Death Isn't Fair
(Page 3 of 5)
At his trial, the police produced three witnesses who had come forward after Blair's arrest, when his photo was blanketing the local news, and a fourth who said she'd seen a car that bore a tenuous resemblance to Blair's Ford EXP near the area where the body was recovered. The only substantive evidence came from Linch, who said that three hairs found in Blair's car had the same "microscopic characteristics" as Ashley's. Two tiny black hairs, found on and near the body, were too small for comparison, but Linch said they had Mongolian characteristics, which could apply to Blair, who is half Thai. And, Linch said, a fiber found on Ashley's body was similar to fibers from a stuffed rabbit found in Blair's car. In his closing arguments, Collin County prosecutor J. Bryan Clayton said of the hairs, "You can call it a link, you can call it association, you can call it a match, or any other darned thing they want to call it." The jurors did, and Blair was convicted and sent to death row.
In 1998, however, the case against Blair began to unravel when a series of newer mitochondrial DNA tests revealed that none of the hairs belonged to either him or Ashley. The latest of the four test results, on the clump of hair, came only two months ago. And, defense lawyers say, the fiber was from a stuffed rabbit bought at Target that was indistinguishable from any one of half a million stuffed animals. It's clear now: Blair was convicted and sentenced to death on junk science.
Dubious forensic evidence also played a central role in the Ernest Willis case. Arson investigation is an inchoate "science"; in 1987, when Willis was convicted because prosecutors said pour patterns indicated he had dumped an accelerant throughout the house, it was even more so. The first national standards for fire investigation weren't even published until 1992. "For many years fire experts looked at things like spalled concrete or crazed glass and speculated, dreamed up theories," says Arizona State University law professor and noted authority on forensic evidence Michael Saks. "Finally, after sending umpteen people to prison, they did empirical testing. They set buildings on fire and went in and looked for spalled concrete and crazed glass. It turns out those things are unrelated to whether a fire was arson or not. It was all guesswork and imagination."
Perhaps the most unreliable experts are those who, during the punishment phase, predict that a defendant will be a continuing danger to society. Such evidence is necessary before a jury can impose the death penalty. Though the American Psychiatric Association has said such predictions are wrong two thirds of the time, Texas prosecutors have relied on a handful of psychiatrists who can be counted upon to answer, emphatically and almost every time, yes, this person is a future danger, thus dooming him or her to die. The most notorious was James Grigson, of Dallas, a psychiatrist who was known in legal circles as Dr. Death because of the scores of Texas capital murder cases in which he testified, using phrases like "absolutely certain" or "one hundred percent sure." Many times he never even interviewed the person he testified about.
Defense attorneys must object to such flimsy evidence to preserve the right to object to it on appeal, but they know they will be overruled. In the view of many defense attorneys, judges are not neutral referees, assuring that a trial is fair, but adversaries, especially in capital punishment cases. Former judge Lanford says, "Generally, the judge is the second or third prosecutor in the courtroom. The state is going to win on most things." Many district judges are former prosecutors; some even worked for the prosecutor's office that is trying the case before them. In Harris County 20 of the 22 judges in local felony courts previously worked in the DA's office. Like prosecutors, judges are elected; they will be tough on crime, especially in capital punishment cases. Most defendants have only one chance for a fair trial: a court-appointed lawyer who knows how to defend a death penalty case. In Texas, that chance isn't very good.
THE DEFENSE RESTS—LITERALLY
I PUT MY HEART AND soul into the defense of Ernest Willis," says Steven Woolard, the lead counsel in the case. "But if I were a judge today, there's no way I would have appointed me then." Not many attorneys were available in Pecos County in 1986, Woolard recalls, and he and another lawyer were named by Judge Brock Jones to defend Willis. Woolard was zealous but inexperienced: At the time, he had been practicing law for less than four years. He had never tried a death penalty case.
Willis' attorneys never tried to poke holes in the prosecution's unlikely theory that a pillhead with "surgical failed back syndrome" (Willis, vomiting from pain, had seen two doctors the day of the fire), who had drunk a six-pack of Coors, could have gone out—would have wanted to go out—at three-thirty in the morning to siphon ten to fifteen gallons of gas into a can, douse the house from one end to the other, set the place on fire, and then get rid of the can without waking anyone up or getting even a drop on his hands, feet, or clothes. They rarely objected when Johnson called Willis an "animal." Worst of all, during the punishment phase of the trial, they asked only two perfunctory questions of the state's two witnesses, who claimed Willis had a "bad" reputation but gave no details, and they rested their case without calling character witnesses who might have persuaded the jury to spare Willis' life. Many years later Pecos County deputy sheriff Larry Jackson (now deceased) told the Dallas Morning News, "If he'd had sufficient counsel, he wouldn't be on death row. . . . They messed this old boy around for years."
Kevin McNally, a Kentucky attorney who analyzes cases for evidence of bad lawyering, testified in a hearing to determine whether Willis should get a new trial that the punishment-phase lawyering was "in the bottom one half of one percent" of the two hundred cases he had looked at. That would make it the very worst. He referred to witnesses Woolard knew about but didn't call: family members and friends, some of whom came forth at this hearing and testified that Willis was a loving father, a good boss, and a decent man. Willis' brother Alton related a story about a family gathering at Lake Stamford, when Willis had seen a boy accidentally back a truck into the lake. The man J. W. Johnson had called a "satanic demon" had pulled off his boots, dived into the water, broken a window, pulled the kid out, and then refused money for saving his life. "Most capital defense lawyers would trade their right arm" for this kind of mitigating evidence, McNally said. Today Woolard says he didn't call the character witnesses because of concerns about their credibility: "Their presentation, manner of dress, cultural affectations." In other words, they were rednecks. In Pecos County, of all places.
Once again, the Willis case shows the extent to which the death penalty system is like a lottery. A few counties, such as Dallas, have public-defender systems with experienced attorneys. In most counties, however, the trial judge appoints attorneys for indigent defendants from a list of available volunteers. Some are experienced lawyers, but many more are inexperienced (sometimes only a couple of years out of law school); they are easily confused by the arcane rules of capital punishment cases and cowed by the prosecutorial juggernauts. Court-appointed attorneys are frequently solo practitioners with little support staff to investigate, find witnesses, and keep track of motions to file. They object when they shouldn't and don't object when they should. As in the Willis case, they don't question the obvious or do the basic work to save their clients' lives; as in Michael Blair's case, they don't hammer away at flimsy evidence. They cut corners. Sometimes they just give up. A Dallas Morning News investigation in 2000 found that one quarter of all death row inmates had been defended by attorneys who had been or were later disciplined by the State Bar of Texas for everything from lying to neglecting their cases.
One of the reasons for the bad lawyering is bad pay, which chases away good people and makes a good defense impossible. Court-appointed defense attorneys often lack the budgets to hire their own experts to attack those of the prosecution. In Willis' case, Woolard hired a fledgling arson investigator, whose credentials Johnson mocked mercilessly. "I felt inhibited somewhat," says Woolard now about his choice. "I had to justify expenses to [trial judge Brock] Jones." Unlike prosecutors, judges, police officers, or jailers, court-appointed attorneys are the only ones in the criminal justice system who work for less than the going rate for their profession. County officials can think of a lot of ways they would rather spend tax dollars than defending accused murderers. So appointed lawyers have to battle to get paid. "You take a voucher to the judge after the case," says an Austin defense attorney. "Let's say you worked three hundred and fifty hours. The judge would cut it in half." Such penny-pinching stifles the lawyers' incentive to investigate and put on a vigorous defense. In the case of Federico Macias, the federal court that overturned a guilty verdict because of ineffective assistance of counsel noted in its opinion that the trial attorney had been paid roughly $11.84 an hour. "Unfortunately," the court said of defense counsel, who had failed to interview the witnesses who would one day exonerate the defendant, "the justice system got only what it paid for."
Proof of the low quality of court-appointed lawyers in Texas came in a state bar committee study of 2,983 Texas defense attorneys, prosecutors, and judges that appeared in 2000. Called "Muting Gideon's Trumpet" (the reference is to a book about the case of Gideon v. Wainwright, in which the U.S. Supreme Court said that every indigent criminal defendant had to be provided with a lawyer), the study revealed a system in which judges appointed attorneys who were friends or campaign contributors, especially if they were good at speeding the case through the court. The study confirmed that many state trial judges operated a patronage system: Attorneys who were beholden to judges for work turned around and made campaign contributions to those same judges. Former judge Lanford remembers a colleague, George Walker, who gave death penalty cases to a friend, the late Joe Cannon. "Joe was a nice man, but he was incompetent to handle capital cases," Lanford recalls. "He was George's buddy. He got the cases because he moved them. There was pressure—keep costs down, keep things moving."
