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On the newpaper’s archive of the case, which you linked to, there are two rebuttals to Judge Jackson’s defense of the verdict. Both are very critical of Judge Jackson.

First rebuttal—www.corsicanadailysun.com/thewillinghamfiles/local_story_246085134.html
Second rebuttal—www.corsicanadailysun.com/thewillinghamfiles/local_story_246212744.html

The debate over this case will likely never end.

“Facts left out of the story” is the way John Jackson describes them. That makes them neither facts nor left out, but rather his way of rationalizing being the prosecutor of an innocent man put to death. These are claims that have indeed been considered, and widely debunked. That’s why they aren’t set down in black and white next to those statements that have earned the title “facts”.

There aren’t always two sides to every story, no matter how badly the the man who blew it wants there to be.

Even standing on its own, without consulting the rebuttals, I thought Judge Jackson’s defense of the verdict came off as weak.

If convicted of a crime after refusing a plea deal, does that make you remorseless and deserving of harsher punishment? In general: not in any particular case. Can refusing a plea deal be used a evidence against you in court?

It doesn’t matter how guilty someone appears if there was no actual crime.

And whether there was actually a crime stands or falls on the arson evidence alone.

None of the “facts left out” contradict the primary thrust of the article — a man was put to death based on a conviction obtained largely on the basis of junk science. Most of the facts left out are either about what a bad man Willingham was or don’t in any way relate to whether or not Willingham set the fire.

The claim that his refusing to take a polygraph test is somehow evidence of guilt is bizarre and perverse. It indicates that either Jackson has no idea what a polygraph test actually is (basically, it’s just an interrogation) or he hopes those reading what he writes don’t.

Some of his accusations are just plain bizarre. How does the fact that the burns were superficial suggest that they were self-inflicted? It seems like the junk science and old wives’ tails are alive and well in Jackson’s mind.

And the comment “you’re not the one who was supposed to die” could just mean that Willingham wished that he himself had died in the fire rather than one of the children. A grieving father telling his daughter she wasn’t supposed to die proves what exactly?

And why was no accellerant detected anywhere but where the grill was?

What’s surprised me about this case is how it has cut across the usual ideological strata. I’m almost encouraged to see how much even law and order conservative are bothered by this.

Judge Jackson’s rebuttal, such as it was, crossed me as mostly character assassination and hearsay. You don’t have to like Willingham — you don’t even have to believe he was innocent — to think that he shouldn’t have been convicted.

In the end, only Willingham knows what really happened.

In the end, only Willingham knows what really happened.

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Umm, shouldn’t that be ‘knew’?

After reading judge John Jackson, I have little hope left for the good quality of Texan judicial system. It is getting hard to believe that no innocent man ever was executed…

The New Yorker article attributes most false convictions to ” . . . . lying police and jailhouse informants . . . .” From what I have read, mainly about Texas, prosecutor misconduct like concealing exculpatory evidence is another as is junk science expert testimony such as hair matching (as distinct from DNA from hairs) and matching gunpowder residue to specific batches of ammunition. The latter illustrates the need for “experts” to have some standards (as illustrated by Hurst in the article) which they must cite in their testimony and justify any conclusions that deviate from established practice or that rely on discredited practices.

Perhaps the death penalty should be retained if more properly administered. Getting the right bad guy would be much more certain if anyone (especially police, prosecutors, jailhouse snitches, judges, and expert witnesses) later caught and convicted of purposely (knowingly doing junk science in the case of “experts”) furthering a false conviction automatically received the same penalty as the person falsely convicted. That should include execution, prison time equal to that prior to exoneration (served on death row and maybe with equal uncertainty of getting out) but lacking subsequent pardon, fine, and bearing a subsequent criminal record of the same crime as the false conviction. In fact justice would be much improved if this concept were extended to all criminal cases, not just erroneous executions and death sentences. It seems likely that false convictions would be one situation where punishment might actually work as a deterrent as well as improve public safety by encouraging pursuit and prosecution of the real criminal.

The story highlighted the human tragedy. I am a prosecutor. I have argued to put men to death and will so again. Unfortunately, I believe that this man was wrongly executed. The case is a tragedy of the highest order.

I hope John Jackson is called to account for that editorial. It’s so lawyerly in its spin, trying to convince folks of the man’s guilt on specious grounds e.g. Willingham’s aggressiveness toward the prosecution. Here’s something from an article on the execution. At the time, folks probably took it as highlighting the depravity of Willingham. Turns out it’s the rage of innocent man:

Tuesday night’s last statement was a first for most of those in attendance. A Huntsville Item reporter who covers executions, Associated Press writer Michael Graczyk and Texas Department of Criminal Justice public information officer Michelle Lyons were all hard-pressed to recall a similar obscenity-filled tirade.

Lyons said it is “rare to have someone direct their anger that way. I mean, we’ve had (prisoners) be angry before, but not like this.”

One thing’s certain: Police “scientists” should confirm to established scientific methods. Fact is, nobody will ever know with this case. The police and prosecutors had a hunch–and they may well have been right–so they fit evidence together to match their preconceived notion.

Scientific testing should be “blind” wherever possible. For example, fingerprint or DNA evidence should ask the tester to ask which one of, say, five examples the DNA or fingerprint in question matches.

For arson evidence, samples both from the scene and from “neutral” scenes should be sent to labs to test for accellerant residue, etc.

And, by the way, as we all read this story and judge the prosecutors, defense attorneys, arson investigator, let us not forget one other very important place where the system failed. Defense Attorneys hired their own arson investigator why apparently agreed with the conclusions of the State’s investigator. How did that happen?

Did the State not give enough money for the defense to conduct its own arson investigation, forcing instead a cursory review of the State’s investigation? Or did the defense hire an incompetent investigator? Why did the defense investigator not point out the most obvious, gaping flaws in the State’s evidence? (For example, that accelerant traces were not found in all but one of the many place’s the State’s theory of the fire would have required it to have been used.)

There is much more blame to go around in this case, and this angle deserves to be investigated.

Many of the “Facts left out” are actually dealt with in the New Yorker article.

For instance, Willingham’s lack of smoke inhalation actually makes sense, according to the fire experts who have now looked at the case, because their controlled recreations make his story (that the fire was contained in one room, until it suddenly burst into the rest of the house and sent him fleeing) seem quite likely.

And witnesses (including Willingham’s ex-wife) have now firmly established that the refrigerator was *always* blocking the back door — for months before the fire. So it’s nonsense to accuse Willingham of having put it there to block an escape route.

How dismaying to see a former prosecutor (now Judge) peddling nonsense instead of addressing the real issues in the case. I pray every day that I bring more honor than he to my profession.

Judge Jackson’s rebuttal argument miss the whole point: if the fire wasn’t arson, then there was no murder. The rebuttal arguments are weak, and even if accepted as true, not enough for a jury to convict a man and sentence him to death. Further, Jackson complains that Willingham rejected a polygraph and a plea deal in a “vulgar and insulting manner” and in “an obscene and potentially violent confrontation”. What has this to do with Willingham’s guilt or innocence or whether he should be sentenced to death. Jackson’s use of the polygraph is especially troubling–he would let a man go free, despite believing that the man had killed three people if he had passed a polygraph? Jackson apparently accepted the deeply flawed expert testimony but would reject it if only Willingham had passed an imperfect examination? Wow.

Judge Jackson’s judicial career should be over. He has blood on his hands. He murdered an innocent man out of gross incompetence and witch-hunting.

Same goes with the original arson investigator – he should never be allowed to investigate arson, or fires, for the rest of his life. He has blood on his hands. He murdered an innocent man out of gross incompetence (junk science) and witch-hunting.

Same goes with the police, prosecution, the defense.

Same goes with board that rejected the 11th hour appeal from Hurst. It especially goes to them. Thy knowingly sent an innocent man to death. The evidence and science by that time were crystal clear (no arson – scientifically proven). But they chose to ignore it, and sent an innocent man to his death. I hope that each one of those individuals live the rest of their lives with crushing, suffocating guilt.

Horrible. Horrible. Horrible.

First the guy tragically loses his 2 year old daughter and twin babies in the fire. Then he’s falsely accused and convicted of arson and murder of his own children. Then he’s put to death.

Another thing that is so shocking I can’t hardly believe it, it’s too surreal. They labeled Willingham a sociopath on the sole grounds that he had a skull tatoo and art work from his favorite heavy metal bands (including Led Zeppelin). Wow. Just Wow.

My God, but does Texas ever suck, or what. What a bunch of incompetent, immoral, horrific demons they are (the laws, courts, and police enforcement)

Passing a polygraph if you’re guilty is tough. It would have taken the kind of planning Willingham wouldn’t have. Likely, he would have passed the polygraph if and only if he was innocent. But, of course, had he passed it, essentially nothing would have changed, and nobody would even have mentioned the fact that he took a polygraph. (And if you think the investigation would have gone any other way, I have a bridge to sell you.)

Taking a polygraph is a lose/lose/lose proposition. If you pass, everyone pretends it never happened and you can’t mention it in court. If you fail, you never hear the end of it even if the failure was erroneous. If you refuse, well, we see here what happens.

Had Willingham been guilty, he would very likely have failed the polygraph. If he was innocent, he would likely have passed it, but still could have failed it due to nervousness, confusion, or coercion.

It is, however, quite hard for a guilty person to pass a polygraph test unless they have gone to quite some effort to learn how to do it. A polygraph test is basically a coercive interrogation likely to produce false confessions.

David, the crucial point about the polygraph is the cavalier disregard that Judge Jackson shows for the 5th Amendment: “No person . . . shall be compelled in any criminal case to be a witness against himself”

Jackson doesn’t attempt to rehabilitate the discredited expert testimony; instead, he claims that a refusal to testify by Willingham is a basis for believing that Willingham is guilty. You’re right in your points on the difficulties faced by defendants in deciding whether to take a polygraph, but the truly shocking point is that Jackson, now sitting on the bench, is seemingly willing to regard such a refusal as an indication of guilt

Jack: I agree with your main point, but you keep weakening it by making arguments that aren’t logical. Judge Jackson shows no disregard for the Fifth Amendment whatsoever. He is making no attempt whatsoever to compel Willingham to testify. Jackson is not holding a court hearing, he is holding an argument over whether Willingham is factually guilty or factually innocent. In such an argument, there are no rules of procedure, no rules of evidence, and certainly no fifth amendment.

The reason his bringing up the polygraph test is wrong is not because it shows a lack of respect for the fifth amendment but because it conveys no information whatsoever about Willingham’s guilt or innocence. An innocent man, assuming he’s not an idiot, would also have refused to take a polygraph test under those circumstances.

The same applies to many of Jackson’s other arguments. Jackson knows that the refrigerator had been in precisely the same place for quite some time. That’s critical for determining whether the position of the refrigerator is an indication of Willingham’s guilt. But Jackson doesn’t tell you that and he knows most of the people reading him won’t know that.