Death Isn't Fair
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Most 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 penalty. "The 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."
One 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 two to three 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.'"
In 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 eight to fourteen 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.
At 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 fifteen milligrams a day. Willis was given forty milligrams a day, on top of an undetermined daily dosage of Perphenazine.
Nor 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.
Prosecutors 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.
The 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. All 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. Specifically, 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.
The 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 requires.
Prosecutors, like all lawyers, are officers of the court, which means that their first 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 to win. They 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. So 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."
Two 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 sixteen-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. Fifteen 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 a confession.
The 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. Improved 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.
Blair, 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.
