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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 University School of Law. 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’ 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’ 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. To make matters more difficult, by the time the case made it to Blank, Willis already seemed like a man out of chances. After being convicted in August 1987, he lost his appeal to the Texas CCA, and his subsequent writ of certiorari to the Supreme Court was denied. Further, the record bristled with what the prosecution claimed was overwhelming evidence that Willis had torched the house where he was temporarily living. Investigators on the scene found Willis’ behavior suspicious. He seemed unconcerned about the two dead women, and though he claimed to have run through the flaming house trying to save everyone, police saw no burns on his body or clothing. Willis had a criminal record-multiple convictions for driving under the influence and public indecency-and a checkered personal life: He’d been married six times by the time he was 40. All investigators thought they lacked was a motive. That proved only a small obstacle to Pecos County prosecutor J.W. Johnson. He sidestepped the issue by portraying Willis as a dangerous drifter and crazed killer. At various points in the two-week trial, Johnson referred to Willis as a “rat,” “an animal,” and “a mean, vicious dog” that had to be put down. Johnson compared Willis to the maniac shooter who massacred 20 people at a McDonald’s outside San Diego in 1984. He told jurors Willis was a “satanic demon,” “a monster from a horror film,” and “something other than a human being.” Throughout, Willis’ defense lawyer rarely objected, nor did Willis himself seem much bothered by the portrait the prosecutor sketched of him. In fact, trial jurors saw a blank man with impassive eyes unmoved by the abuses hurled at him or by the gruesome pictures of the victims. At one point Willis’ lawyer handed him a legal pad and pen and implored him to doodle — to do something, anything — other than stare into space. But Willis hardly seemed to care what was happening, a fact the prosecutor used against him with gusto, referring several times to his “cold eyes” that showed no remorse. “Ladies and gentlemen, this is an animal sitting right down here at the end of the table,” Johnson said in his closing, “just like one of them pit bull dogs … You don’t need to know the motive. Actions speak loud enough. This is an animal.” But as Jim Blank began to work on Willis’ case, he had a hard time squaring the portrait the D.A. drew with what he knew of his client. In letters, Willis appeared thoughtful and patient — hardly the dangerous lunatic Johnson had conjured. He often expressed gratitude for Blank’s help and said he understood it might take a while for the young lawyer to get up to speed on his case. The positive impression was bolstered when Blank and Walter Loughlin, another Mudge attorney who joined the case, made their first visit to Willis on death row in Huntsville, Texas, in the fall of 1994. A patent litigator, Blank had never been inside any prison, much less the most notorious death row in the country. He found the surroundings intimidating, to say the least. But he also found the heavily shackled Willis docile and calm, “like a big teddy bear,” he recalled later. Willis was similarly impressed with Blank, but recalls thinking, “This is just a young kid.” Blank couldn’t shake the feeling that something didn’t add up; Willis didn’t seem like he belonged on death row. Loughlin agreed. A former federal prosecutor in the Southern District of New York, he thought he knew violent criminals pretty well. Willis just didn’t seem to fit the bill. In Blank’s words, the visit to Willis was a “tangible kick in the pants,” and the case began to dominate more and more of Blank’s schedule. Willis’ lawyers at the Texas Resource Center (TRC), a federally funded public interest firm that is no longer funded by Congress, had previously filed a state court habeas petition on his behalf. In the fall of 1995 the Texas CCA ordered the trial court to hold a hearing on the petition. Around this time Mudge Rose came apart. About 30 lawyers from the firm’s litigation department went over to Latham & Watkins, including Blank and Loughlin. They brought the Willis case with them, and Latham never raised any objection to what was fast becoming a major piece of pro bono litigation, says Blank. “If they had said the case was too much of a hassle, who knows what would have happened,” he adds. Instead, the firm fully supported Blank’s efforts and even allocated additional resources. Soon after Blank joined Latham, Elena Norman, an associate in the litigation section whom Blank had known when they were both undergrads at the University of Pennsylvania, expressed interest in getting involved in the case. Later, two other associates, John Brennan and Noreen Kelly-Najah, joined the team. Willis may have been the most compelling case on Blank’s docket, but it was far from his only one. Blank was also working on two massive patent infringement cases, one on behalf of America Online Inc. which was suing Wang Laboratories Inc. and another for Nintendo, which was suing General Electric Company. Latham won both on summary judgment. Blank also got married in 1998. He says he never worried that the nonbillable time he devoted to Willis would hurt his chance at making partner. “I’ve always been a pretty hard worker, so this didn’t detract from hours I devoted to billable clients,” he says. “It was always something I wanted to do over and above the work I was doing for paying clients.” Blank also viewed the pro bono work as a valuable chance to gain courtroom experience and learn how to build a case from the ground up: “That was important to making litigation partner in a firm like this one.” In preparing for Willis’ evidentiary hearing, one of the first things the Latham team agreed on was the need to narrow the focus of his habeas petition. The TRC filing had taken a “kitchen sink” approach, laying out more than 30 grounds for relief. The Latham lawyers set about evaluating the claims to see which looked most promising. At the top of the list was the fact that after Willis had been convicted and sentenced to die, another death row inmate, David Long, had come forward to a prison psychologist and confessed to setting the Iraan fire. Long, already convicted of one arson killing, admitted to holding a grudge against Willis’ cousin Billy, who was also sleeping in the house. Latham hired a private investigator who succeeded in corroborating various aspects of the confession. But at a hearing on the confession, Long behaved bizarrely, then refused to testify about his confession on the advice of counsel. Ultimately the defense team was allowed to introduce a two-hour videotape of the original confession along with some corroborating evidence. (Long was executed in 1999.) Though the state attacked Long’s confession as suspect, it nevertheless went a long way toward raising doubts about the Willis case. Judge M. Brock Jones, Jr., who had presided at the Willis trial, agreed to schedule additional hearings on other issues in the habeas petition. One of those issues concerned the state’s theory of how the Iraan fire had occurred. State investigators had made much at trial of how burn patterns on the floor conclusively showed that an accelerant had been poured throughout the house and ignited to start the fire. To evaluate the state’s case, the Latham team hired Marshall Smythe, a fire expert based in Arizona. Together he and Blank journeyed to Fort Stockton, Texas, where the original evidence from the Iraan fire was stored in black garbage bags in the courthouse basement. Smythe also managed to track down and question the owner of the house about what materials were present, and conducted extensive tests on them at Western Fire Center Inc. in Kelso, Washington. Perhaps most important, Smythe spent almost a year constructing a detailed computer simulation of the fire. His main conclusion: The pour patterns the state had cited as proof of arson were nothing of the kind. The patterns, Smythe demonstrated, were just regular burn marks on the floor. Smythe’s alternate theory was that the fire had ignited in different places by a phenomena known as flashover, where the heat of a blaze becomes so intense it can suddenly ignite all flammable substances in the vicinity. The state’s arson science, Smythe concluded, was junk. It could just as easily have been an electrical fire as arson. While Blank focused on the arson investigation, Norman and Kelly-Najah looked into two other promising defenses. Reviewing the case file, the defense team noted that Willis had received a lot of medication while in prison. The lawyers knew he had a serious back problem due to injuries he suffered while working as an oil field roustabout. As a result, Willis required constant pain medication (he was heavily dosed the night of the fire, one reason his behavior might have struck the police as oddly subdued). But when the defense reviewed his medical records, they saw Willis was given two medications unrelated to his back condition, Haloperidol and Perphenazine. Both, it turns out, are powerful antipsychotic drugs. Experts for the defense told the Latham team that an acutely psychotic person, one who was “howling at the moon,” might be given 15 milligrams of Haloperidol per day. Willis had been given 40 milligrams per day. The effect on a nonpsychotic person, especially when combined with Perphenazine, was severe. Suddenly, Willis’ strange demeanor at trial made a lot more sense. In addition, the record showed the state had discontinued the medication shortly after the trial ended. And on the form used to admit Willis into the death row facility in Huntsville, the state checked a box saying he had no known history of mental illness. Why, the team wondered, would the state of Texas give powerful antipsychotic drugs to a sane man? The lawyers couldn’t get an explanation out of the D.A.’s office, prison officials, or anyone else they asked (and still haven’t to this day). To investigate further, Latham hired Mark Cunningham, a forensic psychologist. During Cunningham’s examination of Willis in the fall of 1997, he asked a standard question: Had Willis been given a psychological exam by anyone before his trial? As a matter of fact he had, Willis recalled. However, there was no evidence of such an exam in the record. The Latham team asked Willis’ trial counsel Steven Woolard if he was aware of the report. He said no, but said if it was done it was probably handled by Jarvis Wright, a psychologist in San Angelo, Texas, who did work for the state. Elena Norman called Wright and, though it had been almost a decade, he remembered his examination of Willis well. After some searching, Wright’s secretary even managed to find a copy of the report in an off-site storage location. It was, in Jim Blank’s words, “a bombshell.” In addition to finding Willis competent to stand trial, Wright also found that, absent additional evidence, Willis would not pose much of a future danger to the community, normally a key factor used in deciding whether to impose the death penalty. In fact, Wright recalled, he had met with district attorney Johnson and told him he didn’t think Willis would make a good death penalty case. Wright thought he remembered sending his report to Johnson by Federal Express. When Fed Ex said it didn’t keep records that far back, Wright’s secretary managed to dig out a copy of the delivery confirmation from an unrelated file. The slip showed the report had been delivered to the D.A.’s office during the Willis trial and signed for by Albert Valadez, Johnson’s assistant prosecutor. When asked about this later in a deposition, Johnson said that he had no memory of receiving Wright’s report and that he didn’t even know exactly who Wright was at the time of the Willis trial. In fact, Wright’s records showed, Johnson had used him on previous cases. “It was an outright lie,” says Blank. Johnson denies that he lied about knowing Wright and insists that he never saw Wright’s report during the Willis trial. Johnson, who is now in private practice in San Angelo, also says that Wright never recommended against the death penalty (“It didn’t happen”), and that he doesn’t know why Willis was given antipsychotic drugs during the trial. “The first I heard of that was during the appellate process,” Johnson says. Blank responds that documentary evidence, such as the Fed Ex delivery slip and Wright’s billing records, “flatly contradict” Johnson on several points. Blank also points out that both Wright’s sworn testimony and file notes reflect that he told Johnson he didn’t believe Willis was a death penalty case. Regarding the antipsychotic medication, Blank says that exactly who ordered they be administered is legally irrelevant. Since Willis was in state custody, Blank says, prejudice is presumed. The final avenue the defense pursued leading up to the last habeas hearing was a claim of ineffective assistance of counsel. Though a notoriously hard claim to win on appeal, the Latham team thought it had a chance, given the performance of Willis’ trial counsel. Solo practitioner Woolard, the lead defense lawyer, was handling his first capital case. At the sentencing phase, where aggressive mitigation efforts often keep defendants off death row, Woolard didn’t call a single witness. The state put on two law enforcement officers who testified that Willis had “a bad reputation.” Woolard asked them only two questions. Also, by the time of the 1998 evidentiary hearing, Woolard had given up his law license in connection with unrelated drug and weapon charges. (He now works in Johnson’s office as a legal assistant.) To supplement these claims, a defense team, led by Elena Norman, spent two weeks traveling through Texas and New Mexico rounding up character witnesses to testify on Willis’ behalf. In January of 1998 the Latham team rented out most of a Holiday Inn Express in Fort Stockton, Texas, and moved in all the witnesses to prepare for a final evidentiary hearing before Judge Jones. “We even had them take the beds out of one room and put in picnic tables,” recalls Blank. “That was our war room.” The hearing lasted for a week. Then they waited — for two-and-a-half years. Finally, in July 2000, Blank received an envelope in the mail from the Pecos County District Court. There had been no advance warning, and he recalls that his hands shook as he tore open the envelope. Inside, in 33 pages of Findings of Fact and Conclusions of Law, Judge Jones ruled that Willis’ constitutional rights had been violated by the state and by the ineffective assistance of his counsel, and that his conviction should be vacated. Blank and the rest of the Latham lawyers were ecstatic. But they knew the trial court could only make a recommendation for relief. The order itself would have to come from the Texas CCA, the state’s highest criminal court. The CCA acted quickly. In December 2000 the court denied all relief recommended by Judge Jones. In a succinct series of paragraphs, the ruling brushed aside all the evidence the Latham team had so carefully assembled over the years. On the state’s pumping Willis with massive doses of antipsychotic drugs, the court said Willis had never raised an objection to the medication. On Jarvis Wright’s suppressed examination of Willis, the court found Wright had insufficient information to make a definitive determination on the future danger posed by Willis, and, in any event, his report wasn’t material, since the defense hadn’t demonstrated that it would have changed the jury’s mind. The appeals court likewise found nothing so egregious in the conduct of Willis’ trial counsel as to warrant granting a new trial. “It was the absolute low point of the case,” Blank recalls. “It was one thing to lose, but almost worse to get a five-and-a-half-page ruling. The highest criminal court in the state, and that’s the scope of the deliberation in a capital case? It was like it was written by a law student!” The decision by the CCA left only the federal courts open to Willis. But getting the federal courts to grant habeas corpus relief in state death penalty cases has became a daunting task, full of procedural trapdoors and evidentiary culs-de-sac. Nonetheless the Latham team-which now included solo practitioner Owen-thought it had a few things going for it. One, the federal court would consider the case based on the favorable findings of fact Judge Jones had made, not based on the conclusions of the CCA. Second, the case was assigned to Judge W. Royal Furgeson, a Clinton appointee to the Western District of Texas whose record indicated he would not lightly brush off Willis’ petition. In fact, the Latham lawyers deemed Furgeson so essential that when his docket was reorganized and the case transferred to another judge, they wrote to Furgeson pleading with him to take their case back. He agreed. It proved to be an important turning point in the case. In August 2004 Furgeson issued a sweeping 80-page decision granting Willis’ habeas petition and ordering the state to either retry him or set him free. Citing the state’s use of inappropriate antipsychotic drugs on Willis, and the suppression of Jarvis Wright’s psychological report, among other factors, Furgeson found that both Willis’ “conviction and sentence were obtained in violation of the U. S. Constitution.” Furgeson says the extensive findings by Jones made his decision a lot easier. “He’s a great judge,” Furgeson noted. He also praised the Latham team: “Winning federal death habeas is very long odds. Their work was of the highest order, the kind of effort that does the profession proud.” The Latham team was again jubilant, but they tried to keep themselves and their client from getting too excited. The state could still appeal Furgeson’s ruling to the 5th U.S. circuit Court of Appeals, which has a strong conservative bent, or choose to retry Willis for the crime. It decided to do neither. Reviewing the case, the Texas attorney general office’s capital crimes section recommended that no appeal be taken. In Pecos County, Ori White, the new district attorney, undertook his own review on the case against Willis. Two new state experts concluded that the arson evidence was weak to nonexistent. One referred to the state’s theory that the burn patterns were caused by a liquid accelerant as “voodoo,” and noted that the expert testimony offered in support of that theory was “worse than merely absurd; it is unconscionable.” The other expert similarly found that “there is not a single item of physical evidence in this case which supports a finding of arson.” Given these findings and other factors, White concluded, the state would move to dismiss the case with prejudice and ask that Willis be released from jail without delay. Not everyone agreed with the decision. “Mr. Willis is a lucky man I’m not still the prosecutor — a very lucky man,” says J.W. Johnson. He says he has not reviewed the state’s new arson evidence, but says he has no second thoughts about how he conducted the case and remains convinced that Willis is guilty of the crime. Jim Blank calls Johnson’s comments shocking. “This shows what Johnson is all about,” says Blank. On October 5, 2004, Judge Jones, who 17 years before had sentenced Ernest Willis to die, signed the order granting his release. A day later, Willis was processed out of death row, a result so rare that prison officials were confused about how to do it. Waiting for Willis was his wife of four years, Verilyn Harbin, the sister of another death row inmate. It was the first time they had ever touched. Blank and the rest of the Latham team flew down to Houston the next day, where Latham put Willis and his wife up in a luxury bridal suite, complete with Champagne and chocolate-covered strawberries. The two men embraced for the first time, but Blank would admit to no tears. On his feelings about his 12-year legal odyssey, the IP lawyer says he mainly is relieved that they won. “We’ve come so far together,” Blank adds. “I grew up as a lawyer with Ernest, but it’s time for him to move on and for me to move on professionally.” Blank admits his success in freeing Willis has led to a minor bit of celebrity among prisoners on death row, many of whom are now writing and phoning to seek his help. Asked if he might consider taking on another death penalty case, Blank notes the years and money it took to win Willis’ case. “I might do it again,” he finally allows. “But not right away.” As for Willis, he’s living in Mississippi with his wife near her family and contemplating his next move. He’s 59 now, with a bad back, diabetes, and a strange kind of postprison vertigo that makes him weave when he walks (“I didn’t walk more than 60 feet at a stretch for 17 years,” he notes). He’s thought of suing Texas, but isn’t sure it’s worth the trouble. People call wanting to write stories or books about his life, but he’s not sure he’s up for that quite yet, though if someone makes it worth his while, he says, he couldn’t afford to pass up the money. Mainly, like Jim Blank, he wants to get on with his life and put the past — Texas, death row — behind him. As for the lawyers who worked so many years on his behalf, Willis says he considers them more than friends; they are family. “One thing’s for sure,” he adds, “without them I probably wouldn’t be talking to you now.” WHAT IT TOOK The scope of Latham & Watkins’s investment in the Willis case Years: 9 Hours: 8,431 (including staff and paralegal time) Lawyers: 32 (including summer associates) Expenses: About $3 million Trips to Texas: 14 Outside Experts: 6 Visits to Death Row: 4

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