Posts by: "Texas Moratorium Network"

Newly Discovered Evidence Points to Possible False Testimony at Willingham’s Trial and Possible Prosecutorial Misconduct that May Have Contributed to His Wrongful Execution

(Austin, TX; September 27, 2013) – Relatives for Cameron Todd Willingham were joined by exoneree Michael Morton at a press conference at the Texas capitol today to urge the state to conduct an investigation into Willingham’s wrongful execution.  Last year, Willingham’s family filed a posthumous pardon petition before the Texas Board of Pardons and Paroles asking that the state pardon Willingham, who was executed in 2004 for the arson murder of his three daughters despite compelling evidence of his innocence.  The Innocence Project filed an amended petition today on behalf of the Willingham family presenting newly discovered evidence that points to possible false testimony at his trial and possible prosecutorial misconduct that may have contributed to his wrongful execution.

“Todd’s dying wish was that we help clear his name, and we can’t let this go until the state acknowledges the grave injustice that Todd suffered,” said Eugenia Willingham, Willingham’s stepmother. Patricia Willingham Cox, Willingham’s cousin added, “The more we learn about Todd’s case, the more we see how tragically the system failed him.  The Texas Board of Pardons and Paroles has the power to finally conduct a thorough investigation into his case, and we urge it to do so for the sake of all Texans who deserve a clemency system that values justice over mere finality.”

Following the press conference, exoneree Michael Morton walked with Willingham’s surviving relatives to deliver a letter to Gov. Perry asking for a meeting with him to explain why a hearing is needed.  A copy of the letter is available at

“There are only two mistakes one can make on the road to truth:  not going all the way and not starting,” said Barry Scheck, Co-Director of the Innocence Project, which is affiliated with Cardozo School of Law. “The reason an investigation is so critical in this case isn’t to affix blame on Gov. Perry or any one individual.  Everyone has responsibility if not for making errors then for failing to detect them.”


Willingham was at home with his three daughters when his home in Corsicana burned to the ground on the morning of December 23, 1991. He managed to escape, but his children did not survive.  He always maintained his innocence but was convicted of arson murder in 1992 based largely on the testimony of the Assistant Fire Chief Douglas Fogg and the Texas Fire Marshal Manuel R. Vasquez who testified that there was evidence that the fire had been intentionally set. In the days leading up to Willingham’s execution, his attorneys sent Governor Rick Perry and the court a report from Gerald Hurst, a nationally recognized arson expert, saying that Willingham’s conviction was based on erroneous forensic analysis. Documents obtained by the Innocence Project show that state officials received that report in advance of his execution date.  Yet despite Hurst’s report, Willingham was executed and pronounced dead on February 17, 2004 at 6:20 pm.

The only other evidence linking Willingham to the fire was the testimony of a jailhouse informant, Johnny Webb, who claimed that Willingham told him within earshot of several law enforcement employees that he committed the crime to protect his wife who had injured or killed one of the children the night before. Prior to Willingham’s execution, Webb acknowledged in a handwritten “motion to recant” that he lied about the confessions, stating “I was forced [sic] to testify against Willingham by the D.A.s [sic] office and other officials.  I was made to lie.  Willingham is innocent of all charges.”  Notations on the motion indicate that it was provided in 2000 to then Judge John Jackson, who had been the lead prosecutor in the Willingham’s case.  But this motion does not appear to have been filed in either Willingham’s or Webb’s case file.  Further, no one representing Willingham was told about this recantation.  Although the Navarro County District Attorney’s Office was aware of the recantation, the District Attorney’s office continued to rely on Webb’s testimony in the hours leading up to Willingham’s execution, claiming that the report submitted by Hurst, which stated that the fire testimony was scientifically invalid, was irrelevant because Willingham had confessed to Webb.

“It is especially troubling that officials in Navarro County continued to rely on the testimony of Johnny Webb even after the district attorney’s office knew that he had recanted,” said Gerry Goldstein of Goldstein, Goldstein & Hilley.

At trial, Webb and then prosecutor Jackson assured the jury that Webb expected nothing in return for his testimony. But newly discovered evidence contradicts these assurances, and Jackson appears to have assisted Webb in dealings with the Texas Department of Criminal Justice for years after the trial.   In a 1996 letter to a prison official, Jackson wrote that he was sorry to bring up another Johnny Webb problem, indicating that he had intervened on Webb’s behalf before.

Other new evidence also points to possible efforts by Jackson and the Navarro County authorities to reduce Webb’s sentence. Roughly five years after Willingham’s trial, the Navarro County District Attorney, the District Judge, and the Navarro County Sheriff asked the Board of Pardons and Paroles to commute Webb’s sentence from 15 years to 5 years.  Although the letters told the Board that the request was based on new information from the victim, Jackson told a prison warden in a letter addressing a problem Webb was having with his property that the commutation was in connection with a capital murder case.  Around the same time, Jackson obtained an amendment to the aggravated robbery judgment that reduced the charge from the first degree felony of aggravated robbery to the second degree crime of simple robbery.  Although Jackson explained this change in a 1996 letter to the Board of Pardons and Paroles as based on a review of the Navarro County records and those of Webb’s criminal defense lawyer, all of the public documents relating to Webb’s case indicate that he was charged and pled guilty to the first degree felony of aggravated robbery.  When asked at Willingham’s trial, Webb clearly testified that he had been convicted of an aggravated offense.

“In recent years, our state has made great strides in heeding the lessons learned from wrongful convictions,” said Sen. Rodney Eillis (Dist. 13), who is also Chair of the Innocence Project’s Board of Directors.  “But the Willingham case remains a powerful reminder of how much more needs to be done to restore public’s trust in the system.”

After Willinghams’s execution, the Innocence Project asked the then newly formed Texas Forensic Science Commission to investigate Willingham’s case and the case of Ernest Willis who was convicted based on similarly flawed evidence but later exonerated for the arson murder that put him on death row.  During the course of that multi-year investigation, nine of the nation’s leading arson scientists reviewed the evidence in Willingham case and all agreed that the original testimony of the fire investigators was based on outdated arson science. A summary of these findings is available at Commission was ultimately barred by the Texas Attorney General from making a finding on whether the state was negligent in the wrongful execution of Willingham, however the Commission acknowledged that unreliable arson science facilitated Willingham’s conviction and recommended that the state conduct a review to determine if there are other people in Texas prisons who were wrongly convicted based on bad arson science.

A copy of the petition filed today, a summary of the scientific reports and a timeline of the case is available at

In addition to Scheck and Goldstein, the lawyers representing Willingham’s family include Innocence Project Staff Attorney Bryce Benjet, Daniel Greenberg, Robert J. Ward and Meghan M. Breen of Schulte Roth & Zabel, and Kathryn Kase, Executive Director of the Texas Defender Service.


Paul Cates

Communications Director
Innocence Project
40 Worth Street, Ste. 701
New York, NY  10013
Innocence Project on Facebook:  http://www.facebook/innocenceproject
Innocence Project on Twitter:

The 14th Annual March to Abolish the Death Penalty is Saturday November 2, 2013 at 2 PM in Austin, Texas at the Capitol.

Meet at the Texas State Capitol Building on the South Side (11th and Congress). After a short pre-march speaker’s program, we will march through the streets of downtown Austin with a stop in front of the Texas Governor’s mansion and return to the Texas Capitol to hear more speakers against the death penalty.

Each autumn since 2000, people from all walks of life and all parts of Texas, the U.S. and other countries have taken a day out of their year and gathered in Austin to raise their voices together and loudly express their opposition to the death penalty.

The annual march is organized as a joint project by several Texas anti-death penalty organizations working together with leading national organizations: Texas Moratorium Network, the Austin chapter of the Campaign to End the Death Penalty, the Texas Death Penalty Abolition Movement, Texas Students Against the Death Penalty, Texas Death Penalty Education and Resource Center, Kids Against the Death Penalty, and national organizations including Journey of Hope … from Violence to Healing, and Witness to Innocence.


Texas Moratorium Network would like to thank the Indigo Girls, Amy Ray & Emily Saliers, for advocating to abolish the death penalty. The Indigo Girls are selling Abolish the Death Penalty t-shirts at their concerts this summer. Part of the proceeds from the sales of the t-shirts will benefit Texas Moratorium Network. The Indigo Girls have long supported abolishing the death penalty and we at TMN are proud to to work with them to raise awareness of the injustice of the death penalty.

Check out the tour schedule here and catch a live show.

From the Indigo Girls website:

The second Indigo Girls “Take Action” t-shirt is now available at live concerts during the band’s summer tour. The Abolish the Death Penalty shirt features facts and figures about the death penalty as well as artwork created for the Justice for All? death penalty art show sponsored by the Texas Moratorium Network.

T-shirt proceeds will benefit the Texas Moratorium Network and Georgians for Alternatives to the Death Penalty.

Citations for the facts on the t-shirt are as follows:

People of color have comprised 43% of total executions since 1976, while comprising only around 25% of the population. (Race and the Death Penalty, American Civil Liberties Union, February 26, 2003).

Common characteristics of death-row defendants are poverty, the lack of firm social roots in the community, and inadequate legal representation at trial or on appeal. Approximately 90 percent of those on death row could not afford to hire a lawyer when they were tried (The Case Against the Death Penalty, American Civil Liberties Union, December 11, 2012, and Furman v. Georgia – 408 U.S. 208 (1972)).

The United States leads the world with the third highest rate of executions, behind only Iran and Saudi Arabia (New data was released by Amnesty International after the t-shirt went to production. The United States trails Iran, Iraq, Saudi Arabia and China in the number of executions performed in 2012 (unofficially in the latter case, because the number of executions is a state secret)).

African-American defendants receive the death penalty at three times the rate of white defendants in cases where the victims are white (Dave Collins, “Yale study: racial bias, randomness mar Conn. death penalty cases,” Associated Press,December 12, 2007).

Scheduled Executions in Texas

Texas has passed 500 executions in the modern era since the 1976 U.S. Supreme Court ruling that the death penalty was constitutional. Texas conducted its first execution after the ruling in 1982.

To express your opposition to any execution, you can contact Governor Rick Perry’s office at 512 463 2000. If you call after business hours, you can leave a voice mail message. During business hours, someone should answer the phone. You can also send a message using a form on Perry’s official website.

503) Douglas Feldman, July 31, 2013

TDCJ Info on Feldman

Letter from Feldman to

504) Robert Garza, September 19, 2013 (Law of Parties case)

TDCJ Info on Garza

505) Arturo Diaz, September 26, 2013

TDCJ Info on Diaz

506) Michael Yowell, October 9, 2013

TDCJ Info on Yowell

507) Rigoberto Avila Jr, January 15, 2014

TDCJ Info on Avila, Jr

500The 500th execution in Texas is scheduled for Wednesday, June 26, 2013 when Kimberly McCarthy is scheduled for execution. The execution may still be stayed, as legal appeals are still pending.

To express your opposition to the execution, you can contact Governor Rick Perry’s office at 512 463 2000. If you call after business hours, you can leave a voice mail message. During business hours, someone should answer the phone. You can also send a message using a form on Perry’s official website.

The protest in Austin of the 500th execution will be on the sidewalk in front of the Texas Capitol facing Congress Avenue at 11th Street, at 5:30 pm.

The protest in Huntsville will be outside the Walls Unit on the corner of Avenue I at 12th Street, starting around 5:30 pm on execution days. Executions take place at 6:00 PM.

From the New York Times:

On Wednesday, Texas is scheduled to execute its 500th death-row inmate since the Supreme Court restored capital punishment in 1976. The state hasexecuted nearly five times as many people as Virginia, the second state on the list.

Texas’s death penalty system is notorious for its high tolerance of ineffective counsel for defendants, overly zealous prosecutors, and racial discrimination in jury selection. The case of Kimberly McCarthy, the woman scheduled for execution, seems tainted by all three.

Ms. McCarthy is an African-American who was sentenced to death in 2002 for murdering a white woman. That’s not surprising: In Texas as well as other states, a black person who murders a white person is more likely to receive the death penalty than when the victim is black.

The 12-person jury that convicted and sentenced Ms. McCarthy included only one person who wasn’t white, after prosecutors used their peremptory, or automatic, challenges to strike three other non-whites. That was in apparent violation of a Supreme Court ruling against purposeful exclusion of minorities from a jury when a minority is the defendant.

The defense counsel did not challenge these apparently unconstitutional race-based strikes or request the kind of hearing for doing so that the Supreme Court allows. The lawyer did not raise the issue on appeal. A different counsel did not raise the issue in the defendant’s later challenge through a writ of habeas corpus.

Because of these failures, no court has ever reviewed the merits of Ms. McCarthy’s claims about racial discrimination. Last week, Ms. McCarthy petitioned for that kind of review from the Texas Court of Criminal Appeals, represented by a new lawyer who is an expert in capital cases. As of Monday morning, the court had not yet decided the case. It is expected to rule by Tuesday.

Ms. McCarthy was convicted and sentenced in Dallas County, Texas where the prosecutor’s office has a well-documented history of intentional discrimination going back to the 19th century. Calling it history, though, misrepresents the reality. The discrimination has continued, on a modern foundation of deliberate bias.

In 1963, a manual of the office instructed that prosecutors should not take “Jews, Negroes, Dagos, Mexicans, or a member of any minority race on a jury, no matter how rich or how well educated.” In 1986, the Dallas Morning News reported that county prosecutors were still trying to keep almost all blacks off juries by using peremptory challenges.

In one trial that year, prosecutors used challenges to keep 10 of 11 blacks in the pool of candidates from serving on a jury. They justified the strikes with race-neutral pretexts, which the Supreme Court called “incredible” and said indicated “the very discrimination the explanations were meant to deny.” It overturned the conviction of that defendant in 2005. Racial bias infected the case, Justice David Souter wrote, jeopardizing “the very integrity of the courts.”

In 2005, the Dallas Morning News took another look to see what progress Dallas County had made in the 19 years between the conviction and the reversal. The paper found that in a sample of 108 cases three years before – the year Ms. McCarthy was tried, convicted and sentenced – county prosecutors “excluded eligible blacks from juries at more than twice the rate they rejected eligible whites” and “being black was the most important personal trait affecting which jurors prosecutors rejected.”

Ms. McCarthy’s case seems to fit this offensive, unconstitutional pattern. The Texas Court of Criminal Appeals should stay her execution and give the case the review it warrants, scrutinizing the record of the trial for racial bias by the prosecutors.



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