To inspire fierce and vitriolic debate in the legal-forensic community, all one has to do is to mention the name Cameron Todd Willingham.

We have blogged on the case and other arson cases before:

• Fire Whisperers-the Story of Bad Arson Investigation

In full disclosure this office and myself personally am litigating a “bad arson science case.” You can read about it here:

• The Burning Bed- Has an Innocent Man Been Locked up for 35 Years for an Arson that Never Happened?

• Declaration of Justin J. McShane

• #FreeHugney Update and Response to the DA’s Points

Mr. Hugney’s website is here:

• www.FreeHugney.com

• www.GoFundMe.com/FreeHugney

I read The Marshall Report on Cameron Todd Willingham the minute it came out. I also read the entire Grievance that was filed against the former prosecutor of the Willingham case: John Jackson. I understand and appreciate that the grievance is one side of the story. I also understand Jackson, who later became a judge and has retired from law in 2012, had vehemently denied that there was any sort of deal even suggested in exchange for the testimony of the jailhouse snitch in the case: Johnny Webb. Now as is reported, Jackson is not denying trying to help Webb after the Willingham conviction (something that he said that he could not and would not do at the Willingham trial). It would be very hard for him to deny trying to help Webb given the letters that he wrote on Webb’s behalf. I understand that it has been reported that Jackson freely admits that he did so, but for reasons not having to do with a secret undeclared deal. There is a paper trial that according to the Washington Post and The Marshall Report includes:

1. An unsigned note in the files of the Navarro County District Court says that Jackson asked the clerk to clarify that Johnny Webb’s conviction was not for aggravated robbery, but for a lesser charge.
2. On Oct. 21, 1992, days after the note to the clerk, Jackson sent a letter to prison officials requesting that Webb be assigned to a medical unit, which would be less onerous than protective custody. “Mr. Webb was a pivotal witness in a capital murder prosecution,” Jackson wrote. Webb had “placed himself at risk based upon his testimony in the case and I fear that he may suffer reprisal if placed in the general population.” He added, “Webb’s testimony may be necessary at (a) later stage of the proceedings and I would appreciate your attempting to place him in an environment that guarantees the smallest risk.”
3. Then unbelievably, like manna from heaven for John Webb, on July 15, 1996, at Jackson’s request, Judge Kenneth “Buck” Douglas — who had presided over Willingham’s trial and sentenced Webb to prison in 1992 — entered a new judgment in Webb’s case. The crime was officially recorded as a conviction for second-degree robbery instead of an aggravated robbery, in effect reducing the time Webb was required to wait before seeking parole.
4. Jackson followed up with a letter to the head of the parole board saying Webb “volunteered information and testified … without any agreement from the State respecting diminution of the recommendation in his own case.” He asked that Webb be given consideration for his “Cooperation in the murder prosecution without expectation of leniency.”
5. A month later, Jackson followed up with another letter requesting that Webb be transferred back to the Navarro County Jail because Webb had received death threats from other inmates. “In the event of a reversal,” Jackson wrote, “I would also like to be able to count on Webb’s continued cooperation.”
6. Webb requests to be transferred from state prison to the Navarro County Jail. “I kept my end of the promise,” he writes to the judge, “the state is bound to uphold theirs’ until my release from incarceration.”
7. A letter to Webb from Jackson that states that he will use “…any reasonable means available to me to shorten your incarceration will be explored.”
8. With Webb threatening to recant his testimony, Jackson wrote to Webb in 2000 to describe how he had worked with Pearce to get him released from prison early.
9. And Webb writing to formally recant his testimony, he writes “I was forsed (sic) to testify against Mr. Willingham by the D.A.’s Office and other officials. I was made to lie. Mr. Willingham is innocent of all charges.”
10. Incredibly, Jackson, a prosecutor, filed for clemency for Webb.
11. Shortly after Jackson’s election as a judge in 1996, he organized another flurry of letters to the parole board. This time, Judge Douglas, Sheriff Cotten and Jackson all insisted that Webb’s sentence was excessive and he should be released. Upon ascending to the bench, Jackson issued a warrant to prison officials requiring Webb be brought to Navarro County for a hearing relating to “protective custody pending executive clemency.” No court records have been found showing that such a hearing was held.

Wow!

Of course, a large amount of the details and the context comes from information from two sources: Johnny Webb, who has a host of crimen falsi and has variously recanted and supported his testimony through the years, and the now embattled former prosecutor turned judge who has had some arguably inconsistent statements of his own in this matter, John Jackson. But there are these letters and documents and support that there is at the very least an issue of continuing disclosure.

Also life experience has taught me that the prosecution only calls in a jailhouse snitch to testify if there is a large gaping hole in the case, and in their judgment an acquittal is likely without that testimony. It is an axiomatic fact. Otherwise, they would not risk calling the jailhouse snitch at all. And to call the jailhouse snitch as the first witness of the capital murder trial just emphasizes the importance of his testimony to the prosecution. All of these things factor into some new thoughts on the issue, at least for me.

I struggled with whether or not it was newsworthy to this forensic science focused blog. After sitting on it and thinking about it for several days, I have concluded that it is perhaps relevant. When it comes to court, right or wrong, there is never a clear delineation between objective evidence and subjective evidence and forensic evidence versus witness statements. One is often used to influence the other. One is often used to corroborate the other.

It seems that in these “change of science cases” what ends up happening is that the ancient notions that were once presented as legitimate science that have now been thoroughly debunked are not defended by the prosecution when modern claims come up. Instead, what they do is rely on “sliming up” the character and past moral failings of the convicted as a means of some sort of super indirect circumstantial evidence of guilt. The refrain in reading the ardent and passionate defenses to the execution of Cameron Todd Willingham include pointing to his verbal and physically abusive past, the allegations of trying to kill is children before the fire, and also the very last sentence of his life. While perhaps to some people, these may make emotional sense in the fact that bad guy is capable of doing bad things, that is not at all objective proof. If the science is not there, then how can their be a crime.

These are my personal previous thoughts on the issue.

It has been said that science is evolutionary and rarely revolutionary and that in the long enough term that science is self-correcting. With the heightened scrutiny being placed on several disciplines of forensic science leading to revisions of classically held but now severely questioned or abandoned notions, the question becomes what becomes of the convictions in cases that are decades old that depended on these now questioned practices. From fire debris to hair analysis to pattern recognition based disciplines, testimonies that are decades old and formed the lynch pin of convictions that feature either over-expressions of the interpretation of the analysis performed or are based upon now questioned practices are may require re-examination.

One of the cardinal principles in the law is that at some point judgments must become final and therefore unreviewable. The idea behind this is that litigants cannot continually race to the courthouse to continually re-examine cases. From a point of view of societal resources and economy this may make sense; however, in the case of justice and liberty, does it? What do we do when there has been a change of science? Should those who are clearly time barred by a matter of decades from resorting to the courts be able to now re-petition the court when there has been a sea change in the fundamentals of the underlying science that formed the conviction? Should those who have served their sentence or have paid society’s ultimate price in that the death penalty was executed have the investigation into potential injustice shrugged off as a matter of no consequence?

One study cites 10,000 innocent people are convicted each year in the United States. Even if this number is overstated by as much as 100%, simple math reveals that the number of innocent people behind bars is staggering. Some states have very simple time bars that require all claims including change of science cases be alleged within a year of conviction or within 60 days of discovery. Other states, such as Texas, are beginning to allow writs when there are claims of innocence even with decade old convictions. But what happens when the sentence is served? Resort to the federal courts to overcome these no longer scientifically supported convictions frequently run into the Antiterrorism and Effective Death Penalty Act of 1996. One provision of the AEDPA limits the power of federal judges to grant relief unless the state court’s adjudication of the claim resulted in a decision that was (1) contrary to, or involved an unreasonable application of clearly established federal law as determined by the Supreme Court of the United States; or (2) based on an unreasonable determination of the facts in light of the evidence presented in the state court proceeding.

All of this strikes at the heart of what is fair and just. What do you think?