SAN ANTONIO — Attorneys and judges have long lectured us about the difference between not guilty and innocent. A not guilty verdict simply means the prosecution was not able to produce enough evidence to convince a jury beyond a reasonable doubt.
There is now new evidence of innocence and wrongful execution in the case of Cameron Todd Willingham, executed in 2004 in the arson deaths of his three daughters.
But if that “innocence” label bothers Gov. Rick Perry in weighing a posthumous pardon, he can still justifiably conclude that a “not guilty” verdict certainly should have occurred.
There exists plenty of compelling evidence that, had facts now known been known by the jury, there would have been such a verdict.
And had these facts been properly weighed or available, Willingham's execution would have been stayed. There might have been a new trial.
Even without weighing Willingham's “innocence,” Perry can clearly see justice too-flawed to warrant conviction, much less execution. This is the standard. And the new evidence just makes a stronger case that justice fell way short here.
A newly uncovered notation on a district attorney file strongly suggests that the jailhouse informant who testified that Willingham confessed to him had been given a deal from Navarro County DA John Jackson, now a district court judge.
The informant, Johnny Webb, told the court that he had received no deal. And Jackson has said none existed.
The notation was uncovered by the Innocence Project, which has petitioned the Texas Board of Pardons and Paroles for a posthumous pardon for Willingham. The project requested and got DA files connected to the case.
The notation — unsigned — was on the cover of the DA file on Webb's robbery charges. It read that the first-degree charge he had been convicted on should be reclassified to second degree “based on coop in Willingham.” Other documents show Jackson making attempts to get Webb an early release.
This is important because a claim in this case is that even if the arson evidence had not, even before Willingham's execution, been so thoroughly discredited, there was Webb's testimony.
Webb later recanted but Willingham's attorney was apparently never told of this, according to the Innocence Project.
In sum: Arson evidence so outdated it was useless in concluding guilt. Expert testimony to this effect before Willingham's execution.
And now the notation indicating the remaining evidence viewed as damning was secured with a promise of favorable treatment.
It's difficult to fathom an innocent reason for the notation on Webb's file. Favorable treatment, unpromised, but coming after the fact “based on coop in Willingham”? At the very least, this points to a wink-wink deal ensuring plausible deniability.
Perry's been here before. The Innocence Project asked the newly formed Texas Forensic Science Commission to investigative Willingham's case and another case as well.
Expert witnesses said fire investigators' testimony on the arson evidence in Willingham's case was seriously outdated.
But the commission, after Perry ousted some members, was ultimately barred by an opinion from Attorney General Greg Abbott from making a finding of negligence, though the investigation sparked a re-examination of how arson evidence is gathered and weighed. And it was a topic briefly in Perry's ill-fated presidential bid.
There is clear evidence in the Willingham case of the kind of flawed justice for which Texas, unfortunately, has become known. We understand the reluctance of death penalty advocates to give ground that points to an innocent person executed.
And, yes, Perry is the governor under whose watch Willingham was executed.
But the evidence is well beyond overwhelming, if not to innocence, at least to seriously miscarried justice and to a “not guilty” verdict if all facts were presented.
Governor, you can't bring back Willingham. You can, however, do as much as is now possible to right a wrong. Ultimately, this decision is yours. For belated mercy's sake, issue the posthumous pardon.