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Will the U.S. Supreme Court add the fate of the death penalty to a term already fraught with hot-button issues like partisan gerrymandering, warrantless surveillance, and a host of contentious First Amendment disputes?
That’s the hope of an ambitious Supreme Court petition seeking to abolish the ultimate punishment. But it runs headlong into the fact that only two justices have squarely called for a reexamination of the death penalty’s constitutionality.
Abel Hidalgo challenges Arizona’s capital punishment system—which sweeps too broadly, he says, because the state’s “aggravating factors” make 99 percent of first-degree murderers death-eligible—as well as the death penalty itself, arguing it’s cruel and unusual punishment.
He’s represented by former acting U.S. Solicitor General Neal Katyal—among the most successful Supreme Court practitioners last term. Hidalgo also has the support of several outside groups who filed amicus briefs on his behalf, notably one from a group including Ari…

Jury Clears the Prosecutor Who Sent Cameron Todd Willingham to Death Row

Former Navarro County prosecutor John H. Jackson, Texas
Former Navarro County prosecutor John H. Jackson, Texas.
After a trial of more than two weeks, a Texas jury on Wednesday found that former state prosecutor John Jackson had not committed misconduct in the 1992 death penalty trial of Cameron Todd Willingham.

By an 11-to-1 vote, a Navarro County jury rejected claims by the State Bar of Texas that Jackson made false statements, concealed evidence favorable to Willingham’s defense and obstructed justice. The state bar had accused Jackson of failing to disclose to Willingham’s defense lawyers that jailhouse snitch Johnny Webb had been promised favorable treatment on an aggravated robbery conviction in return for testimony at Willingham’s trial.

Webb testified at Willingham’s trial that while he and Willingham were in the Navarro County Jail Willingham confessed to setting a fire that killed his three daughters. In 2014, Webb recanted that testimony, saying Willingham never confessed and that he had testified after Jackson promised him leniency on his own criminal charge.

Jackson testified during his trial that he had made no deal with Webb. He said he only made efforts to obtain a reduction of Webb’s conviction from aggravated robbery to simple robbery and an early release from prison because Webb was being threatened in prison.

Willingham was executed on Feb. 17, 2004 for setting the fire that killed his daughters on Dec. 23, 1991 in their Corsicana, Texas home. The prosecution’s case against him was two-pronged—testimony by fire investigators that their analysis of the fire debris showed the blaze was deliberately set and Webb’s assertion that Willingham had confessed.

Weeks before the execution, an independent fire expert concluded there was no evidence the fire was deliberately set. Over the next decade numerous experts also reached the same conclusion.

The verdict was a defeat for the state bar, which filed a complaint in 2015 seeking to disbar Jackson. The complaint was the culmination of more than a decade of investigation by the Innocence Project, which unsuccessfully sought a posthumous pardon for Willingham.

During the trial of the bar complaint against Jackson, state bar lawyers showed jurors excerpts of a pre-trial video deposition of Webb during which he said that he had lied at Willingham’s trial after Jackson promised him favorable treatment on his own case.

However, when Webb took the witness stand in person, he refused to answer questions about whether he had lied at Willingham’s trial and invoked his Fifth Amendment protection against self-incrimination more than 50 times. He also said he couldn’t recall or did not remember about 100 times.

The trial was attended by a group of supporters of Jackson, who was elected a Navarro County District judge after Willingham’s trial. Judge David Farr, who presided over Jackson’s trial, admonished the Jackson supporters for repeatedly expressing audible sounds of disgust and disbelief during Webb’s testimony.

The complaint against Jackson was filed by the state bar after the Innocence Project uncovered documents, including letters from Webb to Jackson and letters from Jackson seeking an early release from prison for Webb. The bar had accused Jackson of violating several sections of the Texas Disciplinary Rules of Professional Conduct that prohibit making false statements to a judge as well as obstructing justice.

The state bar previously was successful in obtaining the disbarment of two other former prosecutors for making false statements and obstructing justice. In 2013, Williamson County District Judge Ken Anderson resigned as a judge and a lawyer and pled no contest to a contempt of court charge for failing to reveal evidence of innocence in the case of Michael Morton, who was exonerated after being wrongly convicted and serving 25 years in prison for the murder of his wife.

In June 2015, former prosecutor Charles Sebesta was disbarred for concealing evidence of innocence while prosecuting Anthony Graves, who was convicted and sent to Texas death row for the 1992 murders of six people. A federal appeals court reversed Graves’ conviction in 2006 and he was released in 2010 after a special prosecutor conducted a re-investigation of the case and concluded that Graves was innocent.

Withholding evidence that is favorable to a defendant, whether it is evidence of innocence or evidence that undercuts a prosecution witness such as Webb, is one of the most egregious acts of misconduct a prosecutor can commit. The National Registry of Exonerations, a national database of more than 2,100 wrongful convictions in the U.S. since 1989, reports that official misconduct, which includes misconduct by prosecutors, police and other government officials, has been a contributing factor in about half of the 2,023 wrongful convictions in the Registry.

Source: The Marshall Project, Maurice Possley, May 11, 2017. Maurice Possley is a journalist who investigated the Willingham case for The Marshall Project in 2014 in a collaboration with The Washington Post. He also writes for the National Registry of Exonerations.

⏩ Related content: Former Texas Prosecutor Probably Sent Innocent Man to His Death. Now He's on Trial for Misconduct, May 3, 2017

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