In the fall of 1992, James Blank, a 26-year-old first-year associate at New York’s Mudge Rose Guthrie Alexander & Ferdon, got a call from partner Thomas Evans asking him to come by and talk about a new client the firm had agreed to represent. Blank had done some work for Evans after joining Mudge’s intellectual property litigation team following his graduation from the New York Law School. But Evans didn’t want to talk to Blank about Nintendo Co., Ltd., or any of the firm’s other big IP clients. Rather, the new case was representing Ernest Ray Willis, a man convicted of capital murder for setting a house fire in tiny Iraan, Texas, that killed two women. Blank was a little surprised. Though he’d always assumed he’d do pro bono work for the firm, he wasn’t especially interested in the death penalty, hadn’t done any clinic work on criminal cases while at NYU, and knew nothing about Texas justice. Nonetheless, Blank soon found himself seated in a room reading through 30 volumes of Willis’s trial transcripts.
So began an extraordinary legal journey that would consume Blank for much of the next 12 years. During that time Mudge Rose blew up, and Blank-along with other firm lawyers-joined the New York office of Latham & Watkins. Blank’s new firm would pour millions of dollars and thousands of hours of lawyer and staff time into representing Willis. Despite that, everyone working on the case knew, the odds were long. Since the death penalty was reinstated by the U.S. Supreme Court in 1976, fewer than a dozen inmates have been freed from Texas’s swollen death row. Moreover, the Lone Star State’s legal environment was increasingly hostile. By the late 1990s Texas’s Court of Criminal Appeals (CCA), the state’s highest criminal court, was composed of nine elected Republicans, most of whom were former prosecutors who ran on strong law-and-order platforms. A study by Texas Monthly magazine found that between 1994 and 2002, the CCA reversed only 3 percent of death penalty convictions, the lowest percentage of any court of last resort in the nation. Additionally, after congressional reforms in 1996, federal courts became much less amenable to reviewing capital convictions. “To succeed on a death penalty case, postconviction, you need to change the factual picture,” says Austin solo practitioner Robert Owen, a death penalty specialist who advised Latham on the Willis case. “You need to find documents never located, talk to witnesses never interviewed, get your own forensic experts. . . . It costs a tremendous amount of money and time.” Latham spent that capital, and, in the end, all that stood between Ernest Willis and lethal injection was a group of volunteer lawyers from a commercial law firm, led by an associate who, by his own admission, knew next to nothing about criminal law.