Michael Morton (pic­tured), who was released after 25 years in prison for a crime he did not com­mit, and Barry Scheck, co-direc­tor of the Innocence Project, called for reforms in Texas’s clemen­cy process. In a recent op-ed in the Houston Chronicle, Morton and Scheck high­light­ed the case of Cameron Willingham, who was exe­cut­ed in 2004 despite seri­ous doubts about his guilt. According to the authors, it is now under­stood that inves­ti­ga­tors who believed that Willingham com­mit­ted arson were mis­tak­en. They also not­ed that a recent inves­ti­ga­tion uncov­ered that a recan­ta­tion made by a wit­ness who ini­tial­ly claimed that Willingham con­fessed to the crime was nev­er made avail­able to Willingham’s lawyers or placed in the court file. Morton and Scheck wrote, ​“The clemen­cy process that failed to dis­cov­er Willingham’s inno­cence in 2004 remains essen­tial­ly unchanged. A recent study by a com­mit­tee of the American Bar Association found that the Board of Pardons and Paroles’ con­sid­er­a­tion of cap­i­tal cas­es is woe­ful­ly inad­e­quate — Texas does not meet any of the eleven min­i­mum guide­lines for an ade­quate process.” They con­clud­ed, ​“No one can endorse a sys­tem that allows the exe­cu­tion of an inno­cent per­son. And we need to do every­thing in our pow­er to make sure that the Board of Pardons and Paroles, the last stop in our crim­i­nal jus­tice sys­tem, has the resources and the pro­ce­dures nec­es­sary to do its job.” Read full text of the op-ed below.

Morton, Scheck: Changes are long over­due for Texas’ clemen­cy process; Willingham case high­lights need for system reform

Few peo­ple can com­pre­hend the pain felt by the fam­i­ly of Cameron Todd Willingham, whose sur­vivors recent­ly stood with us at the Capitol to ask the state to inves­ti­gate his wrongful execution.

On Dec. 23, 1991, a fire dec­i­mat­ed Willingham’s Corsicana home, killing his 3 daughters.

This tragedy was com­pound­ed when Willingham was mis­tak­en­ly blamed for the fire and con­vict­ed of arson mur­der of his own children.

It is now uni­form­ly under­stood that the fire inves­ti­ga­tors who believed that Willingham com­mit­ted arson were flat wrong.

The Texas Forensic Science Commission has unan­i­mous­ly rec­og­nized seri­ous prob­lems with every aspect of the inves­ti­ga­tors’ asser­tions in the case, and mul­ti­ple renowned arson experts have con­clud­ed that there was no evi­dence of foul play.

A recent inves­ti­ga­tion by the Innocence Project, how­ev­er, has uncov­ered trou­bling new evi­dence that there may have been foul play at and after Willingham’s tri­al. The jail­house infor­mant, Johnny Webb, who claimed that Willingham had con­fessed, recant­ed his tes­ti­mo­ny in a writ­ten motion that he attempt­ed to file with the court in 2000 — 4 years before Willingham’s execution.

Although a nota­tion on the motion indi­cates that it was pre­sent­ed to John Jackson, the lead Willingham pros­e­cu­tor who had since become a judge, this cru­cial evi­dence was nev­er pro­vid­ed to Willingham’s lawyers or even placed in the court file. This recan­ta­tion nev­er saw the light of day until years after Willingham was executed.

Also, while both Jackson and Webb told the jury that Webb could expect noth­ing in return for his tes­ti­mo­ny, new­ly dis­cov­ered doc­u­ments indi­cate that extra­or­di­nary efforts were made to assist Webb in reduc­ing his sen­tence by 10 years and in deal­ing with Webb’s day-to-day com­plaints about prison con­di­tions. Importantly, it appears that nei­ther the courts nor Gov. Rick Perry knew of Webb’s recan­ta­tion or the assis­tance he received when they denied Willingham’s last-minute pleas for a stay of execution.

The state of Texas has act­ed admirably in the cre­ation of the Forensic Science Commission, which has cri­tiqued the fire sci­ence in the case; and the State Fire Marshal’s Office has, in con­junc­tion with the Innocence Project of Texas, imple­ment­ed a review of past arson cas­es where con­vic­tions may have been based on sim­i­lar­ly unre­li­able evi­dence. Improvements also have been made in the judi­cial sys­tem with the pas­sage of the Michael Morton Act, new require­ments for DNA test­ing in death penal­ty pros­e­cu­tions and the cre­ation of a new pro­ce­dure to con­sid­er sci­en­tif­ic evi­dence that con­tra­dicts that which led to a conviction.

But the clemen­cy process that failed to dis­cov­er Willingham’s inno­cence in 2004 remains essen­tial­ly unchanged. A recent study by a com­mit­tee of the American Bar Association found that the Board of Pardons and Paroles’ con­sid­er­a­tion of cap­i­tal cas­es is woe­ful­ly inad­e­quate — Texas does not meet any of the eleven min­i­mum guide­lines for an ade­quate process. This is a gap­ing hole in the safe­ty net against wrongful execution.

Although rea­son­able peo­ple can debate the effec­tive­ness of the death penal­ty or whether it is moral­ly appro­pri­ate, no one can endorse a sys­tem that allows the exe­cu­tion of an inno­cent per­son. And we need to do every­thing in our pow­er to make sure that the Board of Pardons and Paroles, the last stop in our crim­i­nal jus­tice sys­tem, has the resources and the pro­ce­dures nec­es­sary to do its job.

And reform of the board should extend beyond cap­i­tal cas­es to parole pro­ce­dures in felony cas­es, generally.

In a pan­el dis­cus­sion the day after our press con­fer­ence, Vikrant Reddy, coor­di­na­tor of the Right on Crime cam­paign for the Center on Effective Justice, explained that as a mat­ter of first prin­ci­ples our crim­i­nal jus­tice agen­cies must adhere to the val­ues of lib­er­ty and trans­paren­cy. We agree and call for a ground-up assess­ment of board pro­ce­dures through inter­im leg­isla­tive hear­ings to ensure that these core val­ues are hon­ored in all cases.

Legislative hear­ings and a pub­lic inves­ti­ga­tion into the Willingham mat­ter, through which we can acknowl­edge the mis­takes that were made, will allow us to learn from these errors and estab­lish meaningful reforms.

We rec­og­nize that Gov. Perry and the Board of Pardons and Paroles were not ade­quate­ly informed of many crit­i­cal facts in the Willingham case and would nev­er inten­tion­al­ly allow the exe­cu­tion of an inno­cent man. We are now at a point where lead­er­ship in call­ing for an exam­i­na­tion of the Texas clemen­cy process will result in real reform.

There are only 2 mis­takes one can make on the road to truth: not going all the way, and not start­ing. Let’s go all the way to ensure that Texas nev­er again exe­cutes an innocent person.

Morton, who was wrong­ly con­vict­ed of mur­der­ing his wife, served 25 years in prison before he was exon­er­at­ed by DNA evi­dence. Scheck is co-direc­tor of the Innocence Project, a lit­i­ga­tion and pub­lic pol­i­cy orga­ni­za­tion affil­i­at­ed with Cardozo School of Law that is ded­i­cat­ed to exon­er­at­ing wrong­ly con­vict­ed peo­ple through DNA evi­dence and reform­ing the crim­i­nal justice system.

(M. Morton and B. Scheck, ​“Changes are long over­due for Texas’ clemen­cy process; Willingham case high­lights need for sys­tem reform,” Houston Chronicle, October 17, 2013). See Innocence. Read Editorials about the death penalty.

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