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.

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

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