Willingham Prosecutor's Lack of Doubt Too Extreme

11/15/2009 05:12 am ET | Updated May 25, 2011

David Grann wrote a riveting piece in last week's New Yorker about Cameron Todd Willingham, executed by the state of Texas in 2004 for allegedly setting a 1991 house fire that killed his three young children. Even before his execution, evidence existed that the fire must have been accidental and Willingham's conviction was based primarily on arson theories that have since been repudiated by scientific advances. The possibility of innocence was originally reported in the Chicago Tribune by Maurice Possley and Steve Mills in 2004. But the New Yorker article adds new details of how at every step of the way, the state turned a blind eye to weak evidence and flawed forensic science.

Now, the people who worked on the case are defending their actions. The prosecutor himself, John Jackson, is now a judge and wrote a column in the Corsicana Daily Sun arguing that "Todd Willingham should not be anyone's poster child" because even if the flawed arson evidence didn't exist, "the outcome of the trial would have been unchanged" because other facts would have pointed to his guilt. He then lists the facts as he sees them, which David Grann retorts aren't really facts at all.

Jackson probably has something to lose in the next judicial election. But one has to wonder why, given the enormous amount of evidence the New Yorker provides, he would take such an unforgiving stance. Major doubts exist in a case where someone has been put to death.

It is the rare prosecutor or former prosecutor who will admit any kind of fault. One is Sam Millsap, Jr., the former San Antonio (Bexar County) District Attorney, who now acknowledges that one of the people he sent to death row who was executed was probably innocent. (The lone eyewitness in the case of Rubin Canto says that he falsely testified because of pressure by police). Another is Tom Breen, the former prosecutor I feature in my book, Ordinary Injustice: How America Holds Court. Breen and his co prosecutor landed convictions against two 17-year-old boys for raping and murdering a nine-year-old girl in 1977. Nearly two decades later, Breen told a colleague that he thought he could have made a mistake. Based on that tip, an investigation was launched which resulted in DNA evidence showing that the two boys, now men in their 40s, could not have done the crime. After 27 years in prison the men were freed.

What I found so interesting was the reaction of Breen's former law enforcement colleagues. Many were furious at Breen. Almost all said they didn't believe the DNA evidence. They still thought that they had the right guys.

Why does law enforcement take such a hard line? There's a certain kind of behavioral reaction by people who work in courts, prosecutors especially, that defends the system over all contrary evidence. Social scientists call the willingness to build a case for conviction, while ignoring evidence that points away from guilty "tunnel vision." It happens because of an overriding need to win in a contest. But what is striking is just how long this tunnel can last. Even "perfect" DNA proof is not enough to stop it.

There are so many reasons for this. But chief among them is a problem with the adversarial system. A prosecutor can try a case and have the fantasy that the defense is checking his work by presenting the other side. This way, the prosecutor doesn't have to do the soul searching inquiry himself as to whether he thinks the guy really did it. In Willingham's case, his very own defense attorneys didn't believe their client. Willingham was "one hundred percent guilty," one attorney said of him in the New Yorker piece. So the evidence was left unchallenged. Some check. Also, people who work in systems tend to have a host of professional allegiances which trump the protections of due process and adversarialism. By admitting a mistake, or even the possibility of one, they are breaking a code and bringing up all the other possible mistakes of the past. Lawyers don't want to go there.

One major problem with our courts is that they are so unmonitored. No one is watching to see what legal professionals do on a daily basis -- whether there are patterns of over-prosecution, under-prosecution or bad lawyering. So that when problems do arise lawyers are so used to being unchecked that their reaction is absolute: the defendant was guilty, no doubts. This strict stance -- in the face of so much contrary evidence -- is an indicator that a grave injustice may have occurred.