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The New Yorker
Trial by fire Did Texas execute an innocent man?
By David Gann
Not long after (Todd) Willingham’s arrest, authorities received a message from a prison inmate named Johnny Webb, who was in the same jail as Willingham. Webb alleged that Willingham had confessed to him that he took “some kind of lighter fluid, squirting [it] around the walls and the floor, and set a fire.” The case against Willingham was considered airtight. ...
fter speaking to Stacy (Willingham's wife), (Elizabeth) Gilbert (French teacher/playwright from Houston, Willingdon's death row penpal) had one more person she wanted to interview: the jailhouse informant Johnny Webb, who was incarcerated in Iowa Park, Texas. She wrote to Webb, who said that she could see him, and they met in the prison visiting room. A man in his late twenties, he had pallid skin and a closely shaved head; his eyes were jumpy, and his entire body seemed to tremble. A reporter who once met him described him to me as “nervous as a cat around rocking chairs.” Webb had begun taking drugs when he was nine years old, and had been convicted of, among other things, car theft, selling marijuana, forgery, and robbery.
As Gilbert chatted with him, she thought that he seemed paranoid. During Willingham’s trial, Webb disclosed that he had been given a diagnosis of “post-traumatic stress disorder” after he was sexually assaulted in prison, in 1988, and that he often suffered from “mental impairment.” Under cross-examination, Webb testified that he had no recollection of a robbery that he had pleaded guilty to only months earlier.
Webb repeated for her what he had said in court: he had passed by Willingham’s cell, and as they spoke through a food slot Willingham broke down and told him that he intentionally set the house on fire. Gilbert was dubious. It was hard to believe that Willingham, who had otherwise insisted on his innocence, had suddenly confessed to an inmate he barely knew. The conversation had purportedly taken place by a speaker system that allowed any of the guards to listen—an unlikely spot for an inmate to reveal a secret. What’s more, Webb alleged that Willingham had told him that Stacy had hurt one of the kids, and that the fire was set to cover up the crime. The autopsies, however, had revealed no bruises or signs of trauma on the children’s bodies.
Jailhouse informants, many of whom are seeking reduced time or special privileges, are notoriously unreliable. According to a 2004 study by the Center on Wrongful Convictions, at Northwestern University Law School, lying police and jailhouse informants are the leading cause of wrongful convictions in capital cases in the United States. At the time that Webb came forward against Willingham, he was facing charges of robbery and forgery. During Willingham’s trial, another inmate planned to testify that he had overheard Webb saying to another prisoner that he was hoping to “get time cut,” but the testimony was ruled inadmissible, because it was hearsay. Webb, who pleaded guilty to the robbery and forgery charges, received a sentence of fifteen years. Jackson, the prosecutor, told me that he generally considered Webb “an unreliable kind of guy,” but added, “I saw no real motive for him to make a statement like this if it wasn’t true. We didn’t cut him any slack.” In 1997, five years after Willingham’s trial, Jackson urged the Texas Board of Pardons and Paroles to grant Webb parole. “I asked them to cut him loose early,” Jackson told me. The reason, Jackson said, was that Webb had been targeted by the Aryan Brotherhood. The board granted Webb parole, but within months of his release he was caught with cocaine and returned to prison.
In March, 2000, several months after Gilbert’s visit, Webb unexpectedly sent Jackson a Motion to Recant Testimony, declaring, “Mr. Willingham is innocent of all charges.” But Willingham’s lawyer was not informed of this development, and soon afterward Webb, without explanation, recanted his recantation. When I recently asked Webb, who was released from prison two years ago, about the turnabout and why Willingham would have confessed to a virtual stranger, he said that he knew only what “the dude told me.” After I pressed him, he said, “It’s very possible I misunderstood what he said.” Since the trial, Webb has been given an additional diagnosis, bipolar disorder. “Being locked up in that little cell makes you kind of crazy,” he said. “My memory is in bits and pieces. I was on a lot of medication at the time. Everyone knew that.” He paused, then said, “The statute of limitations has run out on perjury, hasn’t it?”
Yes, and get this on evidence of arson:
... Dr. Gerald Hurst, an acclaimed scientist and fire investigator, received a file describing all the evidence of arson gathered in Willingham’s case. Gilbert had come across Hurst’s name and, along with one of Willingham’s relatives, had contacted him, seeking his help. After their pleas, Hurst had agreed to look at the case pro bono ...
After Hurst had reviewed Fogg (Douglas Fogg, who was then the assistant fire chief in Corsicana, conducted the initial inspection) and (Manuel) Vasquez’s (one of the state’s leading arson sleuths, deputy fire marshal) list of more than twenty arson indicators, he believed that only one had any potential validity: the positive test for mineral spirits by the threshold of the front door. But why had the fire investigators obtained a positive reading only in that location? According to Fogg and Vasquez’s theory of the crime, Willingham had poured accelerant throughout the children’s bedroom and down the hallway. Officials had tested extensively in these areas—including where all the pour patterns and puddle configurations were—and turned up nothing. Jackson told me that he “never did understand why they weren’t able to recover” positive tests in these parts.
Hurst found it hard to imagine Willingham pouring accelerant on the front porch, where neighbors could have seen him. Scanning the files for clues, Hurst noticed a photograph of the porch taken before the fire, which had been entered into evidence. Sitting on the tiny porch was a charcoal grill. The porch was where the family barbecued. Court testimony from witnesses confirmed that there had been a grill, along with a container of lighter fluid, and that both had burned when the fire roared onto the porch during post-flashover. By the time Vasquez inspected the house, the grill had been removed from the porch, during cleanup. Though he cited the container of lighter fluid in his report, he made no mention of the grill. At the trial, he insisted that he had never been told of the grill’s earlier placement. Other authorities were aware of the grill but did not see its relevance. Hurst, however, was convinced that he had solved the mystery: when firefighters had blasted the porch with water, they had likely spread charcoal-lighter fluid from the melted container.
Without having visited the fire scene, Hurst says, it was impossible to pinpoint the cause of the blaze. But, based on the evidence, he had little doubt that it was an accidental fire—one caused most likely by the space heater or faulty electrical wiring. It explained why there had never been a motive for the crime. Hurst concluded that there was no evidence of arson, and that a man who had already lost his three children and spent twelve years in jail was about to be executed based on “junk science.” Hurst wrote his report in such a rush that he didn’t pause to fix the typos. ...
December, 2004, questions about the scientific evidence in the Willingham case began to surface. Maurice Possley and Steve Mills, of the Chicago Tribune, had published an investigative series on flaws in forensic science; upon learning of Hurst’s report, Possley and Mills asked three fire experts, including John Lentini, to examine the original investigation. The experts concurred with Hurst’s report. Nearly two years later, the Innocence Project commissioned Lentini and three other top fire investigators to conduct an independent review of the arson evidence in the Willingham case. The panel concluded that “each and every one” of the indicators of arson had been “scientifically proven to be invalid.”
In 2005, Texas established a government commission to investigate allegations of error and misconduct by forensic scientists. The first cases that are being reviewed by the commission are those of Willingham and Willis. In mid-August, the noted fire scientist Craig Beyler, who was hired by the commission, completed his investigation. In a scathing report, he concluded that investigators in the Willingham case had no scientific basis for claiming that the fire was arson, ignored evidence that contradicted their theory, had no comprehension of flashover and fire dynamics, relied on discredited folklore, and failed to eliminate potential accidental or alternative causes of the fire. He said that Vasquez’s approach seemed to deny “rational reasoning” and was more “characteristic of mystics or psychics.” What’s more, Beyler determined that the investigation violated, as he put it to me, “not only the standards of today but even of the time period.” The commission is reviewing his findings, and plans to release its own report next year. Some legal scholars believe that the commission may narrowly assess the reliability of the scientific evidence. There is a chance, however, that Texas could become the first state to acknowledge officially that, since the advent of the modern judicial system, it had carried out the “execution of a legally and factually innocent person.”
In my native Iran, choosing the wrong heroes can have frightening consequences. I chose my first hero (not counting my adored father) a decade ago when I was a university student in Tehran, studying Spanish. My teacher put before us a book of verse by the poet Federico García Lorca, who was killed by nationalist soldiers at the outbreak of the Spanish Civil War. Even reading his poems of dire prediction, I was thrilled by his bravery, facing life and its torments with no balm other than words. I remember the experience of reading one of his poems, "The Weeping." A sympathy for my fellow men and women, no more than a seed before I read it, grew shoots above the soil by the time I finished.
Tehran was enjoying a mild Prague Spring in the late '90s when I first read García Lorca. After 18 years of repressive rule by a government of puritanical priests, a liberal reformist, Mohammad Khatami, was elected president of Iran. Khatami's reforms were wishy-washy by the standards of Iran's serious radicals (a little more freedom of speech, nothing extravagant), but I welcomed them like the new dawn. When the reforms were swept aside by the puritans, who remained as powerful as ever, I raised my voice in the street along with thousands of other student protesters. I believed I was keeping faith with Garcia Lorca, and also with the great poets Saadi and Hafez of long-ago Persia, who honored love and liberty. My friends and I sat on the steps of the library chattering like happy children as we planned new protests. With so many joyful on our side, it was impossible to believe that those who despised happiness could ever prevail over us...
I didn't know it at the time, but I was only one of hundreds of student protesters detained that day. Our demonstrations had exhausted the patience of the hard-liners in the regime, and the police had been let off the leash. "Downtown" meant a tiny cell in Evin prison زندان اوین, in North Tehran, and "a few questions" meant protracted torture. I found it difficult to believe that my cheerful protests could have roused my interrogators to such violence. Bruised black by fists and boots, my shoulders and arms livid with lash welts, my scalp left bare and bleeding after my hair was shorn....
After 29 days of interrogation, friends on the outside were able to secure my freedom. The danger of rearrest compelled me to leave my country, and I now live far from Iran... If I'd have known what the interrogators of Evin could do to me, I'd have kept my mouth shut. García Lorca knew exactly what to expect from the people who hated him but kept speaking out. I understand that now. (-- p. 86)
He cerradfo mi balcón
porque no quiero oir el llanto,
pero por detras de los girses muros
no se oye otra cosa que el llanto.
Hay muy pocos ángeles que canten,
hay muy pocos perros que ladren,
mil violines caben en la palma de mi mano.
Pero el llanto es un perro immenso,
el llanto es un ángel immenso,
el llanto es un violin immenso,
las lágrimas amordazan al viento,
y no se oye otra cosa que el llanto.
II Qasida of the Weeping
Translated by Catherine Brown)
I have closed off my balcony,
for I do not want to hear the weeping.
But out there, beyond gray walls,
nothing is heard but the weeping.
There are very few angels who sing.
There are very few dogs who bark.
A thousand violins fit in the palm of my hand.
But the weeping is an enormous dog,
the weeping is an enormous angel,
the weeping is an enormous violin,
tears have muzzled the wind,
and nothing is heard but the weeping.
(-- pgs. 294-295)
A word about Lorca:
Federico García Lorca is always - no matter what he is writing about - an elegiac poet. He looks beyond the "here and now" and sees what is present as a symbol of what is absent. No matter where one opens his work, its theme is the impossible: the melancholy conviction that all of us have certain indefinable longings that cannot be satisfied by anything around. Robert Bly (101) got it exactly right: Lorca is a poet of desire. He is always saying "what he wants, what he desires, what barren women desire, what water desires, what gypsies desire, what a bull desires just before he dies, what brothers and sisters desire." Lorca's powers of metaphor push desire even further, into the world of plants, insects, and inanimate things. In his poems, all of life is driven by some sort of undefined pain or longing. To him, the essence of poetry is mystery. And "mystery" means that language can only point at, and never adequately name, what is is that we want. What Lorca's poetry tells us is that none of us can say what we want, and none of us would be happy if we attained it. (From the Introduction, p. i)
While Chávez was free to roam the country, he was also broke. He was nearly forty. He had no job, no bank account, no place to live. He owned almost nothing. His military career was finished. His only income was a monthly pension from the army of about $170. He sent it to his three children and his wife, Nancy, whom he was in the process of divorcing. Their relationship, while not hostile, had long since withered.
After their release from jail, some of his comrades decided to make ends meet by joining the system they had tried to overthrow two years earlier. Arias Cardenas accepted a job from President Caldera running PAMI, a government milk program for pregnant women. Urdaneta happily took a post as Venezuela's consul in Vigo, Spain, where he stayed the next five years. Chavez would have nothing to do with it. Unlike Urdaneta, who was relieved at avoiding twenty-five years in jail, Chavez refused to thank Caldera for signing his pardon. He would not even meet with him. Instead he denounced the administration as more of the same corrupt elitist rule that had destroyed the country.
Barely six months out of jail, Chavez publicly warned Caldera of more violent outbursts unless he addressed the nation's deepening social problems. After the arrest of four MBR-soo sympathizers, Chavez accused the president of trying to crush his movement. He challenged Caldera to put him in jail, too. "I'd bet to see who lasts the longest, Caldera at Miraflores or me in any prison cell in the country," Chavez boasted. (From On the Road, p. 190)
Her eyes they shone like the diamonds
You'd think she was queen of the land
And her hair hung over her shoulder
Tied up with a black velvet band.
In a neat little town they call Belfast
Apprenticed to trade I was bound
And many an hour's sweet happiness
I spent in that neat little town.
Till bad misfortune came o'er me
That caused me to stray from the land
Far away from my friends and relations
To follow the black velvet band.
Well, I was out strolling one evening
Not meaning to go very far
When I met with a pretty young damsel
Who was selling her trade in the bar.
When I watched, she took from a customer
And slipped it right into my hand
Then the Watch came and put me in prison
Bad luck to the black velvet band.
Next morning before judge and jury
For a trial I had to appear
And the judge, he said, "You young fellows...
The case against you is quite clear
And seven long years is your sentence
You're going to Van Dieman's Land
Far away from your friends and relations
To follow the black velvet band."
So come all you jolly young fellows
I'd have you take warning by me
Whenever you're out on the liquor, me lads,
Beware of the pretty colleen.
She'll fill you with whiskey and porter
Until you're not able to stand
And the very next thing that you'll know, me lads,
You're landed in Van Dieman's Land.
Eddy waited for me to get up, then asked to whom I was writing. I answered in my bad German that I was not writing to anyone. I happened to find a pencil and was writing on a whim, out of nostalgia, in a dream. Yes, I knew very well that writing was forbidden, but I also knew that getting a letter out of the Camp was impossible; I assured him I never would have dared to break Camp rules. I knew Eddy certainly would not believe me but I had to say something, if only to arouse his pity. If he were to denounce me to the Political Section, I knew it was the gallows for me, but before the gallows an interrogation - and what an interrogation! - to find out who my accomplice was, and perhaps also to obtain from me the address of the recipient in Italy. Eddy looked at me with a strange expression, then told me not to budge, he'd be back in an hour.
It was a long hour. Eddy came back to the cellar with three sheets of paper in hand, mine among them, and I immediately read on his face that the worst would not happen. He must have been quite clever, this Eddy, or maybe his tempestuous past had taught him the basics of the sad profession of interrogator. He had looked among my companions for two men (not just one) who knew both German and Italian, and had gotten them separately to translate my message into German, warning them that if the two translations did not turn out to be identical, he would denounce not only me but also them to the Political Section.
He made a speech to me that I find difficult to repeat. He told me that, luckily for me, the two translations were the same and the text was not compromising. That I was crazy - there was not other explanation. Only a madman would think of gambling in such a way with his life, that of the Italian accomplice whom I certainly had, my relatives in Italy, and also his career as Kapo. He told me that I deserved that slap, that in fact I should thank him because it had been a good deed, the kind that earns you Paradise, and that he, Strassenrauber, a street-thief by profession, certainly needed to perform good deeds. That, finally, he would not have recourse to denunciation but even he could not exactly say why. Maybe just because I was crazy. But then Italians are all notoriously crazy, good only for singing and getting into trouble. (From The Juggler, pgs. 31-33)
Gentlemen, Scholars and Scoundrels A Treasury of the Best of Harper's Magazine from 1850 to the Present (1972, in our case)
Edited by Horace Knowles
Marks for swag, or loot readily convertible into cash, are still more numerous and usually even less well protected, but they have the considerable disadvantage that the take must be fenced, or sold. Since this involves a suicidal risk if undertaken through legitimate channels, swag is usually sold to a professional buyer of stolen goods. The fence not only helps himself to a whopping profit - he seldom pays more than 20 per cent even for gilt-edge swag - but often he is not reliable in the face of police pressure, and not uncommonly does business with police and politicians, or pays in money and information for tacit permission to operate. Sometimes, particularly when jewelfry or securities are involved, it is possible to by-pass the fence in favor of the company which has insured the loss. Settlement in such cases runs about 20 per cent of the insured amount, no questions asked. Several private detective agencies are widely known as specialists in negotiating such transactions, which also are often handled through attorneys. If the robbery was the doing of Americans, it is a safe bet that the $785,000 in jewelry heisted from the Aga Khan last fall will be recovered on this basis. (From The Heist - The Theory and Practice of Armed Robbery by Everett DeBaun, February, 1950, an insider's view written in prison. DeBaun also became a noted adviser on crime to the Hollywood movie industry).
The Art of the Heist Confessions of a Master Art Thief, Rock-and-Roller, and Prodigal Son
By Myles J. Connor Jr. with Jerry Siler
On February 27, 1967, I was transferred from the Charles Street jail to the Massachusetts Correctional Institution at Walpole. My sentence was twelve to twenty years, though in our last conversation my attorney had assured me that with time credited for good behavior I could be back on the streets in as little as six. In theory, I might be back in the art business by the age of thirty. The only question was whether I would live that long.
At the time Walpole housed some of the most notorious criminals on the East Coast, including some of New England's highest-ranking mob bosses. Since opening in the mid-1950s, the prison had earned a well-deserved reputation for being on eof the toughest maximum-security facilities in the country, a place where inmates of dubious character - skinners and diddlers and snitchers - were routinely beaten and frequently killed.
I was barely twenty-four when I passed through Walpole's gate that first time, five foot six and 120 pounds, still recovering from the physical ordeal of the past ten months with a rape indictment hanging periolously over my head. A betting man would not have wagered on my survival. (From Chapter Seven, pgs. 68-69)
In some dusty small city, perhaps Safi, I failed to see a red light and drove through it. A whistle shrilled, and in the rearview mirror, as clearly as I had seen the little flower girl stamp her foot, I saw a policeman in a white helmet calmly writing down our license number. His white helmet receded. His gaze followed us. My stomach sank. But the street continued straight, and the pedestrians in their dusty native garb continued indifferently to go about their business. In another day we would be safe in Paris; and the traffic light had been very poorly placed, off to the side and behind some advertising signs. Criminally, I drove on. The boys cheered; the girls weren't so sure.
"Maybe he would just have bawled you out," Genevieve said.
"Fat chance," Mark argued. "He would have put Dad in some awful pokey rull of rats and cooties."
"I saw the light," Mommy said mildly, "and assumed you did, too."
"Thanks a bunch," I said, less mildly.
"I didn't see it," said Caleb, our born consoler and compromiser. "Maybe it was yellow and turned."
"Who saw it and thinks it was yellow?" I asked hopefully.
Silence was the answer.
"Who saw it and what color was it?"
"Red," three voices chorused.
"What do you all want me to do? Turn around and try to explain to the cop? Je regrette beaucoup, monsieru, mais je n'ai pas vu le, la lumi--"
"No!" another chorus proclaimed, Mommy abstaining.
"You've made your decision," Judith told me, in almost a woman's voice.
"Step on it, Dad," Mark said. ...
Had my French been less primitive, I might have stopped.
Had we not recently read, in a Newsweek at the hotel with the parrot, an article about innocent Americans moldering away in African and Asian prisons, I might have stopped. (From Morocco, pgs. 12-13)
Most of the cells were overcrowded and there had been several race riots. But the guards were sadistic. Theymoved Blaine from my cell over to a cell full of blacks. When he walked in Blaine heard one black say: "There's my punk! Yes, sir, I'm gonna make that man my punk! In fact, we all might as well have a piece! You gonna strip down, baby, or are we gonna hafta help ya?"
Blaine took off his clothes and stretched down flat on the floor.
He heard them moving around him.
"God! That's one UGLY-lookin' round-eye if I ever saw one!"
"I just can't get hard, Boyer, so help me I can't!"
"Jesus, it looks like a sick doughnut!"
They all walked away and Blaine got up and put his clothes back on. He told me in the exercise yeard, "I was lucky. They would have torn me to pieces!"
"Thank your ugly asshole," I said. (From Scenes From the Big Time, p. 15)
When I get out, I thought, I am going to wait a while and then I am going to come back to this place, I am going to look at it from the outside and know exactly what's going on in there, and I'm going to look at it from the outside and know exactly what's going on in there, and I'm going to stare at those walls and I'm going to make up my mind never to get on the inside of them again.
But after I got out, I never came back again. I never looked at it from the outside. It's just like a bad woman. There's no use going back. You don't even want to look at her. But you can talk about her. That's easy. And that's what I did for a bit today. Luck to you, friend, in or out. (-- p. 17)
California's new prisons had little resemblance to their older cousins like Folsom and San Quentin, now immortalized in the songs of Johnny Cash. The new prisons were marvels of engineering, dense prefabricated cities of razor wire and white concrete that could go up at almost a moment's notice. Unlike earlier penitentiaries like Alcatraz, located prominently in the public view as a haunting visual reminder not to break the law, California's new industrial prisons were built far away from urban centers in the poorest and remotest regions of the state, out of sight and, to most of California's population, out of mind. From time to time, stories of torture and extreme violence make their way into the news. At Pelican Bay, California's premier "super-max" prison in the forest near the Oregon border, guards boiled a man named Vaughn Dortch alive. In a 1995 ruling stemming from abuse at the prison, federal judge Telton Henderson wrote that "dry words on paper cannot adequately capture the senseless suffering and sometimes wretched misery that Pelican Bay State Prison's unconstitutional practices leave in their wake."
At Corcoran State Prison in California's Central Valley, guards staged "gladiator days," sending prisoners who were known enemies into a small yard and betting on which prisoner might prevail in the ensuing mayhem. When fights got out of control, guards trained their weapons on the prisoners. Gunfire was daily occurrence. In the eight years after Corcoran opened, eight prisoners had been shot dead and fifty wounded. The guards nicknamed Warden George Smith "Mushroom George" because "mushrooms like being kept in the dark and fed shit." (From Facts on the Ground, pgs. 9-10)
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