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Two months ago, Marcia Fulton received a knock on her door in El Paso, Texas, from lawyers for David Wood – a name she knows all too well. Wood is facing execution on 13 March for the 1987 murder of Fulton’s teenage daughter, Desiree Wheatley, along with five other girls and young women.
“I promised Desi at her gravesite that I would find out who did this and make them pay,” Fulton told Wood’s lawyers that afternoon. Now, she was making plans to attend the execution. “I’ll feel like it’s a promise I kept to her.”
Despite her vow, the mother agreed to listen. The lead attorney, Greg Wiercioch, a professor at the University of Wisconsin Law School, told her that during his 16 years on the case, he’d come to believe Wood hadn’t killed her daughter or anyone else. He pointed out that DNA testing of a bloodstain on one of the other victim’s clothes had matched a different, unknown male, who could have also killed Fulton’s daughter.
In the years since the DNA test, Wood, who is 67, has become one of the longest-serving death row prisoners in history. His lawyers have repeatedly asked state and federal courts to order testing of additional items, but multiple judges have declined, accusing them of simply trying to delay the execution. Wiercioch hoped Fulton might support more testing, even if it meant more waiting.
For a moment, Fulton seemed open. “You don’t want to condemn a man to death if you’re not certain,” she told Wiercioch and Naomi Fenwick, an assistant federal public defender on the case.
But when she spoke to the Marshall Project a few weeks later, she remained certain of Wood’s guilt. “I’m not going to fault them for doing their job,” she said of the lawyers. “But they’re just grasping at straws.” Two days later, Wiercioch filed a 371-page petition in state court making the case for Wood’s innocence.
Defense lawyers regularly bring forth new arguments and evidence as execution dates loom. Prosecutors often say the defense is primarily doing this to delay justice. In the last few years, several Texas prisoners who maintained their innocence were granted last-minute stays of execution. But judges also frequently refuse to look at new evidence, appearing to accept the risk of executing an innocent person.
Why do they accept that risk? And why does the system take decades to resolve disputes over the facts of murder cases, only to then appear so hasty?
The answers are complex, but they circle around the fact that the death penalty cannot be undone, so judges tend to allow for more scrutiny. When the punishment is a prison term, it can be carried out during appeals. But when the punishment is death, appeals become obstacles to the end of the process. Put another way, if Wood had been sentenced to life in prison, Fulton would not be waiting for his punishment to be carried out.
The US supreme court abolished and then revived the death penalty in the 1970s. As death rows filled up in the 1980s, the few lawyers willing to defend these prisoners were overwhelmed with cases. So they triaged, focusing on people with imminent executions.
This led prosecutors and judges to accuse them of fostering a circus-like atmosphere with last-minute appeals. In 1994, the supreme court justice Antonin Scalia excoriated the head of the Texas Resource Center, Mandy Welch, for filing petitions to the court in the final hours before executions. She said her office had just 18 lawyers working on 220 cases, and Texas had set 100 execution dates the year before. So they had to prioritize.
Scalia’s response? “Try harder.”
Around that time, victims’ families were mobilizing as a political force. In 1987, Fulton organized a protest to pressure El Paso police to solve the murders, and convinced county leaders to offer $25,000 in reward money. A Houston mother named Linda Kelley, whose two children had been killed in 1988, testified at the Texas legislature seven years later: “As families of victims, we can never find any closure … The man that murdered my children has not even been given an execution date,” she said.
Numerous judges cited the importance of “finality” and “closure” as they rejected appeals from death row. State and federal lawmakers passed new laws to make it more difficult for prisoners to challenge their convictions, most famously the Antiterrorism and Effective Death Penalty Act of 1996. The law created tighter deadlines and more legal barriers for rounds of appeal after the first, which raised the risk that an innocent person might be executed.
And yet, ironically, the average amount of time from a death sentence to an execution more than tripled – from more than six years in 1984 to 22 years in 2019, according to the federal Bureau of Justice Statistics.
“The law was meant to get rid of frivolous claims, but it ended up creating new litigation over whether claims could be made,” said Corinna Barrett Lain, a University of Richmond law professor and author of the new book Secrets of the Killing State.
At the same time, defense lawyers continued to triage. Wood was sentenced to death in 1992. As multiple lawyers examined his conviction, his case sat in state and federal courts on appeal for as long as four years at a time. Shortly before his original 2009 execution date, Wiercioch agreed to help him argue that he didn’t qualify for execution due to intellectual disability.
They ultimately lost that argument, but not before a state court issued a stay to consider it, one day before Wood was scheduled to be put to death by lethal injection. Fulton, who had driven more than 700 miles (1,127km) to Huntsville to witness Wood’s execution, left disappointed. “I was so naive,” she told me. “We had to come home, and we kept waiting.”
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Two years later, at Wiercioch’s request, the state tested several crime-scene items, and the DNA on the victim’s clothing matched the unknown man. The state judge Bert Richardson ruled the new results “merely muddy the waters” and halted any further testing.
Wiercioch then learned through his litigation that El Paso police had lost or destroyed some evidence. He also asserted that Richardson had a conflict of interest, having used his rulings against Wood in his election campaign. Federal and state courts dismissed this issue. (Richardson declined an interview.)
Wiercioch maintains that he met his deadlines and raised issues as he learned about them, sometimes waiting until one legal question was resolved because it would shape how he argued the next one. He told me that if state prosecutors had agreed to DNA test more items back in 2011, the litigation may have been resolved more quickly. But the Texas attorney general’s office – which did not respond to an email for this story – accused Wiercioch in court of raising claims one by one to deliberately slow the process down.
Last May, the Texas court of criminal appeals ruled against Wood’s request for more DNA testing. “The piecemeal litigation of claims in a death-penalty case is a classic sign of purposeful delay,” the presiding judge, Sharon Keller, wrote.
In talking about delay, Keller was relying on language added by Texas lawmakers to state law in 2000. They had worried that drawn-out DNA testing might rob victims’ families of closure, according to interviews I conducted for my book on the Texas death penalty.
After the denial, “I was suddenly terrified of an execution date set and not having any help at all”, said Wiercioch. So he asked lawyers from the federal public defender for the northern district of Texas to join the case, and a federal judge agreed to appoint them last June.
Texas state judges are now considering the new petition from Wiercioch and the federal defenders, which includes some evidence they could not have discovered earlier: last September, a man named George Hall called Wiercioch and gave a detailed account of how two key witnesses had lied at Wood’s trial. He had waited more than three decades to come forward, afraid of retribution from the state.
None of the lawyers’ discoveries prove Wood’s innocence definitively on their own. But they raise questions that a series of state and federal courts are now considering, with days until his scheduled execution.
If a court stays Wood’s execution again, Fulton will have to keep waiting. Some scholars have argued that the death penalty, with its guaranteed appeals, forces victims’ families through emotional ups and downs they would not otherwise confront. But despite Fulton’s frustration with the process, she remains committed to witnessing Wood’s execution.
“I think I’ll take a sigh and then my first full breath in 37 years,” she said. “I’m 72, but I’m not going anywhere until he’s gone.”
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This article was published in partnership with the Marshall Project, a non-profit news organization covering the US criminal justice system. Sign up for their newsletters, and follow them on Instagram, TikTok, Reddit and Facebook
