Waco Criminal Law Blog : Waco Criminal Lawyer & Attorney : Walter Reaves Law Firm : DWI, DUI, Drug Crimes, Appeals : Waco, McLennan County, Texas

So far I haven't added my comments to the discussion of the execution of  Cameron Todd Willingham. Since I was personally involved, I've struggled with whether I should comment. I have never commented on clients on their cases. Their are a number of reasons for that, one of the big ones being privacy. Their lives have become more public than they ever wanted, and I don't want to add to that. I'm going to make an exception though for someone I still consider a client even though he is no longer with us. I've had to carry this around for over 5 years, and this forum is as good as any to talk about it; I also need to get it off my chest.

By now, everyone knows the story. The Chicago Tribune was the first to report the conclusions of the expert the Texas Forensic Commission hired to review the case of Cameron Todd Willingham. He reached the same conclusion as all the other experts who have reviewed the case in the last few years - there was no arson. That would good news except for the fact that the State has already executed Mr. Willingam for killing his children - having done so in February 2004.

Most criminal defense lawyers - at least those who care - have cases that haunt them. I have my share, and this one is at the top. I represented Todd after he had been convicted, and after his direct appeals had been denied. I knew from the start that there were problems with the case, and came to believe his adamant protestations of innoence. Like others, I initially had no reason to doubt the fire was intentionally set, and looked at other possible suspects - of which there was no shortage.

Shortly before Todd's execution date I had the good fortune to come in contact with Dr. Gerald Hurst. Dr. Hurst is a scientist, who is also an expert in fire science. He had worked on several other cases, and successfully convinced authorities that a fire was not intentionally set - i.e., not arson. Dr. Hurst agreed to review Todd's case, and I sent him all the material. It didn't take him long to tell me it was all BS (to put it politely). He started working on an affidavit, which he prepared. After reviewing the affidavit I did not see how anyone could  have a doubt that this was not an arson. But then, this is the court system - in Texas, no less.

I promptly filed a successive writ. I knew those were rarely successful, but I naively believed we had a shot. At a minimum I thought we would get  a hearing. I didn't expect any relief from the trial court, and didn't get any. I thought the Court of Criminal Appeals would step in, and at least order a hearing so Dr. Hurst could present his findings, and the state could question him. Why I ever thought the Court would take pause at the execution of someone who was actually innocent I'll never know. I'm not sure how much they read, but for their sake I hope it wasn't much. I don't see how anyone could live with the knowledge that they let someone be executed when there was a serious question about their innocence. I recognize Courts wrap themselves in procedural rules, and probably looked at this as nothing more than a last minute attempt to avoid execution. After all, as Justice Scalia recently stated, Courts can't be concerned with actual; they simply have to determine if a trial was fair.

Ever the optimist I continued to have faith in the Federal Courts. I knew they took death penalty cases seriously, and had hope they would see the serious questions that had been raised. Those hopes were dashed quickly; the procedural Gods won out once again. The case had already been through the courts, and they didn't see any reason why it shouldn't got through again.

I still had some hope - I know, my wife has always wondered about my seemingly naive sense of optimism. There was still the governor, and the Parole Board. All I wanted was 30 days so we could try to get back in court. I don't know what the parole board actually saw - there was never a hearing, nor did they all get together to discuss it. Instead, they all submitted their no votes, and i was notified of those votes by fax. That left the governor; i didn't have much hope, but I still had a little. Shortly before 6:00 p.m. (the time scheduled for execution) I got the call. It was one of the most upsetting conversations I have ever had. It's probably a good thing it wasn't in person, because I would probably now have a criminal record. The call came from a young man, who I am guessing probably hadn't been out of school too long; he probably was even a lawyer. I got the impression the job of notification fell to him, and it was something he needed to get out of the way before he could go out and have drinks with his friends. What he told me has been seered into my brain - and it is probably I will never get out. What he said was that  the Governor had looked at the case, and he didn't any reason to delay the execution. Really!!!!! You have a nationally recognized expert telling you its not arson and that's not pause for concern?

I promised that I wasn't going to give up on  his case, and I haven't. Thanks to the Innocence Project, and several reporters, the story will not go away. Barry Sheck and the project saw the problem with the case; what made it worse that another defendant, Ernest Willis had been released on almost identical evidence, and with the same expert. The only difference was the prosecutor. They submitted the two case to a panel of experts, who issued a report that has led the way in pointing out the myths that have been associated with arson cases. Two reporters from the Chicago Tribune also took the case, and published a terrific piece of investigative journalism. Through those efforts, the Court realized they had do something, and appointed the Forensic Commission. That commission took on the Willingham and Willis cases, and retained an expert to review them, which is where the current report came from.

So far every expert that has reviewed the evidence has concluded there was no evidence of arson. So Governor Perry, there was a reason to delay the execution. The rush to carry out the execution, and make sure "justice was served" resulted in the most serious miscarriage of justice imaginable - the execution of an innocent person.

I sincerely believe that we all have will  have to eventually answer for actions. I don't know this for a fact, but I'm guessing that you won't be able to get away with  the excuse that you were just following the law, or it was someone else's decision. The buck has to stop somewhere, and I believe it is with each person who  has a chance to make a difference. In death cases, the consequences of being wrong are irreversible. You can't come back and say I'm sorry - just ask Todd's family. If there is any question of innocence, is it too much to check it out?

If there is one thing I wish judges and prosecutors could get out of this case is that it could have just as easily been you. I'm reasonably sure that no one wants to go through life (not to mention eternity) knowing that they participated in the execution of an innocent person. Most people think that would never happen to them; they tell themselves they would recognize the situation. History if full examples of situations that we look back on and believe we would have done something. We don't like to believe we would have sat on the sidelines while Hitler exterminated jews, or people sold human beings into slavery. The fact is, the majority of people did just that. It's not something new. I don't think it was a coincidence that Catholic Church's reading for the day the story came out,  was from Matthew. Chapter 23, where Jesus calls the scribes and Pharisees hypocrites for saying if they had lived in the time of the prophets they would not have shed their blood. In fact, they ended up doing that very thing. They couldn't see Jesus right in front of them.

The lesson from this should be that the next person who comes before you and says they are innocent might actually be. Is it too much to accept the possibility that it might be true?

In my career, I've seen people convicted who I had no doubt were innocent. One I was able to see walk out of prison out; it took 16 years to prove I was right, but he eventually gained his freedom.  The other I can only look his picture and the card his family sent me after his execution. I don't have all the answers - I'll leave that to people far smarter than me. If you think this is an isolated incident though, you are as deluded as I was in thinking I would get a hearing in Todd's case. We need to do something - and that something needs to more than an apology after the fact. Of course, so far his family hasn't received even that.

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I've been at the Annual Conference on Actual Innocence at Plano - I lost count of how many I've been to. Generally, the focus of the conference is the same each year; we have a problem, and need to address it. So far, it doesn't look like we've come up with a good solution.

One of the biggest problems I see is the use of experts to obtain convictions. I'm not saying experts shouldn't be used in criminal cases; however, there use should be limited to corroborating other evidence. All too often prosecutors use experts to establish thier case.

There was a presentation on a bite mark case, where the defendant ended up spending 10 years in jail before DNA was able to exonerate him. As with many of these cases, the bite mark was the only evidence the State had that tied to defendant to the case. The situation was a familiar one; the so called expert went out of his way to identify the defendant, ignoring contrary evidence, and manipulating evidence where necessary.

There is no doubt that bite mark comparisons are essentially subjective. As a result, different people can look at the same evidence, and reach different conclusions. Too often it comes down to which expert makes a better presentation. In other words, a defendant's fate hinges on who is the better communicator. The possibilites for disaster are enormous, and all too often realized.

Assuming such evidence is admissible - which I am not ready to concede - it should not be used as the only evidence of guilt. Soo called experts are wrong far too often to leave such important decisions to them. They get to leave at the end of the day and go home, while the defendant's life may be destroyed.

Maybe we  need a corroboration rule, like we have for accomplice witnesses. Or maybe it's something that can be addressed through instructions. Whatever the approach, something needs to be done. Until we do, innocent people are going to continue to be convicted.

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I'm a little late on getting to this, but another study came out recently questioning the reliability of fingerprints. This one suggests the subjective expectations of examiners play a big role. What's particularly disturbing is that when examiners re-examined prints and were presented with new information about the case they routinely changed their opinions. In other words, the likelihood of a match may depend on the information the examiner has about the case!

I wrote previously about the National Academy of Sciences report on the reliability of fingerprints. That report criticized the lack of research; despite expert's claims about the uniqueness of fingerprints there is no scientific basis for those opinions.

This article raises two disturbing issues. Obviously, one is the effect of bias; they are likely to find what they expect to find. That raises a more fundamental issue though; if the results can be so easily changed, how reliable are. In other words, is it really nothing more than guesswork?

More research is needed. In the meantime, we need to hold their feet to the fire, and force fingerprint examiners to back up their testimony.

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It's not news that the economic downturn has hit lawyers. Big firms are laying off people, and new lawyers are having trouble finding jobs. A lot of those people are gravitating to criminal lawyer. There are also those there to profit, so there are plenty of people ready to assist those lawyers find clients. Scott Greenfield has been critical of those, and has not been hesitant to provide advice for those who want to become criminal defense lawyers. His posts should be read by all those who think this is the ticket to easy money.

What does it take to be good criminal defense lawyer? Obviously it's more than a desire to make money. As others have pointed out, the fact is most criminal defense lawyers never get rich. I think you can identify a good criminal defense lawyer by identifying why they decided to practice criminal law. They didn't do it by default because nothing else was available - well, okay maybe some did. Most do it because they truly believe in our criminal justice system. They believe the Bill of Rights means something, and they don't like to see people getting screwed over by the government.

That doesn't mean you always have to like your clients. Just because you represent criminal defendants doesn't mean you are advocating murder, robbery and sexual abuse. You do have to know your client, and try to understand why they did what they did. Many are good people who are caught up in bad situations. Some are just bad people, who choose to prey on others, and There may be nothing to like about them; however, that doesn't deter a good criminal defense lawyer.

In the end, we don't defend clients because we like them. We defend them because there is something more at stake. We are truly the champions of the underdog. No matter who they are, or what they have done, they deserve to be treated fairly and with respect. Often it's those who have done the worst things that need us the most; those are the ones who everyone else is against. Their family and society may have abandoned them; we are the only ones who can stand up for them. If you don't believe in that, then you should be chasing ambulances, or doing something else.

Don't get me wrong - we want to earn a living and support our families. It's about more than the money though. if all you are after is the money, you don't really care what happens to the client. Good lawyers do care though; and they care just as much about someone who pays them $1,000 or $100,000. I'm still working on case on a client who that was executed several years because I want the State to acknowledge what they did.

If you looking to hire a lawyer, don't look for someone who simply tells you what you want to hear, and run away from the lawyer who seems more interested in the fee than the facts - they probably are. Find a lawyer who cares about the justice system - you'll benefit from their passion.

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By now many have probably have heard about the Mineola Swingers club prosecutions. Michael Hall at Texas Monthly recently helped educate us on the prosecution  in his story Sex, Lies and Videotapes. The story was nothing short of bizarre - a swingers club in the litte town of Mineola, Texas, which included sex shows by young children. The fact that the story was so bizarre should generally set off alarms, and cause police to use extra care in investigating the charges. Too often it has the exact opposite effect; bizarre means newsworthy, which means publicity. To some officers, such a story is the ticket to a career advancement. They start off thinking how they are going to be the hero, who brings these despciable criminals to justice.

Generally, when big mistakes are made you can trace them back the very beginning. Without completing an investigation the police decide a person is guilty. Instead of looking at evidence to see if it fits their theory, they try to make it fit. If it doesn't fit, they ignore it, and assume it must not be truthful. In many of the recent exonerrations, officers had evidence pointing to the person who actually committed the crime. They chose to ignore it, because they were convinced they had the right person.

In the swinger club we now find out that Texas Ranger Phillip Kelm conducted several interviews of the children which contradict their later statements. Fortunately he was caught by a diligent lawyer, who somehow got ahold of his handwitten notes. Afer denying he interviewed the children on certain dates he was confronted with his notes,and had to admit he did. Of course he claimed to have no recollection of those interviews. That's probably true; he blocked it out because it didn't help his case. The case appears to be unraveling as more details of the investigation come out; unfortunately it is too late for those already convicted.

This case provides several lessons - none of which will be probably be learned. Unfortunately, there are always those who put their careers at the forefrong. I'm the first to admit that goes back ways, but there is more danger when it is someone involved with  prosecution. While they have to investigate, and develop suspects, they also have to be willing to start over when the evidence doesn't support their theory.

The othe lesson is the need for full disclosure and discovery. I don't know how the lawyer got the notes; normally that is not something that would be disclosed in normal discovery. Unless that material is provided, the prosecution gets to mold the facts. Many times - especially in high profile cases - it eventually comes out. Why not get it out before someone's life is destroyed?

Maybe another lesson - and perhaps the most important is for those who look at a case as a way to make their career. Unless you do your job the right way, you may be ending that career you want so badly.

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