Death Isn’t Fair
Cops 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.
Yvette Holden says: Just noticed the prosecutor in the arson case is Johnson the same man who prosecuted innocent Mr Willingham he was executed and Johnson the pos instead of admitting they made a mistake still tried to dirty the mans name. Shame on these corrupt and immoral officials they should be in court defending themselves I hope the dead haunt them in the small hours of each night because no one else does anything to make them pay. (September 6th, 2009 at 5:08am)
As Ernest Willis tells it, he woke up in a house on fire. It was around four in the morning in Iraan, an oil-field town in West Texas, on June 11, 1986. He 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.
At 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. Later 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. Later, 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.
Nevertheless, four 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. Willis had no history of mental illness, but he was given high doses of anti-psychotic drugs, making him appear zombielike 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.
It 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.
No 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 percent of Texans, compared with 59 percent of all Americans. Texas is going to have capital punishment as long as the United States Supreme Court allows it.
The 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 four 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 prosecutors. Twelve 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.
And 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. The Texas Legislature voted down a proposed moratorium in 2001, though lawmakers couldn’t ignore the criticism of the death penalty system. So they made three 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.
We 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 fire.
DEATH BY LOTTERY
ERNEST 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 six wives, three DWIs, and four 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 twenties, 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 change.
Instead, Willis’ got worse: He lost the capital punishment lottery. Only about one in a hundred killings ends 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," Johnson says, "and they are the ones who made a determination it was capital murder."
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