I told you so!

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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