Texas Forensic Science Commission Concludes Flawed Science Used In Trial That Led To Conviction and Execution
By: Houston Criminal Attorney John Floyd and Paralegal Billy Sinclair
It was December 1991 in Corsicana, Texas. Cameron Todd Willingham was alone in his residence with his three small children—Amber 2, and one-year-old twins, Karmon and Kameron. A fire broke out in the residence. Willingham managed to escape the fire. The three children did not, dying a horrible death trapped in the flames that quickly engulfed the residence. Willingham was immediately targeted as a suspect for arson murder.
He was indicted on January 8, 1992. After turning down an opportunity to plead guilty for a life sentence, he was tried, convicted, and sentenced to death in August 1992. He was executed on February 17, 2004, angrily telling all those present that he was an innocent man. The political and media fallout from Willingham’s execution began before his remains were laid to rest. The case’s controversial history can be found on Billy Sinclair’s blog. But essentially Willingham was convicted and executed because state officials involved in the case—and with a lot of help from the condemned inmate himself—successfully portrayed him as a “monster” throughout the trial and execution process. The basis for this portrait was:
- According to neighbors who witnessed the fire at the Willingham residence, he “crouched down” in his front yard and refused to make any effort to rescue his children from the fire despite repeated pleas by neighbors for him to do so. These statements, of course, influenced arson investigators at the scene of the fire to conclude Willingham must have had something to do with the fire.
- When the fire blew out the windows of the house, Willingham reported hollered out concern about his car which was parked close to the residence. Witnesses said he jumped up, ran toward it, and moved it away from the house so it would not be damaged by the fire.
- Willingham did not express any grief over the loss of his children at the fire scene or at the hospital after the fire.
- Willingham reportedly expressed upset to firefighters at the scene that his dart board had been lost in the fire.
- The morning after the fire, which was Christmas Eve, Willingham and his wife went to their burnt out house and were seen by neighbors laughing as they pored through the debris with loud music blaring from their nearby vehicle.
- A neighbor testified that Willingham had once beaten his pregnant wife in an effort to induce an abortion, but his wife testified at the trial and disputed the neighbor’s claim by saying Willingham had never beaten her, much less when she was pregnant.
- Another witness said he once saw Willingham slap his wife, but Willingham’s wife denied the incident ever happened.
- Willingham reportedly bragged to a friend that he once brutally killed a dog.
- Willingham reportedly told a “jailhouse snitch” that he killed his children to cover up evidence of abuse. Willingham’s wife, however, testified that her husband never abused the children.
- Dr. James Grigson, a prosecution “expert,” testified at Willingham’s trial, telling the jury that Willingham was a violent sociopath who did not have a conscience and had no regard for other people’s property or for other human beings (even though there was nothing in Willingham’s criminal history to support this violent assessment).
- In April 1986 Willingham was arrested for carrying a concealed weapon and public intoxication. He was sentenced to four days in the county jail, and ordered to pay a fine and court costs.
- In May 1986 Willingham was arrested for second degree burglary. He was placed on probation and assigned to a Non-Violent Intermediate Offender Act.
- In May 1986 Willingham was again arrested: this time for entering a building with unlawful intent and contributing to the delinquency of a minor (supplying paint to a 12-year-old to sniff). He was sentenced to 15 days in the county jail, ordered to pay restitution, and placed on probation for six months.
- In November 1986 Willingham was arrested for contributing to the delinquency of a minor (supplying paint to a 12-year-old and an 11-year-old to sniff). He was sentenced to 60 days in the county jail.
- In April 1987 Willingham was arrested for grand larceny. He was sentenced to 60 days in the county jail and placed on two years probation.
- In November 1988 Willingham was arrested for driving under the influence of drugs (sniffing paint). He was sentenced to one year probation on the condition that he would check into an in-patient rehabilitation program for paint abuse.
- In February 1989 Willingham was arrested for shoplifting. His probations for the previous 1987 grand larceny and 1988 DUI convictions were revoked and he was placed in a special boot camp program, given a 2-year sentence with all but 74 days suspended on the conditions that 1) he complete a substance abuse program, 2) attend AA once a week, and 3) undergo urinalysis every week and a half.
The catalyst for Willingham’s case becoming an international cause against the Texas death penalty system was a report issued by a prominent Austin fire scientist named Gerald Hurst just days before the condemned inmate’s 2004 execution. The Hurst report concluded that there was no real evidence of arson against Willingham; that the investigative procedures and evidence upon which state fire investigators had based their arson conclusions were nothing more than “junk science.” The Hurst report cited new standards for arson investigations put into place in February 1992 which, if had been utilized in the Willingham case, would have concluded there was no criminal wrongdoing involved in the fire that sent him to the Texas death chamber.
The Hurst report was in the office of Gov. Rick Perry on the day of Willingham’s execution. The Governor’s Office has never acknowledged whether Perry read or even saw the report before making his final decision to let Willingham’s execution proceed.
While the Hurst report may not have drawn the attention of Gov. Perry, it certainly got the attention in 2004 of the New York-based Innocence Project and the Chicago Tribune who hired a nationally known fire scientists to re-examine the evidence, as well as the trial transcript, in the Willingham case to determine if an innocent man had been wrongfully executed. All of these experts concluded essentially the same thing as Gerald Hurst: that Cameron Todd Willingham had been convicted and executed based on flawed forensic evidence.
In 2007 the Innocence Project requested that the newly-created Texas Forensic Science Commission investigate the Willingham case. Nearly two years later, in January 2009, the Commission hired the nation’s leading fire scientist, a Maryland expert named Craig Beyler, to thoroughly investigate the arson evidence upon which the State of Texas had utilized to execute what many had come to believe was an innocent man. In August 2009 Beyler issued a report that concluded the State of Texas had probably executed an innocent man, or, at the very least, sent a man to his death on seriously flawed arson evidence.
The Science Commission, through its chairman, Austin attorney Sam Bassett, set October 2, 2009 as the date it would publicly air the Beyler report and hear testimony from the fire scientist and others connected with the Willingham case. But Gov. Perry had other ideas. On September 30 he abruptly removed Chairman Bassett and two other members from the Commission and appointed Williamson County District Attorney John Bradley as its new chairman. This blatant political maneuver drew state and national media criticism, including our own. We not only felt that the Governor was trying to impede the Commission’s inquiry to keep embarrassing facts from being revealed about his personal involvement in the case but also because the Governor had replaced Bassett with a district attorney who is a staunch supporter of the death penalty and who could not possibly be an objective chairman. And we have expressed a continuing belief that the Commission lacks credibility because of the Bradley appointment.
Nothing since the Bradley appointment altered our point of view. We still believe Gov. Perry has consistently tried to control and dictate the Commission’s inquiry into the Willingham case for purely political reasons; that the Governor is determined to do everything in his power to make sure that no “smoking gun” evidence is ever disclosed that an innocent man was executed under his watch. DA Bradley is the governor’s point man on the Commission who has the same objective: stifle and thwart any legitimate effort to determine if Cameron Todd Willingham was innocent and, therefore, wrongfully executed. This was made clear in a Houston Chronicle column, “Science Defeats DA 8-0” (Sun. July 25, 2010), in which columnist Rick Casey wrote:
“The battle was for the scientific soul of the commission. Chairman and Williamson County District Attorney John Bradley had distributed a ‘memorandum on jurisdiction’ that concluded the Legislature authorized the [Texas Forensic Science] commission to investigate complaints involving crime labs accredited by the Department of Public Safety.
“This would exclude the controversial case of Cameron Todd Willingham, who was executed for the arson murder of his [three] young children based on allegedly bad science.
“In other words, Bradley was asking members of the commission, seven of whom are scientists to give up most of their power to investigate the questionable use of police science in Texas.”
We have blogged consistently about the dangers and pitfalls in criminal trials in the State of Texas because of what has become known as “junk science” (here, here and here). The recent action taken by the Texas Forensic Science Commission (July 23, 2010) only reaffirms these concerns. While the Commission said that arson investigators used “flawed science” in the Willingham case, there was “insufficient evidence” to conclude that state Deputy Fire Marshal Manuel Vasquez and Corsicana Assistant Fire Chief Douglas Fogg were either negligent or engaged in of any misconduct in the case. The four-member panel that reached this conclusion was headed by none other than Chairman Bradley.
While the Commission was not charged with the specific task of determining whether the State of Texas had wrongfully executed Willingham, it was evident that this was the “pink elephant” in the hearing room and it caused serious tension between Bradley and the Innocence Project whom the district attorney has repeatedly criticized as “outsiders.” The Houston Chronicle reported that at one point during the July 23rd hearing a “heated exchange” erupted between Innocence Project co-founder Barry Scheck and Bradley over the chairman’s refusal to yield the floor. The point of dispute between the two men was Scheck’s contention that state arson experts should have been aware of the “new standards” issued by the National Fire Prevention Association in February 1992—some six months before they testified at Willingham’s trial—and shared this information with prosecutors.
“It’s alarming that they’ve missed the point of our allegations,” Innocence Project policy director Stephen Saloom was quoted by the Chronicle. “The state fire marshal’s office had a continuing duty to inform prosecutors, the court, pardons and paroles or the governor of the unreliability of the cold evidence.”
Apparently the Commission’s finding that “flawed science” was utilized and was the root cause of Willingham’s conviction was enough to satisfy his mother, Eugenia Willingham, and cousin, Patricia Cox. “We’re cautiously optimistic,” Cox was quoted by the Chronicle. “We’re Todd’s voice after death. We’re going to exonerate him. We’re not going away.” His mother added: “His [Willingham] wish was that we clear his name. He was innocent and prosecuted for something he didn’t do … I hope that somewhere or other he saw what happened today.”
The Willingham family has gotten about all they will ever get from the State of Texas—a belated admission that the condemned inmate’s execution was based on “flawed science.” But that is a “far cry” from an admission that he was innocent and wrongfully executed. And as long as Rick Perry is governor of the State of Texas and as John Bradley is chairman of the Texas Forensic Science Commission, there will never be an official admission of a wrongful execution.
The fact Willingham was convicted—and, yes, ultimately executed—based on “flawed science” is not enough to indisputably conclude he was “innocent.” Certainly we believe that there was misconduct, either by arson investigators or prosecutors (or perhaps both), because information about the new arson investigation techniques was not revealed to the jury that convicted Willingham. That should have been enough to warrant a new trial for Willingham, but it wasn’t. For whatever reason, he was put to death without the issue ever being truly vetted by either state or federal courts. DNA evidence can generally bring about a firm exoneration conclusion. But that’s not always the case with “bad forensics” which can often prove a criminal defendant was improperly convicted but not provide sufficient evidence to conclude that he was wrongfully convicted; in other words, that he/she is actually innocent. That’s where the Willingham case lies—in that legal chasm between improper and wrongful conviction.
We know he was improperly convicted and executed, but, without more, we cannot say with certainty that Cameron Todd Willingham was wrongfully convicted and executed. Right now we are left with nothing but an empty gut belief that the State of Texas did execute an innocent man when it put Willingham to death—just as we believe the state has probably executed as many as six other innocent condemned inmates. But, in the final analysis, beliefs only fuel a debate; they do not resolve it.
By: Houston Criminal Lawyer John Floyd and Paralegal Billy Sinclair