In the latest episode of the Discussions with DPIC podcast, Emmy- and Oscar-winner Edward Zwick speaks about his newmovie, 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As Willingham’s execution approached in 2004, evidence came to light that arson investigators had relied on flawed and outdated methods.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.”

(Discussions with DPIC, Interview with Trial By Fire Director Edward Zwick, May 17, 2019.) See Podcasts.

The U.S. Department of Justice (DOJ) has issued an advisory memorandum declaring that the Food and Drug Administration (FDA) “lacks jurisdiction” to regulate execution drugs, including enforcing federal laws that prohibit the import of such drugs from abroad. The memorandum, authored by Assistant Attorney General Steven A. Engel (pictured) for the Department’s Office of Legal Counsel, places the administration squarely in conflict with a 2012 federal district court order requiring the FDA to enforce federal laws barring the importation of unapproved or misbranded drugs or drugs that come from unregistered facilities. The ruling, which came in a case brought by death-row prisoners to force the agency to comply with federal law, was upheld by a federal appeals court in 2013, and the FDA is still permanently enjoined by the ruling from allowing the illegal importation of execution drugs.

The DOJ legal opinion — which is binding on federal agencies — is apparently a response to the FDA’s seizure and impoundment of lethal-injection drugs that prison officials in Texas and Arizona had attempted to import in 2015 for use in executions. After the drug seizure, the Texas Department of Criminal Justice sued the FDA, and in April 2017, the agency issued a final order refusing to release the drugs. The FDA’s order stated: “The [2012] court order requires the FDA to refuse admission to the US any shipment of foreign manufactured sodium thiopental being offered for importation that appears to be an unapproved new drug or a misbranded drug.” Several states have attempted to illegally import sodium thiopental, an anesthetic once commonly used in executions, after its U.S. manufacturer ceased production in 2009.

Engel’s memorandum bases the DOJ’s opinion on a U.S. Supreme Court case addressing whether the FDA can regulate tobacco products. In FDA v. Brown & Williamson Tobacco Corp. (2000), the Court found that the FDA could not regulate tobacco products because “they cannot be used safely for any therapeutic purpose,” but “they cannot be banned” because Congress had clearly intended for tobacco to be available. Engel wrote that the situations were analogous: “Congress has repeatedly authorized the death penalty on the assumption that there are lawful means to carry it out, but the regulation of such articles under the [Federal Food, Drug, and Cosmetic Act of 1938] would effectively require their prohibition because they could hardly be found ‘safe and effective’ for such an intended use.”

Fordham University Law Professor Deborah Denno said the opinion “is intended to allow departments of corrections to access drugs outside the country because they’re having so much difficulty doing so,” but, according to The Washington Post, “The Justice Department’s opinion is unlikely to have any immediate effect … because the FDA is still operating under the 2012 injunction.” The Justice Department has not taken any steps to have the injunction lifted. As long as the injunction remains in place, the opinion represents only the views of the Department of Justice, and does not have the force of law. 

(Laurie McGinley and Mark Berman, Justice Department says FDA ‘lacks jurisdiction’ over death-penalty drugs, The Washington Post, May 14, 2019; Charlie Savage, Justice Dept. Stops F.D.A. From Regulating Death-Penalty Drugs, The New York Times, May 14, 2019; Chris Geidner (@chrisgeidner), “BREAKING: DOJ's Office of Legal Counsel concludes that the FDA lacks jurisdiction to regulate drugs used in executions...” and following tweets, Twitter, May 14, 2019.) Read the memorandum. See Lethal Injection.