TCS Daily

The New York Times Again Cries Wolf - Part 1

By Lester Jackson - September 10, 2009 12:00 AM

NOTE: Bracketed page numbers and footnotes refer to documentation in the detailed paper downloadable here.

"The State of California may be about to execute an innocent man."
-- Judge William A. Fletcher, quoted with approval, NY Times, Aug. 14, 2009

"This Man Might Be Innocent. This Man Is Due to Die."
-- Time cover, May 18, 1992

"Virginia Executes Inmate Despite Claim of Innocence"
-- New York Times headline, May 21, 1992

"The execution of a person who can show that he is innocent comes perilously close to simple murder."
-- Justice Harry Blackmun, Jan. 1993, citing Virginia execution as example

Death penalty supporters have long been frustrated by the brazen deceit of opponents on the courts and in the media. An Aug. 14 New York Times front-page putative news report featuring a May 11 decision provides what nowadays would be termed an illustrative "teaching moment." This 1,117-word story uses just 40 perfunctory words contrary to its agenda after complaining that an order upholding Kevin Cooper's death sentence was only 80 words. Save this token "balance," only anti-death penalty material is cited in advancing two motifs: execution of the innocent and a bandwagon of federal appellate dissents against this supposed prospect.

From this account, one would not learn crucial relevant facts, including: (a) last minute bogus innocence claims being a stock-in-trade of death penalty opponents; (b) contrary Cooper opinions; (c) many if not more dissents by judges objecting to judicial negation of a democratic people's right to determine punishment for convicted brutal murderers; (d) the quoted judges being among the most blatant liberal judicial activists usurping the right of self-government.

Crying Wolf

A striking aspect of the Cooper story is its use of language almost identical to that of the notorious coverage of the 1992 Roger Coleman execution [20-32]. The frenzied media circus [n324] allegation of judicial refusal to consider evidence of "innocence" was known at the time to be false. Actual detailed and repeated judicial consideration was available to flagrantly dishonest advocacy journalists [22-24]. 14 years later, a DNA test conclusively demonstrated what anti-death penalty judges and journalists knew when Coleman was executed proclaiming his innocence [nn166, 324].

Now comes a tired replay of the meme that callous judges refuse to hear innocence evidence. The implication of the above-quoted 1992 Times headline is that any murderer should be able to avoid execution simply by claiming innocence, a backdoor prescription for abolishing capital punishment.

Abolitionists, who express no genuine concern for the hundreds of thousands of innocent law-abiding homicide victims executed without due process and multiple appeals [42-43], know wrongful execution is the only argument that might create doubt in a public that otherwise strongly supports capital punishment [34; n11]. So the allegation keeps coming. But what media downplay or do not report at all is substantial research showing exoneration claims have been vastly inflated.

Cooper's "Innocence" Claims

Cooper was convicted of hacking five people with an axe and knife more than 141 times. Four died, including parents and two children; one child survived. Critical here is the Times' failure, surely intentional, to report why the May 11 dissent was not a majority opinion. Emphasizing a Reagan appointee was among the 11 of 27 judges who dissented, it fails to note the other 10 were Carter or Clinton appointees in the Ninth Circuit, the most frequently reversed in the country, with a history of defying the Supreme Court [27-28]; or explain why 16 judges did not dissent. The Times also omits that the dissenting Reagan appointee joined a one sentence dissent and not Judge Fletcher's 101 pages, actually joined by only four others. Unmentioned is a detailed panel decision upholding the district judge or Judge Rymer's strong exception to Fletcher's implication that 16 judges approved executing a "probably innocent" man. A Times reader would never know Rymer averred that "the dissent neglects to acknowledge the evidence tying Cooper to the murders, or the fact that, after all the testing that has been done post-conviction, no forensic evidence suggests that anyone else was at the scene of the crime or was the killer." The Times quotes Fletcher:

"There is no way to say this politely. The district court failed to provide Cooper a fair hearing and flouted our direction to perform the two tests."

Rymer's direct response is omitted: "the dissent starts with the false premise that the district court 'flouted' this court's 'direction' ... The district court did no such thing; it did precisely" what was suggested. Also, the Times conceals this: "Following an evidentiary hearing the district court found that, to the extent there was new evidence, it was incredible, unreliable or unpersuasive with respect to all claims in the petition, that neither ... tests showed innocence or undermined evidence of Cooper's guilt.... The evidence supports these findings..." The Times repeats Fletcher's assertion that evidence had been tampered with but omits Rymer's conclusion: "there is no reliable evidence of tampering." The Times reports with approval Fletcher's charges of wrongdoing at all levels, but omits Rymer's response that Fletcher himself was guilty of "manipulating data."

The Times also uncritically accepts the complaint that, in the interest of curtailing abusive appeals, the Antiterrorism and Effective Death Penalty Act of 1996 and the Supreme Court have imposed "daunting barriers," but does not explain why Cooper's case is still dragging on 26 years after the murders and 13 after this "Effective" Act became law, or why there are ongoing cases over two and three decades old [47-49]. If the Times and those it cites had their way, no execution would ever take place because new objections should always be allowed and old ones relitigated [26-27]. Death penalty opponents will always find executions to be "rushed," "impatient" and "immediate," even when 11, 14 or 21 years after the murders and often in the absence of any innocence claim [28-29]. Indeed, just three days after the Times advocacy piece, Justice Scalia suggested the Court should resolve if it "thinks it possible that capital convictions obtained in full compliance with law can never be final, but are always subject to being set aside by federal courts for the reason of 'actual innocence.'"

Finally, the Times quotes Fletcher's claimed concern that "[i]f [Cooper] is innocent, the real killers have escaped." Of course, the Times did not report on the progress of O. J. Simpson's search for "the real killer." Would the Times, which often has made clear its opposition to capital punishment, approve of a death sentence for any "real killer"? [n267]

Continued in Part 2...

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