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Thirteen years after he was condemned to die for a crime it now seems obvious he did not commit, Ernest Ray Willis suddenly has a glimmer of hope as he tries to accomplish the near-impossible and walk off of Texas’s death row. His pro bono attorneys, counsel James S. Blank and associate Elena C. Norman of the New York office of Latham & Watkins, visited Willis on death row in Huntsville, Texas, this week, where they gave him the details of a decision this month by the trial judge in the case that grants Willis habeas relief and vacates his murder conviction amid extensive evidence of the unfairness of his 1987 trial. Seven years of investigation by Latham attorneys laid bare a trial proceeding that was rife with inequity. They found documents showing ineffective representation, suppression of evidence by the prosecution and involuntary medication of Willis by his jailers — not to mention the death row confession to the crime by another man who has since been put to death. The reversal is a significant victory for Willis and his lawyers, but their celebration has been tempered by a deep strain of skepticism about the capital appeals process in Texas. Willis will remain on death row as the decision is reviewed by the Texas Court of Criminal Appeals, and Blank acknowledges that the case is far from over. Death penalty attorneys in the state have warned the Latham lawyers ominously that “Nobody walks off the Row.” Willis, now 54, was convicted of capital murder for setting a 1986 fire in the southwest Texas town of Iraan that killed two women in the house where he was staying. No motive or physical evidence was produced against Willis, but he was sentenced to death in state court in Fort Stockton in August 1987, in an outcome that seemed to catch even the prosecutors of the case off guard. “We were very surprised even winning the trial. Our chances were about 10 percent going into it,” Pecos County District Attorney J.W. Johnson told The American of Odessa shortly after the verdict. “We are just tickled pink. We didn’t have any eyewitnesses. We didn’t know what type of flammable material was used. It was all circumstantial material.” Willis’s direct appeal to the Texas Court of Criminal Appeals was denied, and in 1993 his case was referred by the Texas Resource Center, a capital defense group, to the now-defunct Manhattan firm Mudge Rose Guthrie Alexander & Ferdon. Blank, then a first-year associate at the firm, found himself working on the case under the supervision of partner Walter P. Loughlin. (The case stayed with the two men when they moved with a group of lawyers to Latham in 1995. Norman joined the team that year when she arrived at Latham after a clerkship.) The attorneys’ first order of business was to investigate a claim of the actual innocence of Willis based on the confession of another death row inmate. The inmate, David Martin Long, had been sentenced to death for a triple ax murder when he ran across Willis by chance in a prison recreation yard in 1990. Long later confided to a prison psychologist that he realized during that meeting in the yard that Willis had been condemned to die for a fire Long had actually set. And he gave a videotaped confession (unsworn but with a Miranda warning) of nearly three hours to Pecos County sheriffs that included very detailed and accurate descriptions of the Iraan house and the method of setting the fire. (Long has since been executed.) The lawyers retained an arson expert to recreate the fire with the same flooring, carpeting and floorboards as the house in Iraan in an effort to disprove the State’s theory of Willis’s involvement. And with the help of an investigator, the Latham team painstakingly tracked down neighbors and other witnesses, who corroborated the details of Long’s confession. They also learned that prosecutors had used Long’s confession to a separate arson as evidence in the penalty phase of the triple homicide trial that landed him on death row. That fire, which killed a man near Bay City, Texas, in 1983, was set with a method strikingly similar to the one used in the Iraan fire three years later. CULTURE SHOCK In January 1995, the Texas Court of Criminal Appeals, noting that Willis might be entitled to the habeas relief he had sought, ordered the trial judge, District Court Judge Brock Jones, to conduct evidentiary hearings in the case. As they arrived at the courtroom for the first hearing in March 1996, Loughlin and Blank found the District Attorney wearing cowboy boots and an open-necked shirt, sitting with his feet up and smoking. It was their introduction to an informal legal culture unlike anything they had experienced, in which attorneys frequently met the judge for lunch and were allowed to visit the judge’s robing room uninvited. “You can’t imagine what it was like when Blank and I arrived the first day in Fort Stockton, Texas,” said Loughlin, a former Southern District prosecutor. “We walk into this courtroom and we’re like aliens.” Although Long refused to testify when called at the hearing, the Latham attorneys played the video of his confession for the judge and put on witnesses to buttress his account, including an eyewitness who remembered seeing a pickup truck like the one Long claimed to have driven leaving the scene after the early morning fire started. INEFFECTIVE ASSISTANCE With Blank taking the lead in subsequent hearings, the lawyers developed a claim that Willis had suffered from ineffective assistance of counsel. An inspection of the visitors’ logs from the 10 months of Willis’s pretrial detainment in the Pecos County Jail, for instance, showed that his attorneys, Steven L. Woolard and Kenneth D. DeHart, spent a total of just three hours with him in preparation for trial. In addition, the two defense lawyers, who had never before tried a capital case, offered no mitigation evidence during the sentencing phase, despite the fact that Willis had no record of violence and had once saved the life of a drowning boy. And Woolard and DeHart failed to make an inquiry into Willis’s utter lack of emotion during the trial. Jail records showed that Willis was given massive doses of anti-psychotic drugs during the trial despite the fact that he was not — and never had been — diagnosed with mental illness. Prosecutors used Willis’s expressionless demeanor to suggest to the jury both his guilt and future dangerousness. Blank described Woolard, the lead lawyer for Willis at trial, as well-intentioned but unprepared for the seriousness of the task. “I think he was in over his head,” Blank said. “At the end of the day, he just didn’t know what he was doing.” That seemed obvious enough on the face of it. But the job of gathering evidence after the fact for the ineffective assistance claim without antagonizing Woolard was extraordinarily delicate. “It’s hard. You’re walking a fine line because your ultimate goal is to prove that they didn’t do a good job,” Norman said. “You really have to try to control this person so they’re not going to be overly defensive but at the same time develop a good relationship.” Perhaps the biggest break in the case came in the fall of 1997, when Willis happened to mention in a psychological interview that he had been interviewed by another psychologist before his trial. It was an astonishing revelation, since no such pretrial examination had ever been a part of the record in the case. The Latham lawyers were able to track down the psychologist who examined Willis before trial and a copy of his report, in which he says he “didn’t think this was a good death penalty case” and writes that Willis presents no threat of future dangerousness. Despite testimony from the psychologist, Jarvis A. Wright, that he had performed the examination of Willis at the behest of the District Attorney’s Office; a Federal Express receipt that indicates that the Pecos County prosecutors received the report from Wright; and the fact that he had personally retained Wright’s services on at least two occasions, Johnson, the lead prosecutor, insisted in his own deposition that he had never met or even heard of Dr. Wright, let alone seen his report on Willis. By the time the Latham team filed its 191-page Proposed Findings of Fact and Conclusions of Law with Judge Jones in November 1998, the firm had devoted thousands of attorney hours to the project. Both Blank, who was named counsel this year, and Norman said they would occasionally work full-time on the Willis case for weeks at a time. And they noted with appreciation that Latham includes pro bono hours in its calculations for bonuses. CONVICTION VACATED After more than 18 months of deliberation, Judge Jones released his decision on June 6. Vacating the conviction and sentence, he ruled that the ineffective assistance of Willis’s counsel, the suppression of the psychological exam and the involuntary administration of medications had directly violated Willis’s constitutional rights. But significantly, Judge Jones rejected Willis’s claim of actual innocence, finding that Long’s video confession was untrustworthy and not sufficiently corroborated. The Latham attorneys have prepared briefing for the Court of Criminal Appeals on the admissibility of the video, and they say the actual innocence claim remains very much alive. “We will not be giving up on that claim if it needs to be pressed,” Blank said. UNCERTAIN TIMETABLE The timetable for a decision from the appeals court is uncertain. And even if the nine-judge panel upholds Judge Jones’s decision, the Pecos County prosecutors would have the option to retry the case. Johnson, the former District Attorney, has left for private practice and has been replaced by his chief deputy, Albert Valadez.First Assistant District Attorney James Jepson, who handled the evidentiary hearings with Valadez, said, “The lack of defense on the punishment evidence was clearly inadequate at the time, but we think the jury verdict should have been upheld.” Jepson said he gave no credence to the Long confession and had “no doubt” that Willis committed the crime. If the reversal of the conviction is upheld, “I think we’d prosecute him again,” Jepson said. Not surprisingly given the hurdles that remain, Willis, a former oil field worker who suffers from diabetes, eye and back problems, reacted to the decision with guarded optimism. Blank phoned him with the news and found Willis essentially speechless. “When you’ve been on death row for 13 years, your attitude is sort of, ‘I’ll believe it when I see it,’ ” Blank said. But in recent days, Willis has been more sanguine, writing his lawyers to say how happy and excited he is, and asking after associate Noreen A. Kelly-Najah, who has been heavily involved in the case and is due to give birth any day to her first child. Likewise, after so many years working on his behalf, the lawyers talk with genuine affection of Willis. “I like Ernest Willis. I believe he’s innocent,” Blank said. “I think Judge Jones recognizes that he’s a harmless individual.” For Blank and Norman, the Willis case has been the single thread that has run through each attorney’s entire legal career to date. “It’s been an extremely gratifying case to work on, to be able to help someone mount a defense who otherwise wouldn’t have the opportunity … and to combine the legal aspects and factual aspects to make a story of what happened to Ernest Willis,” Norman said. “It makes the law come alive when the facts are so compelling.” Still, those who say that prisoners simply do not leave the Texas death row have the statistics to back them up. Data from the Texas Department of Criminal Justice show that since 1974, 854 people have been sentenced to death in Texas and only 15 have been freed through the reversal of their convictions.

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