Gov. Rick Perry, depicting Willingham as a "monster" who murdered his children in a Christmastime house fire in 1991, says that opponents of the death penalty are using the case as "propaganda" to promote their cause. But advocacy groups that oppose capital punishment say the possibility that Texas may have put an innocent man to death underscores the need to end or seriously restrict the state’s executions.
"It has raised a lot of questions," says Scott Cobb, director of the Texas Moratorium Network. "No matter how things turn out, people are looking at the death penalty in a new light. They’re saying if it could have happened in the Willingham case, it could have happened in other cases."
Texas has a global reputation as the most prolific execution state in the country, having put 441 inmates to death since the U.S. Supreme Court reinstated capital punishment in 1976.
Willingham was No. 320, executed Feb. 17, 2004, after he was found guilty of setting his Corsicana home afire and killing his three daughters — a 1-year-old and 1-year-old twins. Willingham reasserted his claims of innocence in his final statement just before the sentence was carried out.
Perry, as well as investigators and prosecutors, say evidence overwhelmingly supported the jury’s decision, which was affirmed at each step of the appeals process. But several noted arson experts who re-examined the fire investigation say it relied on outmoded concepts and did not support a finding of arson. The Texas Forensic Science Commission opened a review of the arson investigation in 2008, but the inquiry stalled this month after Perry replaced four members of the panel.
Although Texans have traditionally strongly supported the death penalty — surveys generally show a breakdown of about 75 percent for and 25 percent against — Barry Scheck, co-founder of the New York-based Innocence Project, says that Texans are "beginning to think twice" about capital punishment.
Scheck’s organization has led the push for a re-examination of Willingham’s execution and features details of the case on its Web site, including a photograph of Willingham with one of his daughters perched on his shoulders. Scheck said questions raised by the investigation contribute to the "widespread perception that the process of trying these cases has broken down."
Dallas County District Attorney Craig Watkins, whose office has helped obtain exonerations for 20 wrongfully convicted defendants in Dallas County, says "it may be wise for all DAs throughout the state to implement a policy . . . to make sure mistakes weren’t made" in prosecuting capital cases.
In Fort Worth, Tarrant County District Attorney Joe Shannon says he supports the death penalty "in the proper case" but said prosecutors need to ensure that correct procedures are followed and that the evidence is sound. "If you’re going to have the death penalty," he said, "you need to do it right."
Other questionable cases
Cobb says concern over Willingham’s execution could also prompt a re-examination of several other executions in which questions have been raised, either by advocacy groups or newspaper investigations.
One case centers on Ruben Cantu, a teen-age offender who was executed in 1993 for shooting a San Antonio man during an attempted robbery. A two-part investigation by the Houston Chronicle in 2005 concluded that Cantu "was likely telling the truth" when he denied being involved. A key eyewitness who survived being shot in the robbery attempt at first identified Cantu as the assailant but recanted, the newspaper reported.
Questions have also been raised in the 1997 execution of David Spence, convicted of killing three teen-agers in a botched killing-for-hire scheme that became known as the Lake Waco murders. A convenience store manager was also charged and sentenced to death but was acquitted in a new trial. He said repeatedly that neither he nor Spence was connected to the killings. A homicide investigator involved in the case also expressed doubts about Spence’s guilt.
"The problem is that Texas goes so fast and executes so many people," Cobb said. "That creates the environment of making more mistakes."
The Willingham case is also likely to fuel efforts to find new safeguards against wrongful convictions.
The Timothy Cole Advisory Panel on Wrongful Convictions began a yearlong effort last week to develop legislative remedies against false eyewitness identification, fraudulent testimony from snitches and other criminal justice flaws that could land the wrong person behind bars. The panel was created by the 2009 Legislature and named after Tim Cole, a wrongfully convicted inmate from Fort Worth who died in prison and was posthumously exonerated.
Austin battle brewing
Cobb said death penalty opponents are already gearing up for the next session of the Legislature in 2011 with plans to call for a moratorium and a study panel to examine Texas’ death penalty policies. "A lot is going to happen between now and then," he said. "I see radically increased support for a moratorium after the Willingham case."
But law enforcement groups, prosecutors and other death penalty supporters are also expected to marshal their forces to help keep the death penalty in place. Perry and U.S. Sen. Kay Bailey Hutchison, who are battling for the Republican nomination in the 2010 governor’s race, are both ardent death penalty supporters.
"I think the people of Texas believe in the death penalty and believe it’s an appropriate sanction," said state Sen. Kel Seliger, R-Amarillo, vice chairman of the Senate Criminal Justice Committee, which will hold hearings on the forensic commission next month. "But they also believe it should be administered with unerring accuracy."
Charley Wilkison, spokesman for the Combined Law Enforcement Associations of Texas, said the 17,500-member organization will continue to make the case that capital punishment deters murder and helps protect police.
If the death penalty were repealed in Texas, he said, "It would be absolutely an open season on policemen by drug dealers, transnational gangs and other criminals if the consequences were only life in prison with a decent bed, a TV and three squares."