More than five years ago, I wrote about the Texas murder case of Cameron Todd Willingham, who was facing the death penalty (and later was executed) for the arson murder of his three daughters. Now, misconduct charges have been filed against the prosecutor in the case.
A disciplinary petition in Navarro County, Texas, accuses then-prosecutor John Jackson of obstruction of justice, making false statements, and concealing evidence favorable to Willingham’s defense:
“Before, during, and after the 1992 trial, [Jackson] knew of the existence of evidence that tended to negate the guilt of Willingham and failed to disclose that evidence to defense counsel,” the [State Bar of Texas] investigators charged. …
The bar action was filed March 5 without any public announcement. It accuses Jackson of having intervened repeatedly to help a jailhouse informant, Johnny E. Webb, in return for his testimony that Willingham confessed the murders to him while they were both jailed in Corsicana, the Navarro County seat.
Webb has since recanted that testimony. In a series of recent interviews, he told the Marshall Project that Jackson coerced him to lie, threatening a long prison term for a robbery to which Webb ultimately pleaded guilty, but promising to reduce his sentence if he testified against Willingham.
The ironic thing is that Jackson told the New Yorker while Willingham was still alive that he personally opposes the death penalty. “What’s the recourse if you make a mistake?” he rhetorically asked an interviewer. Perhaps he’s about to find out, although he’s seeking a jury trial on his misconduct charges and I agree with him that it’s quite possible no Texas jury will vote to convict a prosecutor.
But even if he is convicted on all charges, what’s the worst that happens? He loses his law license. He gets fined. He quite possibly doesn’t spend a single day in jail. Frankly, next to executing an innocent man, that seems like pretty small beer.
So if we’re going to continue to have a death penalty — and I remain devoted to it in principle — then there needs to be a serious, serious penalty for prosecutorial misconduct in criminal cases. As I wrote in 2009:
The practical part of me thinks that it would be much the easiest choice simply to end capital punishment, making the maximum sentence life without parole. It would save dramatically on legal expenses for both states and defendants, it would cut the appeal time, it would bring cases to closure more quickly (which would be easier on victims’ families) and it would erase the possibility of the state’s making the one mistake it cannot unmake.
And yet philosophically I still believe there is value, in the cases of the most heinous murder cases, in an eye for an eye. I believe that on an emotional level that, after almost 50 years on this planet, I doubt fact and logic will ever change. But I also feel obliged to suggest a possible solution to the conundrum.
So here’s what I’ve come up with:
If it ever can be shown that the state has wrongfully executed an innocent person even though a fair exculpatory case existed before the execution, then we also should put to death the prosecutor and judge in the case. If a parole board ever commits the kind of dereliction of duty displayed in Willingham’s case with the result that an innocent person is executed, the board members who voted for execution should be put to death. If a governor can be shown to have denied clemency to an innocent prisoner even in the face of exculpatory evidence, as Texas Gov. Rick Perry appears to have done, the governor should be put to death.
Then and only then, my friends, will we know that the accused is guilty beyond a reasonable doubt.
It was true five years ago. It is true today. And I pray for John Jackson’s soul as I pray for the late Cameron Todd Willingham’s.