On Wednesday, she received notice that Judge Gertner had scheduled oral arguments on her motion for a new trial in Becky’s case, based upon the junk science statute, for the following Wednesday. Doug told Dani to go. “I’m fine by myself,” he said. “Maybe just ask Elsa to stay late the night you’re away. Just until Ruth is in bed.”

  And so, the following Wednesday, Dani once again sat in the Tarrant County, Texas, courtroom of Judge Gertner. Unlike the last time—indeed, unlike every time she’d appeared in a court on Becky’s behalf—she felt confident of her position. When her case was called, she moved to the front of the courtroom. After ADA Jeremy Wilson took his seat up front, Dani stood.

  “Your Honor, Article 11.073 of the Texas Code of Criminal Procedure recognized that scientific advancements may demonstrate that previously held beliefs by experts in different fields were, in fact, incorrect. The Texas legislature expressly recognized that arson science was one of those areas in which scientific investigations have led to new understanding of fires, both how they occur and how they react. As a result of that understanding, prior testimony of arson investigators was often flawed, and thus led to wrongful convictions. That is exactly what happened in Becky Whitlaw’s trial. As you can see in the affidavit of Stuart Halstein, the conclusion reached by Sam Miner, the arson investigator who testified on behalf of the prosecution at Ms. Whitlaw’s trial, was based on incorrect assumptions on the dynamics of a fire. There was, based on current scientific knowledge of fires, no basis to conclude that it was arson. It was likely faulty wiring—a hazard unbeknownst to Ms. Whitlaw. She has been on death row for twenty years for a nonexistent crime. This court should recognize the tragic mistake that has been made and order her release immediately. Based on this new scientific evidence, she should not be subjected to a new trial, but if the DA chooses to go ahead with one, she should be released on her own recognizance, without bail. Thank you, Your Honor.”

  Dani sat down and took a deep breath.

  Wilson stood slowly. He glanced over at Dani, and she saw a look of sadness in his eyes. “Your Honor, Ms. Trumball is correct about the purpose of Article 11.073, but she failed to point out the defendant’s obligation under the statute. Before a court may grant relief under this statute, the defendant must show that the relevant scientific evidence she now relies upon was not ascertainable through reasonable due diligence. As stated in the affidavit of Morris Holcolm, a noted fire investigator and provided with the State’s response to the defendant’s application, the dynamics of fire that Ms. Trumball referred to were discovered by fire scientists well before the defendant’s trial.

  “As early as 1977, a study showed that the telltale signs fire investigators relied upon to indicate arson were not scientifically valid. In 1991, a team of fire investigators discovered that crazed glass was not solely caused by use of an accelerant. In 1992, the National Fire Protection Association published scientifically based guidelines for arson investigations. All these facts could have been discovered by the defendant for her trial in 1999 with the exercise of due diligence. She failed to do so and cannot now come before this court and ask for a second chance. The statute simply does not permit that. For this reason—”

  Dani couldn’t remain seated any longer. She jumped up. “Your Honor, the statute very clearly states it applies. First, if it wasn’t available to be offered at trial, or—not and, but or—if it contradicts scientific evidence used by the state at the trial. Mr. Wilson can’t possibly deny that the State’s own expert witness offered so-called scientific evidence that has now been discredited.”

  “That may be so,” admitted Wilson. “But the statute still requires the exercise of due diligence. The evidence was there to be discovered.”

  “It required more than due diligence to discover it. Even today, more than twenty years later, many arson investigators are unaware of the new advances.”

  “Still,” Judge Gertner broke in, “it was out there. The defendant could have brought it up back then.”

  Dani’s mouth dropped open. “You can’t—” She’d started to say, You can’t be serious, then caught herself. It wouldn’t help Becky to antagonize the judge. She stopped, then began again. “Ms. Whitlaw is about to be executed for the arson murder of her three children. Whether or not her lawyer could have discovered back in 1999 what were then almost universally overlooked studies should take a back seat to the grave injustice that would occur if, at the least, she was not given another trial in which scientific evidence could be introduced that clearly refutes a conclusion of arson. This court cannot condone killing an innocent person.”

  “I remind the court that the defendant confessed to setting the fire,” Wilson said.

  “To a jailhouse snitch, who’s since recanted,” Dani shot back.

  “I admit the law isn’t the most artfully worded,” said Judge Gertner. “But I must decide based upon what is clear about it, and I have to agree with Mr. Wilson here. The defendant hasn’t met the requirement for relief to be granted. Application is denied.”

  Dani had never cried in court. She’d cried in her office. She’d cried in execution chambers. She’d cried out in the field with Tommy. Never in court. Until now, as she sat rooted in her seat, and tears flowed down her cheeks. She just wasn’t certain whether they were for Becky, or for Doug.

  Chapter

  38

  Dani was still numb when she arrived back home. Although Doug had gone into Stanford for a few hours, he was home when she stepped through the front door, and he wrapped his strong arms around her.

  “Are you going to appeal?” he asked once she’d settled in.

  “Of course. It’s just so crazy. I don’t understand this judge.”

  “It’s not just him. Remember the Supreme Court decision, where Justice Scalia took the position that the Constitution doesn’t prohibit the execution of a convicted defendant who’s had a full and fair trial? Even if a habeas court finds evidence of actual innocence.”

  Dani shuddered. She remembered it well. It placed the importance of finality above justice. Of course, Scalia assumed that the lengthy process of appeals in capital cases prevented the execution of innocent defendants, but Dani had seen enough to harbor doubts that such was the case. Times like this made her wonder about her chosen profession. Not just the area of law she practiced—representing the wrongfully convicted—but the law itself.

  Before starting college, she’d thought she wanted to pursue a degree in literature, perhaps a doctorate, followed by a position teaching at a university. The thought of spending her life on a college campus, surrounded by students eager to learn, had been enticing. Once she entered college, she realized such jobs were hard to find and hard to keep. Her goals switched to becoming a psychologist, thinking it would be a way to help people, to give back to others. Her focus turned to law only after she learned of the unjust conviction of her childhood nanny’s nephew. It was then that she realized she might have more of an impact as an attorney.

  Doug had managed to combine his love of law with the joy of imparting his knowledge to others. After eight years as a federal prosecutor, he’d switched to teaching at Columbia Law School. Every time Dani thought about making a similar move herself—and the idea of working on a college campus still appealed to her—she realized she couldn’t. She would feel selfish abandoning HIPP.

  She took a long look at Doug. “How are you feeling?”

  “I’m managing.”

  Doug had always been stalwart, refusing to buckle when he had a bad cold, only staying home from work if he had a fever. Before this, that was the extent of any illness he’d had. But now, his skin had a grayish pallor, and dark circles were below his eyes.

  “Any nausea yet?”

  “Some.”

  “Is that why you came home early?”

  He nodded.

  Dani leaned back into his arms. Ruth was at the playground with Elsa; Jonah’s bus would arrive in an hour. She breathed in the scent she’d always associated with her husband—an earthy odor that reminded her of outdoors, deep in a forest. Early in their marriage, they’d spent many weekends hiking somewhere—Bear Mountain, the Catskills, or, if a long weekend, in the Adirondack Mountains far west of Albany. That stopped when Jonah was born. Once, when he was around five, they took him for a picnic at Bear Mountain and followed it with a short hike. He’d hated it; cried every few steps that he wanted to return to their blanket and play with the keyboard that he’d never gone anywhere without. Even then, he’d shown musical talent.

  When he’s older, they’d promised themselves. Then, after Ruth was born: When they’re off on their own, we’ll travel. Do hikes all over the world. It was so easy to push into the future wishes for the present. Now, Dani wondered if they’d have a future together.

  Chapter

  39

  Becky felt like she was on a roller coaster, the extreme kind, where the cars on a track went upside down on a big loop, making your stomach do flip-flops and your head feel like explosions were going off inside. She wanted the coaster to stop. Wherever it stopped. With the prison doors opening, or with her strapped onto a gurney. She couldn’t take the ups and downs anymore. Dani told her the next court would see the truth, but Becky no longer believed that. The truth didn’t matter to anyone but her. She held the truth inside her like a precious gift. She hadn’t set the fire that killed her children. That was the truth that counted. Nothing else did.

  She sat in front of her computer screen and robotically typed out the braille. She could do her job without thinking, without feeling. That’s what she needed. To block out all feeling.

  “Why you looking so sad?” Amy, sitting next to her, whispered. “I thought your lawyer was getting you out?”

  Becky just shook her head. She couldn’t bring herself to talk, even though Amy was a sweet woman who often helped the time pass quickly. She was working on a history textbook, filled with battles and dates. Maybe all of life was a battle, a struggle to survive. Sometimes those in the thick of it just gave up. Walked into the fire and let whatever happened happen. That’s what she wanted for herself now. To just give up.

  She had lost track of time when the bell sounded. She marked the page she was up to in the history textbook and walked, alone, back to her cell. The other inmates in the computer room weren’t on death row. They would head to the prison mess hall, eat their dinner in a communal room, then mingle before mandatory bedtime. Becky went, as required, straight to her cell. The guard locked her inside, then twenty minutes later brought her a meal on a tray. Becky ate it listlessly, then lay down on her bed. She knew she should write her mother, write Chuck, let them know of the newest setback, but she couldn’t bring herself to do it. She couldn’t bring herself to write down in black and white that, once again, a judge had decided her life wasn’t worth saving.

  Chapter

  40

  Dani hunkered down to work on an appeal and a stay of execution while the appeal was pending. This single judge’s opinion would go to a panel of nine judges on the Texas Court of Criminal Appeals, and if she lost again, she’d ask once more for the US Supreme Court to intervene. It was the same pattern she’d just gone through with Becky’s case, only this time on more solid footing. Repeated appeals were par for the course with death penalty cases. It was why prisoners usually languished on death row for so many years—oftentimes decades.

  Two weeks later, Dani was back before the Texas Court of Criminal Appeals. Once again, ADA Jeremy Wilson had an apologetic look in his eyes. Once again, Dani stood before the nine justices, draped in their black robes, neutral expressions on their faces. She’d barely spoken when Judge Melnick, the same female jurist who’d peppered her with questions during her last appearance on this case, asked, “Isn’t it true that the National Fire Protection Association issued standards for fire investigations in 1992, well before the defendant’s trial?”

  “That’s correct,” Dani answered. “But the State Fire Marshal’s office only kept one copy of that report at each regional office. It took a long time before it became widely accepted.”

  “Still, it was there to be discovered with diligence.”

  “Black’s Law Dictionary defines due diligence as, ‘such a measure of prudence, activity, or assiduity, as is properly to be expected from, and ordinarily exercised by, a reasonable and prudent man under the particular circumstances; not measured by any absolute standard but depending on the relative facts of the special case.’ With respect to arson investigations, there has been an enormous difference in the understanding of what indicates arson between scientists and engineers studying fires, and those in the field investigating fires. This gap still exists today, although it’s narrowing. Even with a thorough investigation, it would have been extremely difficult to discover that the indicia relied upon for generations to pinpoint arson were without scientific validity.”

  “Difficult, but not impossible, right?”

  Dani took a deep breath. She hoped that Judge Melnick was in the minority on the bench; that the eight other jurists were not so rigid. “No, not impossible, but the reasonable man standard should be measured not by what a scientist would know and therefore pursue, but what a typical fire investigator during that time period would know, and therefore pursue.”

  She continued with the remainder of her argument—that the clear language of the statute mandated a new trial if expert testimony relied upon by the prosecution turned out to be flawed. When it was Wilson’s turn, he built on the questions raised by Judge Melnick and hammered away at the defendant’s lack of due diligence in discovering the new advances in fire science. When it was over, the confidence she’d felt when she filed her appeal had dimmed. As strong as the evidence was that no one had purposefully set the fire in Becky’s house, this was Texas. One study had shown that between 1995 and 2000, the Texas Court of Criminal Appeals had granted a new trial in a capital case only eight times, while affirming the death penalty two hundred twenty times. She suspected those odds hadn’t changed much in the intervening years.

  When the decision arrived ten days later, Dani’s fear was confirmed. The short written opinion stated, Although we are sympathetic with defendant’s plight, the statute is clear that for relief to be granted, due diligence in uncovering the flawed science at the time of the initial trial is required. Defendant failed to exercise due diligence, and for that reason her appeal is denied. The appropriate path for her now is to seek clemency.

  Dani’s fear turned to anger. How was it possible for the court to be so callous? She picked up the phone and called Bruce Kantor, then railed over the phone to him about the injustice.

  “You still have another chance at the Supreme Court,” he said.

  “Hah! They’ve been great, so far, haven’t they?”

  “Then you’ll seek clemency. They can prevent her execution. Make as strong a pitch as you can.”

  “Can I hire another fire expert? Pile it on?” Dani knew that HIPP’s budget was tight. They always found money for one expert, but hiring multiple ones was usually nixed.

  “Do you have someone in mind?”

  “Halstein mentioned someone to me. He’s supposed to be the preeminent expert in the field.”

  Bruce hesitated before answering. “How much?”

  “Probably double Halstein’s fee.”

  Another hesitation, then she heard him sigh. “Go ahead. Anything we can do to stop this travesty.”

  Dani thanked him, then switched over to Tommy. “See what you can find out about the clemency board in Texas. Who they are, the cases where they granted clemency, what factors are most important to them. That kind of thing.”

  “Sure. But it sounds like a sure thing to me. It wasn’t even arson.”

  “I just want to make certain the board sees it that way.”

  Promptly at 9:00 a.m. the next morning, Tommy called. “It wasn’t too early, was it?” he asked. “I know you’re three hours earlier there. I wasn’t sure when you actually got down to work.”

  When she lived in New York, she usually didn’t arrive in the office until 9:30, partly so she’d send Jonah off on the school bus, and partly to avoid the rush-hour traffic. When she just had to walk down the hallway to her office, she was usually at her desk by 8:30.

  “It’s fine. What do you have for me?”

  “Nothing good, I’m afraid.”

  “Tell me.”

  “There are seven members on the board. Six men and one woman. All but one was appointed by the current governor, and all but one come from a background of law enforcement.”

  “That doesn’t sound promising.”

  “The governor has to have a recommendation for clemency from the Board of Pardons and Paroles to issue a pardon. He can choose to deny clemency despite a recommendation in favor, but he can’t grant it without a recommendation. Since 1976, the board has only recommended clemency in a capital case three times.”

  “Damn.”

  “It gets worse. I tracked down someone who was a prior board member. He told me that although the rules permit a hearing to consider important new evidence, in his tenure, they’d never held one.”

  It couldn’t be as bad as Tommy said. Surely, with evidence of such a glaring error before them, they’d have to act to prevent Becky’s execution. But Tommy’s findings made it clear: she needed as much reinforcement as possible. As soon as she hung up, she called Stuart Halstein. She filled him in on the court losses. “I want to get a second report to the clemency board; really lock it up that this wasn’t arson. You mentioned you knew a big gun in this field.”

 

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