The Framing of Cesar Fierro

This is the third post in the series Framing the Guilty, Framing the Innocent. For ease of navigation among the posts, use the Table of Contents.

On 27 February 1979, border patrol agents discovered the body of taxi driver Nicholas Castanon in an El Paso park. He had been shot in the back of the head.

Not long after the shooting, eyewitnesses in Juarez, Mexico identified two men exiting what turned out to be Castanon's cab. Based in part on descriptions provided by the eyewitnesses, the El Paso police soon arrested two men, neither of whom were Cesar Fierro. The El Paso district attorney declined to prosecute, and the case went cold.

Late in July, under circumstances that remain murky to this day, 16-year-old Geraldo Olague fingered Cesar Fierro as the person who shot and killed Nicholas Castanon. Olague explained to the Juarez police that he and Fierro hailed a cab with the intention of robbing the driver. Fierro surprised Olague when he shot and killed Castanon. The Juarez police promptly turned Olague over to the El Paso police.

On 1 August, at 3 in the morning, eight heavily-armed Juarez police officers broke into the home of Cesar Fierro's parents. They took the parents to the Juarez jail. There they threatened Fierro's stepfather with an electric cattle prod placed close to his genitals. They beat Fierro's mother.

A bit later that morning, El Paso police detective Al Medrano received a phone call from Juarez police commander Jorge Palacios. Palacios invited Medrano to breakfast in Juarez. During their meeting, Palacios informed Medrano that the Juarez police had located Cesar Fierro. Fierro, he explained, was already in the custody of the El Paso police, being held for a parole violation in an unrelated case.

Medrano quickly retrieved Fierro and began interrogating him. Fierro acknowledged that he knew Olague and conceded that they had committed robberies together. Fierro, however, steadfastly denied that he was in any way involved with the murder of Nicholas Castanon.

Medrano called Palacios and gave the phone to Fierro. Palacios informed Fierro that his parents would be tortured if he did not confess. Fierro hung up the phone and confessed to the murder of Nicholas Castanon.

At his trial for capital murder, the case against Cesar Fierro consisted of his confession and the testimony of Geraldo Olague. Medrano testified that the confession was voluntary. Olague's testimony was a jumble. He testified that in the hours before the murder, he committed his first-ever burglary. The burglary consisted of breaking into a car and stealing a CB radio, which he later pawned. He identified one of the jurors as the pawnbroker to whom he had sold the radio.

Olague testified that Fierro had forced him to commit approximately 10 burglaries in the six months prior to the CB radio theft, despite his own testimony to the contrary. When asked how many burglaries he had committed, he estimated 40.

To explain away the obvious inconsistencies between his trial testimony and his police report, Olague explained that he had psychological problems and that he was impaired even while testifying.

The defense called Fierro's parents who testified to the brutal treatment they had suffered at the hands of the Juarez police. The defense called also Fierro's landlord who testified that Fierro was at home on the night of the murder. The defense witnesses were of no consequence, however, in the face of Fierro's confession.

On 12 February 1980, the jury found Cesar Fierro guilty of capital murder and sentenced him to death.

After Fierro had been on death row for 14 years, his appellate attorneys interviewed Al Medrano under conditions that turned out to be favorable to Fierro. Medrano was dying of cirrhosis of the liver, and he provided what was effectively a dying declaration. He signed an affidavit admitting that Fierro's confession had been coerced.

Fierro's attorney took the affidavit to the district attorney who had prosecuted Fierro. The DA signed an affidavit stating that he would not have prosecuted Fierro if he had known the confession had been coerced.

In addition to the two affidavits, the Juarez police officer who had led the pre-dawn raid on home of Fierro's parents agreed to testify.

That evidence in hand, Fierro's attorneys convinced a lower court to grant Fierro a new trial. The Texas Court of Criminal Appeals, however, overruled the lower court decision. Each of the nine TCCA judges agreed that the confessions had been coerced. Each of the nine agreed also that Detective Medrano had provided perjured testimony during Fierro's legal proceedings. Only four of the judges, however, voted to grant Fierro a new trial. The other five ruled the coerced confession to be nothing more than a "harmless error". They ruled that the jury would have convicted Fierro on Olague's testimony alone.

During his time on death row, Fierro has been scheduled for execution 14 different times. On 6 of those occasions he came within days of being executed. His mother died. His brother died. His wife divorced him. His daughter stopped visiting him.

On 15 May 1986, Fierro contacted the prison's psychiatric department for the first time. He explained that he was hearing voices and feared he might harm himself.

After March of 1999, Fierro's communications with his attorneys became increasingly irrational. He accused them of conspiring against him. He refused to meet with them. He returned their letters unopened. He refused to shower. He refused to leave his cell for any reason and had to be forcibly extracted. He spread feces on the wall.

Fierro now spends his days in the Beauford H. Jester IV Psychiatric Unit. It is unlikely he will ever be executed.

He will, however, always have been framed by the State and People of Texas.

The Framing of Larry Swearingen, Part 1

This is the second post in the series Framing the Guilty, Framing the Innocent. For ease of navigation among the posts, use the Table of Contents.

Introduction

On 8 December 1998, Melissa Trotter disappeared from Montgomery College, a community college 30 miles north of Houston. Twenty-four days later, on 2 January 1998, several hunters discovered her body in a heavily wooded area of Sam Houston National Park. She had been strangled with one leg of a pair of pantyhose. The ligature was still knotted around her neck.

On the day Melissa Trotter disappeared, Larry Swearingen was scheduled to lunch with her. Swearingen quickly became the primary suspect. The police arrested him for outstanding traffic warrants on 11 December, just 3 days after Melissa went missing, 22 days before her body was discovered.

At his trial, the State presented a circumstantial, but substantial case for murder. With respect to the attempted rape and kidnapping charges, however, the evidence was gossamer thin. I summarize the State's case below.

The Case Against Larry Swearingen

On December 6, Swearingen met Melissa Trotter and talked with her at length. She gave him her phone number, and they made plans to talk again the next day.

Later that evening, while using his truck to help transport some furniture, Swearingen commented to Bryan Foster and William Brown that he was going to meet a young lady named Melissa for lunch. He bragged that if everything went right, he was going "to have Melissa for lunch." Swearingen called Melissa from Foster's house and talked with Melissa about meeting her for lunch and helping her study for an exam.

On December 7, Melissa paged Swearingen. He called her back. She apparently canceled or postponed their lunch date. His co-workers teased him about being stood up. He explained she was taking a test. He appeared to be angry the rest of the day.

On December 8, three witnesses saw Melissa sitting with Swearingen in the Montgomery College library between 11:30 AM and 1:30 PM. The two of them were sitting by the computers and chatting amicably. Melissa's biology teacher saw her leave with a male shortly after 1:30 PM.

At 2:05, Swearingen returned a page from his friend Sarah Searle. He told her that he would have to call her back because he was having lunch with a friend.

Around 3:00, Swearingen's landlord saw Swearingen's truck arrive. Not long thereafter he saw Swearingen's truck leave. Because the truck had tinted windows, the landlord could not see who was in the truck.

At 3:03, Swearingen placed a cell phone call that utilized a cell tower near FM 1097 in Willis, Texas. The State argued the call was consistent with Swearingen driving from his rented mobile home to the Sam Houston National Forest where Melissa's body was found.

At 4:30, Swearingen placed another cell phone call picked up by a different cell tower near Willis. The State argued the call was consistent with Swearingen returning to his home after dumping Melissa's body in the Sam Houston National Forest.

When Swearingen returned home, he was again observed by his landlord. Swearingen in fact spoke briefly with the landlord.

By 5:30, Swearingen left again, this time to pick up his wife Terry from his mother's house. Terry Swearingen testified that when she and her husband returned home, she noticed their home was in disarray. She noticed also a pack of Marlboro Light cigarettes and a red lighter on top of the television. Terry Swearingen testified that neither she nor her husband smoked. Melissa Trotter, however, smoked Marlboro Lights and used a lighter similar to that found in the Swearingen's home.

That same evening, Larry Swearingen called Phyllis Morrison, an ex-girlfriend. Swearingen told her that he was in trouble and that the police might be after him. On December 11, Swearingen told an acquaintance that he anticipated being arrested by Montgomery County authorities.

Also on December 11, Swearingen noticed a patrol officer observing him. Swearingen sped away, leading the officer on a high-speed chase. The chase ended in front of the home of Swearingen's mother and stepfather. Swearingen was arrested on several outstanding warrants. While being placed in handcuffs, he asked that his hands be placed in front of him rather than behind. He explained that his wrist and ribs were sore because he had been in a bar fight the week before. Following his arrest, law enforcement authorities observed and photographed red marks on his neck, cheek, and back.

On December 17, two neighbors of his mother and stepfather collected numerous pieces of torn paper from their street. The papers turned out to be Melissa Trotter's class schedule and some health insurance paperwork her father had given her.

On January 2, Melissa's body was discovered in the Sam Houston National Forest. The location was heavily wooded, secluded, and remote. The police had previously searched the area three times without finding the body. They explained later that they would have had to walk within twenty feet of the body before seeing it. Larry Swearingen was familiar with the area. He had driven a date around the vicinity just a few months earlier in his red pickup.

Melissa was laying on her back in a pile of bushes. Her right arm was above her head and slightly to the left. Her sweater, shirt, and bra were pulled up under her arms, exposing her breasts and back. Her jeans were still on. The fly was closed. The right rear pocket was torn downwards, exposing red underwear beneath. A note was in one pocket. The note had been given to Melissa by a friend on the day Melissa disappeared.

A piece of hosiery was knotted around her neck, as a ligature. The hosiery was one leg from a pair of pantyhose. Swearingen's landlord testified that he found the remainder of the pantyhose in Swearingen's mobile home as he was cleaning the trailer for another tenant. The discovery occurred after the body had been found. Terry Swearingen, Larry's wife, testified that the pantyhose belonged to her.

Chief Medical Examiner Dr. Joye Carter conducted the autopsy on 3 January. That was one day after Melissa's body was discovered, 25 days after she had disappeared, and 22 days after Larry Swearingen had been arrested. Dr. Carter did not estimate a time of death. She did not note any evidence of sexual assault. She did not note any defensive wounds or evidence of restraint.

During Swearingen's trial for capital murder, Dr. Carter testified that death was caused by asphyxia due to ligature strangulation. There was no evidence of penetration of the vagina, anus, or mouth. The lack of defensive wounds, such as broken fingernails and the difficulty of tying an elastic nylon around a struggling victim, suggested that the Melissa may have been unconscious when the ligature was applied.

Based on the state of decomposition, including the presence of fungi that take several weeks to develop, Dr. Carter estimated Melissa Trotter's death occurred 25 days prior to the discovery of her corpse. That matched exactly the date of Melissa's disappearance. Dr. Carter had not estimated a time of death in her autopsy report.

Melissa's stomach contents included a French fry-like form of potato, some chicken, and a small amount of greenish, vegetable material. The State claimed the stomach contents were consistent with the tater tots Melissa had eaten while at Montgomery College. The State claimed further that chicken was consistent with Chicken McNuggets Melissa might have purchased at the nearby McDonald's. Dr. Carter testified that a person's stomach will usually not empty in less than two hours, and that any food within the stomach at death will remain there.

Criminalist Sandra Musialowski, from the Texas Department of Public Safety, testified that several fibers recovered from Melissa's jacket were consistent with fibers from Swearingen's jacket. Criminalist Musialowski testified also that several fibers found on Trotter were similar to seat material from Swearingen's vehicle. A few other fibers found on Trotter were similar to fibers from the headliner of Swearingen's truck and from the carpet in his home. Criminalist Musialowski testified also that three hairs found in Swearingen's truck were microscopically similar to Melissa's hairs. Those hairs still contained the anagen root, indicating they had been forcibly removed.

Officer Ivan Wilson, also from the Texas Department of Public Safety, testified regarding a paint fleck found on Trotter's clothing. He testified that the quantity was "an insufficient amount to do all the testing that I normally do." The fleck, however, was similar in appearance to paint on Swearingen's red pickup.

A Luminol test conducted on the seats of Swearingen's truck found no blood. The investigators concluded that the truck had been wiped down with with Armor All. Two empty containers of Armor All wipes were found in the garbage at Swearingen's home.

While Swearingen was in jail awaiting trial, a cellmate asked him whether he had committed the murder. Swearingen replied, "Fuck, yeah, I did it." Swearingen added that he was just trying to avoid the death penalty.

Swearingen's Fabrications

Larry Swearingen provided substantial assistance to the State of Texas in their effort to convict him. On three occasions, he clumsily attempted to fabricate exculpatory evidence. These clumsy efforts were used against him at trial.

Swearingen's first clumsy effort was claiming that his house had been burglarized. Part of the circumstantial case presented against Swearingen at his trial was that his house was in disarray when he returned there with his wife. His wife noticed the disheveled state of their home as well as the strange cigarettes and the strange lighter. Apparently in an effort to explain the tumultuous state of his home, Swearingen contacted the police and reported a burglary. He falsely claimed to have been out of town from 11:00 AM on 7 December through 7:30 PM on 8 December. He also falsely claimed that someone had stolen his VCR and his Jet Ski. The police, however, found no sign of any prying mechanism on the doors or windows to his home. His Jet Ski was located at a repair shop where Swearingen had dropped it off for maintenance.

Swearingen's second clumsy effort was asking a friend to provide an alibi for him. On 9 January, When Swearingen's friend, Elyese Ripley, visited him in jail, Swearingen asked her to say that she had been with him on the day Melissa disappeared. He asked her to say that they had gone to the Texaco-McDonald's restaurant near Montgomery College.

Swearingen's third effort was by far the most clumsy. While in jail awaiting trial, he attempted to compose an exculpatory letter from a mystery woman. Swearingen foolishly decided to write the letter in Spanish, a language with which he was clearly less than fluent. He relied heavily on an English-to-Spanish dictionary. The resulting letter was so garbled and so ungrammatical that precise translation was impossible. The narrative was of somebody name Ronnie who took Melissa Trotter to the forest and strangled her.

According to the State, this purportedly anonymous, exculpatory letter included details of the crime that could have been known only to the person who murdered Melissa Trotter. Those details included the Dr. Carter's testimony that Melissa was injured on the left side of her face, that Melissa's neck was cut, that one of Melissa's shoes had fallen off, that Melissa was laid on her back among the bushes, and that Melissa was wearing red underwear.

The Defense Case

Larry Swearingen offered a brief affirmative defense, but need hardly have bothered. He had impeached himself so thoroughly by his efforts to manufacture exculpatory evidence that the jury was unlikely to believe anything he said. Nonetheless, Swearingen testified that he did in fact encounter Melissa Trotter that day at the college, but only briefly. She was talking to another man. Swearingen did not go to McDonald's or anywhere else with her that day. Instead he went from the college to see his grandmother.

Swearingen's grandmother corroborated his testimony. She testified that he picked her up and took her to the post office around 2:00 PM, and that he was with her until around 2:50 PM. Assuming the grandmother testified truthfully and accurately, then Larry Swearingen was probably not responsible for the disappearance and murder of Melissa Trotter. During their cross-examination of the grandmother, however, the State called into question her memory of both the date and time. They questioned her also about why she had not earlier informed the authorities of her grandson's alibi.

The most intriguing bit of exculpatory evidence was, in my opinion, the discovery of fresh blood under one of Melissa Trotter's fingernails. DNA testing of that blood excluded Larry Swearingen as the contributor.

Pre-emptive trial testimony about the blood came from Chief Medical Examiner Dr. Carter and from two employees of the Texas Department of Public Safety crime lab. Taken as a whole, their testimony was that the initial testing of fingernail scrapings revealed no human DNA. A later inspection, however, revealed some "very tiny, bright red flakes." The flakes had a total size "no bigger than ... a point of a pencil." The flakes tested positive for human blood.

Given that the flakes were blood, and given that they were still bright red, the flakes were too well preserved to have been exposed to the elements for more than a couple of days. No one disputed the conclusion that the flakes were freshly deposited, within days of their discovery.

DNA testing of the flakes produced a profile consistent with a male, but inconsistent with Larry Swearingen. The DNA profile was run through the standard database system to search for a match, and no match was found. The DNA profile was then compared against that of six individuals identified by Swearingen's defense team. Again, no match was found.

The State argued that the blood came not from Melissa's assailant, but from contamination unrelated to the crime. State witnesses testified that the blood could have come from a deputy present during the autopsy, a deputy who claimed he had cut himself shaving earlier that morning. Alternatively, the state witnesses suggested that the flakes could have been circulating through the morgue's air conditioning system, that they wafted through a vent, and that they landed unnoticed on the exposed fingernail scrapings.

The defense refuted, effectively in my opinion, the lesser pieces of circumstantial evidence that the State amassed against Swearingen. I detail those refutations in my lengthy series The Most Innocent Man on Death Row, and I will not repeat them here.

The most damning pieces of evidence against Swearingen were:

1. the discovery of the pantyhose at his home, 

2. the discovery of Melissa Trotter's paperwork near his parents' home, and 

3. Dr. Joye Carter's testimony that Melissa Trotter died on the day Trotter was last seen alive with Swearingen.

When I continue with The Framing of Larry Swearingen, I will explain how each of those three pieces of evidence was manufactured. I will explain why Larry Swearingen is absolutely innocent. I will explain how he was framed for the murder of Melissa Trotter.

Before doing that, I will explain how other innocent people have been framed by the State and People of Texas.

Stay tuned.

Framing the Guilty, Framing the Innocent

There is an all-too-common practice in our justice system known as Framing the Guilty. A police officer (or crime lab supervisor or medical examiner or district attorney) is convinced of a suspect's guilt but fears the bastard will walk free. The police officer (or other administrator of justice) will therefore bury exculpatory evidence, manufacture or plant inculpatory evidence, coerce a false confession, or provide favorable treatment to a third party in exchange for false testimony.

Since the dirtbag being framed is guilty, no harm is done.

A greater harm would be to allow the sleaze ball to walk free so that he could rob or rape or kill again.

It's okay because everyone does it.

No need to lose any sleep over it.

Right?

Sometimes, however, the police arrest the wrong person. They are loath to admit it, but sometimes they do arrest the wrong person. Sometimes, district attorneys convict innocent defendants. They never admit it, but sometimes district attorneys do convict innocent defendants. In those cases of actual innocence, Framing the Guilty becomes Framing the Innocent.

The classic movie frame up is more fiction than reality. A bad guy wants to deflect suspicion away from himself. A vengeful partner wants to extract revenge. A mob boss wants to eliminate competition. Those evil private citizens therefore manufacture a case against an unwitting foe. The police and district attorney fall for it. An innocent man is convicted through no wrong-doing whatsoever on the part of the State.

I repeat, the classic frame up is more fiction than reality. In the real world, nearly all the framing is done by the State. In those frames, the administrators of our justice system are the bad guys, the vengeful partners, the mob bosses. They serve at our pleasure. We must therefore bear our share of the blame.

I now take another break from my blogging sabbatical to write this series about the State of Texas framing its citizens for capital murder. I do so because Larry Swearingen, The Most Innocent Man on Death Row, has a critical hearing on 15 May. Larry Swearingen is one of those innocent people who has been framed for a crime he did not commit. The State and People of Texas still hope to execute him as soon as they can.

I will intersperse this disturbing series with posts about the framing of Larry Swearingen. I will also discuss other instances of Framing the Innocent.

One of those cases will be that of Preston Hughes III, the most thoroughly framed person ever executed in this country. It was my failed effort to save Hughes that led to my sudden and unannounced sabbatical from blogging. Before too long, I will publish my book revealing all of what I learned both before and after the execution. Here, in this series, I will give but a brief overview.

Another case in the series will be that of Cesar Fierro. Even the Texas Court of Criminal Appeals agreed that Fierro confessed to stop the police from physically torturing his parents. The TCCA agreed also that the police perjured themselves at his trial. The TCCA, however, ruled that the framing of Cesar Fierro was a harmless error, and they refused to grant a new trial. Cesar Fierro will not be executed, however, since he has gone undeniably insane while incarcerated on death row.

Another case in this series will be that of Robert Otis Coulson. The U.S. Court of Appeals for the Fifth Circuit found that the police had, in that case, planted an envelope on a desk. The court found also that the district attorney improperly used the envelope as evidence against Coulson. "We agree," the judges wrote in their opinion, "that the evidence regarding the location of the envelope was false. We also agree that this knowledge may be imputed from the police to the prosecution." The 5th Circuit then ruled that the framing of Coulson was a harmless error, and they refused to grant a new trial. Robert Otis Coulson was executed by the State and People of Texas on 25 June 2002.

Yet another case in this series will be that of Derrick Leon Jackson. Jackson was convicted of capital murder based on the work of the notorious HPD crime lab in general and the work of the notorious James Bolding in particular. The independent investigators hired to review the HPD crime lab saved their most scathing words for James Bolding. "We have identified three cases in which Mr. Bolding was involved in the wholly inappropriate and unethical alteration of bench notes reflecting the serology results obtained by either himself or another Crime Lab serologist. Each of these cases reflects a disturbing lack of integrity on the part of Mr. Bolding. … James R. Bolding appears to have committed scientific fraud and perjury." The investigators identified the Jackson case as one that needed to be reinvestigated. Derrick Leon Jackson was nonetheless executed by the State and People of Texas on July 20, 2010.

I write this series to inform the public, and the judges who serve the public, that the State and People of Texas have framed innocent defendants all too frequently, and that Larry Swearingen is one of those innocent defendants who has been framed.

For a status of the series and for ease of navigation, see the Table of Contents.

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.

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, then 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. They spoon fed it to him, bit by bit. They didn't just meet with him once and hear his story. They 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 kids 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.