New Evidence of Prosecutorial Misconduct Resulted in Likely Wrongful Execution Willingham

Maurice Possley addresses Vanguard 2012 Event in Woodland
Maurice Possley addresses Vanguard 2012 Event in Woodland

By the Innocence Project

The newly formed criminal justice journalism group, The Marshall Project, broke a story in the Washington Post earlier this month revealing new allegations of prosecutorial misconduct that likely caused Texas to wrongly execute Cameron Todd Willingham. The story, written by Maurice Possley, who covered Willingham’s case as a reporter for the Chicago Tribune, reveals that on behalf of Willingham’s surviving relatives, the Innocence Project filed a detailed grievance with the Chief Disciplinary Counsel of the State Bar of Texas urging disciplinary action against former Willingham prosecutor John Jackson.

The grievance reveals newly discovered evidence that strongly suggests ethical and possible criminal misconduct by Jackson in covering up a deal with jailhouse informant Johnny Webb, who testified that Willingham, while in jail, confessed to the arson murder of his three children. This supposed confession became indispensable evidence on the eve of Willingham’s execution in 2004 when an expert report was filed with courts exposing the arson evidence against Willingham as false.

Current and former Navarro County prosecutors were not aware that Jackson had reduced Webb’s conviction for Robbery in the First Degree to Robbery in the Second Degree based on cooperation in the Willingham case. If that fact had not been hidden by Jackson prior to the execution, the prosecutor assigned to the case now says he would have disclosed it.

“The Texas Forensic Science Commission and experts around the world concluded years ago that the arson evidence that convicted Todd Willingham was misleading and unreliable and without any scientific basis. But now there is reason to believe that the execution would have never gone forward, and Willingham would be alive today, if John Jackson had played by the rules.  The documentary evidence in this grievance strongly supports allegations of criminal and ethical misconduct by Jackson that deprived Todd of his constitutional rights and resulted in his death,” said Barry Scheck, Co-Director of the Innocence Project, which is affiliated with Cardozo School of Law.

“We are asking the State Bar of Texas to investigate and prosecute this matter, which we believe is of profound importance to all citizens in this country.  Whether one supports or opposes the death penalty, the execution of an innocent man is, as Justice O’Connor has said, a ‘constitutionally intolerable event.’”

Relying on newly discovered court records, documents from the Navarro County District Attorney’s files, letters recently obtained from Webb as well as correspondence and affidavits by Jackson himself, the grievance alleges that Jackson illegally and unethically made an undisclosed deal with Webb to reduce his robbery in the First Degree Conviction to Robbery in the Second Degree and has continued to cover it up to this day.

At Willingham’s trial, Webb, who claimed that Willingham confessed to him, swore he was not offered any incentives for his testimony and Jackson explicitly told Webb in open court, “As a matter of fact, I told you there is nothing I can do for you.”

The grievance makes a strong case that these actions caused Texas to execute an innocent man.  In the days leading up to Willingham’s execution, a prominent arson scientist, Gerald Hurst, informed the state that the arson evidence relied upon by the fire examiners had been discredited for more than a decade by a series of scientific experiments that had been generally accepted by the National Fire Protection Association and fire scientists.

The prosecutor who was then handling the case for Navarro County, Bill Price, argued that these new revelations were irrelevant because Willingham admitted the crime to Webb.  Price now agrees that had he known about the evidence of a deal with Webb, he would have disclosed this information to Willingham’s defense team who would have almost certainly been able to stay the execution based on the evidence of Jackson’s misrepresentations regarding the agreement with Webb.

Since his execution, numerous arson scientists have agreed that the arson science used at his trial had long been repudiated, and after a lengthy investigation, the state’s Forensic Science Commission found the evidence to be unreliable and called for an audit of other similar cases in Texas, which is currently underway. The only other evidence against Willingham was the testimony of Webb, who now acknowledges Willingham never confessed.

“This grievance paints a deeply disturbing picture of a prosecutor who would stop at nothing to defend a conviction that was riddled with errors from the start,” said Texas attorney Gerry Goldstein.  “Even if you believe, as we do, that Mr. Jackson was really convinced that Todd Willingham intentionally set the fire that killed his daughters, prosecutors have to be held accountable for violating the law and ethical rules or more innocent people will be put to death by our state.”

The article details Webb’s interactions with Jackson inside his courthouse office. Webb claims that while he was incarcerated in the Navarro County jail on a robbery charge, he was taken to Jackson’s office three or four times and that Jackson asked Webb for help in his prosecution of Willingham.  According to Webb, Jackson made it clear that in return for Webb’s cooperation, Jackson was willing to make the robbery charges pending against him “disappear.”

Webb claims that Jackson specifically advised him to say that Willingham told him that he set fires in the corners. This was needed to corroborate the original fire investigators who claimed, based on long discredited arson science, that Willingham had used an accelerant to start the fire. Webb was also very clear in the interview that Willingham never confessed to the murder.

(At trial, Webb testified that Willingham told him that he committed the crime to cover up abuse that his wife had inflicted on their daughters.) In fact, Webb filed a hand written motion to recant his trial testimony, which was delivered to Jackson, but never made it into the Willingham file nor was it revealed to Willingham’s lawyers.

Webb also described the benefits that he received from a wealthy local businessman, who was a financial supporter of Jackson.  According to Webb, this local businessman first approached him after speaking to Jackson about making a deal. Webb also states that he received money from the local businessman the whole time he was in prison and even after his release.

The grievance points to significant documentary evidence to support the allegations of Jackson’s misconduct, including the following:

• On October 12, 1992, three months after Webb testified to pleading guilty to Robbery in the First Degree, and just prior to Webb being sent to state prison, Jackson directed Navarro County clerks to falsely tell the Texas Department of Correction that Webb was only convicted of Robbery in the Second Degree, thereby making Webb eligible for early parole.

• Despite emphatically telling Webb in front of the Willingham jury that there was “nothing I can do for you” to help Webb during his incarceration, especially when it came to protection from retaliation for snitching, Jackson took immediate and extraordinary steps with prison officials to ensure, as Jackson put it, Webb’s “continued co-operation” including repeated letters and phone calls asking for special placement and Webb’s early release.

• Working through his wealthy friend, a local businessman who provided financial benefits to Webb (including buying Webb a $7,250 truck and paying his tuition for an expensive diving program that would have helped him find work in the oil industry), Jackson was personally involved in trying to keep Webb from “going public” about the Willingham case and “promises” Webb claimed were made in return for his cooperation.

• Jackson took steps, both as a prosecutor and subsequently as a judge, to keep documents out of public court records that would reveal his undisclosed deal with Webb, and his own direct knowledge of Webb’s threats to recant.

• On October 4, 2010, Jackson provided the Navarro County District Attorney Lowell Thompson a misleading affidavit in connection with the Court of Inquiry brought by Willingham’s surviving relatives that includes the assertion Webb didn’t receive any benefits in exchange of his testimony.

The grievance urges the Chief Disciplinary Counsel to find that there is “just cause” for Jackson to be prosecuted for violating numerous criminal and ethical violations including the criminal acts of tampering with governmental records and tampering with evidence.  If there is a finding of  “just cause,” the petitioners ask the Chief Disciplinary Counsel to proceed to a full investigation and prosecution of Jackson for misconduct.

In addition to Scheck and Benjet, the lawyers representing Willingham’s family include Gerry Goldstein and Cynthia Orr of Goldstein, Goldstein & Hilley; Neal S. Manne and Alex Kaplan of Susman Godfrey, LLP.

Here is a video of Maurice Possley speaking at the 2012 Vanguard Dinner and Awards Event:

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12 Comments

  1. Tia Will

    If even a portion of these allegations are true, there will be no “justice” for Mr. Willingham or any members of his family who may have been harmed by his execution. This case is a clear indication of why we should do away with the death penalty and in my opinion why we should also do away with our adversarial system in which the goal is not actually to find the truth, but rather to “win” at any cost.

    1. hpierce

      But what if the ‘truth’ is that a person is capable of, and commits horrendous crimes against fellow children, women, and/or men? Shall we strike our chests and embrace the poor perpetrator as the ‘victim’ of our society’s failure to help them in their life?

      1. Tia Will

        hpierce

        I am not seeing anyone “embracing the poor perpetrator as the “victim” in this case.

        In our legal system, the guilt or innocence of an individual is not to be determined by an individual policeman or prosecutor regardless of how “certain” they may be of that individual’s guilt. We are innocent until proven guilty in our system. What it would appear happened in this case is that Mr. Jackson decided that he “knew the truth” and therefore was justified in any amount of lying and covering up actual factual information in order to protect his initial deceit. Had he bothered to re examine his initial thought process, he might have realized that had Mr. Willingham actually committed the murders, there might have been better ways to prove that than by bribing someone to lie in the first place and then continue to bribe them to keep quiet about the initial lie. It seems that Mr. Jackson’s willingness to double down on his error and subsequent lies cost an innocent man, not a perpetrator his life. Surely you are not ok with this ?

        1. hpierce

          I was responding to your abstract comment against the adversarial ‘system’, preferring “truth” over “wins”, CERTAINLY NOT the specific case discussed. I can see why you might well have misunderstood the nature of my comment.

          I think we are all in agreement with the improprieties in the specific case noted, and the unacceptability of those actions.

    2. Biddlin

      …”why we should also do away with our adversarial system in which the goal is not actually to find the truth, but rather to “win” at any cost.”
      You know not where of you speak.
      In this instance the prosecution committed a clearly prohibited act.
      The jury’s job is to find the truth.
      From The Oxford Dictionary:
      “verdict

      Pronunciation: /ˈvəːdɪkt

      /
      noun
      1A decision on an issue of fact in a civil or criminal case or an inquest: the jury returned a verdict of not guilty”

      Now, Mr. Jackson’s fate may be so decided.

      Trust a jury of you peers or the judge, but somehow the wheat must be separated from the chaff.
      The lesson here is not that the adversarial trial isn’t perfect, everyone knows that, we just haven’t found a better, more “just” system.( I keep asking for concrete suggestions.) The lesson can be that we must hold those public officials with the power of life and death to the ultimate standard of justice. It might certainly seem to Mr. Willingham’s family that the “fairest” justice here would be “an eye for an eye” and who would say that they are not due considerable restitution in lieu of retribution, from the State and John Jackson. That would also send a powerful message to county and state bean counters that they need to curb their overly ambitious DAs and prosecute, to the fullest extent of the law, the ones who cross the line.

      ;>)/

  2. Tia Will

    biddlin

    “I keep asking for concrete suggestions.”

    And I have posted several in the past, will repeat, and await your thoughts.

    1. Have a revolving system of prosecution and defense in which lawyers have to serve a certain amount of time in each capacity.
    This would balance out the “build my career” by being tough on crime motivation. This would also allow lawyers to gain the
    perspective from both sides of the law. If they were judged not by how many cases they won or lost, but by how rationally
    and clearly they presented their side it would provide an incentive to stick to the facts and not try to make up your own.
    2. Devise a system in which all evidence was made simultaneously to both the prosecution and the defense thus doing away with
    the secretive “back room deals” that would seem to have played such a large role here.
    3. Better still, have a system in which all evidence for the prosecution and the defense be presented in a non biased manner by
    a neutral party without the theatrics which are capable of swaying a jury one way or the other. No badgering or contradicting
    witnesses. No eye rolling. No quivering of voiceless in feigned or real indignation. Just the truth, the whole truth and nothing
    but the truth. Or as Joe Friday might have said “Just the facts, ma’am.”
    4. The police should not be allowed to lie. Not to get a confession. Not to build a case against someone they “know” is guilty
    since this turns them from police into judge and jury in clear violation of our law.

  3. Biddlin

    2. Devise a system in which all evidence was made simultaneously to both the prosecution and the defense thus doing away with
    the secretive “back room deals” that would seem to have played such a large role here.

    4. The police should not be allowed to lie. Not to get a confession. Not to build a case against someone they “know” is guilty
    since this turns them from police into judge and jury in clear violation of our law.

    Here, we agree. On 1 and 3, not so much.

    1. Have a revolving system of prosecution and defense in which lawyers have to serve a certain amount of time in each capacity.
    This would balance out the “build my career” by being tough on crime motivation. This would also allow lawyers to gain the
    perspective from both sides of the law. If they were judged not by how many cases they won or lost, but by how rationally
    and clearly they presented their side it would provide an incentive to stick to the facts and not try to make up your own.

    How long do I have to serve under this mandate, before I am allowed to cultivate my own private practice?
    What if I don’t want to work for the state, at all? i thought this was The United States of America?

    3. Better still, have a system in which all evidence for the prosecution and the defense be presented in a non biased manner by
    a neutral party without the theatrics which are capable of swaying a jury one way or the other. No badgering or contradicting
    witnesses. No eye rolling. No quivering of voiceless in feigned or real indignation. Just the truth, the whole truth and nothing
    but the truth. Or as Joe Friday might have said “Just the facts, ma’am.”

    In no way better, or constitutional. Objectively, doctor, can two physicians, qualified and board certified have extremely divergent opinions of the efficacy of a particular procedure, the interpretation of holographic data, like an MRI and countless other issues, upon which they may both considered equally expert?
    Again, as a citizen, I most certainly have the right to have an expert who supports my defense.

    If you deplane at Heathrow Airport, in the UK and travel to London, there will be no portion of your journey unseen by a network of security cameras. The use of such devices, under the guise of “national security” is already ubiquitous in the US, we just haven’t heard the details, yet. Your wifi Skype equipped laptop and internal recording devices in your OR may be watching you, at anytime. There may very soon come a day where all of our “actions” are available to anyone for review. Then you may have factual accuracy, but not necessarily truth, which will still require human interpretation.
    ;>)/

  4. Tia Will

    Biddlin

    Thanks for taking the time to respond.

    “How long do I have to serve under this mandate, before I am allowed to cultivate my own private practice?
    What if I don’t want to work for the state, at all? i thought this was The United States of America?

    You don’t have to serve under this mandate at all. In my view this would apply only to the criminal justice system. If you wanted to use your degree for civil cases, international law, corporate law…. you get the idea, nothing would stop you. This remains the USA. I would just like it to be a USA where the justice system is not based on a “win-lose” philosophy which inevitably leads to promoting one’s own side rather than always seeking “the truth” in an objective manner.

    “I most certainly have the right to have an expert who supports my defense.”

    You most certainly have the right to have the evidence provided by an expert who supports your defense. What I do not believe that either side should have access to is paid actors and actresses ( aka attorneys) seeking to sway the jury with their emotionalism. The evidence can still be presented without tears and quivering voices. These two concepts are not at all contradictory.

    As for the example of two doctors who vehemently disagree on the significance of a medical test. Of course it happens. And I would expect that both of them would make their best case based on previous studies and all of the available evidence. What I would not condone is them verbally abusing each other or anyone else, criticizing the other’s professionalism, claiming the other to be stupid, or naive, or lying for profit or any other reason. These are common tactics in our legal system although they have been gaining less and less acceptance in the medical realm as practice has become steadily more based on evidence and steadily less based on “expert opinion”.

    1. Biddlin

      You still haven’t told me how you long you expect me to serve the crown, who already has infinite resources at its disposal. And what medical specialties will be be subject to these same constraints of servitude?
      It is indeed admirable that you are so willing to donate lawyers’ expertise. I trust one or more of the capable attorneys reading this will take some exception to your charaterisation of their advocacy as “acting” or at least be so accommodating if they should start dictating your practice and payment protocols.
      “What I would not condone is them verbally abusing each other or anyone else, criticizing the other’s professionalism, claiming the other to be stupid, or naive, or lying for profit or any other reason. These are common tactics in our legal system although they have been gaining less and less acceptance in the medical realm as practice has become steadily more based on evidence and steadily less based on ‘expert opinion’.”
      You watch too much tv, doc. “What I would not condone is them verbally abusing each other or anyone else, criticizing the other’s professionalism, claiming the other to be stupid, or naive, or lying for profit or any other reason.” All prohibited by rules of conduct and judges are pretty strict on those. By the way, no one holds the “expert’s” Shar Pei hostage or threatens to scratch their Saab to make them testify that A was aware of the consequences of his actions, although some of them do get a hefty fee for appearing. I would assume that the AMA or State Medical licensing board would have some authority over doctors who violate their standards of practice or behaviour. I suggest that if you are serious about re-writing the civil and criminal codes and state and US constitutions, you get busy, Or you might consider the wisdom and hubris of insurance company administrators dictating medical practice and then take a long look in the mirror.
      ;>)/

  5. Tia Will

    Biddlin

    “You still haven’t told me how you long you expect me to serve the crown, who already has infinite resources at its disposal.”

    I most certainly did answer this question. The answer was no time at all unless you want a career in the criminal justice system. I fail to see how choosing a career in criminal justice knowing that you would have to serve on both sides would be any more onerous than our current system which only allows you to take cases on one side or the other. Both limit your professional options, just in different ways. I also stated that no one would have to work for the state at all. You could certainly come out of law school and work in corporate law, or civil cases, or international law without having to engage in any way with the criminal justice system. I am sorry if my previous post did not make this clear.

    “All prohibited by rules of conduct and judges are pretty strict on those.”
    Actually I get zero percent of my information regarding trial’s from TV since except for sports, I don’t watch it.
    If you had said that I rely too heavily on the accounts of the Court Watch interns, I would have to agree. But when they quoted lawyers as stating that the witnesses is not telling the truth, or rolling their eyes, or tearing up, or speaking with their voice quivering, these I think are theatrics and there should be a zero tolerance for these kinds of displays.

    “Or you might consider the wisdom and hubris of insurance company administrators dictating medical practice and then take a long look in the mirror.”

    This is a very telling comment about the sincerity of your current post since from threads gone by, I am sure that you are aware that I believe that we should do away with medical insurance altogether and adopt single party payer as our system which would doubtless cut down on doctors compensation significantly. I am also sure that you have heard me say that I have consistently promoted such a system for the entire time that I have been in medicine and that one of the most important reasons that I chose to practice within the Kaiser system is that it is the furthest from a fee for service model that one can come today in the US outside of government work.

    If you are in the conversation to discuss ideas, I am happy to continue. If you are in it to cast aspersions that have no basis in reality, then I suggest that we stop here.

  6. Biddlin

    Dear doctor, I’m saying you don’t know shite about the legal system or the law and you continue to demonstrate it.

    ” witnesses is not telling the truth, or rolling their eyes, or tearing up, or speaking with their voice quivering, these I think are theatrics and there should be a zero tolerance for these kinds of displays.”
    Now you want to eliminate eyewitnesses if you don’t believe their presentation or like their demeanor on the stand, but again, that is the job of the jury to interpret, NOT YOURS any more than it is MINE to tell you how to practice medicine. I hope that one day the dockets are particularly full and your prejudices won’t disqualify from serving on a jury. You might be surprised at how much control the judge exerts over a trial, how generally well behaved the lawyers are, and most importantly, how serious, thoughtful and insightful those 12 neighbours are, when considering the fate of a defendant. I find your attitude contemptuous of the defendants, attorneys, judges, witnesses and victims.
    ;>)/

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