Tragedy in Texas

[The article below appeared in the

Winter 2010 issue of Innocence Project in Print

. Get documents and updates on the Cameron Todd Willingham case in our

Willingham Resource Center

.]



For Cameron Todd Willingham, the end came on February 17, 2004. For the family and loved ones who believe in his innocence, for the scientists who challenge the forensic evidence used against him and  for the Innocence Project who fights for stronger forensic oversight, the case is far from closed.

Over six years ago, Willingham was executed by the state of Texas for allegedly setting a fire that killed his three daughters. Yet four separate independent investigations – including one commissioned by the Innocence Project – have reported that the arson evidence used to convict him was unfounded and unscientific. After years of delays, political interventions and other attempts to conceal the truth, Texas may finally be poised to admit that it wrongfully executed Willingham. The case has brought national attention to the need for improvement and oversight of the forensic sciences.

A Possible Posthumous Exoneration


Hoping to resolve a case that has haunted a family and a state for years, the Innocence Project seeks to clear Willingham’s name through a “Court of Inquiry” – a rare legal proceeding available in Texas meant to restore the reputation of an injured party. If a Court of Inquiry is called, the presiding judge would have the authority to declare that Willingham should never have been convicted. He would not be the first Texan to be posthumously exonerated, but he would be the first who had been executed. Tim Cole, who died in prison 10 years before his exoneration through DNA testing, was also cleared through a Court of Inquiry.

At a hearing in October to determine whether to convene a Court of Inquiry, renowned fire experts John Lentini and Gerald Hurst testified about the flawed science. Lentini told presiding Judge Charlie Baird that the science used to determine arson in the Willingham case was considered outdated when Willingham was convicted and was obsolete by the time of his execution. “A lot of people believed that back in 1991,” Lentini said. “Now in 2004, nobody believed that.” Former Attorney General Mark White, who is also a former Texas governor, represents the Willingham family with the Innocence Project and the Texas law firm of Goldstein, Goldstein and Hilley.

The District Attorney of Navarro County, where Willingham was convicted, and the fire investigators involved in the original trial declined to testify at the proceeding. Instead, the District Attorney asked the Third Court of Appeals to stop the proceeding. The court issued a stay barring Judge Baird from issuing a decision while it considers whether or not the proceeding can go forward. 

Meanwhile, the Innocence Project continues to press the Texas Forensic Science Commission to determine whether forensic negligence or misconduct contributed  to Willingham’s conviction and whether the State Fire Marshall’s Office has been negligent in not reviewing the state’s many other arson convictions that may have been tainted by faulty forensics. The commission’s investigation, which has suffered from repeated delays since it began in 2008, is finally back on track and set to hear from experts on the case in January.  

Forensics Under Fire


Cameron Todd Willingham might have been exonerated in 2004 if not for happenstance. Another Texan, Ernest Willis, was also sentenced to death for arson based on nearly identical forensic evidence. Willis was exonerated (and ultimately compensated by the state) after forensic expert Gerald Hurst exposed the flaws in the forensics in his case. In the days leading up to Willingham’s execution, Hurst also reviewed the forensics in Willingham’s case and determined that nothing about the evidence indicated arson any more than an accidental fire. The Texas Board of Pardons and Paroles and Gov. Perry received the report days before the execution but appear to have done nothing with the information.

Two other investigations followed, one by the Chicago Tribune and one commissioned by the Innocence Project. Both concurred with Hurst’s report. The five arson experts of the Innocence Project Arson Review Committee studied video footage of the fire damage, analyzed the trial testimony of the fire investigators and addressed each socalled arson indicator one by one. Indicators included evidence like “pour patterns” and “crazed glass.” They wrote: “Each and every one of the indicators relied upon have since been scientifically proven to be invalid.”

The forensic evidence had already been disproven when the Innocence Project submitted the case to the Texas Forensic Science Commission in 2006. The Innocence Project asked the commission to investigate both Willingham’s and Willis’ cases and to determine how one man could be executed and the other exonerated based on the same forensics. The commission, made up of prosecutors, defense attorneys, forensic scientists and legal analysts, has the unique ability to help ensure that the kind of outdated forensic analysis that led to Willingham’s wrongful conviction will no longer be accepted in courts and that other arson convictions in the state will be reviewed. When the commission accepted the case, advocates and scientists nationwide hoped that it would lead to stronger forensic standards and practices as well as more accountability in cases where outdated forensic evidence is used. They are still waiting. 

A Hasty Cover-Up


Craig Beyler, prominent fire scientist and chairman of the International Association of Fire Safety Science, was hired by the commission to conduct the Willingham and Willis investigation. Beyler released his report in August 2009 and was scheduled to present it to the commission in early October. Echoing the findings of the other arson experts, he wrote that the fire marshal who investigated the case “seems to be wholly without any realistic understanding of fires” and that the determination of arson lacked “rational reasoning.”

Two days before the scheduled presentation, Gov. Perry hastily replaced three members of the commission, including the chair. The new chair, Williamson County District Attorney John Bradley, an ally of the governor’s, immediately cancelled  the meeting and Dr. Beyler’s presentation. Since then, Bradley has steered the commission dangerously off-course, conducting meetings behind closed doors and making inflammatory statements about Willingham. In a statement that belied the commissioner’s objectivity, Bradley told the Associated Press: “Willingham is a guilty monster.”

Bradley created a four-member subcommittee, the “Willingham Investigation Panel,” to review the case. After months of delays, the commission finally met last summer to discuss the Investigation Panel’s recommendations for the case. Innocence Project Co-Director Barry Scheck and Policy Director Stephen Saloom attended the meeting with members of the Willingham family. In an apparent attempt to sweep the case under the rug, Bradley issued a draft report clearing fire investigators of any negligence or misconduct. However, the commission voted to reject the draft and continue its investigation. At issue are the more than 600 people incarcerated in Texas whose arson convictions may have been based on invalid science. The commission plans to renew discussion of the Willingham case on January 7, when it will finally hear from Beyler. The Innocence Project will attend. (UPDATE:

Read coverage of the January 7 meeting here

.)

Willingham’s Legacy


Once again, the commission has the opportunity to live up to its legislative intent and become a model for other independent science-based entities – both at the state and national level. One of the Innocence Project’s chief objectives is to facilitate the creation of a federal forensic science entity. A federal entity, as recommended by the National Academy of Sciences, could help ensure that forensic science practitioners (including fire investigators) are guided by science in their investigations, have the training and the resources they need, and that forensic standards are raised. Working together, state and federal agencies can bring scientific integrity to the forensic sciences. 

Opponents of the Willingham investigation reduce the case to a pro and anti-death penalty argument. But Willingham’s legacy has just as many implications for non-capital cases. For the more than 5,000 men and women currently incarcerated for arson  crimes nationwide, there is still time to learn from this mistake. Through over 250 DNA exonerations, the Innocence Project has demonstrated that proving one person’s innocence can lead to changes in the system that affect hundreds of lives. For Willingham, who seems to have been wrongfully executed in addition to being wrongfully convicted, the change that comes from his exoneration must be especially profound.