Death Isn't Fair
(Page 4 of 5)
Such a system inevitably wound up embracing incompetence. Cannon was one of the infamous sleeping lawyers; he bragged about hurrying through trials. In the murder trial of Calvin Burdine, Cannon slept during the questioning of witnesses, and though he knew about mitigating character witnesses, he failed to bring them into court to testify. Burdine was convicted and got the death penalty. Then there was Ronald Mock, who kept getting appointments (and a steady paycheck) despite sloppy lawyering that caused him to be disciplined five times by the state bar. Mock defended more than a dozen men who wound up on death row.
To the Legislature's credit, the patronage system that bumbled so many men to death row has been improved by the passage, in 2001, of the Fair Defense Act. Though it is still up to individual counties how they appoint attorneys to defend the poor, the act says that judges have to adopt stricter procedures for appointing attorneys, specify their qualifications, and pay a "reasonable fee." Counties also have to set standards (at least five years of criminal-law experience) and require continuing-education seminars in defending criminals. For the first time, the state has provided money to supplement what counties pay for indigent defense—a total of $19.7 million for 2002 and 2003. That is approximately 10 percent of the total cost; most states pay half. The law has been in force only since January 2002, so it's difficult to gauge its effectiveness. Jim Bethke, the director of the Task Force on Indigent Defense, says, "Anecdotally, things have improved." But some defense lawyers remain unimpressed. "Texas has developed a culture of bad legal representation," says veteran Austin attorney Rob Owen, who has defended more than fifty death penalty cases. "Just paying more money per hour provides more money for poor representation."
Ernest Willis would be dead today if not for his appellate lawyers. Back in 1989, Willis had lost his direct appeal before the Court of Criminal Appeals (CCA), the one that automatically follows a guilty verdict. After that came his writ of habeas corpus, an appeal that concerns new evidence and violations of constitutional rights (also filed before the CCA). Attorneys with the Texas Resource Center, a now-defunct federally funded organization that represented poor death row inmates, and then Latham and Watkins, a large international firm with offices in New York, put on the kind of vigorous defense for Willis that court-appointed lawyers in Texas could not afford. For instance, Latham and Watkins, working pro bono for Willis since 1995, has used five lawyers, a private investigator, a professor of psychiatry, a forensic psychologist, a neuropharmacologist, and an arson investigator. Willis' appellate attorneys looked at the county jail logs and discovered the daily dopings. They tracked down the psychological evaluation that said Willis was not a future danger. And they looked into the strange story of David Long, a convicted ax-murderer who used to make and sell bathtub speed with Billy Willis. The born-again Long had met Ernest Willis in the dayroom at the Ellis prison unit in 1990. Eventually he confessed to the prison psychiatrist that he had set fire to the Iraan house. The psychiatrist believed Long and set up a videotaped confession in 1990, during which Long confessed in detail, saying he had driven from Round Rock to Iraan that night, drinking and shooting speed. When he got to the house, he started the fire with a mix of Wild Turkey and Everclear, his favorite drink. Long had motive ("I hated the dude," he said about Billy, toward whom he had various druggy grudges) and a history of violence: In 1983, after being fired by his boss, Long had used whiskey to set the man's trailer on fire. "I killed him because I hated the son of a bitch," he said in a 1986 confession.
In 1995 lead attorney Jim Blank, of Latham and Watkins, went to the CCA with the new evidence. The court ruled in 1996 that trial judge Jones should hold hearings to determine whether Willis was entitled to a new trial. The wheels of justice ground slowly; hearings were held intermittently during the next three years. Blank brought forward the previously ignored witnesses, who testified to Willis' good character. He found an arson expert who said the state's pour-pattern theory was all wrong—the patterns on the floor could have been caused by any number of things. The expert had also done an experiment to see if Long's Wild Turkey and Everclear cocktail was capable of setting fire to carpet and wood; it was. Blank got Woolard to admit on the stand to several serious trial errors, including failing to offer any character witnesses. ("I loaded my guns for the guilt-innocence question and felt so very strongly about that," Woolard offered.)
Jones was convinced: Willis had not gotten a fair trial. In June 2000, in a 33-page opinion, he ordered a new trial based on the withheld psychological profile, the mind-numbing drugs, and the ineffective assistance of counsel. All Ernest Willis needed was for the CCA to uphold Jones's order, and he would get the shot at freedom he deserved.
DISORDER IN THE COURT
THE COURT OF CRIMINAL APPEALS is no ordinary court. The idea of a separate court of last resort for criminal cases is one that has been embraced by only one other state, Oklahoma. The court has always had its critics. Its isolation in a single area of the law caused it long ago to develop a fondness for legal hypertechnicalities at the expense of justice. It used to have a reputation for being pro-defendant, overturning cases for minor procedural defects. In the forties the CCA famously reversed the conviction of a murderer who had stomped an old woman to death because the indictment didn't say he stomped her with his feet. Through the eighties, the court kept its reputation for overturning convictions and ordering new trials, reversing up to a third of its cases. The CCA was all Democratic until 1992, when the first Republican judge was elected. Outrage in 1993 over a brutal Houston murder—in which the CCA ordered a new trial because the cards containing the names of potential jurors were shuffled an extra time—led to the elections in 1994 of Republicans Sharon Keller and Steve Mansfield, and by 1999 all nine judges were Republicans. As with elections for DAs, elections for the CCA have increasingly emphasized how tough the candidate would be on criminals. Keller, now the presiding judge, has campaigned on the idea that failure to give the death penalty is a human rights violation. (She declined to be interviewed for this story.) In 2001 Judge Tom Price, the closest thing to a voice of moderation on the court, received an official reprimand from the Commission on Judicial Conduct for his 2000 campaign literature, which included the statement: "I have no feelings for the criminal. All my feelings lie with the victim." Indeed. Since 1994, the CCA has reversed only thirteen death penalty convictions on direct appeal, about 3 percent of the total cases—the lowest death penalty reversal rate of any state court of last resort in the country. The court is even tougher on habeas corpus appeals; since 1995, the CCA has granted new trials on death penalty writs only twice—out of more than five hundred writs coming its way. "From the seventies through the nineties, I got reversals on sixty percent of my habeas writs," remembers Houston defense attorney Randy Schaffer. "Since the mid-nineties, I doubt if I get ten percent reversed. Did I get real stupid? I don't think so. The judges stopped looking at the damn cases."
When Judge Jones made his recommendation for a new trial for Willis, he was going out on a limb. Trial judges, who must face the local electorate, don't arbitrarily recommend new trials for death row inmates. For this reason, appellate courts usually defer to trial judges, who are closest to the action. Not the CCA. "If the trial judge recommends that relief be refused, the court will follow the trial judge," says Charlie Baird, a Democrat who served on the CCA until the end of 1998. "But if the trial judge recommends relief be granted, the court will figure out some way to get around that recommendation."
In the change from Democrat to Republican, the court changed its philosophy but not its character: It is still hypertechnical. The most notorious example of this did not involve the death penalty. Roy Criner had received a 99-year sentence for the rape of a woman who was also murdered. In 1998 a DNA test proved that the sperm in the victim wasn't Criner's, and the trial judge ordered a new trial. In a 5-3 opinion written by Judge Keller, the CCA denied Criner a hearing on the new evidence. "The DNA evidence . . . does not establish his innocence," she wrote, noting that Criner could have used a condom or not ejaculated. Former judge Baird, who dissented, is still outraged: "The problem with Keller's position was that those arguments were never made by the state. Keller left any semblance of being an impartial judge behind and became a partisan advocate for the prosecution. And it begs the question, Why would anyone want an innocent man to stay in prison?" Judge Price later wrote that the decision had made the CCA a "national laughingstock." Keller didn't help matters when she gave an interview in 2000 for Frontline, discounting the DNA evidence and calling the victim "promiscuous." About Criner's little innocence problem, she said, "He has to establish unquestionably that he is innocent, and he hasn't done it." When asked how a person could prove he was innocent, she replied, "I don't know. I don't know." She's right: It's almost impossible under the court's standard, which is "clear and convincing evidence." If exonerating DNA isn't "clear and convincing," what is? (Criner was eventually freed after the Board of Pardons and Paroles recommended that he be pardoned.)
The CCA has also made it almost impossible to show that the state violated a defendant's right to a fair trial. The court typically describes mistakes or misconduct during a trial as "harmless error." In other words, the defendant would have been convicted anyway. Perhaps the most infamous examples of harmless error occurred in the sleeping-lawyer cases, one of which involved Calvin Burdine. Even though the trial court said he should get a new trial, the CCA overruled. (A federal judge rejected the CCA's opinion in June, and he will get a new trial next year.)
