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Pro Bono Effort Makes All the Difference Between Two Death Penalty Appeals

Earlier this month, The New Yorker ran an epic-length article on the trial, conviction and execution of Cameron Todd Willingham, a Texas man who was accused of setting his own house on fire and killing his three young children. Willingham was put to death in 2004, but writer David Grann details how the pseudo-science prosecutors relied on to show that the fire was not an accident, and a lackluster defense by court-appointed lawyers who couldn't disprove it, doomed Willingham to death by lethal injection. It's a haunting tale, and well-worth the long read. Grits for Breakfast provides a thorough roundup of commentary on the story, including a response from the prosecutor in the case, who is now a judge.

Could Willingham, who never stopped protesting his innocence and chose to die rather than accept a guilty plea in exchange for a life sentence, have been saved if he'd had a better lawyer? It's a question most defendants must ask themselves after a guilty verdict, but in Willingham's case there's reason to believe he really could have walked away a free man if he had had counsel with more drive -- and money -- to defend him. As Grann writes, "Another inmate, Ernest Ray Willis, had a case that was freakishly similar to Willingham’s." The difference was,

Willis had eventually obtained what Willingham called, enviously, a “bad-ass lawyer.” James Blank, a noted patent attorney in New York, was assigned Willis’s case as part of his firm’s pro-bono work. Convinced that Willis was innocent, Blank devoted more than a dozen years to the case, and his firm spent millions, on fire consultants, private investigators, forensic experts, and the like. Willingham, meanwhile, relied on David Martin, his court-appointed lawyer, and one of Martin’s colleagues to handle his appeals. Willingham often told his parents, “You don’t know what it’s like to have lawyers who won’t even believe you’re innocent.” Like many inmates on death row, Willingham eventually filed a claim of inadequate legal representation. (When I recently asked Martin about his representation of Willingham, he said, “There were no grounds for reversal, and the verdict was absolutely the right one.” He said of the case, “Shit, it’s incredible that anyone’s even thinking about it.”)

The American Lawyer's Douglas McCollum profiled Blank (who is now a partner at Kaye Scholer) in January 2005, tracing his work from the day in 1992 when the 26-year-old first-year associate was brought onto the case by a partner at Mudge Rose Guthrie Alexander & Ferdon, through his group's absorption into Latham & Watkins, which never blanched at the cost or resources needed to set Willis free. Reading the two stories side-by-side, the difference between the defense and appeals process -- and the outcome -- for the two men could not be more stark.

Posted by Laurel Newby on September 21, 2009 at 05:35 PM | Permalink | Comments (1)

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