CRIMINAL JURISDICTION

Governor’s Sacking of Commission’s Head Stalls Review of Junk Science Convictions

By:  Houston Criminal Attorney John Floyd and Paralegal Billy Sinclair

The Texas Legislature created the Forensic Science Commission (“FSC”) in 2005 to investigate what the Texas Monthly called “scientific negligence and misconduct.” The legislature acted following the February 2004 execution of Cameron Todd Willingham and the October 2004 decision by Pecos County District Attorney Ori White to free Ernest Willis from capital murder charges. Willingham and Willis had both been convicted of capital murder and sentenced to death for murders they allegedly committed by setting fires to dwellings in which five people were killed—two women in Willis’ case and Willingham’s three young daughters. The forensic arson evidence used to convict both men was virtually identical. In fact, as Michael Hall wrote recently in Texas Monthly, these two condemned men had a lot in common:

“They were both country boys—Willis from New Mexico, Willingham from Oklahoma—who liked hunting, drinking, and carousing. Both were unemployed and living in small Texas towns when they were accused of setting fires that killed people (in Willingham’ case, his three small daughters in 1991). Both were convicted of capital murder on the basis of testimony of investigators who believed they had found evidence of arson. Both were sent to death row. Eventually both were vindicated by modern science, which determined that there was absolutely no evidence of arson in either case. The fires were almost certainly accidents.”

And both men were targeted as suspects by investigators because of their behavior immediately after the fires. According to neighbors who witnessed the Willingham fire, the father “crouched down” in his front yard and refused to make any effort to recuse his children despite pleas by the neighbors that he do so. Similarly, witnesses said Willis, who was high on pain killers and beer, looked distant as he impassively smoked cigarettes while watching the fire burn that killed the two women. This apparent lack of “proper” emotion and empathy for the people being burned alive was sufficient reason for investigators to manipulate the forensic evidence to change the fires from accidents into intentional acts of murder.

By 2003, time was running out for Willingham. In November of that year the U.S. Supreme Court rejected his final appeal. Desperate, the condemned man’s brother reached out to a highly respected Austin forensic arson expert named Gerald Hurst after reading an article about the Cambridge-educated chemist. The brother begged Hurst to examine the forensic evidence used to convict Willingham. The fire scientist agreed, and was astonished to discover the evidence used to convict Willingham almost certainly proved the fire had been an accident and not intentional arson/murder. Willingham’s court-appointed attorney notified Gov. Rick Perry about the Hurst findings three days before his client’s scheduled February 14 execution. He requested that the governor stay the execution of his client until the Hurst findings of innocence could be adequately developed. Gov. Perry did not respond to the stay request, so just 88 minutes before Willingham was actually executed the attorney faxed a copy of the Hurst report to the governor’s office. To this day it is not certain whether Gov. Perry even reviewed the Hurst report before allowing the execution to proceed as scheduled. (more…)