees in 2018


In May 2019, the National Registry of Exonerations (“NRE”) released its annual exoneration report that revealed there were a “record number” of exonerations in 2018—151 people. Key findings in the report are disturbing, particularly to a criminal defense attorney. Those findings are:


  • 68 of the people exonerated had been convicted of homicide.
  • Two of the exonerees had been convicted of capital murder and sentenced to death.
  • A staggering 107 of the exonerated cases involved some form of official misconduct—police threatening witnesses, forensic science “experts” falsifying the results of their tests, child advocacy experts finding sexual abuse when none occurred, and/or prosecutors or police withholding exculpatory evidence.
  • Prosecutorial and police misconduct were involved in the wrongful homicide convictions.


The Death Penalty information Center analyzed the NRE data, finding that at least five of the exonerated cases involved either a misuse or threatened use of the death penalty.


Execution of Innocent Men Haunts Texas Criminal Justice System


Rogue prosecutors have sent innocent people to their deaths. Texas by and far leads the way in this horrific distinction, having executed possibly 9 innocent men between 1982 and 2018—the worse case example being that of Cameron Todd Willingham whose conviction and death sentence were obtained through gross prosecutorial misconduct.


Executing people in Texas whose convictions are tainted by prosecutorial misconduct has in fact become the “new normal” in the state’s death penalty process. This was evidenced by the December 11, 2019 execution of Travis Runnels for the January 29, 2003 murder of Stanley Wiley in Amarillo—an execution posthumously sanctioned by the U.S. Supreme Court thirty minutes after Runnels was pronounced dead in the Texas death chamber at Huntsville.


Prosecutors Rely on False Testimony


Writing in the December 11, 2019 edition of the Texas Tribune, Jolie McCullough described the unchallenged false testimony prosecutors relied upon the secure a death penalty verdict:


“There was no question of Runnels’ guilt in the 2003 prison murder of Stanley Wiley, a supervisor at the Clement Unit’s boot factory, where Runnels worked while serving a 70-year aggravated robbery sentence. He pleaded guilty at trial, despite knowing the state was seeking the death penalty.


“But at his punishment hearing, where jurors in part weigh how likely a capital murder convict is to be dangerous in the future, the state introduced as a witness A.P. Merillat, who, at the time, was a criminal investigator for the state prosecutors who handled prison crimes. He has testified in at least 15 trials that resulted in death sentences, but his incorrect testimony on the levels of security in prisons has since led to two overturned death sentences in Texas.”


It has long been the “law of the land” in U.S. Supreme Court cases that a person could not be executed when prosecutors use false testimony to secure a death sentence.


Texas Court of Criminal Appeals Raises Bar


However, in a June 13, 2012 decision, the Texas Court of Criminal Appeals (“CCA”) put its own spin on this “law of the land” Supreme Court precedent. The CCA said its procedural scheme, Texas Rule of Appellate Procedure 44.2(a), for determining whether a “constitutional error” requires a reversal of a conviction or sentence demands a showing “beyond a reasonable doubt” that the error contributed to the conviction or sentence.


The prosecutors in the Runnels case, who knew or should have known that Merillat’s testimony was false (a point conceded by the CCA), said the false testimony was inconsequential because the nature of the convict’s original conviction and his assaultive behavior towards prison guards was sufficient for the jury to reach a proper death penalty determination.


Mark Pickett, one of Runnels’ attorneys, strongly disagreed with this reasoning.


“You shouldn’t be allowed to get a death sentence based on false testimony,” he said. “This is testimony that … no one is disputing.”


The bottom line is this: It is now okay in post-Willingham Texas to execute a person based on concededly false testimony so long as the person is obviously guilty. It sort of fits into the historical Texas “get the rope,”  lynching mentality, especially when the defendant is black and the victim is white.