Friday, March 14, 2014

Photographic Update

While I've been away from blogging, I spent some time on the northern California coast. Here's a photograph that I find to be a pleasant reminder. Click to enlarge.


I intend to return both to the coast and to blogging about wrongful convictions. I have something to complete, however, before I do either.

Saturday, March 1, 2014

Cameron Todd Willingham: Told ya!

I'm back for a single post, then I'll disappear for another couple months. Later I will explain my sudden departure from blogging.

Cameron Todd Willingham was executed by the State of Texas on 17 February 2004.  Willingham had been convicted of killing his three young daughters by setting fire to his house. The innocence world is now atwitter about a recent development in the case. Evidence has been uncovered that suggests the prosecution purchased snitch testimony. Color me shocked!

I wrote extensively about Johnny Webb in my book The Skeptical Juror and the Trial of Cameron Todd Willingham. I'll provide multiple excerpts of what I wrote about him, before formally declaring "Told ya."

The first witness in the trial of Cameron Todd Willingham was a drug-addled snitch named Johnny Webb. I summarize Webb's testimony below:
Willingham came home to find his wife terribly distressed. His wife told him that she had accidentally killed one of their three daughters. Willingham told her he would save her from prosecution by destroying the evidence of her guilt. He would set the house on fire and make it look like the oldest of the girls, Amber, had set the fire. To do this, he somehow rendered Amber unconscious, moved her from the children's room to his room, placed her in his bed, the used a flaming roll of paper to inflict burns on her arm and face. He squirted lighter fluid on the floors and walls, and then ignited it.
In my book The Skeptical Juror and the Trial of Cameron Todd Willingham, I presented Webb's testimony. I then had the fictional jury deliberate it. I modeled my fictional jury after the fictional jury in Twelve Angry Men. I discussed that modeling in a special note at the end of my book, which I cleverly called "A Note on Twelve Angry Men".  From that note:
Anyone who has watched and remembers Twelve Angry Men will have no doubt that my fictional jury deliberations were inspired by that movie. 
I modeled eleven of my jurors on its actors. In my book, for example, Sports Fan Ward plays a similar role to that played by Jack Warden. Timid John sits in the same seat as did John Fiedler, and John Fiedler did indeed play therapy patient Mr. Peterson in The Bob Newhart Show. … Boisterous Lee is clearly similar to Lee J. Cobb. [Foreperson] Marti is a variant of Martin Balsam, different both in gender and competence. 
I dared not assume the skeptical juror role portrayed by Henry Fonda, for he was more subtle and persuasive than I can hope to be. Instead I assigned that role to Harriet. I placed myself in the next chair, and I frequently reminded myself I needed to be more like her. ... 
I borrowed from Twelve Angry Men not because it made my job easier, for it certainly did not, but because I wanted to pay homage to the movie. It has special meaning for me. One prosecutor, angry that I had thwarted his conviction and wanting a retrial, compared me to Henry Fonda in the movie. He did not intend it as a compliment to me; he merely wanted to convince the judge that the State would prevail if the defendant were retried. I nonetheless accepted it as a compliment, though the parallel never occurred to me as I struggled to save a stranger, someone who turned out to be a fine and decent man. 
The movie, of course, portrays jury deliberation to be more dramatic than it really is. I've yet to see a juror threaten another with a knife, or witness one break into tears while ripping apart a photo of his own son. 
On the other hand, Twelve Angry Men expresses many of the concerns I have about jury behavior. Jurors tend to be insufficiently skeptical of the prosecution, too willing to convict without a thorough deliberation of the evidence. Jurors are too eager to relieve the State of its burden of proof, too willing to deprive the defendant of his presumption of innocence. Too many jurors base their votes on convenience or intimidation rather than conviction. These are not lessons I learned from the movie. They are lessons I learned behind closed jury room doors.
In my book, I interlace the actual testimony with the fictional jury deliberation of that testimony. Johnny Webb is the first witness, and Boisterous Lee is his biggest defender. I described Lee as follows.
Lee is large, forceful, opinionated, and boisterous. He's personable enough, but when confronted with ideas other than his own, he tends to respond with volume rather than with reason, persistence rather than persuasion. I fear I see myself in him, though I'm at least conscious of my failing. I make a mental note to practice restraint and subtlety.
I, on the other hand, was Johnny Webb's biggest detractor. In the real world, I had no doubt that Johnny Webb perjured himself in return for favors from the prosecution, even though the prosecution maintains otherwise, at least so far. In the book, I therefore made myself Johnny Webb's biggest detractor. I, my character, was so bothered by him that I several times failed to practice restraint and subtlety as I had promised to do. Lee and I naturally butted heads on several occasions over Webb's testimony. I excerpt below our first exchange on the subject:
Boisterous Lee: "He's no snitch. A snitch is a prisoner who lies on the stand about another prisoner in exchange for time off, or privileges. We got no evidence Webb is lying, and we have the word of the prosecutor that he's not going to get any time off, or anything else for that matter.
I decide to speak up.
"I'll give you two-to-one Johnny Webb is out in five years, no longer. He'll serve the minimum, maybe a bit more, but he won't be in fifteen years, not even half that." 
Ward: "I'll take a piece of that action."
"Sorry. Offer's only good for Lee. What do you say? We get together five years from today. If your man Johnny Webb is still locked up, I write you check for two thousand dollars. If he's been sprung, you write me a check for a measly thousand."
Lee: "Get outta here."
"I'm serious. Two-to-one."
Ward: "I'm serious. I'll take a piece of that action."
"This is between Lee and me. What do you say?"
Lee: "You'll never show."
"We'll set up an escrow account. Winner takes the proceeds and all the interest to boot." 
Lee: "Give it a rest, will ya? Are you telling us the prosecutor was lying to us? Is that what you're saying?"
"They don't have to lie. They all know how the game's played. A wink here, a nod there, some hypothetical off-the-record discussions, and somehow everyone's getting what they want, everyone that is except the poor schmuck who's going to get needles in his arms."
Bitter Ted: "So now you're saying he's not guilty too?"
"Not saying that at all. I am saying that a snitch's testimony isn't worth a used roll of prison toilet paper. I'm saying that as far as I'm concerned Webb's testimony hurt the prosecution far more than it hurt the defense. The prosecution needs to prove to us beyond a reasonable doubt that Willingham did this crime, that a crime even occurred, and yet their very first witness is a jailhouse snitch. And we're supposed to believe him beyond a reasonable doubt?"
Ted: "You believe what you want, I'll believe what I want."
"Lee won't even bet a thousand dollars on him. Will you bet your life on the truthfulness of Johnny Webb?"
Ted: "That's a damn silly question."
"But you'll stake Willingham's life on his testimony, won't you?"
I later upped the odds to four to one, then five to one. Lee and I thereafter went back at it:
Lee: "And they did prove motive, didn't they? The prison guy, what's his name Webb, he said that this guy told him he killed them because he was protecting the mother." 
Everyone in the room stares at him. 
Lee: "Whadda ya all looking at? What?" 
He's squirming badly now. 
Lee: "He didn't mean he was protecting her because she set the fire. That's not what he said." 
Beads of sweat are forming on his reddening forehead. 
Lee: "He said she had hurt the kids, that's why he killed them. He did it to protect her." 
Time for me to violate my self-imposed subtlety oath. 
"That's the best reason of all to arrest her, assuming they believe Webb. They're using him to get what they want, and he's using them to get what he wants. We all know that, at least most of us do. So I'm going to double my bet, and I'll give you even better odds. If Johnny Webb gets out within five years, you write me a check for one thousand. If he's still in, I write you a check for four. 
Sports Fan Ward: "I want a piece of that." 
"This is between me and Lee. Isn't it Lee?" 
Lee: "I don't know what you're talking about, this between you and me stuff." 
"If the prosecutors believed Johnny Webb, Stacy would be sitting there next to Todd. And if they really believed the evidence about the music or the food or all the other crap they threw at us, if they believed any of that was worth a plugged nickel, Stacy would be sitting beside Todd. The prosecution doesn't believe its own evidence, but they want us to." ... 
Lee can't let go of Johnny Webb. He speaks to no one in particular. 
Lee: "You know that thing I said about him trying to protect her, I didn't mean that she might have set the fire.
Marti: "Yes Lee. I think we all understood you."
He points an accusing finger in my direction.
Lee: "He was just trying to bait me."
Edie: "He did a pretty good job."
Lee doesn't understand that he just can't win on this one any longer. The jury has grown to distrust Webb. Lee won't be able to rehabilitate him. He should let the matter drop.
But, of course, he won't.
Lee: "Webb was right about the little girls, wasn't he? He said this Willingham guy carried one of them into another room and that's just how they found 'em. The baby twin girls were in the front bedroom and the older girl was in his bedroom. Just like he said. You've got an answer for everything. Whadda you say about that?"
I remind myself: subtlety and restraint.
"I don't believe he's a credible witness."
Lee: "How would he get that information?"
"I believe that's obvious." 
I restrained myself from adding "at least to everyone except you."
Lee: "Whadda ya mean obvious?"
What the hell!
"You really don't get it, do you? They fed him the information. The spoon fed it to him, bit by bit. They didn't just meet with him once and hear his story. The met with him over and  over, at least four times that Webb would admit to.
"Webb only has to hear the story from Willingham once, and tell the story to the guard just once, but he has to tell it to the prosecutors four times? Of course not. He tells them a story, they go back and compare notes, and they come back a few days later. 'Did he say how he set the fire? Did he say anything about spreading lighter fluid all over?' And then Webb, who knows as well as any other snitch how the game is played, says something smart, like 'Uh, yeah, what you said. He used lighter fluid.' 
"They go away and come back a couple of weeks later. 'What about the little girl? Did he say he moved her from the bedroom or did he just leave her there with the other two?' To which Webb answers, "Uh, he left her with the others.' 
"That's a disappointment to the prosecutors of course, but they've run into this before. It's easy to fix. They just ask 'Are you sure?' 
"Webb knows those are the code words for 'try again', so he tries again. 'I mean, he said he moved one of them to another room. That's what he said.' 
"And those little meetings keep happening over and over until Webb is telling the story that the prosecutors want to hear. Then they give him a wink and a nod and say 'All we want is for you to tell the truth. We can't promise you anything, understand.' And Johnny Webb, professional snitch, winks at them and says 'I understand.' 
"Now they could have recorded every single one of their interviews with Johnny Webb, and they could have played every one of them for us during the trial. But they chose not to, and I'll tell you what. If you can lay your hands on any one of those recordings, I'll be pleased and honored to write out a check for five thousand dollars, right here on the spot. You don't even have to put any money up." 
Ward: "Now I'd really like some of that action." 
"Give it a rest, Ward. None of you are going to find any of those tapes because they never made them. The last thing they want is for anyone to see what goes on in those little secret meetings. They just want you to believe their snitch when he gets on the stand and talks about how awful he thought it was and how terrible he felt and how he just had to do the right thing. 
"The problem is they talked to him so many times he can't keep his story straight. So when he gets up there on the stand and they ask him if Willingham said anything about moving the little girl, he says "No. I don't believe he said that.' 
"It's just like my little make-believe story of what happened in those secret meetings. He gives them the wrong answer, except this time he's on the witness stand, right in front of us. While that's a little embarrassing for the prosecutors, they never flinch. They just hand him a piece of paper and ask if he now remembers it differently. Supposedly the paper is a statement that he signed, but it may just as well read '15 years is a long time.' 
"Suddenly, and if by magic, Johnny Webb changes his testimony right there on the spot and tells us that Cameron Todd Willingham said he moved one the girls from the children's bedroom to somewhere else. So I'm sitting there in the jury box, and I sure as hell know Johnny Webb is lying his ass off. The interesting question to me now is: how did he learn that the girls were in different locations? 
"Then I give myself a metaphorical slap on the forehead and realize the information has been fed to him, and I have a pretty good guess on who did the feeding. Then I decide, right then and there, that if the prosecution is going to begin their case with this lying, son-of-a-bitch snitch, I'm going to be damn suspicious of everything they try to feed me. 
The room seems to be in shock. I realize I had exhibited neither subtlety or restraint, so I try to cover it. 
"I guess what I'm saying is that I'm pleased that we're all discussing this case together." 
Yeah, That'll do.
And I lit into Johnny Webb a third time by end of the book:
Time for another intervention. It has to do with Johnny Webb, so I'll have to try extra hard to restrain myself. 
"It's a lot worse than that. A lot worse." 
Marti: "Go ahead." 
"Certainly. I want to talk again about the inside knowledge that Johnny Webb seems to have. If he didn't get it from Willingham, I'm guessing he got it from the prosecutors during one or more of their many get-togethers." 
Boisterous Lee: "You don't know that! You can't know that. Nobody can know that. Now you're not only claiming he lied, your claiming they set him up to lie." 
He just can't help himself. 
"That's exactly what I'm saying. Are you just now figuring that out? Sure they asked him to lie. They fed him the information. I already talked about how he screwed up on the stand and couldn't remember his lines about Willingham moving Amber from one room to the other. He said he didn't recall Willingham saying that, they showed him the mystery paper, and he changed his tune. 
"But that's not the only thing he forgot about. He forgot he was supposed to cover their ass in the off chance that one of the jurors wasn't completely brain dead and figured out Amber started the fire. So Assistant Prosecutor John Jackson asks him if Willingham said anything about trying to shift the blame to someone else. And what did Johnny Webb say?" 
There's a pregnant pause. 
"He said, and I believe this is an exact quote, he said 'I'm not sure.' 
"Well that answer didn't cut any mustard with John Jackson, so Jackson asks him specifically whether Willingham told him anything he did with the children. 
"Martin is objecting left and right that Jackson is leading the witness, because that is exactly what Jackson is doing. He's leading the witness by a fifteen-year-long nose. Judge Douglas overrules the objection, either because he couldn't recognize a leading question if it bit him on the ass, or because he just assumes Willingham is some kind of dirt bag who deserves whatever he gets. 
"And while all that objecting and overruling is taking place, Mr. Webb realizes he just screwed the pooch. So he changes his story again, and he tells Jackson just what he wanted to hear, just as they rehearsed it. Johnny Webb says, with a straight face mind you, that Willingham told him he burned one of the kinds to make it look like they were playing with fire, that he wadded up some paper, set it on fire, and burned his own child on the arm and on the forehead with that burning piece of paper. 
"But it gets worse, even worse, because it's not just some low-life snitch behaving badly, it's the people who are supposed to protect us that are bending and twisting the truth so that they can see one of us strapped to a gurney and shot full of chemicals. 
"They are so afraid one of us will figure out that Amber started that fire, and thereby blow their precious case to kingdom come, that not only do they feed the story to a low-life snitch, they involve a well-trained, well-paid professional in the charade. Jackson asks him if he could determine whether the burns on Amber's body had been caused by super-heated air or an open flame. The doctor said he couldn't tell. 
"So that's it. Case closed. We're supposed to figure Webb's story might actually be true. Marti said it exactly right. They want us to convict on the lack of evidence. 
"But if Jackson really wanted to get to the bottom of it, if he wanted us to understand what really might not have happened, he could have asked somewhat more penetrating questions. For example: 'Doctor, did you find any wounds consistent with a flaming, wadded-up piece of paper applied directly to the victim's forehead?' 
"And I'm guess the good doctor would have said 'No.' 
"Then he could have asked, 'Doctor, could those generalized burns on the victim's face, neck, arms, legs, and one foot be caused by a flaming, wadded up piece of paper held close to her skin?' 
"And I'm guessing the doctor would have said 'No.' 
"But Jackson didn't ask those questions or anything like those questions because he didn't want us to believe that Amber might have started this fire. And just in case one of us turns out to be clever enough to figure out that she may have, we're supposed to remember that Willingham told upstanding citizen Johnny Webb that he framed one of his little girls for the crime. 
"So you tell me: who's the one more likely being framed here? Amber or her father?"
I included an extensive notes section at the end of the book. Regarding Johnny Webb I wrote:
In the movie, there was no snitch. During the trial of Cameron Todd Willingham, the snitch was the lead witness for the prosecution. The jurors in that trial explained they paid little attention to Johnny Webb. That is unfortunate. Johnny Webb's testimony provided evidence that Willingham's prosecutors were willing to fabricate evidence against him to win their case. 
Less than five years after the jury voted to put Cameron Todd Willingham to death, the Texas Board of Pardons and Paroles released Johnny Webb early. He had served only five years of his fifteen year sentence. His criminal history suggested he would likely return to a life of crime. At one time or another, he had been convicted of robbery, burglary, forgery, auto-theft, and distribution of drugs. He claimed his criminal behavior stemmed from drugs and alcohol. There was no real reason to believe he would be better able to control his addictions if released early than he had been prior to his most recent arrest. 
Prosecutor John Jackson, however, spoke in favor of Johnny Webb's early release. Though Jackson considered Webb to be "an unreliable kind of guy," Jackson nevertheless troubled himself to argue in favor of Webb's early release. "I asked them to cut him loose early." 
According to Jackson, his endorsement has nothing to do with the assistance Johnny Webb had provided him during the Willingham trial. Of course not. Jackson explained that he was merely concerned about Webb's safety and well being. He claimed that Johnny Webb had been targeted by the Aryan Brotherhood. 
A few months after his early release, Johnny Webb was caught with cocaine and returned to prison. 
In March of 2000, eight years to the month after his conviction of robbing a woman for her purse, Johnny Webb sent John Jackson a Motion to Recant Testimony. It read in part: "Mr. Willingham is innocent of all charges." 
John Jackson apparently failed to inform Cameron Todd Willingham's defense team of this surprising turn of events. Instead, John Jackson may have explained the consequences of perjury to Johnny Webb. If the recantation were true, Jackson may have pointed out, Webb's testimony during the trial of Cameron Todd Willingham would have been false. 
Soon thereafter and without explanation, Johnny Webb recanted his recantation. 
During an interview after his release, Johnny Webb effectively recanted the recantation of his recantation. Speaking of Willingham, he said: "It's very possible I misunderstood what he said. … My memory is in bits and pieces. I was on a lot of medication at the time." 
He then added: "The statue of limitations has run out on perjury, hasn't it?"
Now finally for the "Told Ya!" From the 27 Feb 2014 of The New York Times, emphasis and emendation mine:
What has changed is that investigators for the Innocence Project have discovered a curt handwritten note in Mr. Webb’s file in the district attorney’s office in Corsicana. The current district attorney, R. Lowell Thompson, made the files available to the Innocence Project lawyers, and in late November one of the lawyers, Bryce Benjet, received a box of photocopies. 
As he worked through the stack of papers, he saw a note scrawled on the inside of the district attorney’s file folder stating that Mr. Webb’s charges were to be listed as robbery in the second degree, not the heavier first-degree robbery charge he had originally been convicted on, “based on coop in Willingham.” 
Mr. Benjet recalled a “rush of excitement,” he said, and thought, “This is what we’ve been looking for.” 
The Innocence Project submitted the note, which is not dated or signed, in a new filing to the board asking that it be included as part of its September request for a pardon. 
Barry Scheck, co-founder of the Innocence Project, called the note a “smoking pistol” in the case. 
“We’re reaching out to the principals to see if there is an innocent explanation for this,” he said. “I don’t see one.” 
Judge Jackson [the man who prosecuted Willingham and claimed he never made a deal] did not respond to several requests for comment.
Color me shocked that such a thing might happen in our criminal justice system.