AUSTIN AMERICAN-STATESMAN STAFF
Friday, Oct. 28, 2011

A state investigation into the science used to convict and execute Cameron Todd Willingham came to a quiet close Friday, but its results might echo across the justice system and the nation’s death penalty debate for years to come.

Making final changes to its report on the Willingham case, the Texas Forensic Science Commission signed off on a document acknowledging that unreliable fire science played a role in the Corsicana man’s conviction for the murder-by-arson deaths of his three young daughters in 1991. He was executed in 2004.

Following commonly held beliefs now known to be wrong, arson investigators testified that the Willingham house fire was intentionally set using a liquid accelerant, the commission concluded.

Modern fire experts working for the commission and for the New York-based Innocence Project, which is representing Willingham posthumously, have determined that none of the more than 20 “arson indicators” identified by fire investigators in 1991 are reliable evidence of accelerant use. The cause of the fire should have been “undetermined,” the experts said.

Though the commission’s inquiry was never intended to weigh Willingham’s guilt or innocence, the findings have added fuel to the debate over capital punishment.

“The world should now know that the evidence relied upon to convict and execute Cameron Todd Willingham for the fire that killed his daughters was based on scientifically invalid and unreliable evidence,” said Stephen Saloom , policy director for the Innocence Project. “By any fair estimate, that indicates he was innocent, that he did not set that fire.”

Willingham’s prosecutors — and even his trial lawyer — still maintain he was guilty, pointing to a jailhouse informant who said Willingham confessed and to witnesses who said he did not appear to be distraught during or after the fire.

The science commission’s work also might have a long-term effect on the justice system.

The agency’s final report includes a commitment from the state fire marshal’s office — whose investigator was the chief prosecution witness at Willingham’s trial — to review old arson rulings to determine whether convictions were based on now-debunked assumptions.

The Innocence Project of Texas will provide most of the heavy lifting — about 40 forensic science and law students — to help the fire marshal identify and review old arson cases, said Jeff Blackburn, chief lawyer for the Texas nonprofit legal organization.

“I think this is a great opportunity,” Blackburn said during Friday’s commission meeting in Austin. “As far as I know, this is the only example of this kind of cooperation going on anywhere in the country.”

Saloom commended the commission for acknowledging that the scientific understanding of fire behavior has vastly improved over the past 20 years — and for listing now-debunked arson indicators in its final report. That action might ensure that unreliable science no longer taints arson investigations in Texas and could serve as a model for other states grappling with the issue, Saloom said.

Dr. Nizam Peerwani , the commission chairman, said it is important to understand that science is an ever-changing process.

Accredited crime labs, when presented with evidence that a result was invalid or mistaken, have a duty to inform prosecutors and judges. The commission’s findings are designed to lead fire investigators to adopt similar standards, he said.

Rick Perry has a running mate. His name is Todd Willingham.

Graphic by Patricia Turner for Texas Moratorium Network.

Charlie Baird is the judge who held a hearing last year on whether Todd Willingham was wrongfully executed. The hearing was stopped by a higher court before Judge Baird could rule. Now, Judge Baird is running for DA in Austin and he needs our help. Buy a ticket to this screening and you will be helping Charlie Baird raise funds for his race to become DA in Austin. At the screening, you will be able to meet the filmmakers Steve Mims and Joe Bailey Jr, plus Charlie Baird will be at the screening and reception.

We will deliver the signatures and comments on this petition to Texas Governor Rick Perry, who is running for president of the United States. A lot of people already signed and we delivered those signatures to Perry in 2009, but we wanted to repost it on the day that Rick Perry announces he is running for president so that more people can sign. It also allows you to leave a comment when you sign.

View Signatures.

(Note: If you navigate away from this page and return to it, the submit button may disappear, just reload the page if that happens and the submit button will re-appear.)

This petition was created and written by Texas Moratorium Network. If you have questions, call TMN at 512-961-6389. If you are shocked to learn that Texas has executed an innocent person, please attend the 12th Annual March to Abolish the Death Penalty on October 22, 2011 in Austin, Texas at the Capitol.

The Willinghams were in Austin in 2006 for the 7th Annual March to Stop Executions. The 12th Annual March to Abolish the Death Penalty is October 22, 2011 at the Texas Capitol in Austin. Sign a petition here to urge Rick Perry to acknowledge that the fire in the Cameron Todd Willingham case was not arson, therefore no crime was committed and on February 17, 2004, Texas wrongfully executed an innocent man.

Eugenia Willingham slipped the letter, along with a copy of an article from the Chicago Tribune that concluded that her stepson was probably innocent, through the bars of the front gate of the mansion and left it lying on the walkway leading to the front door of the mansion. A DPS trooper on duty refused to take the letter, so Eugenia left it on the walkway. According to a Public Information Request sent to Perry by Texas Moratorium Network, we know that his staff later retrieved the letter and delivered it to Perry’s office, however he never responded to Willingham’s family.

Below is a copy of the letter
The Honorable Rick Perry
Governor of Texas
Austin, Texas

October 28, 2006

Dear Governor Perry,

We are the family of Cameron Todd Willingham. Our names are Eugenia Willingham, Trina Willingham Quinton and Joshua Easley. Todd was an innocent person executed by Texas on February 17, 2004. We have come to Austin today from Ardmore, Oklahoma to stand outside the Texas Governor’s Mansion and attempt to deliver this letter to you in person, because we want to make sure that you know about Todd’s innocence and to urge you to stop executions in Texas and determine why innocent people are being executed in Texas.

Todd was not the only innocent person who has been executed in Texas. There have been reports in the media that Ruben Cantu and Carlos De Luna were also innocent people who were executed in Texas. It is too late to save Todd’s life or the lives of Ruben Cantu or Carlos De Luna, but it is not too late to save other innocent people from being executed. We are here today to urge you to be the leader that Texas needs in order to make sure that Texas never executes another innocent person. There is a crisis in Texas regarding the death penalty and we ask you to address the crisis. Because the public can no longer be certain that Texas is not executing innocent people, we urge you to stop all executions.

Strapped to a gurney in Texas’ death chamber, just moments from his execution for setting a fire that killed his three daughters, our son/uncle, Todd Willingham, declared his innocence one last time, saying “I am an innocent man, convicted of a crime I did not commit. I have been persecuted for 12 years for something I did not do.” Todd is now dead and can no longer speak for himself, so we have come to Austin to speak for him.

Before Todd’s execution, you were given a report from a prominent fire scientist questioning the conviction, but you did not stop the execution. The author of the report, Gerald Hurst, has said, “There’s nothing to suggest to any reasonable arson investigator that this was an arson fire. It was just a fire.”

Another report issued in 2006 by a panel of national arson experts brought together by the Innocence Project concluded that the fire that killed Todd’s three daughters was an accident. The report says that Todd’s case is very similar to the case of Ernest Willis, who was convicted of arson murder and sentenced to death in 1987. Willis served 17 years in prison before he was exonerated in 2004 – the same year Todd was executed. The report says that neither of the fires which Todd and Ernest Willis were convicted of setting were arson. The report notes that the evidence and forensic analysis in the Willingham and Willis cases “were the same,” and that “each and every one” of the forensic interpretations that state experts made in both men’s trials have been proven scientifically invalid. In other words, Todd was executed based on “junk science”.

Please look into our son/uncle’s case and ask the District Attorney in Corsicana to reopen the investigation into the crime for which my brother was wrongfully executed. You should also establish an Innocence Commission in the next session of the Texas Legislature that could investigate my brother’s case, as well as other cases of possible wrongful executions, such as Ruben Cantu and Carlos De Luna.

Please ensure that no other family suffers the tragedy of seeing one of their loved ones wrongfully executed. Please enact a moratorium on executions and create a special blue ribbon commission to study the administration of the death penalty in Texas. Texas also needs a statewide Office of Public Defenders for Capital Cases. Such an office will go a long way towards preventing innocent people from being executed. A moratorium will ensure that no other innocent people are executed while the system is being studied and reforms implemented.

We look forward to hearing from you and we pledge to work with you to ensure that executions of innocent people are stopped.

Yours sincerely,

Eugenia Willingham
Stepmother of Cameron Todd Willingham who raised him from the age of 13 months

Trina Willingham Quinton
Niece of Cameron Todd Willingham

Joshua Easley
Nephew of Cameron Todd Willingham

The AP is reporting that Texas Governor Rick Perry is running for president of the United States. Perry will be the only person ever to run for president with a record of 234 executions and counting, including the wrongful execution of Todd Willingham and subsequent misuse of gubernatorial power to impede the investigation of a government agency into the case of Willingham.

From the LA Times:

Texas Gov. Rick Perry may want to run for president. So let me reintroduce you a former constituent of his, Cameron Todd Willingham

Perry, who may soon announce his presidential bid, oversaw the 2004 execution of Willingham, a father of three convicted for the apparent arson murder of his young daughters. Problem was, the evidence used to prove Willingham set the fire that killed his children was based on shoddy science and obsolete investigation techniques, facts that were brought to Perry’s attention before Willingham’s death. Declaring his innocence to the end, Willingham was executed 12 years after his children’s deaths.

The New Yorker published a lengthy piece in 2009 detailing the whole affair, a depressing portrayal of a government more interested in self-preservation than in serving justice. Most chilling was the Texas justice system’s seeming indifference to condemned killers the moment they land on death row. Here’s a disturbing excerpt:

The Texas Court of Criminal Appeals was known for upholding convictions even when overwhelming exculpatory evidence came to light. In 1997, DNA testing proved that sperm collected from a rape victim did not match Roy Criner, who had been sentenced to ninety-nine years for the crime. Two lower courts recommended that the verdict be overturned, but the Court of Criminal Appeals upheld it, arguing that Criner might have worn a condom or might not have ejaculated. Sharon Keller, who is now the presiding judge on the court, stated in a majority opinion, “The new evidence does not establish innocence.” In 2000, George W. Bush pardoned Criner. (Keller was recently charged with judicial misconduct, for refusing to keep open past five o’clock a clerk’s office in order to allow a last-minute petition from a man who was executed later that night.)

On October 31, 1997, the Court of Criminal Appeals denied Willingham’s writ.

Another one:

Without having visited the fire scene, [fire investigator Dr. Gerald Hurstor] says, it was impossible to pinpoint the cause of the blaze. But, based on the evidence, he had little doubt that it was an accidental fire — one caused most likely by the space heater or faulty electrical wiring. It explained why there had never been a motive for the crime. Hurst concluded that there was no evidence of arson, and that a man who had already lost his three children and spent twelve years in jail was about to be executed based on “junk science.” Hurst wrote his report in such a rush that he didn’t pause to fix the typos….

Hurst’s findings had helped to exonerate more than ten people. Hurst even reviewed the scientific evidence against Willingham’s friend Ernest Willis, who had been on death row for the strikingly similar arson charge. Hurst says, “It was like I was looking at the same case. Just change the names.” In his report on the Willis case, Hurst concluded that not “a single item of physical evidence . . . supports a finding of arson.” A second fire expert hired by Ori White, the new district attorney in Willis’s district, concurred. After seventeen years on death row, Willis was set free. “I don’t turn killers loose,” White said at the time. “If Willis was guilty, I’d be retrying him right now. And I’d use Hurst as my witness. He’s a brilliant scientist.” White noted how close the system had come to murdering an innocent man. “He did not get executed, and I thank God for that,” he said.On February 13th, four days before Willingham was scheduled to be executed, he got a call from Reaves, his attorney. Reaves told him that the fifteen members of the Board of Pardons and Paroles, which reviews an application for clemency and had been sent Hurst’s report, had made their decision.

“What is it?” Willingham asked.

“I’m sorry,” Reaves said. “They denied your petition.”

Perry denied Willingham a stay of execution, an action that may have been forgivable in retrospect had the governor expressed a sincere desire to review the facts of the case given the overwhelming post-execution evidence that Texas made an irreversible mistake. On the contrary, Perry frustrated an investigation by the Texas Forensic Science Commission, replacing three of its members days before the board was set to discuss a report that cast serious doubt on the evidence used to send Willingham to the lethal injection gurney. The meeting was canceled.

The Times wrote two editorialsexpressing dismay Willingham’s execution and Perry’s obstruction of the investigation. Still, the case faded from the national discussion and Perry went on in 2010 to win his third full term as governor.

Texas executes far more people than any other state, so it’s understandable that Lone Star State Republicans would give their governor a pass. But a Perry candidacy might prod conservatives in less execution-friendly states (such as, say, New Hampshire, which last knotted a noose in 1939) to answer for his apparent indifference to profound injustice.

Texas let Perry off the hook; the rest of the nation may not be so forgiving.

 

I was heartened to see the hard work of the Commissioners in pushing through a report on the Willis/Willingham case this week.  The report is forward looking, as it should be.  It does appear to establish that the science which was largely the basis of Todd Willingham’s conviction was flawed.  We will never know if Willingham was innocent or guilty.  However, one thing is certain – much of the “expert” testimony used to convict him was not based upon sound scientific principles.  It is clear that the evolution of fire science showed this to be true well before the date of Willingham’s execution.   The Commission is correct to recommend that forensic entities (such as the State Fire Marshal’s Office) must take measures to inform and correct in cases where science evolves and/or changes.  It is clear that the State Fire Marshal’s Office should have done more to keep pace with science and inform fire investigators throughout Texas once NFPA 921 was published.  If they had done so, perhaps Mr. Willingham would have had a new trial at which the jury would have had the benefit of an investigation based upon good science.  Instead, those who could have done something to shed scientific light on the case did nothing and Mr. Willingham was executed.

I am hopeful that the Commission will proceed to the final inquiry in the case – whether or not fire investigators and/or law enforcement committed professional negligence or misconduct during the course of the case.  Only recently, the Commission has chosen to seek the opinion of the Attorney General of the State of Texas on the issue of the jurisdiction of the Commission.  It is interesting to me that the jurisdiction question is being raised at this late juncture, at a time when the Commission appears to be seriously considering a finding of professional negligence or misconduct.   The jurisdictional question was considered when I was Presiding Officer and the Commission.  At that time, Commissioner Alan Levy (a prosecutor) and myself both believed the Commission was within its jurisdiction to investigate the Willingham case.  Now, it seems the question is in the hands of an elected official (The Attorney General) and I remain concerned that politics, rather than science, will influence the decision.

The Commission’s journey to this point was not easy.  If you recall, the complaint was originally filed in 2006.  At that time the Commission had no funding.  In 2008, after the Commission was funded, the Commission voted unanimously to proceed with the investigation.  It has taken almost three (3) years to reach this point.  To me, that is not acceptable to most Texans, myself included.  I hope that future investigations of this importance are not delayed in this fashion.  The level of controversy that an investigation might cause should not be a criteria for advancing the cause of forensic science in Texas.  My hope is that the Commission will grow to be more science oriented as a result of the Willingham investigation.  The persistence of scientists on the commission in 2010 and 2011 is what brought us to the point where we are today.  I thank them for their hard work.

There is a public comment period on the agenda for this meeting right before the discussion on the Todd Willingham report.