who threaten torture. Prosecutors who go too far. Defense lawyers who
sleep on the job. And an appellate court that rubber-stamps it all.
Let's be tough on crime, but let's also see that justice is done. It's
time to fix the capital punishment system in Texas.
Ernest Willis tells it, he woke up in a house on fire. It was around 4
in the morning in Iraan, an oil-field town in West Texas, on June 11,
had fallen asleep on the living room couch fully clothed except for
his eel-skin boots, which lay beside him on the floor. It was the
smoke that awakened him, and he ran to the rear bedroom to get the
woman who had passed out there a few hours earlier, but the flames and
smoke pushed him back. He ran to the front bedroom, where his cousin
Billy had gone with another woman a few hours before, but flames again
forced him back. He ran through the house and out the door, yelling,
"Fire!" and then around the side and rear, banging on
windows. As Willis stood in the back yard, Billy came diving naked
through a bedroom window. Betsy Beleu and Gail Allison, whom the
Willis cousins had just met the day before, never made it out.
first, the police thought the fire, which came after a night of
drinking and pill popping at the house, whose owners had been arrested
earlier in the day, was drug-related. Maybe someone had been
freebasing or cooking heroin.
they thought that maybe it was set by an ex-husband of one of the
women or a Mexican drug dealer named Santana who Allison had said was
after her husband. They found no evidence of arson for example, no one
smelled gasoline - but they were suspicious of Willis. He just wasn't
acting right. He didn't seem to be coughing as much as his cousin, he
didn't seem concerned about the dead women, and his clothes and hair
weren't singed. He'd said (and Billy had confirmed) that he had run
through a burning house, yet his feet weren't burned. He stood around
smoking and acting distant as firefighters fought the blaze.
Willis failed a polygraph test, and the police developed a theory that
marks on the floor were "pour patterns," suggesting that an
accelerant like gasoline had been used. But they had no evidence to
support their suspicions: no fingerprints, no bodily fluids, no
flammable liquids in the house or on Willis' clothes or body, no
witnesses, no motive.
4 months later Willis was arrested, charged with arson and murder, and
taken into the ruthless grasp of the Texas death penalty process.
Though the state had a weak circumstantial case, the cops and the
prosecutors adamantly pressed ahead. Cliff Harris, then the chief of
deputies and now the Pecos County sheriff, recalls, "When we took
it to the grand jury, we didn't feel that we had the evidence to get
him indicted." District attorney J. W. Johnson told the Odessa
American after the trial that he had thought he had only a 10 percent
chance of winning a conviction.
had no history of mental illness, but he was given high doses of
anti-psychotic drugs, making him appear zombie-like at trial a look
that prosecutors used to full advantage, vilifying him whenever they
could. He was represented by well meaning but inexperienced lawyers
who made serious errors that doomed him to death row. Finally, he was
abandoned by the appeals process that is supposed to be a safety net
for questionable cases like his. Now he waits on death row while his
final appeal before execution works its way through federal court.
is the combination of unfairness and persistence that has put Texas
under national and international scrutiny. We have been criticized for
executing people who are mentally retarded, for executing people who
were juveniles at the time of their offense, for trying to execute
before the federal courts stepped in to prevent it people whose
lawyers slumbered in court. These are the kinds of cases that get
national attention, but there are many more that go unnoticed. Like
Willis'. His case had it all: overzealous police officers and
prosecutors, inadequate defense counsel, and an appellate court, the
Texas Court of Criminal Appeals, that seemed almost desperate for him
to die. The 57-year-old former roughneck is a poster child for what is
wrong with the capital punishment system in Texas.
one can know with absolute certainty that Willis is innocent. But
innocence is not the issue here. Nor is capital punishment. Texas is a
law-and-order society. We execute more criminals than any other state
and most countries. Support for this policy is overwhelming; capital
punishment is favored by 68 % of Texans, compared with 59 % of all
Americans. Texas is going to have capital punishment as long as the
United States Supreme Court allows it.
issue is fairness. Our adversarial process of justice rests on an
essential assumption: that the fight is fair. We should be tough on
criminals, but when the moment comes that the last appeal is denied
and the accused faces death by injection, we want to be able to look
at ourselves in the mirror and believe that the State of Texas gave
the condemned man a fair trial. The statistics say that this is not
always the case. Since 1976, when the U.S. Supreme Court reinstated
the death penalty after abolishing it 4 years earlier, 927 people have
been sentenced to death in Texas. Of these, 285 have been executed (as
of press time), and 188 have escaped the needle by having their
sentences reduced, most of them for procedural violations. Some call
these violations "technicalities," but they can be
fundamental, such as the withholding of exculpatory evidence by
of the 188 went free their convictions reversed or overturned or their
cases dismissed or sent back for a new trial that resulted in an
acquittal. It's hard to know how many of them were actually innocent,
as opposed to benefiting from some serious procedural violation by the
state, but there are a handful who we can almost certainly say didn't
do the crime but were sentenced to die (see "Free at Last"
at the end of the story).
there are still men on death row who were put there unfairly. In
addition to Ernest Willis, there is César Fierro, who confessed to
murder after police officers in El Paso threatened him with the
torture of his mother and stepfather by police officers in Juárez;
the El Paso police have admitted this, but Fierro remains on death
row. Michael Blair was convicted of murder on discredited scientific
evidence; even though recent DNA tests appear to exonerate him, he too
remains on death row. Wrongs like these will always occur. Our
criminal justice system is a government system, and the government in
this case, the courts, the cops, the district attorneys will
inevitably make mistakes. The issue is whether we are willing to
correct them, as other states have done. The Republican pro-death
penalty governor of Illinois, George Ryan, instituted a moratorium on
executions in 2001 until the state could work out the bugs in its
death penalty process, which Ryan called "fraught with
errors." In May 2002 the governor of Maryland, also a death
penalty proponent, followed suit.
Texas legislature voted down a proposed moratorium in 2001, though
lawmakers couldn't ignore the criticism of the death penalty system.
So they made 3 changes: a new DNA testing program, a revised method
for providing court-appointed defense lawyers, and a prohibition on
executing the mentally retarded the latter a bill that was vetoed by
Governor Rick Perry.
live in an era of little sympathy for criminals, especially violent
ones. Gone are the old notions that "there but for the grace of
God go I" and "it is better for one hundred guilty people to
go free than for one innocent person to be executed." Today, you
will find death penalty proponents who argue the opposite that it is
unfortunate if occasionally a possibly innocent person is put to
death, but the public interest requires that those found guilty of
capital murder be executed. The assumption is that only the bad guys
get caught up in the system, and that is generally true. But every
once in a while, it's the hapless ones, the losers, who go to sleep on
a strange couch and are unlucky enough to wake up in a house that's on
WILLIS WAS A SAD sack, a drunk, a onetime oil-field hand from New
Mexico who was cursed with a bad back, caused by a 1970 accident, that
often prevented him from working. By age forty he had had 6 wives, 3
DWIs, and 4 back surgeries, the most recent one a month before the
fire, and he had developed a fondness for pain pills. In addition to
the DWIs, he had been in trouble with the law on a couple of
occasions. Once, in his 20s, when he was arrested for cruising by the
drive-through window of a fast-food restaurant naked and drunk, and
another time, a couple of years ago, for making obscene phone calls.
But he had no violent criminal past, not even a juvenile record.
Lately he hadn't been able to work and was living on food stamps, so
he had moved to Odessa to live with Billy, a guy who sometimes made
and sold bathtub speed. They had come to Iraan hoping their luck would
Willis' got worse: He lost the capital punishment lottery. Only about
one in a hundred killings end up as a death penalty case. Who decides?
The local district attorney. What does he base his decision on?
There's no simple answer. Prosecutors have enormous discretion and are
accountable to no one, except to the voters who elect them. You might
think that politics would cause all DAs to be death penalty advocates,
but this is not borne out by the facts. Since 1976, only 116 of Texas'
254 counties (fewer than half) have sentenced a person to death; more
than half the counties (138) have never sent anyone to death row. In
theory, the odds were with Willis in Pecos County; before his case,
according to prosecutor Johnson, authorities had not sought the death
penalty since the days of Judge Roy Bean, when the rope was used, not
the needle. So what made Johnson decide that the Willis case should be
treated as capital murder? He insists he didn't. "I presented the
evidence and witnesses to the grand jury,"
says, "and they are the ones who made a determination it was
district attorneys would admit to taking a more active role. Retired
Harris County DA Johnny Holmes, who won more death sentences than any
DA in Texas history, always made the call on whether to seek the death
most important issue to me," he says, "is whether a
reasonable cross section of the public in this jurisdiction, sitting
as a jury, would vote to impose death. There are many factors that go
into that decision." Interviews with prosecutors and defense
attorneys produced a long list of such factors: politics, the
heinousness of the crime, the chance of winning, how good the defense
attorney is, the willingness of a defendant to accept a plea bargain
for a lengthy sentence, and how much publicity the case is getting.
"I think the press has a lot to do with it," says Robert
Icenhauer-Ramirez, an Austin criminal defense attorney for 23 years.
"If the case is high-profile and the DA figures he will have an
easy time making the case, he'll go for the death penalty. I've had
horrendous cases with horrible facts that got no publicity. The DA
will treat them as non-death penalty cases."
of the biggest factors is money. Many counties have never sent anyone
to death row because they can't afford to. It costs anywhere from
$50,000 to $100,000 to plan and prosecute a capital murder case. Some
counties don't have their own medical examiners and have to hire one
to do an autopsy. Some don't have a crime lab and have to pay another
county to test forensic evidence. Some counties have only one judge;
since a trial can take 2 to 3 months, they have to pay a visiting
judge to take care of all the other cases backed up behind the murder
trial. Judges and DAs are beholden to county commissioners, who
control the purse strings. Norman Lanford was a former district judge
in Harris County as well as a visiting judge in various other
counties. Out there, he says, "The commissioners would tell
judges, 'Don't ever do a capital murder case.' We can get a road
grader for that kind of money.'"
other words, if you have to kill someone during a robbery, do it in
Waller County, which has never prosecuted anyone for capital murder.
Don't, however, do it next door, in Harris County. Like most urban
counties, it has a prosecution machine. The DA has a budget of $37
million and 233 attorneys (54 of whom do nothing but try the 8 to 14
capital murder cases a year and another 10 who just work on appeals),
access to the Houston Police Department and Department of Public
Safety crime labs, as well as secretaries, psychologists, forensics
experts, investigators, and the budget to hire expert witnesses. The
same is true in Dallas, San Antonio, El Paso, and Austin. Prosecutors
there are specialists at trying capital murder cases.
his trial, Willis appeared lost in a fog. His court-appointed lawyer,
Steven Woolard, gave him a legal pad and a pencil. "He said to
doodle, do anything just look busy," Willis says now. "He
asked me if it was the pain medication causing me to act like this. I
thought I was acting normal. I didn't know." In fact, while
Willis sat in the Pecos County jail awaiting trial, someone, no one
remembers who, but it had to be someone connected with the state's
side of the case ordered that he be given high daily doses of Haldol
and Perphenazine, two anti-psychotic medicines, along with the pain
pills for his back. Haldol especially is given to people with severe
mental illness, and according to a doctor who testified in a 1996
hearing to reopen the Willis case, the standard dosage for a person
who is "barking at the moon, a danger to other people and
himself," is 15 milligrams a day. Willis was given 40 milligrams
a day, on top of an undetermined daily dosage of Perphenazine.
can anyone remember why the medication was ordered. Back in June,
shortly after the fire, Willis had told deputy sheriff Larry Jackson
about sometimes feeling tense and nervous, but he had no history of
mental illness or psychosis, and the jailers all said he had been a
model prisoner. "Ernest was never any problem," says
then-deputy Cliff Harris. "He was always quiet." Willis did
what he was told and took the pills.
Johnson and Albert Valadez both say they were never aware of the
doping and that Willis didn't appear to be acting strangely. Yet, the
trial transcript reveals that Johnson repeatedly used the defendant's
doped-up demeanor against him, calling him an "animal" and a
"satanic demon" and referring to "this deadpan,
insensitive, expressionless face" and "cold fish eyes"
symptoms that, according to psychologists testifying at a later
hearing, are typical side effects of anti-psychotic drugs.
jury didn't believe Willis' story that he had woken up in a burning
house or his attorneys' theory that the fire was accidental. The
prosecution's theory of cold-blooded arson was much easier to believe.
the jurors had to do was look at the remorseless monster sitting there
blank-faced, with "these weird eyes," as Johnson said, that
would "pop open like in some science-fiction horror film."
The verdict was guilty; the jury took only an hour to give him death.
Later, juror Roy Urias said he was convinced of Willis' guilt "by
his failure to deny the charges against him.
when the prosecutor referred to Mr. Willis as 'vicious,' with his
'fish eyes,' I expected Mr. Willis to deny the accusations. I also
expected a denial when the prosecutor presented the photographs of the
charred bodies of the victims. Instead, Ernest Willis remained seated,
completely expressionless." Of course, he was in no condition to
do much else.
prosecution also failed to turn over a psychological report about
Willis that might have saved him from death row during the punishment
phase of the trial. To give the death penalty, the jury must find that
the defendant is a future danger to society and that there are no
mitigating reasons to spare him from capital punishment. Court records
indicate that Johnson had hired a San Angelo psychologist named Jarvis
Wright to test Willis, but Wright wrote that he had found nothing in
the defendant's personality to indicate such danger. The prosecution
didn't reveal the report to the defense, as the U.S. Supreme Court
like all lawyers, are officers of the court, which means that their
1st duty is not to win but to see that justice is done. Yet this
responsibility is all too often overlooked in the heat of battle. It's
a war out there, and the state wants to win. In fact, prosecutors have
are under far more pressure than defense lawyers, who, most of the
time, are trying to get the least possible sentence for clients who
are almost certainly guilty. The DA is a politician, an elected
servant of the people, and he constantly needs to prove that he is
winning the war against crime. And in war, anything goes. Prosecutors
and police officers sometimes lie, evade the truth, and suppress
evidence. They don't do it because they are evil; rather, they do it
because they are certain the defendant is evil.
in their relentless pursuit of a conviction, they sometimes fail to
disclose information that would help him, as they are required to do.
They don't disclose the names of other confessors or witnesses who saw
something that would help the defendant. They don't tell the whole
truth. It's not in their interest. The attitude of defense lawyers
toward prosecutors is summed up by veteran Houston defender Randy
Schaffer: "You will always have prosecutors and police cutting
corners, whether it's a death penalty case or a traffic stop. It's
indigenous to the beast what they do. And the more severe the case,
the more likely they'll do it."
aforementioned cases, those of César Fierro and Michael Blair,
illustrate the lengths to which the state and its agents will go to
get a conviction. In 1980 Fierro was convicted of killing a cab driver
the year before in El Paso. The evidence against him was the testimony
of a 16-year-old boy who said he was with Fierro at the time of the
killing, and Fierro's confession. At his trial, Fierro, a Mexican
citizen who lived in both El Paso and Juárez, said that detectives
had coerced his confession by threatening to have Mexican police
officers torture his mother and stepfather, who lived in Juárez, with
the dreaded chicharra, an electric generator that the Juárez police
were infamous for using, applying it to an interviewee's genitals,
occasionally after wetting him or her down. At trial the lead
detective, Al Medrano, denied colluding with the Mexican police, and
the jury convicted Fierro and sent him to death row. 15 years later
appellate attorneys for Fierro found in his file a report written by
Medrano, in which he told how he had indeed contacted the Juárez
police. Armed with rifles, they raided Fierro's parents' home in the
middle of the night and took them to the city's police station. Later
that day Fierro, in El Paso police custody, was told where his parents
were. Medrano handed Fierro the phone, and he spoke briefly with Jorge
Palacios, the Mexican police chief. He hung up and immediately signed
Fierro case involves conduct the police obviously are not supposed to
engage in, but equally troublesome is something the state is allowed
to do: rely on forensic evidence that - TV shows such as CSI
notwithstanding - often sounds more convincing than it really is, from
bite marks to blood spatters.
scientific methods have cast doubts on the reliability of the
traditional tests used to support this kind of evidence. One of the
most unreliable techniques is hair-comparison analysis. In 1996 the
Justice Department did a study of 240 crime labs and found
hair-comparison error rates ranging from 28 percent to 68 percent. The
testimony is outlawed in Michigan and Illinois, but unfortunately for
Michael Blair, it is admissible in Texas.
a convicted child molester, was arrested for one of the
highest-profile crimes in Texas: the 1993 murder of seven-year-old
Ashley Estell, who was kidnapped from a crowded Plano soccer
tournament. The police had no fingerprints, body fluids, or
eyewitnesses who could place Blair and the girl together that morning.
After several days, however, Charles Linch, the trace-evidence analyst
from the Southwestern Institute of Forensic Sciences, concluded that
hairs found in Blair's car "appeared similar" to Ashley's,
and hairs in a clump found at another park two miles from the
abduction site looked like they belonged to the suspect and the
victim. This evidence gave the police probable cause to arrest Blair.
his trial, the police produced three witnesses who had come forward
after Blair's arrest, when his photo was blanketing the local news,
and a 4th who said she'd seen a car that bore a tenuous resemblance to
Blair's Ford EXP near the area where the body was recovered. The only
substantive evidence came from Linch, who said that three hairs found
in Blair's car had the same "microscopic characteristics" as
Ashley's. Two tiny black hairs, found on and near the body, were too
small for comparison, but Linch said they had Mongolian
characteristics, which could apply to Blair, who is half Thai. And,
Linch said, a fiber found on Ashley's body was similar to fibers from
a stuffed rabbit found in Blair's car. In his closing arguments,
Collin County prosecutor J. Bryan Clayton said of the hairs, "You
can call it a link, you can call it association, you can call it a
match, or any other darned thing they want to call it." The
jurors did, and Blair was convicted and sent to death row.
1998, however, the case against Blair began to unravel when a series
of newer mitochondrial DNA tests revealed that none of the hairs
belonged to either him or Ashley. The latest of the four test results,
on the clump of hair, came only 2 months ago. And, defense lawyers
say, the fiber was from a stuffed rabbit bought at Target that was
indistinguishable from any one of half a million stuffed animals. It's
clear now: Blair was convicted and sentenced to death on junk science.
forensic evidence also played a central role in the Ernest Willis
case. Arson investigation is an inchoate "science"; in 1987,
when Willis was convicted because prosecutors said pour patterns
indicated he had dumped an accelerant throughout the house, it was
even more so. The first national standards for fire investigation
weren't even published until 1992. "For many years fire experts
looked at things like spalled concrete or crazed glass and speculated,
dreamed up theories," says Arizona State University law professor
and noted authority on forensic evidence Michael Saks.
after sending umpteen people to prison, they did empirical testing.
They set buildings on fire and went in and looked for spalled concrete
and crazed glass. It turns out those things are unrelated to whether a
fire was arson or not. It was all guesswork and imagination."
the most unreliable experts are those who, during the punishment
phase, predict that a defendant will be a continuing danger to
society. Such evidence is necessary before a jury can impose the death
penalty. Though the American Psychiatric Association has said such
predictions are wrong 2/3 of the time, Texas prosecutors have relied
on a handful of psychiatrists who can be counted upon to answer,
emphatically and almost every time, yes, this person is a future
danger, thus dooming him or her to die. The most notorious was James
Grigson, of Dallas, a psychiatrist who was known in legal circles as
Dr. Death because of the scores of Texas capital murder cases in which
he testified, using phrases like "absolutely certain" or
"100 % sure." Many times he never even interviewed the
person he testified about.
attorneys must object to such flimsy evidence to preserve the right to
object to it on appeal, but they know they will be overruled. In the
view of many defense attorneys, judges are not neutral referees,
assuring that a trial is fair, but adversaries, especially in capital
judge Lanford says, "Generally, the judge is the second or third
prosecutor in the courtroom. The state is going to win on most
things." Many district judges are former prosecutors; some even
worked for the prosecutor's office that is trying the case before
them. In Harris County 20 of the 22 judges in local felony courts
previously worked in the DA's office. Like prosecutors, judges are
elected; they will be tough on crime, especially in capital punishment
cases. Most defendants have only one chance for a fair trial: a
court-appointed lawyer who knows how to defend a death penalty case.
In Texas, that chance isn't very good.
DEFENSE RESTS LITERALLY
PUT MY HEART AND soul into the defense of Ernest Willis," says
Steven Woolard, the lead counsel in the case. "But if I were a
judge today, there's no way I would have appointed me then." Not
many attorneys were available in Pecos County in 1986, Woolard
recalls, and he and another lawyer were named by Judge Brock Jones to
defend Willis. Woolard was zealous but inexperienced: At the time, he
had been practicing law for less than 4 years. He had never tried a
death penalty case.
attorneys never tried to poke holes in the prosecution's unlikely
theory that a pillhead with "surgical failed back syndrome"
(Willis, vomiting from pain, had seen two doctors the day of the
fire), who had drunk a 6-pack of Coors, could have gone out would have
wanted to go out at 3:30 in the morning to siphon 10 to 15 gallons of
gas into a can, douse the house from one end to the other, set the
place on fire, and then get rid of the can without waking anyone up or
getting even a drop on his hands, feet, or clothes. They rarely
objected when Johnson called Willis an "animal." Worst of
all, during the punishment phase of the trial, they asked only 2
perfunctory questions of the state's 2 witnesses, who claimed Willis
had a "bad" reputation but gave no details, and they rested
their case without calling character witnesses who might have
persuaded the jury to spare Willis' life. Many years later Pecos
County deputy sheriff Larry Jackson (now deceased) told the Dallas
Morning News, "If he'd had sufficient counsel, he wouldn't be on
death row. . . . They messed this old boy around for years."
McNally, a Kentucky attorney who analyzes cases for evidence of bad
lawyering, testified in a hearing to determine whether Willis should
get a new trial that the punishment-phase lawyering was "in the
bottom 1/2 of 1 %" of the 200 cases he had looked at. That would
make it the very worst. He referred to witnesses Woolard knew about
but didn't call: family members and friends, some of whom came forth
at this hearing and testified that Willis was a loving father, a good
boss, and a decent man. Willis' brother Alton related a story about a
family gathering at Lake Stamford, when Willis had seen a boy
accidentally back a truck into the lake. The man J. W. Johnson had
called a "satanic demon" had pulled off his boots, dived
into the water, broken a window, pulled the kid out, and then refused
money for saving his life. "Most capital defense lawyers would
trade their right arm" for this kind of mitigating evidence,
Woolard says he didn't call the character witnesses because of
concerns about their credibility: "Their presentation, manner of
dress, cultural affectations." In other words, they were
rednecks. In Pecos County, of all places.
again, the Willis case shows the extent to which the death penalty
system is like a lottery. A few counties, such as Dallas, have public-
defender systems with experienced attorneys. In most counties,
however, the trial judge appoints attorneys for indigent defendants
from a list of available volunteers. Some are experienced lawyers, but
many more are inexperienced (sometimes only a couple of years out of
law school); they are easily confused by the arcane rules of capital
punishment cases and cowed by the prosecutorial juggernauts.
Court-appointed attorneys are frequently solo practitioners with
little support staff to investigate, find witnesses, and keep track of
motions to file. They object when they shouldn't and don't object when
they should. As in the Willis case, they don't question the obvious or
do the basic work to save their clients' lives; as in Michael Blair's
case, they don't hammer away at flimsy evidence. They cut corners.
Sometimes they just give up. A Dallas Morning News investigation in
2000 found that one quarter of all death row inmates had been defended
by attorneys who had been or were later disciplined by the State Bar
of Texas for everything from lying to neglecting their cases.
of the reasons for the bad lawyering is bad pay, which chases away
good people and makes a good defense impossible. Court-appointed
defense attorneys often lack the budgets to hire their own experts to
attack those of the prosecution. In Willis' case, Woolard hired a
fledgling arson investigator, whose credentials Johnson mocked
mercilessly. "I felt inhibited somewhat," says Woolard now
about his choice. "I had to justify expenses to [trial judge
Brock] Jones." Unlike prosecutors, judges, police officers, or
jailers, court-appointed attorneys are the only ones in the criminal
justice system who work for less than the going rate for their
profession. County officials can think of a lot of ways they would
rather spend tax dollars than defending accused murderers. So
appointed lawyers have to battle to get paid. "You take a voucher
to the judge after the case," says an Austin defense attorney.
"Let's say you worked 350 hours. The judge would cut it in
half." Such penny-pinching stifles the lawyers' incentive to
investigate and put on a vigorous defense.
the case of Federico Macias, the federal court that overturned a
guilty verdict because of ineffective assistance of counsel noted in
its opinion that the trial attorney had been paid roughly $11.84 an
hour. "Unfortunately," the court said of defense counsel,
who had failed to interview the witnesses who would one day exonerate
the defendant, "the justice system got only what it paid
of the low quality of court-appointed lawyers in Texas came in a state
bar committee study of 2,983 Texas defense attorneys, prosecutors, and
judges that appeared in 2000. Called "Muting Gideon's
Trumpet" (the reference is to a book about the case of Gideon v.
Wainwright, in which the U.S. Supreme Court said that every indigent
criminal defendant had to be provided with a lawyer), the study
revealed a system in which judges appointed attorneys who were friends
or campaign contributors, especially if they were good at speeding the
case through the court. The study confirmed that many state trial
judges operated a patronage system: Attorneys who were beholden to
judges for work turned around and made campaign contributions to those
same judges. Former judge Lanford remembers a colleague, George
Walker, who gave death penalty cases to a friend, the late Joe Cannon.
"Joe was a nice man, but he was incompetent to handle capital
cases," Lanford recalls. "He was George's buddy. He got the
cases because he moved them. There was pressure keep costs down, keep
a system inevitably wound up embracing incompetence. Cannon was one of
the infamous sleeping lawyers; he bragged about hurrying through
trials. In the murder trial of Calvin Burdine, Cannon slept during the
questioning of witnesses, and though he knew about mitigating
character witnesses, he failed to bring them into court to testify.
Burdine was convicted and got the death penalty. Then there was Ronald
Mock, who kept getting appointments (and a steady paycheck) despite
sloppy lawyering that caused him to be disciplined 5 times by the
state bar. Mock defended more than a dozen men who wound up on death
the legislature's credit, the patronage system that bumbled so many
men to death row has been improved by the passage, in 2001, of the
Fair Defense Act. Though it is still up to individual counties how
they appoint attorneys to defend the poor, the act says that judges
have to adopt stricter procedures for appointing attorneys, specify
their qualifications, and pay a "reasonable fee." Counties
also have to set standards (at least 5 years of criminal-law
experience) and require continuing-education seminars in defending
criminals. For the 1st time, the state has provided money to
supplement what counties pay for indigent defense a total of $19.7
million for 2002 and 2003. That is approximately 10 % of the total
cost; most states pay half. The law has been in force only since
January 2002, so it's difficult to gauge its effectiveness. Jim
Bethke, the director of the Task Force on Indigent Defense, says,
"Anecdotally, things have improved." But some defense
lawyers remain unimpressed. "Texas has developed a culture of bad
legal representation," says veteran Austin attorney Rob Owen, who
has defended more than 50 death penalty cases. "Just paying more
money per hour provides more money for poor representation."
Willis would be dead today if not for his appellate lawyers. Back in
1989, Willis had lost his direct appeal before the Court of Criminal
Appeals (CCA), the one that automatically follows a guilty verdict.
After that came his writ of habeas corpus, an appeal that concerns new
evidence and violations of constitutional rights (also filed before
the CCA). Attorneys with the Texas Resource Center, a now-defunct
federally funded organization that represented poor death row inmates,
and then Latham and Watkins, a large international firm with offices
in New York, put on the kind of vigorous defense for Willis that
court-appointed lawyers in Texas could not afford. For instance,
Latham and Watkins, working pro bono for Willis since 1995, has used 5
lawyers, a private investigator, a professor of psychiatry, a forensic
psychologist, a neuropharmacologist, and an arson investigator.
Willis' appellate attorneys looked at the county jail logs and
discovered the daily dopings. They tracked down the psychological
evaluation that said Willis was not a future danger. And they looked
into the strange story of David Long, a convicted ax-murderer who used
to make and sell bathtub speed with Billy Willis. The born-again Long
had met Ernest Willis in the dayroom at the Ellis prison unit in 1990.
Eventually he confessed to the prison psychiatrist that he had set
fire to the Iraan house. The psychiatrist believed Long and set up a
videotaped confession in 1990, during which Long confessed in detail,
saying he had driven from Round Rock to Iraan that night, drinking and
shooting speed. When he got to the house, he started the fire with a
mix of Wild Turkey and Everclear, his favorite drink. Long had motive
("I hated the dude," he said about Billy, toward whom he had
various druggy grudges) and a history of violence: In 1983, after
being fired by his boss, Long had used whiskey to set the man's
trailer on fire. "I killed him because I hated the son of a
bitch," he said in a 1986 confession.
1995 lead attorney Jim Blank, of Latham and Watkins, went to the CCA
with the new evidence. The court ruled in 1996 that trial judge Jones
should hold hearings to determine whether Willis was entitled to a new
trial. The wheels of justice ground slowly; hearings were held
intermittently during the next 3 years. Blank brought forward the
previously ignored witnesses, who testified to Willis' good character.
He found an arson expert who said the state's pour-pattern theory was
all wrong; the patterns on the floor could have been caused by any
number of things. The expert had also done an experiment to see if
Long's Wild Turkey and Everclear cocktail was capable of setting fire
to carpet and wood; it was. Blank got Woolard to admit on the stand to
several serious trial errors, including failing to offer any character
witnesses. ("I loaded my guns for the guilt-innocence question
and felt so very strongly about that," Woolard offered.
was convinced: Willis had not gotten a fair trial. In June 2000, in a
33-page opinion, he ordered a new trial based on the withheld
psychological profile, the mind-numbing drugs, and the ineffective
assistance of counsel. All Ernest Willis needed was for the CCA to
uphold Jones's order, and he would get the shot at freedom he
IN THE COURT
COURT OF CRIMINAL APPEALS is no ordinary court. The idea of a separate
court of last resort for criminal cases is one that has been embraced
by only one other state, Oklahoma. The court has always had its
critics. Its isolation in a single area of the law caused it long ago
to develop a fondness for legal hyper technicalities at the expense of
justice. It used to have a reputation for being pro-defendant,
overturning cases for minor procedural defects. In the 40s the CCA
famously reversed the conviction of a murderer who had stomped an old
woman to death because the indictment didn't say he stomped her with
his feet. Through the eighties, the court kept its reputation for
overturning convictions and ordering new trials, reversing up to a
third of its cases. The CCA was all Democratic until 1992, when the
1st Republican judge was elected. Outrage in 1993 over a brutal
Houston murder in which the CCA ordered a new trial because the cards
containing the names of potential jurors were shuffled an extra time
led to the elections in 1994 of Republicans Sharon Keller and Steve
Mansfield, and by 1999 all nine judges were Republicans. As with
elections for DAs, elections for the CCA have increasingly emphasized
how tough the candidate would be on criminals. Keller, now the
presiding judge, has campaigned on the idea that failure to give the
death penalty is a human rights violation.
declined to be interviewed for this story.) In 2001 Judge Tom Price,
the closest thing to a voice of moderation on the court, received an
official reprimand from the Commission on Judicial Conduct for his
2000 campaign literature, which included the statement: "I have
no feelings for the criminal. All my feelings lie with the
victim." Indeed. Since 1994, the CCA has reversed only thirteen
death penalty convictions on direct appeal, about 3 % of the total
cases the lowest death penalty reversal rate of any state court of
last resort in the country. The court is even tougher on habeas corpus
appeals; since 1995, the CCA has granted new trials on death penalty
writs only twice out of more than 500 writs coming its way.
the 70s through the 90s, I got reversals on 60 % of my habeas
writs," remembers Houston defense attorney Randy Schaffer.
"Since the mid-90s, I doubt if I get 10 % reversed. Did I get
real stupid? I don't think so. The judges stopped looking at the damn
Judge Jones made his recommendation for a new trial for Willis, he was
going out on a limb. Trial judges, who must face the local electorate,
don't arbitrarily recommend new trials for death row inmates. For this
reason, appellate courts usually defer to trial judges, who are
closest to the action. Not the CCA. "If the trial judge
recommends that relief be refused, the court will follow the trial
judge," says Charlie Baird, a Democrat who served on the CCA
until the end of 1998. "But if the trial judge recommends relief
be granted, the court will figure out some way to get around that
the change from Democrat to Republican, the court changed its
philosophy but not its character: It is still hyper technical. The
most notorious example of this did not involve the death penalty. Roy
Criner had received a 99-year sentence for the rape of a woman who was
also murdered. In 1998 a DNA test proved that the sperm in the victim
wasn't Criner's, and the trial judge ordered a new trial. In a 5-3
opinion written by Judge Keller, the CCA denied Criner a hearing on
the new evidence. "The DNA evidence . . . does not establish his
innocence," she wrote, noting that Criner could have used a
condom or not ejaculated. Former judge Baird, who dissented, is still
outraged: "The problem with Keller's position was that those
arguments were never made by the state. Keller left any semblance of
being an impartial judge behind and became a partisan advocate for the
prosecution. And it begs the question, Why would anyone want an
innocent man to stay in prison?"
Price later wrote that the decision had made the CCA a "national
laughingstock." Keller didn't help matters when she gave an
interview in 2000 for Frontline, discounting the DNA evidence and
calling the victim "promiscuous." About Criner's little
innocence problem, she said, "He has to establish unquestionably
that he is innocent, and he hasn't done it."
asked how a person could prove he was innocent, she replied, "I
don't know. I don't know." She's right: It's almost impossible
under the court's standard, which is "clear and convincing
evidence." If exonerating DNA isn't "clear and
convincing," what is? (Criner was eventually freed after the
Board of Pardons and Paroles recommended that he be pardoned.)
CCA has also made it almost impossible to show that the state violated
a defendant's right to a fair trial. The court typically describes
mistakes or misconduct during a trial as "harmless error."
In other words, the defendant would have been convicted anyway.
Perhaps the most infamous examples of harmless error occurred in the
sleeping-lawyer cases, one of which involved Calvin Burdine. Even
though the trial court said he should get a new trial, the CCA
overruled. (A federal judge rejected the CCA's opinion in June, and he
will get a new trial next year.)
most troublesome use of harmless error was in 1996, when the CCA ruled
on the capital murder conviction of César Fierro, the suspect who had
confessed after being warned that his parents would be tortured in
a July 1994 affidavit, the DA at the time of the trial, Gary Weiser,
said, "I believe that Medrano and Palacios colluded to coerce
Fierro's confession." Had he known, he says, he would have
recommended that the judge suppress the confession and dismiss the
case unless he could have corroborated other testimony. The trial
judge found a "strong likelihood" that the confession had
been coerced and said Fierro should get a new trial.
the CCA overruled a judge once again. Yes, Keller wrote, the police
had lied about coercing a confession, but the trial court would have
found Fierro guilty anyway. "[W]e conclude that applicant's due
process rights were violated," she wrote. "But, because we
conclude that the error was harmless, we deny relief." Though he
believes Fierro committed the murder, Weiser thinks he deserves to go
free. "I was a prosecutor for 10 years, and I put a lot of people
to death," he says. "I never lost one. But to execute a man
on illegally produced evidence - it's wrong. It's not justice. Nobody
should be convicted on illegally obtained evidence." Once again:
If violating a citizen's right to due process and threatening torture
isn't harmful, what is?
of the more baffling things about the CCA is its failure to respect
the fact that competent counsel is an essential part of the
constitutional guarantee of a fair trial. The CCA's position is that
any licensed attorney meets the competency standard. For example, in
1997 a death row inmate named Ricky Kerr wrote the CCA, saying he was
worried that his neophyte court-appointed appellate lawyer was
overlooking his constitutional claims and that he wanted a new
attorney. The court refused. The attorney subsequently botched the
appeal, which the CCA dismissed. A federal judge stayed Kerr's
execution and called the CCA's actions in the case "a cynical and
reprehensible attempt to expedite petitioner's execution at the
expense of all semblance of fairness and integrity."
CCA's critics say that the court is result-oriented, ruling on
to explain the court's sometimes bizarre opinions, former judge Baird
says, "They are beyond comprehension. They cannot be understood
because they are the product of judges who are intellectually
dishonest. They 1st determine the result they want, and then they
distort the law to fit that result." But a former colleague of
Baird's, Mike McCormick, who served on the court from 1980 to 2000,
thinks critics have an agenda of their own: "Calling a court
result-oriented, well, it depends whether you're on the winning side
or the losing side."
real question is whether the role of the court should be restricted to
construing the law or broadened to include dispensing justice.
McCormick believes the CCA's job is to interpret the law: "One
individual judge's concept of justice is not what the court is all
about." And what about cases like Ernest Willis', where it looks
like an injustice is being done, where it looks like the guy really
might not have committed the crime?
you have evidence of actual innocence," says McCormick, "the
vehicle to get it in the system is the governor and clemency."
Board of Pardons and Paroles is often the last chance for the
condemned. It isn't much of a chance, though, and it isn't much of a
18 members, all appointed by the governor, have never gotten together
to vote in the past quarter of a century. They've never even conducted
a hearing. They individually consider the cases and then vote, by fax
and e-mail. "We vote on our best gut feeling," says member
Paul Kiel, "with all the information we have." A pardon can
be granted by the governor only on the board's recommendation. But the
board has granted only two death penalty pardons since 1990, and both
were requested by prosecutors. In short, the board has neither the
desire nor the authority to deliberate issues of innocence. Board
chairman Gerald Garrett says that innocence should be up to the
judicial system. "I don't think we should casually set aside
rulings of the courts," he says. It's a catch-22 worthy of the
whole Texas death penalty system: No one cares about the possibility
so, 6 months after Judge Jones ordered a new trial for Ernest Willis,
the Court of Criminal Appeals, in a six-page reply, denied all relief.
The state's court of last resort found that Willis hadn't proved that
he took the anti-psychotic drugs involuntarily; that perhaps the state
had an "essential state policy" in giving them that Judge
Jones never asked about; that Woolard used "reasonable
professional judgment" in not calling character witnesses; and
that the suppressed psychological report regarding future
dangerousness was "inconclusive," an interpretation the
psychologist, Jarvis Wright, disagreed with, later saying in an
affidavit that he saw "no evidence that Mr. Willis would pose a
future danger." Doping, cheating, bumbling -if these don't
trouble the Court of Criminal Appeals, what will?
BLANK HAS FILED A habeas petition in federal court and hopes for oral
arguments in Midland soon. But the odds aren't good since Congress
passed the Anti-Terrorism and Effective Death Penalty Act in 1996, the
federal courts have been severely limited in granting habeas relief.
Willis is beginning his 16th year on death row. In October 2000 he
married for the seventh time, to Verilyn Harbin, the sister of former
death row inmate Ricky McGinn, who was executed that same year. The
two started writing each other a few years ago, then met and fell in
love through the Plexiglas windows of the visitor's cage. She says,
"He is the most loving person I've ever met." He says if not
for her, he would have given up already.
former Pecos County prosecutor Johnson, now a defense attorney, still
thinks Willis is guilty. "12 grand jurors and 12 members of the
jury-that's 24 people who made the decision unanimously," he
says. He and other defenders of the Texas death penalty process insist
that the system works. This, says Judge Michael Keasler, of the CCA,
is the reason the court doesn't overturn more cases: "They're
a tribute to the jobs the trial judges, prosecutors, and defense
lawyers are doing." Try telling that to the federal judges who
have castigated the system. Or to Blank. He and his firm have worked
billable hours in excess of $1 million trying to get Willis off death
row. Ultimately, the only death row inmates who stand a chance in
Texas are those with pro bono attorneys - lawyers with the resources,
experience, and desire to take on the state. And this is the final
proof that the system doesn't work. Every Texan who has walked free
from death row has done so with outside help filmmakers, TV stars,
preachers, activists, and pro bono lawyers, not the attorneys
appointed by the state to represent them. They got out in spite of the
system, not because of it.
an unfair system, and we need a statewide debate on how to straighten
it out. The 2001 legislative session showed that capital punishment
sits heavily on people's minds. Lawmakers made some changes, but more
are needed: For example, beef up the Fair Defense Act, ensure that
claims of innocence backed by new evidence get a hearing, restructure
the Board of Pardons and Paroles, change the way we select judges to
the CCAor maybe just abolish the damned thing. At the very least, the
legislature should institute a 2-year moratorium on executions, the
length of one legislative cycle, while it studies the problem. In the
long run, this won't prevent any justifiable executions, but it will
make sure that every execution is, in the best sense of the word,
AT LAST: 6 WHO WALKED OFF DEATH ROW
was convicted of the 1976 killing of a Dallas policeman who had
stopped a car driven by David Harris. Adams said he wasn't even in the
car at the time, but Harris said Adams was the gunman. At the trial,
the state relied on an eyewitness who had picked someone else out of a
lineup, as well as Harris, a 16-year-old with a long juvenile record.
As a juvenile, he wasn't eligible for the death penalty. But Adams
was, and he got it. In 1988 The Thin Blue Line, a documentary about
the case, was released to great acclaim and Harris confessed. A year
later Adams' conviction was overturned, and he was granted a new
trial. The DA dismissed charges, and Adams was freed.
a black janitor convicted of the 1980 rape and murder of a white
teenager at Conroe High School. Police officers intimidated a witness
who said one of the school's 4 white janitors might have done it and
refused to seek evidence that would have exonerated Brandley, such as
blood samples from other potential suspects. Ten years later, with new
attorneys, a New Jersey ministry, and 60 Minutes on his side, his
conviction was overturned, and after the prosecution declined to
retry, he was released in 1990. Whitewash, a Showtime movie about the
case, was released earlier this year.
illegal immigrant, was riding in a car in Houston in 1982 with friend
Roberto Flores when they were stopped by a policeman. Shots were fired
from Flores' gun, and both the officer and Flores were killed. Though
all evidence pointed to Flores as the shooter, the police went after
Guerra, hiding evidence pointing to Flores, bullying witnesses to lie,
even threatening to take one witness's child away if she didn't
cooperate. After Vinson and Elkins took the case pro bono, Guerra's
conviction was overturned in 1997 by a federal court, which called the
police misconduct "outrageous." The DA dropped all charges,
and Guerra was freed.
MAX COOK was
convicted of sexually mutilating and killing a woman in 1977. His
sentence was overturned in 1997 because the prosecution had withheld
evidence and used statements from a witness who had previously made
conflicting statements. Days before a new trial, Cook pleaded no
contest and was released. Soon afterward, DNA tests on semen found in
the woman's underwear proved it didn't belong to Cook after all but to
her married boyfriend.
convicted of hiring David Wayne Spence to kill one of the 3 victims of
the 1982 Lake Waco murders. The only substantive evidence against him
came from two jailhouse informants, one of whom later recanted. The
Texas Court of Criminal Appeals overturned the conviction in 1991, and
Deeb was acquitted at a new trial.
convicted in 1984 of killing an El Paso couple. His attorney never
called alibi witnesses or questioned the witnesses who placed Macias
at the crime scene. A New York firm took the case pro bono, found the
alibi witnesses, and raised doubts about the prosecution's witnesses.
A federal court overturned the conviction in 1992 based on bad
lawyering. A grand jury refused to reindict, and Macias was released.
Michael Hall, Texas Monthly, Nov. 22 2002)
by Nora Varty
Texas Monthly editor Michael Hall tells the story behind his article,
"Death Isn't Fair."
How and when
did you discover the Ernest Willis case?
heard about it from one of the defense attorneys I initially
interviewed, then read about it in the Dallas Morning News. I couldn't
believe there hadn't been more written about him.
What kind of
research went into this piece?
I interviewed a lot of defense attorneys, prosecutors, and judges,
plus read all the newspaper stories I could find about the death
penalty of course, there are hundreds. People feel very strongly about
the issue. I also talked to families and friends of Willis as well as
Michael Blair and Cesar Fierro, the other two guys featured in the
people did you interview? Who was most helpful in illuminating this
I probably interviewed 40 people overall, from activist defense
attorneys to law-and-order prosecutors. The most helpful were the few
defense attorneys who didn't have an agenda but who spoke clearly
about the problems they see in the system.
speak with Ernest Willis in person? What were your impressions of him?
I visited Ernest twice. He's a sweet guy, kind of a big teddy bear
with a few tattoos and dark circles under his eyes. He seems to be a
genuinely good person. Of course, I could be wrong.
David Long confessed to the crime for which Willis was sentenced to
die. Why was this confession not sufficient in proving Willis'
The trial judge thought the confession wasn't corroborated, but
Willis' attorneys think they can still corroborate it. The problem is
that it's very hard to prove innocence.
and innocence are not the focus of your story, do you believe Willis
committed the crime of which he has been convicted?
My gut feeling is no. After reading all the transcripts and writs and
talking with everyone I could, it just seems like he was in the wrong
place at the wrong time.
How did your
understanding of this case and the death-penalty process change
throughout the course of your research?
Well, I've always been torn about the death penalty. I'm one of the
wishy-washy types who were glad Kenneth McDuff got it but who thinks
Karla Faye Tucker should have been pardoned. After doing the story,
I'm much more firmly against the death penalty because I've seen how
unfair the process can be, how easy it is for some poor bastard to get
caught up in it. Can we make it fairer? I don't know, but let's at
Why has the
death-penalty system gotten worse over the years?
I think the system, which is a government system, full of judges,
police, DAs, and defense lawyers is reflective of the society that
elects it and pays its salaries. And over the past couple of decades,
the mood of the country has changed. For example, the rise of the
victims' rights movement over the past 15 years has put a lot of
emphasis on the rights of the victims and not the perpetrators or the
suspected perpetrators. Who cares about murders, suspected murderers,
or their rights? There's the rise of talk radio, which has made people
less tolerant, I think, or at least made them feel more free to
express intolerant opinions. Another thing is that, after the Oklahoma
City bombing, the Congress passed a law severely restricting federal
habeas corpus writs, which used to be the inmate's best hope at
getting a new trial. That law is called the Anti-Terrorism and
Effective Death Penalty Act, and obviously in today's climate, there's
no way we're going to tone it down any.