Zen and the Art of Exoneration

In 1986 a fire in Iraan, a West Texas town of about 1,000, took the lives of two women in a house where Ernest Willis had been living. The former oilfield worker was accused of setting the fire and in 1987 was convicted of arson-murder. During the trial then Pecos County District Attorney J.W. Johnson repeatedly pointed to Willis and referred to his blank expression as “satanic”—a “cold fish eye” stare. Years later, Judge M. Brock Jones, Jr., the state district court judge who had presided over the trial, recommended that the conviction be set aside after hearing evidence that Willis had involuntarily received large doses of powerful anti-psychotic drugs while in jail. The judge also determined that the state had withheld evidence—a psychologist’s report indicating that Willis was not a danger to society—and that he had received ineffective counsel at the trial and sentencing.

In December 2000, the Texas Court of Criminal Appeals rejected the judge’s findings and Willis’ team of appellate attorneys began seeking relief in federal court. In August, Judge Royal Furgeson of Federal District Court in the Western District of Texas, found that Willis’ trial and sentencing had been unconstitutional and issued an order requiring that the state either retry Willis or release him. Ori White, the current district attorney for Pecos County, later determined that “the facts in this case exonerate Mr. Willis.” On the afternoon of October 6, Ernest Willis, now 59, was released from prison after spending 17 years on death row for a crime he did not commit. He was the eighth inmate to be released from Texas death row since the death penalty was reinstated in 1976.

Since the early ’90s, the New York law firm of Lathan & Watkins has represented Willis on a pro bono basis in his appeals. Robert C. Owen, who teaches at the University of Texas Law School and supervises students in the Capital Punishment Clinic, formally joined the team in December 2000, although he had met Willis and become familiar with his case years before. As Owen explains, his experience with Ernest Willis—Ernie—is unique. It’s the only time in nearly 15 years of death-penalty work that one of his clients was exonerated and set free.

On Tuesday, October 5, there was a flurry of phone calls between Owen, the New York lawyers, and prison officials. Owen and his New York colleagues concluded that Willis wouldn’t be released until Thursday at the earliest. But the next day, at 11 a.m., he was told that his client would be released that afternoon. He raced to Huntsville to see it happen.

I got a big fat speeding ticket in Bryan trying to get to Huntsville before Ernie was released. I was just banging my head against the steering wheel while the cop walked up to the window. For a moment I thought, “I’ll tell him. I’ll tell him I’m racing to get an innocent man out of prison, and he’ll lead me there with his sirens going.” I finally got there sometime between three and four. They had released Ernie about an hour earlier.

My client and his wife had gone out to buy clothes. The clothes that they gave him when they released him were spectacularly ill-fitting. We had managed to get the word out to a few reporters, and when he walked out of prison he spent a couple of minutes answering questions. My understanding from Ernie was that he had to hold up his pants with one hand during the interview that he gave because they were so poorly sized. And that mortified him.

When we finally met up, there in the parking lot of Chili’s in Huntsville, I just went to pieces. I hadn’t realized how much it would overwhelm me to see him in person and free. And then they followed us to Houston through a driving rainstorm; I was afraid the whole way that we would lose them and we’d be circling on the freeway trying to find them.

We checked in at the hotel and on our way into the lobby, a young man tapped Ernie on the shoulder and said, “Hey man, aren’t you that guy that just got out of death row? I saw you on the news.” I was really surprised at how fast news like that travels and that he would be an instant celebrity. Ernie was totally gracious about it. He said, “Yeah, that was me. Thanks for the kind wishes.” And the guy said, “Yeah man, enjoy your freedom.”

Ernie told me he hadn’t slept in about 72 hours—basically since he got word that the wheels were in motion to get him out. We told him that we would have a press conference the next day, and he was really anxious about how he would do, which in retrospect is hard to understand. It wasn’t just that he fielded questions and answered them with degree of calmness and self-possession. He was eloquent. He was funny. He was asked why it took so long for things to come together for his release, and he said, “Oh, when Texas has you, they don’t want to let you go.”

I finished law school in the spring of ’89 and came to Texas. I arrived in Austin on Juneteenth and have been doing death-penalty work more or less full time since then. I’ve had clients executed whom I believe were innocent. Ernie’s case is unique because it’s the only time that I have been involved with a case where we not only believed our client would walk free, we actually lived to see it. Whenever I would visit clients on death row, I’d try to end my day with Ernie, the one guy that I felt reasonably confident I would not have to eventually see killed at the hands of the state. I felt free to talk with him about what he hoped to do when he was released. I avoid those conversations with other clients, even the ones who also say, “I didn’t do it. I was wrongly convicted. My trial was unfair.”

You think that maybe there’s a chance that the court will agree and this person may get out one day, but that’s so remote. So often, meeting with clients on death row is tough emotionally. It’s tough because it’s so far away that we don’t get to go as often as we would like to. And the courts being what they are and the law being what it is, often we are bringing bad news. It’s hard to maintain hope when you’re telling them, “Well, we just got turned down, but we might win the next one.” There’s only so many times you can tell that to somebody before they really stop believing it. That’s my normal experience. With Ernie it was so different. I would organize my visits at death row so that I could leave feeling like there’s someone who’s going to survive this.

The case against him was never strong. He is the quintessential guy who was in the wrong place at the wrong time. He was one of two survivors of a house fire that killed two other people. Suspicion focused on him early on because he was not in as much evident physical distress when the fire department and the police arrived as his cousin, the other survivor. Based on that, they drew the conclusion that he must have set the fire and gotten out before it got really bad because he’s not coughing up smoke and unable to breathe.

Everything from that point was sort of an avalanche of negative circumstances. The thing that hurt him the most was that at some point—and we were never able to ascertain why this happened—his medication was changed. Ernie is a longtime oilfield worker who had injured his back on several occasions and had four separate surgeries on his back. At some point, they stopped giving him medication for back pain and started giving him very heavy anti-psychotic medication of the sort that would be indicated for a person who was acutely mentally ill. Perphenazine and Haldol were the two main drugs that he was receiving and in extraordinarily large quantities. The jail physician later acknowledged that it was his signature on the orders, but said he had no independent recollection of why the medication was ordered and had no documentation of why it would have been changed in that way. Ernie was never told.

During the appeals process we had a psychopharmacologist look at the records, and he said these dosages are multiples of what you would give to an acutely psychotic person. The practical effect was that it dulled all of his senses. I keep describing it as being “zombified,” and that’s not an unfair description. Essentially, these are massive tranquilizers.

While we were working on Ernie’s first post-conviction appeal, he was interviewed by a psychologist. One of the questions that psychologists routinely ask people was whether they’ve ever been interviewed before by a mental health expert. And Ernie said, “Well, yeah, I remember I talked to a psychologist before my trial. He came to the jail and spent a long time with me. But I never heard anything else about it.” With that information we were able to get the jail visiting records and identified one of the names on the list as a psychologist in San Angelo.

We eventually discovered that the prosecutor had sent this psychologist to examine Ernie before the trial. The expectation was that he would come back and say that Ernie was a psychopath, that he was highly dangerous. Then they could present that testimony at a sentencing hearing if Ernie was convicted. Instead, the psychologist came back and said, “Based on my interview with this guy, I don’t think he’s dangerous at all. I don’t think he’s going to be a threat to society even if he did this crime because he doesn’t have a history of violence. He is a completely peaceful prisoner. He doesn’t suffer from any mental illness.”

It’s worth noting that when this first arose as an issue in the appeals process, the response from the prosecution was that it didn’t happen—they didn’t hire him, they didn’t send him in to see Ernie in prison. And the psychologist said, “Well, that’s funny because here’s the bill that I sent them that they paid and here’s the FedEx receipt from when I sent them the report. And it’s signed for by the prosecutor.” So, we basically demonstrated in the state post-conviction proceeding that the state was still lying about what had happened.

One of the sad stories of this case is how long it took, once some of the pieces started coming together, for Ernie to be released. The state trial judge tried to do the right thing. He recommended that the Court of Criminal Appeals grant a new trial. He made a lot of specific findings of fact about what happened at the trial that were consistent with our allegations, saying the lawyers didn’t perform properly and the state cheated in this way and that way. Then it went to the Court of Criminal Appeals, which took a long time only to say, “Nah, we don’t agree. We think this is good enough for government work. This is fine.”

Part of it was a disagreement about the relevant legal rule. To give you an example, Ernie had two lawyers at trial. He had a lawyer named Steven Woolard and a lawyer named Kenneth DeHart. At the state post-conviction hearing we only called Mr. Woolard as a witness. We would ask about decisions that they made in defending the case and actions they took or failed to take. He would say, “Well, we didn’t look into that” or “We didn’t contact members of the family” or “We didn’t inquire about why he was so zombie-like.”

When the case got to the Court of Criminal Appeals, they said, “Well, he had two lawyers and he didn’t provide testimony from the other lawyer about what happened, so in that case there’s a presumption that the guy did all the right stuff, so you lose.” That’s a disagreement about the legal standard. I think the trial judge was fully entitled to say that he could conclude from the testimony that neither lawyer did an appropriate job. The Court of Criminal Appeals takes a different view. (I should also point out that there’s a case called McFarland vs. State, and what happened there was one of the lawyers slept through the trial. And the Court of Criminal Appeals said, “Well, that’s okay, because his other lawyer was awake.”)

The way the system works in Texas is that only the Court of Criminal Appeals has the power to grant or deny a new trial in state post-conviction habeas corpus proceedings. That’s true for non-death penalty cases as well. What that means is that the workload of the Court of Criminal Appeals is increased dramatically; they are simply deluged by applications that have to be reviewed and approved or denied on a fairly swift basis just to keep all the paper flowing in a manageable pace. That Ernie’s case was treated summarily and superficially, I think, is attributable really as much to the Court of Criminal Appeals’ workload as to malice or incompetence on the part of the judges, which I don’t attribute to them.

At any rate, the Court of Criminal Appeals finally issued its decision in December of 2000. From then, it takes nearly four more years.

After the press conference on Thursday, we all went to lunch—Ernie, his wife, the New York lawyers, and me. One of the funny things I remember was Ernie expressing surprise about how big the portions were. That’s a sign of how long he’s been inside prison. He was agog at how much beef was on his plate. He and his wife were talking at that time about going back to Mississippi, where she lives, and then looking for another place to settle. Earlier he had said that he was never coming back to Texas.

We talked about his future plans, but only in the most general way. I think all we really wanted to do was continue sharing that warm glow. Our feeling was that this was unique in all of our lives. The minute he gets in his taxi cab to go to the hotel or I get in a taxi cab to go to the airport, that spell’s going to be broken. We’re never again going to have this moment—such a transcendent sense of success—of vindication in finally clearing his name again. So much of our work and our lives is full of other disappointments. You don’t want to break that charmed moment where everything is right: We won, and he’s here, and we’re all happy.

The New York lawyers were flying out at dusk. Ernie and his wife were staying another night. I was flying out immediately. We hugged and he thanked me again. He said, “I just want you to know I really appreciate everything you did for me.”

I don’t know how to react to that. I felt I should be saying, “No, thank you, for always being patient, for always being strong, for enduring a lot of entreaties from us to just hang on, hang in there, and never getting pissed off at us. And always letting us know that you thought we were doing right by you.”

As I said earlier, I’ve had clients I thought were innocent who were executed. A friend of mine who is a very serious Buddhist told me once, “You could get rid of all the anguish that you feel about losing cases if you’re willing to give up all the pride that you feel when you win. Those two things are linked and you have to be willing to give up both of them.”

I’m not sure I’m ready for that. But, oh God, it was so much luck in a lot of ways. We were lucky enough that this big law firm that had bottomless pockets was willing to get into the case. That we had a courageous state court judge who said, “I’m willing to re-examine this trial and I don’t think it was fair and I think we ought to do it over.” That we had a courageous federal judge, who said, “I’m going to walk out on this limb and order a new trial.” At any one of those moments, Ernie’s case could have disappeared into the void. So, the idea that I could take any credit for what happened was just astounding to me.

Ernie understands just as well as anybody that everything is fraught with uncertainty and risk; he’s seen a lot of people executed during the years that he was on death row. I think all he was saying was that he appreciated our never having abandoned him, that we always fought for him, even when the chips were down.

So, we said good-bye there in the parking lot at Pappas Barbecue on Pierce Avenue in Houston. I got into my taxi cab to head to Hobby, and he headed back to the hotel. The next day I drove to Livingston and saw other clients on death row. The cyc
e never stops; the wheel never stops turning. Two days ago I got my first email from Ernie and that was a real shocker. He said in his message, “You know, this is new to me. Don’t really know what to say. Just want you to know that I’m here. I’m doing okay. And let’s stay in touch.”

So, he’s doing all right.

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Published at 12:00 am CST