Separated At Death

Ernest Willis and Cameron Todd Willingham had a lot in common: same crime, same sentence, same questions about the forensic science that convicted them. The main difference? Willis is still alive.

December 2009By Comments

AGE OF INNOCENCE: “I was amazed,” Willis says about the first time he spoke with Willingham, in the rec yard. “His case was just like mine.”
Photograph by Wyatt McSpadden

Ernest Willis has one vice left: smoking. He smokes in his purple Lincoln Town Car, driving around Midland. He smokes while chatting with his neighbor in his front yard. He smokes at the kitchen table in his condo, which he shares with his son Shawn, who sells cars at a dealership in Odessa. Willis spends a lot of time in the condo. He likes to get up early, usually about six-thirty, and make a pot of coffee. Then he smokes a cigarette and turns on the news. He makes sure Shawn gets up in time to go to work. Sometimes Willis goes over to visit his brother Alton in Odessa, and maybe after a while they’ll have lunch at a nearby Furr’s Cafeteria. “I spend a lot of time with Alton,” Willis told me. “We go eat, sit around and talk. We get in the car and drive around, go out and look the country over. We do whatever we decide.”

It’s not a fancy life, but Willis cherishes it for a simple reason: He almost lost it. In 1987 Willis, an oil field roughneck, was convicted of setting a fire that killed two women in Iraan. He spent seventeen years on death row and in 1991 came close to being executed. Except that he was innocent of the crime. He was finally cleared of all charges and released from prison in 2004. Since then, he has done his best to slip back into a normal life. He doesn’t reflect much on his years on death row. “The only time I think about it is when someone brings it up,” he told me. “It’s wiped out of my mind. Everybody said, ‘You’ll need counseling.’ They were surprised when I was able to move on.”

This fall Willis, who turned 64 in September, has been thinking about it more than usual. In particular he’s been thinking about Cameron Todd Willingham, a fellow death row inmate whose 2004 execution has been at the center of a controversy surrounding Governor Rick Perry. Willis and Willingham were similar in a lot of ways. They were both country boys—Willis from New Mexico, Willingham from Oklahoma—who liked hunting, drinking, and carousing. Both were unemployed and living in small Texas towns when they were accused of setting fires that killed people (in Willingham’s case, his three small daughters in 1991). Both were convicted of capital murder on the basis of the testimony of investigators who believed they had found evidence of arson. Both were sent to death row. Eventually both were vindicated by modern science, which determined that there was absolutely no evidence of arson in either case. The fires were almost certainly accidents.

And that is where the similarities end. The same year that Willis walked free, Willingham was executed. The following year the Legislature created the Forensic Science Commission to investigate scientific negligence and misconduct. In 2008 the FSC started looking into the strangely similar cases of Willingham and Willis. A nationally recognized arson expert named Craig Beyler was brought in to study both fires. This past August his report was released; like eight experts who had come before him, Beyler concluded that neither fire was a result of arson. He was set to testify before the FSC on October 2, and the commission’s final report on the cases was on target for early 2010.

That’s when the governor stepped in. As is now well-known, on September 30 Perry replaced three members of the commission, including its chairman, whose seat he gave to law-and-order Williamson County district attorney John Bradley. Bradley, who had originally been appointed to the district attorney’s office by Perry in 2001, promptly canceled the meeting, which sparked a national outcry. It looked an awful lot like the governor had used a crony to scuttle a meeting at which the commission was going to hear from an expert that Perry had overseen the execution of an innocent man. Many commentators called it a cover-up.

Willis watched it all unfold on the TV in his living room, well aware that it could have just as easily been him—dead and buried—at the center of the controversy. He knew that for all the similarities in his case and Willingham’s, there was one huge difference: He had been represented pro bono in his appeals by Latham and Watkins, a giant international law firm that could afford to spend more than $5 million on his defense, money that paid for, among other things, the forensic experts who disputed the arson claim. Willingham had a court-appointed attorney with no extra money to hire anyone. “If he could have hung on just three or four or five more months, he would have been in the same shape I was,” Willis said. “He would have walked out of there a free man.”

It made him angry. “I know Governor Perry is trying to sweep this under the carpet,” he told me. “He even called Todd a monster. Well, they called me a monster too.” I asked Willis what he thought was going through Willingham’s mind as he lay on the gurney, waiting for the lethal injection. “I don’t know. I imagine he was thinking about his kids. Living with the knowledge that you didn’t do it when other people think you did—that was the hard part. But when I was a few days away, the thing that went through my head was ‘I’m innocent. A lot of people believe I am. I’m ready for it.’ I’d built myself up. I knew my chances were slim in Texas. I’d made my mind up—if they were gonna execute me, I was just gonna lay down and go to sleep.”

On June 10, 1986, Willis was in the wrong place at the wrong time with the wrong people—none of which was unusual for him. He had spent his twenties and thirties living it up, drinking and partying and chasing women, six of whom he married and divorced. Now he was an alcoholic in constant pain from two recent back surgeries, living in a trailer west of Odessa with his cousin Billy Willis, a guy who was known to make and sell bathtub speed. He was subsisting on food stamps and groceries that Alton bought him. “I was at rock bottom,” Ernest told me. Earlier that month he and Billy had gone to Iraan, where Billy had some friends with an old car they said he and Ernest could fix up and sell. On the night of June 10 they were all sitting around having a party with some women when the hosts got into a loud fight and the police showed up. Billy’s friends were carted off to jail, leaving behind their guests, who eventually passed out or went to sleep (Ernest, high on painkillers, had drunk a six-pack of Coors). Early in the morning of June 11 the house caught on fire. Ernest and Billy escaped. Two women perished.

Police at first thought the fire was drug related, that someone had been freebasing or cooking heroin. Then they thought maybe it was set by one of the women’s ex-husbands or by a Mexican drug dealer named Santana. Finally the police settled on the hapless out-of-towner Ernest, who had, witnesses said, stood around impassively after the fire, smoking cigarettes and looking distant. He just didn’t act right. And he hadn’t coughed as much as Billy had. The police had very little to go on—there was no motive, no gasoline found in the house or on Ernest’s clothes, and no instances of violence in his past. Still, he was indicted for capital murder.

While he waited for trial, Willis—who had no history of mental illness and who the jailers all said was a model prisoner—was given, along with his back medicine, daily doses of powerful antipsychotic drugs. No reason for this was ever given. He was still on the drugs at the trial, where, Alton remembers, his brother wasn’t acting normal. The prosecutor made good use of the accused’s demeanor, pointing out his “weird eyes,” which would “pop open like in some science fiction horror film.” Willis didn’t express any emotion when prosecutors showed pictures of the bodies of the dead women. He wouldn’t look jurors in the eye. What they didn’t know was that there was a reason he was acting like a zombie. The drugs had turned him into one.

Arson investigators testified that marks on the floor were “pour patterns” left behind by an accelerant, like gasoline. Willis was found guilty. The jury took just an hour to give him the death penalty. He was hustled off to Huntsville. “I had a lot of anger my first two years there,” he told me. “I knew if I didn’t let it go I couldn’t survive. I let all that go. You can’t hate and hate and hate. I never did advertise the fact that I was innocent, because everybody else was saying they were innocent—when you know most of them were guilty. I thought, ‘It’ll all come out one of these days.’ ”

Willis received his first execution date in 1991. As it approached, he was asked to prepare for his death. Who would pick up his remains? “Alton.” What color pantsuit did he want to wear on the gurney? “Blue.” What did he want for his last meal? “A big ol’ greasy hamburger.” Willis readied himself for the end. Then, two days before he was set to die, he got a stay from the Court of Criminal Appeals.

Some time later, an inmate named Cameron Todd Willingham approached him in the rec yard and told him about his case. “I usually didn’t talk about my case with other prisoners,” Willis told me. “I was amazed—his case was just like mine.” They only talked four or five times, because they weren’t often in the rec yard at the same time and also because Willis never developed a friendship with Willingham. “I didn’t know Todd that well. He was mixed up in the Aryan Brotherhood. He was a young kid, but I get the impression he wanted to be the big dog.”

In 1995 Willis got the break that Willingham would never get: Latham and Watkins, took his case. (Like many large law firms, it offers its services on occasion to indigent death row inmates.) Lawyers found the jail records showing that Willis had been drugged during the trial. They found a psychologist’s report from 1987 saying Willis would not be a future danger to society—a report withheld from the defense that, had it been presented, could possibly have kept him from getting the death penalty. In 2000 the trial judge recommended he get a new trial.

Incredibly, the CCA overturned the order. I first visited Willis shortly after this, in 2002, and his spirits were still low from the CCA’s action. He looked like a three-hundred-pound teddy bear, with pale skin and dark circles under his eyes. The one bright spot for him was his new wife, Verilyn, whom he had married in prison in 2000.

Luckily for him, his attorneys refused to quit, and in August 2004, federal judge Royal Furgeson ruled that the state had to either retry Willis or set him free. Ori White, the Pecos County district attorney, hired Austin arson investigator Gerald Hurst to look at the evidence against Willis. Hurst’s report concluded, “There is not a single item of physical evidence in this case which supports a finding of arson.” White dropped the charges. On October 6, Willis was freed and given $100, a plaid shirt, and a pair of oversized green pants he had to hold up with one hand. His first meal in the free world? “A big ol’ greasy hamburger.”

After his release, Willis did a few interviews about his ordeal but turned down the rest—he wanted to get back to his life. He vowed never to set foot in Texas again and moved with Verilyn to her home in Mississippi. I saw him again in July 2005, when he drove to Fort Stockton for a hearing where he was trying to get his record cleared so he could carry a gun and go hunting. He looked good—he had lost a lot of weight—but he and Verilyn were not getting along. He had received $25,000 for each year he had spent on death row, netting about a quarter of a million after taxes, money that he and Verilyn would blow through quickly. Willis bought a car for her and her daughter and a boat for Shawn. He also bought three trucks, including an eighteen-wheeler, and started a business, hauling houses and RVs and later boats across the country. Sometimes Verilyn went with him. But they had more troubles and split in 2007. “It was first one thing and then another,” he says. “It was as much my fault as hers. I had little things I would say that would set her off. I would do that—I don’t know why, but I would do that.”

Willis moved to Oklahoma, where he had family, including Shawn. For the next two years he lived on a monthly $663 Social Security check along with money he borrowed from Alton. In August, Willis and his son moved to Midland, where Shawn has a daughter and an ex-wife. Things had changed since Willis’s vow to never return to Texas. Besides Alton and Shawn, Willis has two brothers in nearby Lovington, nieces and nephews in Midland and Odessa, plus two grandchildren in Lubbock. “I have roots here now,” he said.

He also has something of a mission. “I don’t like the limelight,” he told me, lighting a cigarette at his kitchen table. “But I want to help change the system. I want to let people know about the death penalty. And I think Governor Perry needs to do the right thing on this Willingham deal. He’s just trying to let it go by, and it’s not going to hush up—I’m not going to hush up. Governor Perry needs to step up to the plate and admit that we made a mistake. Texas executed an innocent man.”

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